Hegel's Critique of Liberal Theories of Rights Author(s): Peter G. Stillman Source: The American Political Science Review, Vol.

68, No. 3 (Sep., 1974), pp. 1086-1092 Published by: American Political Science Association Stable URL: http://www.jstor.org/stable/1959149 . Accessed: 22/07/2011 02:07
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at . http://www.jstor.org/action/showPublisher?publisherCode=apsa. . Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

American Political Science Association is collaborating with JSTOR to digitize, preserve and extend access to The American Political Science Review.

http://www.jstor.org

Hegel's Critique of Liberal Theories of Rights*

PETER G. STILLMAN
Vassar College In "Abstract Right," the first part of the Philosophy of Rig/t, Hegel develops the rights of the person to life, liberty, and property; his right to self-defense; and his right to the wide-ranging exercise of his arbitrary freedom or free self-dein abstract rights termination. Furthermore, Hegel finds the bases for what is made concrete in civil society: a capitalistic economic order ("the system of needs") and a liberal administration of justice public, egalitarian, and characterized by in "Civil due process. In "Abstract Right"-and Society," where the concrete manifestations of abstract rights are discussed-Hegel holds, in their fullness, the central liberal positions.1 The Critique of the Content of Rights But "Abstract Right" contains, usually implicitly, a critique of much liberal theory. Hegel's critique falls into two distinct categories. One major category of Hegel's critique has to do with the content of abstract rights or, as much liberal theory calls them, natural rights. Unlike most liberals, Hegel does not treat the state immediately after the discussion of the rights of man; rather, he takes a long route through morality, the family, and civil society-before he comes to the state. Both Hegel and Locke, for instance, explain the rights of men, and then turn to a consideration of punishment. Hegel next examines morality,2 and then the family3 and civil society,4 before he
I should like to thank Thomas L. Pangle and P. Gordon B. Stillman for their helpful comments on earlier drafts of this article. ' The best discussion of the part "Abstract Right" is Joachim Ritter, "Person und Eigentum," in his Metaphysik und Politik (Frankfurt am Main: Suhrkamp, 1969) and (in French) as "Personne et Propri&t6 selon Hegel," in Archives de Philosophie, 31, no. 2 (Apr.-June, 1967), 179-201. Ritter does not deal with the section on wrong and its annulment, for which see my "Hegel's Idea of Punishment,"

finally gets to the state.5 Locke, on the other hand, proceeds quickly to a discussion of the state.6 Thus, Locke jumps from the natural man with his arbitrary will to the civil state which makes laws but otherwise lets man's arbitrary will have full play.7 In other words, Locke generally assumes (or ignores) all those institutions and ways by which the natural man (or the natural child) becomes a civilized man capable of functioning well in the civil society of the Second Treatise." But Hegel is surely correct in his argument that men plucked from the state of nature would not be able to maintain or govern a Lockean state.9 In On Liberty, usually considered the classic defense of arbitrary freedom or individual freedom from social and political control, Mill is explicit in assuming-and then ignoring-the institutions and attitudes which make men civilized. On Liberty simply applies to the few advanced European countries where civilization can be assumed; other countries are lucky if they are ruled by a Charlemagne or the East India Company.10 of Government, revised edition, ed. Peter Laslett (New York: Mentor Books, 1963), Second Treatise, secs. 4-22. (Hereafter cited as Second Treatise.) See also Thomas Hobbes, Leviathan, intro. Richard S. Peters (New York: Collier Books, 1962), Part I, esp. chap. 14 and Part II, esp. chap. 17. 7 Locke, Second Treatise, sec. 22. Interpretations of Locke on the question of freedom are numerous; the interpretation given is a literal-some would say superficial-one, in which the only "development" that the individual's freedom undergoes as the individual matures is to become sophisticated arbitrary freedom-for Locke's rationality is that of the "Industrious and Rational" (sec. 34) in the sense of economic rationality, where the arbitrary free will is calculating enough to postpone an immediate satisfaction in order to obtain a larger future satisfaction. See also Adam Smith's praise of "natural liberty" in The Wealth of Nations, ed. Edwin Cannan (London: University Paperbacks, Methuen, 1904; reprint ed., 1961), 1, 157, 344; II, 37-38, 208. 'The, case is similar for Hobbes, who excludes education from the text proper of Leviathan, relegating it to the "Review, and Conclusion," pp. 503511. 9See esp. G. W. F. Hegel, Philosophy of Mind, trans. William Wallace (Oxford: Clarendon Press, 1894), sec. 502R, and, specifically in reference to Hobbes, G. W. F. Hegel, Lectures on the History of Philosophy, trans. E. S. Haldane and Frances H. Simson (London: Routledge & Kegan Paul, 1896; reprint ed., 1955), II, 317-319. 10John Stuart Mill, On Liberty (New York: Library of Liberal Arts, 1956), chap. I, p. 14. In fairness to Mill and in the interests of accuracy,, it must be noted that his other works consider morality,
5 Ibid., secs. 260-329. 6 John Locke, Two Treatises

Journal of the History of Philosophy (forthcoming,

1975).
2

G. W. F. Hegel, The Philosophy of Right, trans.

T. M. Knox (Oxford: Clarendon Press, 1942; corrected ed., 1945), secs. 105-140. In citations to the Philosophy of Right, where the material cited is from the main text of the section, the section number alone is given; where it is from the "remarks" Hegel added to the text, the section number is followed by "R"; where it is from the "additions" which later editors appended to posthumous editions by collating student lecture notes, the section number is followed by "A." 3Ibid., secs. 158-181. 'Ibid., secs. 182-256.

1086

1974

Hegel's Critique of Liberal Theories of Rights

1087

Hegel, on the other hand, spends much-it might be said, all-of the Philosophy of Right dealing not only with the political order and arbitrary freedom, but also with those various attitudes (like morality) and those various institutions (like the family and the pluralistic group") by which men become fully developed men who have freedom, culture, and individuality, men who can give reasoned consent to a reasonable political order, men who are mature enough to be able to exercise their freedom. At the level of formal rights, then, for Hegel there is implicitly a serious defect, of narrowness; abstract rights alone cannot form the basis for the state; more is needed, and the sections between "Abstract Right" and the "State" describe those attitudes and institutions not explicitly present in abstract rights. For Hegel, a basic inadequacy of abstract rights, and the reason for their narrowness, is to be found in the definition of the person. A theory of rights does not deal with man; it deals with a mere abstraction from man: the person, who is defined essentially in terms of his arbitrary free will and thus his capacity for rights.12 Consequently, for the person, morality is irrelevant; persons may do whatever they have a right to do, regardless of morality. Indeed, not only morality, but also a whole range of human concerns-about social relations, human feelings,13culture, welfare, and individual development-are excluded from rights. Therefore, the person exercising his rights is not an especially attractive human, at least for Hegel: To have no interestexceptin one's formalrightmay be pure obstinacy, often a fitting accompanimentof a cold heart and restrictedsympathies.It is uncultured people who insist most on their rights, while noble minds look on other aspects of the thing.14 Similarly, for Hegel the contractual relation is not the only legitimate human relation; yet the person. as the subject of rights, can only exercise
the family, the economic order, and the state (the topics of the Philosophy of Right); only by abstracting On Liberty from Mill's total work can he be considered a pure defender of arbitrary freedom or "freedom from." This illegitimate abstraction has been made by some contemporary defenders of "freedom from"; for an effective, indeed devastating criticism of their position, see the excellent but overlooked article by R. N. Berki, "Political Freedom and Hegelian Metaphysics," Political Studies, 16, no. 3 (Sept., 1968), 365-383. "Hegel, Philosophy of Right, secs. 255 and 255R. 12 Ibid., secs. 35-59. 13 Hegel's handwritten marginal note [Randbemerkung] to sec. 126 in his own copy of G. W. F. Hegel, Grundlinien der Philosophie des Rechts, fourth edition, ed. Johannes Hoffmeister (Hamburg: Felix Meiner, 1955), p. 393. 14Hegel, Philosophy of Right, sec. 37A.

his rights and can only relate to others by contract.'5 Hegel insists that neither marriage nor the state can be a contract, in part because of the strict definition of contract: its object must be "a single external thing."' Thus, for Hegel marriage and the state are areas of life in which contract and its concomitants-like the Versachlichung (literally translated, "thingification") of human relations'7 and the political theory of possessive individualism"-do not prevail, where feeling and community may have scope, and where human, not merely personal, characteristics exist.'9 The person is but an abstract and narrow man; and the attenuation carries over into many areas. For instance, persons are not individuals with distinctive individual traits which set them apart from each other and give them individual value; persons are not individuated. One person differs from another simply because of external differences: color of hair, height, birthplace, impressions on his tabula rasa mind-in short, differences over which the person has no control and which are basically the products of nature or chance.20 Consequently, the resultant differentiation among persons is one of eccentricity2l and idiosyncrasy rather than of substance. For fully developed men in society, there are substantial differentiations-of class and occupation, for instance. While persons can only be eccentrics, men in society are individuals. Further, even in regard to the free will, that important area which the person shares with the man, the person is limited. For the person is, in an important sense, not free, even though he has
15Thus, most legitimate human relations not based on passions (like the "concord of natural lust") are contract relations in Hobbes's Leviathan and Locke's Second Treatise. Even the relation of parent and child is a contract; see Hobbes, Leviathan, chap. 20, p. 152. 16 Hegel, Philosophy of Right, sec. 75. 17 Ibid., sec. 40; Ritter, "Person und Eigentum," sec. 7; and, among others, Karl Marx, The Manifesto of the Communist Party (New York: Monthly Review Press, 1968), Part I, pp. 5-6, and Edmund Burke, Reflections on the Revolution in France (New York: Library of Liberal Arts, 1955), p. 86. "~ See C. B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962). 19 Hegel's distinction here, between contractual areas of life (like civil society [die burgerliche Gesellschaft]) and noncontractual or communal areas of life, is the precursor of, among others, Ferdinand Tdnnies, Community and Society [Gemeinschaft und Gesellschaft], trans. and ed. Charles P. Loomis (New York: Harper & Row, 1957). 20 See G. R. G. Mure, "Foreword," in Frederick G. Weiss, Hegel's Critique of Aristotle's Philosophy of Mind (The Hague: Martinus Nijhoff, 1969), pp. xiii-xiv. 21 Thus, J. S. Mill warns, "that so few now dare to be eccentric marks the chief danger of the time" (Mill, On Liberty, chap. III, p. 82).

1088

The American Political Science Review

Vol. 68

formal rights and formal freedom. He has only an "arbitrary will"; it wills whatever it wants, but its contents, from which it chooses, are given. If you stop at the considerationthat, having an arbitrary will, a man can will this or that, then of course his freedom consists in that ability. But if you keep firmlyin view that the content of his willing is a given one, then he is determinedtherebyand in that respect at all events is free no longer.22 The arbitrary will is able to choose among impulses, desires, passions, and the like; but the passions or impulses among which it chooses are a content over which it has no control. The Hegelian arbitrary will is thus quite similar to freedom as conceptualized by many liberals, like Locke and Hobbes. For them,23freedom and determination are compatible; as long as the individual has self-determination, it does not matter that the content of his choice is given. Locke agrees with Hobbes's reasoning that
liberty and necessity are consistent . .. in the actions

which men voluntarily do: which, because they proceed from their will, proceed from liberty; and yet, because every act of man's will, and every desire,and from some cause, and that from inclinationproceedeth another cause, in a continual chain, whose first link is the hand of God the firstof all causes, proceedfrom
necessity.24

Locke also concurs in Hobbes's further argument that fear and liberty are consistent; as when a man throwethhis goods into the sea forfear the ship should sink, he doth it neverthelessvery willingly, and may refuse to do it if he will: it is thereforethe action of one that wasfree.25 For Hegel, the self-determination of the arbitrary will is an essential element of freedom; but this freedom of the person is only one element in the full definition of freedom. Another element, for instance, is control over the contents of the choice, both in the sense that the contents be at least in part determined by the individual and not by an alien causal chain and in the sense that at least one of the choices be an alternative that is desirable and rational under any circumstances.
Philosophy of Right, sec. 15A. others, James Mill agrees with Hobbes and Locke; see John Stuart Mill, Autobiography Press, 1924), p. 91. Oxford University (London: J. S. Mill poses the dichotomy that allows for the and freedom (or social) of political coexistence at the beginning of On determinism philosophical Liberty; see Mill, On Liberty, chap. I, p. 3. 24 Hobbes, Leviathan, chap. 21, p. 160; see also John Locke, An Essay Concerning Human Understanding (New York: Dover, 1894; reprint ed., 1959), Book It, chap. 21, esp. secs. 14, 27, and 29. Leviathan, chap. 21, pp. 159-160; see v Hobbes, also Locke, An Essay Concerning Human Understanding, Book II, chaps. 21 and 27.
22

(Thus, while Hobbes and other liberals see liberty as consistent with both fear and a restricted choice, Hegel regards a choice among unappealing alternatives as only limited freedom.2" It is not true freedom, Hegel thinks, for a traveler to have to choose between losing his goods and death by water, for a subject to have to choose between living under an oppressive tyranny and a flight that would lose him his family and property, or for Hobbes to be given the choice, in England during the Civil War, only of fighting for the Roundheads or fighting for the Cavaliers-and not allowed the alternatives of flight or peace suitable for a man "born twins" with fear" and desirous of civil order.) The person of abstract rights, like the man of natural rights, has freedom in the sense of the arbitrary will or of self-determination; but the content of his choice is given, and thus in significant ways he is not free. Like the will's freedom, political freedom is defined as severely limited by those theorists who proceed from natural rights directly to the state. When the state is built solely on formal rights and natural or abstract men, political obligation is based on a consent., given long ago or sometimes given only tacitly.28And obedience to specific laws is based, not on the validity or the rightness of the law, but on prudential considerations of the potential penalities for disobedience.29 On the other hand, where the laws do not reach, the citizen can do anything, and can follow his natural impulses and arbitrary will wherever they lead him.30In the state based on the formal rights of natural or abstract men, who exercise tacit consent, prudential obedience, and full arbitrary freedom outside the law, the citizen has little scope for moral decisions and for questions of rightness, and little area in which he must or can develop or educate himself; the education that does occur is either education that makes the citizen more "Industrious and Rational," i.e., more eager to work and better able to calculate, than he was, or education that is peripheral to life's central concerns.31 In
26 Hegel here agrees with Aristotle; see Aristotle Nicomachean Ethics 3. 27 Of himself Hobbes wrote, "Fear and I were born twins" (quoted in Peters, "Introduction," in Hobbes, Leviathan, p. 7). Treatise, secs. 73, 98, 117, 2S See Locke, Second and 119; Hobbes, Leviathan, chap. 18, p. 136. 192; 29 See, e.g., Hobbes, Leviathan, chap. 17, p. Elie Halkvy, The Growth of Philosophic Radicalism (Boston: Beacon Press, 1955), esp. pp. 487-488. 30 Hobbes, Leviathan, chap. 30, pp. 255-256; Locke, Second Treatise, secs. 22 and 57. For education in such characteristics and traits as virtue, liberality, and steadfastness is, in a sense, external to the essential and logical structure of the Leviathan, and therefore is described, not in the text proper of the Leviathan, but in the appended dedicatory and concluding material; see Hobbes,
31

Hegel,

23AAmong

1974

Hegel's Critique of Liberal Theories of Rights

1089

general, political freedom-in the sense of making responsible choices and of having an environment in which the citizen must or will wish to improve and educate himself-is simply narrow in scope.2 Even in theory, political freedom is thus limited and meager in states built on the abstract or natural man and his rights. In historical practice, however, political conditions based on the arbitrary or self-determining wills of abstractly equal persons can produce terrifying results, as was demonstrated by the French Revolution, which aimed at full liberty and equality but produced the Reign of Terror. For arbitrary freedom in political practice is the desire to reduce all limitations on itself to nought, to be fully self-determining." In society, unlimited self-determination faces institutions and social differentiations that provide frameworks and modes for choice. But absolute freedom feels such guides as limits; it desires and acts to eliminate them; and the eventual result of its action is "the destruction of the whole subsisting social order" :34 In this absolute freedom all social ranks or classes, which are the component spiritualfactors into which the whole is differentiated, are effaced and annulled; the individual consciousness that belonged to any such group and exercised its will and found its fulfillmentthere, has removedthe barriersconfining it." With the attempt to realize absolute freedom comes the terror of destruction of the social order. The demand for absolute freedom and the social destruction accompanying its attempted actualization are concurrent with the demand for absolute equality. Absolute equality is as ferocious as absolute freedom; from the removing of all social barriers and the attempted establishing of absolute equality follows "the elimination of individuals who are objects of suspicion to any social order, and the annihilation of any organization which tries to rise again from the ruins."3"Absolute equality assumes that equality is defined as complete sameness and complete undifferentiation; to absolute equality, any difference, any quirk, any distinction implies inequality and must
Leviathan, "Dedicatory Epistle," p. 5, and "Review, and Conclusion," pp. 503-511; see also Locke, Second Treatise, esp. secs. 34 and 64. " The denigration of consent and obligation, and the limiting of the scope of political freedom, form two basic elements of the depoliticization inherent in much liberalism; see Sheldon S. Wolin, Politics and Vision (Boston: Little, Brown, 1960), chaps. 9 and 10. "Hegel, Philosophy of Right, sec. 5R. 3 Ibid., sec. SR. ' G. W. F. Hegel, Phenomnenology of Mind, trans. J. B. Baillie (New York: Harper Torchbooks, Harper & Row, 1910; reprint ed., 1967), pp. 601-602. 36 Ibid., pp. 605-606, and Hegel, Philosophy of Right, secs. SR and 5A.

be eliminated. Since any organization or institution implies difference and distinction, no institutions-not even government-are permitted by absolute equality.7 Everyone must be the same and have the same will: this dictum of absolute equality the government tries to enforce, by executing those who are different, even if they are different only because someone suspects them of difference; similarly the people tries to enforce the dictum against the government, deposing it when it seems to be setting itself up as different in status or in policy from the people, and thus the people rapidly overturns kings, constitutions, and parties. The result of absolute freedom and equality, for Hegel, is simply negation; fully developed negative freedom "cannot arrive at a positive accomplishment of anything,
. .

. either in the shape

of laws and universal regulations of conscious freedom, or of deeds and works of active freedom."38 Any institution that develops to guide

individuals, any government that tries to make any particular policy, any distinctions based on merit or worth: all are precluded by absolute freedom and equality. Whenever any such differentiation is developed, absolute freedom desires it destroyed. Consequently, "universal freedom can thus produce neither a positive achievement nor a deed; there is left for it only negative action; it is merely the rage and fury of destruction."39 Even without the extreme (but logically derivative) absolute freedom and terror, abstract or natural rights as the bases of a political state are, for Hegel, abstract and narrow. The person, that abstraction from man, is only a narrow-and amoral, unfeeling, and static-portion of man; he is not an individual, though he may be an eccentric; he has the arbitrary freedom of self-determination without control over the content of his choices; and his political freedom is both limited and limiting. A political order based on the abstract or natural rights of man is thus based on only a restricted portion of man; a political theory based only on abstract or natural man thus leaves unconsidered and indeed places beyond consideration questions of human morality, affective human relations, human culture and cultivation, and the development of freedom. In short, a world populated solely by abstract or natural persons with abstract or natural rights is a limited, inhuman, and inhumane world. Because of the basic inhumanity of a world
7 Hegel, Philosophy of Right, sec. SA and Hegel, Phenomenology of Mind, pp. 605-606. 38Hegel, Phenomenology of Mind, p. 603. 39Ibid., p. 604; see also Hegel, Philosophy of Right, sec. 5R. Many current interpretations follow Hegel's; see, e.g., Alfred Cobban, In Search of Humanity (New York: George Braziller, 1960), esp. p. 210.

1090

The American Political Science Review

Vol. 68

The second crucial theoretical error is to see natural or autonomous man as giving up his right to self-defense (or to punish) to the state in return for the benefits of society.47 For, Hegel argues, at the level of the prepolitical, where there are no positive laws nor magistrates, the annulment of crime takes the form of revenge, not punishment.48 Thus, the abstract right (and the natural right) to coerce is always revenge,49 and individuals in a prepolitical condition have the right to revenge, The Critique of the Liberal Formulation of Rights not the right to punish. Clearly, then, it is a misThe other major category of Hegel's critique conception to argue that men in the state of nacenters on the crucial theoretical errors inherent ture have a right to punish which they can transfer in the concept of natural rights.40The first crucial to the sovereign by compact. They cannot give up error of the natural rights theories is that men are the right to punish, because they do not possess it; led almost inevitably to social contracts, for the all they can give up is the right to revenge. Therenatural man's only legitimate interpersonal politi- fore, the liberal contract state gains, not the right cal relation is contract, and thus the only way that to punish, but the right to revenge. As Hegel natural men can relate, to form families and civil points out, however, no act of revenge is justified, society, is to contract. Nonetheless, it is probable because the agent is interested, arbitrary, and that some liberal contract theorists were not en- lacking in authority, and because any act of retirely pleased with the implications of their con- venge can start an infinite chain of revenge." tract theories.45Locke, for instance, clearly tries to Therefore, the liberal state has the right to rehedge both the marriage and social contract with venge, a right which it ought not exercise in any noncontractual limits so that the full implications specific case and a right which, if exercised, may of contract would not be developed. Thus, while well start a cycle of revenge and alienate some of asserting a popular right to revolution whenever the state's citizens for life or, indeed, for generathe government does not act as it was bound by tions.5" For Hegel, therefore, the assertion that the social contract, Locke emphasizes the "slow- the state obtains from its citizens the right to ness and aversion in the People to quit their old punish is incorrect; all that the state can obtain Constitutions"42 and the people's willingness to from natural (or abstract) men by compact is their tolerate "great mistakes in the ruling part, many right of revenge to annul crime in an undisinterwrong and inconvenient Laws, and all the slips of ested way to which the criminal rarely consents. humane frailty ... without mutiny or murmur."43 To use the social contract, or the alienation of the He also sees his doctrine as, in practice, "the best right to punish, as the basis for the state is to comfence against Rebellion."44 Similarly, marriage is a mit a theoretical error.52 contract which, at the same time "draws with it It might be noted that one possible liberal remutual Support, and Assistance, and a Common joinder would be to argue that the right of revenge Interest too, as necessary ... to . .. Care, and of private individuals, when it is given to and Affection [and] ... to their common Offaccepted by the state, becomes the right of punishspring."45Locke is frequently regarded as "judicious" in doctrine and phrasing; Hegel, on the is a contract; see Mill, Considerations on Representative Government (New York: Library of Liberal other hand, rather than adopt the Lockean Arts, 1958), chap. 1, pp. 6-11. hedging, is simply clear: marriage and the state 47 As in, e.g., Locke, Second Treatise, secs. 13 and 88. are not in essence contracts.46
4 Hegel's critique of the conceptualizations of natural rights is equally applicable as a critique of some liberals' equivalent of natural rights, the free and autonomous prepolitical man. 41 Implications like the Versachlichung of human relations, possessive individualism, and the impermanence and easy dissolubility implied in contractual marriage and state; see note 17, above; note 18, above; Hegel, Philosophy of Right, secs. 75A, 161A, and 258A; and Emile Durkheim, The Division of Labor in Society (New York: Macmillan, 1933), pp. 203-204.
42 Locke,
43

populated by abstract persons, Hegel's logic drives the Philosophy of Right to consider more aspects of man than solely "personhood." The limited world of persons or natural men is, with Hegel, not the final word, but rather is superseded until Hegel's political philosophy deals with men and individuals, with morality and education and culture, and with freedom in its full sense and the social institutions that produce and maintain it.

Second Treatise, sec. 223.

Ibid., sec. 225. ' Ibid., sec. 226. ' Ibid., sec. 78. 41 Hegel, Philosophy of Right, secs. 75A. J. S. Mill denies only implicitly

75, 75R, and that the state

4SHegel, Philosophy of Right, secs. 102-103. This is a not uncommon distinction: see K. G. Armstrong, "The Retributivist Hits Back," Mind, 70, No. 280 (Oct. 1961), 487-488; and T. H. Green, Lectures on the Principles of Political Obligation (Ann Arbor, Michigan: University of Michigan Press, 1967), sec. 178. "' As in Hobbes, Leviathan, chap. 28. 50 Hegel, Philosophy of Right, secs. 102, 102A, and 220; Stillman, "Hegel's Idea of Punishment," sec. I. " It might be inferred that Hobbes and Locke, by seeing the right of punishment as a prepolitical right, do not regard as theoretically central the distinctions between an interested and a disinterested judge and between a consenting and a disaffected criminal. For T. H. Green (sec. 178), they also fail to understand rights correctly. 52Green (sec. 178) makes similar and related (and Hegelian) arguments along this line.

1974

Hegel's Critique of Liberal Theories of Rights

1091

ment. But this argument contains within itself an interesting presupposition that actually runs counter to the liberal position. For if the state, by accepting rights from individuals, can transform or even redefine the individuals' rights-which are the bases and origin of the state-then the state must have some existence independent of the rights granted it; that is, the state must have some basis on which or from which it is able to transform or redefine rights. This basis cannot be obtained from the contracting or consenting individuals, because the ability to transform revenge to punishment is not an ability of the individual; he cannot give to the state something he does not have himself. Consequently, since the basis from which the state redefines revenge to be punishment derives not from individuals, it must rest in the state, and therefore the state does have some existence and content independent of those individuals from whose alienated rights alone the state is supposedly composed. A liberal rejoinder, then, can end up showing what it does not want to prove: that the origin and basis of the state is not solely derived from its citizens. The final crucial theoretical error inherent in theories of natural rights is the conclusion that the state must limit man's natural freedom and autonomy. This error stems not only from the state of nature hypothesis. It also derives from the tendency of modern and liberal political philosophers to begin political reflection with a consideration of the "I" or "Of Man," as have moderns from Descartes and Hobbes,53 and to develop this "I" or "man" to his full concreteness, humanity, and social behavior before a discussion of society, so that, for instance, the Hobbesian or the Lockean "man" has the same characteristics within civil society as outside it, in the state of nature as in the civil state. One result is, of course, that this completely civilized and human man, developed in a logical abstraction from society, must necessarily be limited in his rights as soon as he is put in a social context. At best, this usual liberal point of view is slightly depressing: all men's rights and liberties must be limited. At worst, it is dangerous: if liberties must be limited for security or utility, the scope of limitation may be unlimited, as, for instance, in a "closed commercial state," or in extreme forms of pragmatism.54 And, on the surface, it is paradoxical: for men join states in order to
" Ren6 Descartes, Meditations on First Philosophy, in Descartes: Philosophical Writings, trans. Norman Kemp Smith (New York: The Modern Library, 1958), esp. "Meditation II," pp. 182-187; Hobbes, Leviathan, Part I. " Reinhold Aris, History of Political Thought in Germany (London: George Allen & Unwin, 1936), pp. 125-135; John Dewey, Liberalism and Social Action (New York: Capricorn Books, 1935; reprint ed., 1963).

protect their life, liberty, and property, and yet immediately upon joining find their property and liberty limited, and-in times of war or in case of crime-their life endangered. Hegel has a threefold answer to the problem that society must limit the rights of autonomous man. In the first place, the "I" or "man" that forms the first determination of modern and liberal political philosophy is not and cannot be a fully developed human being. If he is abstracted from civil society, those characteristics of his which are social must be omitted, and indeed any characteristics which man outside of society would have must be added. It is an invalid logical sleight of hand which abstracts a fully socialized man from society and proclaims him therefore an autonomous man whose characteristics are the opening determination of a political theory. Before Hegel, Rousseau recognized the logical problems of the prepolitical autonomous man ;55 Rousseau adopts a hypothetical historical approach to try to eliminate the problem.56 Seeing the same problem, Hegel adopts the usual liberal approach of developing the rights of men in a prepolitical state. Hegel's prepolitical state is, however, not a Rousseauian natural state prior in time, but an abstract state which is prior only in terms of logic. In Hegel's prepolitical state, as in that of all liberals, the fully socialized human is abstracted from society; but Hegel's formulation is distinctive in also abstracting the prepolitical man from his socialized behavior and attitudes.57 Thus, the Hegelian "I" or "man" of abstract right is simply an abstract "I" or abstract "man": a person. The prepolitical man, the liberal's natural man, is not a full individual but merely an abstract person: Hegel's logic is accurate. And, by considering the abstract person rather than the autonomous man in the prepolitical condition, Hegel makes it clear at least that the prepolitical condition is a realm not only of greater freedom (from laws and other governmental limits) in some ways but also of lesser freedom and of lesser humanity than the social state: for the sphere of
5a Jean-Jacques Rousseau, The First and Second Discourses, ed. Roger D. Masters (New York: St. Martin's, 1964), Second Discourse, "Preface," pp. 91-93. 56 Ibid., "Preface," p. 97. 57 Hegel's abstract man, the person, is abstracted from his social contexts but not from his historical development; the person lacks socialized characteristics but is nonetheless an abstraction from contemporary man, and thus the person claims for himself the rights that a contemporary man claims. In contrast, Rousseau's primitive man in the Second Discourse, when logically isolated from society, loses all his socialized and historically-developed characteristics ("Preface," pp. 91-97); Hobbes's natural man, when logically isolated from society, retains all his socialized and historically-developed characteristics (Hobbes, Leviathan, chap. 13).

1092

The American Political Science Review

Vol. 68

abstract or natural rights contains not only no governmental limitations but also, among other aspects, no morality, no feelings, no individuation, and an arbitrary freedom that is itself rather limited. It is clear in the Hegelian formulation that, while the prepolitical person may be limited when put in a concrete social context, he will also gain some desirable and human characteristics when he is put in a social context. What most liberals see simply as a limitation, Hegel's abstraction shows as also a development. Hegel's second answer is that the limits imposed in society on the rights of prepolitical autonomous or abstract men are actually prepolitical limits as well. For the existence of the prepolitical annulment of crime makes quite clear that, purely at the level of rights, individuals are limited by rights. Thus, the progress from the prepolitical to the political is not the shift from autonomy and freedom to legal limits; rather, it is the shift from rights as limits to laws as limits.58 Hegel's third answer to the mistaken liberal conceptualization of the prepolitical autonomous man with rights and liberties is simply that only in civil society and the state do rights and liberties exist in an actualized and concrete form; there5S The shift is desirable, of course, because the enforcement of rights is uncertain, that of laws fairly sure. Locke and Hegel agree here; see Locke, Second Treatise, secs. 13 and 22-23, and Hegel, Philosophy of Right, secs. 103 and 217.

fore, the state, instead of limiting rights, is in fact the precondition for their existence.59Without the state and political order, rights are unsure; only with society do rights exist actually and securely. Indeed, Hegel's three points together indicate the necessity of state and society for individual rights and liberties. Conclusion In sum, Hegel cogently criticizes natural rights theories for their narrownesses and for their theoretical inadequacies. Yet his criticisms are made in the context of his asserting abstract rights and thus do not lead to a rejection of the rights themselves, but merely of their previous formulations. Therefore, the criticisms point the way to later portions of the Philosophy of Right-to Hegel's treatment of morality, educative institutions, institutions that are not contractual-just as Hegel's assertion of abstract rights points the way to his exposition of civil society and other later sections of the text in which he discusses the concrete actualizations of rights.
Hegel's argument is similar to Hobbes's here; see Hobbes, Leviathan, chap. 17, and Hegel, Philosophy of Right, secs. 142 and 260. For Hobbes, however, rights exist in the state of nature and war (Leviathan, chap. 14, pp. 103-104), whereas for Hegel rights are brought into existence only after centuries of civilization's cultural, social, spiritual, and political development (Philosophy of Right, secs. 341-360).