The Introduction to the Elements of the Philosophy of Right: Right, Will and Freedom

1. What is ‘right’? Hegel speaks of ‘right’ (Recht) not ‘rights’ or ‘a right’ – cf. French droit and Latin ius A right = claim that can be legitimately made in relation to others or the state and that typically ought to be legally protected Right (justice or law) = whole system and foundation of law as distinct from specific legal statutes Hegel is not directly concerned with ‘positive’ right – a particular, given body or system of laws The ‘philosophical science of right’ (§ 1) v. ‘the positive science of right’ (i.e. study of law, legal history) (§ 3)

The basis of right is the realm of spirit [Geist] in general and its precise location and point of departure is the will; the will is free, so that freedom constitutes its substance and destiny [Bestimmung; also definition, determination, vocation, DJ] and the system of right is the realm of actualized freedom, the world of spirit produced from within itself as a second nature. (§ 4)

( 1) Right is to be explained in terms of ‘spirit’ (2) More specifically, the form of ‘spirit’ designated by the term ‘will’ (3) The will is essentially free - freedom is therefore not a contingent property of the will (4) The will must in some sense actualise or realise itself as free if it is to be what it essentially is (5) It does this in the form of ‘the system of right’ (6) This system is some kind of ‘second nature’ Clearly, we need to look at Hegel’s theory of the will in order to explain what he means by the term ‘right’

2. Hegel’s theory of the will Hegel rejects view of will as separate faculty that mediates between thought and action Any act of willing necessarily involves both thought and action and the will cannot, therefore, be considered as a separate faculty Since freedom is the essence of the will, freedom must manifest itself in all the moments of the act of willing §§ 5-7 The concept of the will (maps on to moments of logical concept) Essential structure common to each and every act of willing This concept is therefore universal or ‘general’ in the sense of applying to all willing whatsoever

(1) Moment of abstract universality or ‘pure indeterminacy’ (§ 5) One can conceive of oneself in abstraction from any given content (one’s needs, desires, drives etc.) I encounter myself as a concrete self with certain needs, desires, drives etc. By means of reflection I can, however, consider these given features as external to myself I can then identify myself with them or not identify myself with them Second-order desires – desires relating to other desires - I may or may not desire to act on a desire that I happen to have Hegel’s position is more radical than this – I can renounce all desires – a human being can commit suicide, whereas an animal cannot

‘ Negative’ freedom Not in liberal sense – sphere free from interference by others, including the state, in which individuals may do as they please (Hegel recognises the importance of such freedom, while providing a more complex account of freedom) In so far as I possess the capacity to abstract from all given determinations, I am a ‘pure’ self (or ‘I’) identical to all other such selves (at least in thought) We can abstract from the particular differences that distinguish us from others and thereby come to think of ourselves as belonging to the same general type as others – abstract equality Although an essential component (condition) of freedom, this conception of freedom is too abstract

(2) The ‘finitude or particularization’ of the will (§ 6) Willing always involves the willing of something The will must have a determinate content or object In willing a determinate content or object, the will becomes limited One subjects oneself to certain constraints (e.g. the means of realising an end) (For Hegel something is finite when it finds its limit in something other than itself)

( 3) Will as unity of previous two moments – concrete universal – a universal that contains the particular within itself (§ 7) The universal and the particular are not externally related to each other Rather, the will remains ‘with itself’ (bei sich) in its object or ‘other’ which limits it The will is only truly will when it realises its essence or concept Will is essentially activity (i.e. the act of producing itself as will) as opposed to something already given It does not, therefore, exist independently of this activity Emphasis on self-activity and self-actualisation

3. Freedom as ‘being with oneself in the other’ Form of freedom which already manifests itself in certain forms of human association based on emotion, feeling (e.g. friendship and love) Objective aspect - I am subject to constraints that my relation to another imposes on me (e.g. duty to be a good friend, parent or spouse) Thus my own will is limited Subjective aspect - I do not experience these constraints as something external Compatibility of freedom and constraint Unfreedom would be when I am subject to purely external constraints

Freedom as independence – I am not free when I am dependent on something external to me over which I have no control, and which may control or dominate me Freedom is not, therefore, simply absence of direct forms of interference and being able to do what one wants to do This liberal freedom would increase the more emotionally and physically isolated one becomes – it is therefore an essentially asocial conception of freedom Given necessary existence of constraints in a condition of human interdependence, freedom would be a condition in which the constraints to which people are subject as social beings are not experienced as external constraints Rather, they can in some sense identify themselves with these constraints – social freedom

4. Forms of the will’s freedom Increasingly complex and more adequate ways in which the will remains with itself in its object or ‘other’ (1)‘Immediate or natural’ will (§ 11) The will as determined by given desires, drives and inclinations etc. These desires etc. are mine but without having been determined as mine by me – I just happen to have them They are biologically, culturally and socially determined and thus not the product of my own will

These desires, drives and inclinations etc. are indeterminate: (i) There is an indeterminate multiplicity of them (ii) They do not have a specific object (for example, the desire to eat, not the desire to eat some bread or an apple) (2) The ‘resolving’ will (§§ 12-13) Indeterminacy in senses (i) and (ii) is removed by (i)willing to pursue one desire, drive or inclination rather than another one (e.g. the desire to work, rather than the desire to sleep) (ii)willing one object rather than another (e.g. desiring to work on a Hegel essay rather than a Kant essay)

This capacity presupposes that: [T]his content is only a possible one for the reflection of ‘I’ into itself; it may or may not be mine; and ‘I’ is the possibility of determining myself to this or to something else; of choosing between these determinations which the ‘I’ must in this respect regard as external. (§ 14) (3) Arbitrary will (freedom of choice) - capacity to objectify one’s given desires, drives and inclinations etc. and to choose among them It remains, however, a contingent matter what one actually chooses No independent standard or ordering principle is available to determine what specific choice to make Thus the content of the will still confronts the agent as something given in the sense that it is not itself a product of his or her will

(4) Happiness The idea of happiness provides an ordering principle One’s various drives, desires and inclinations must be organised in a certain way, with some being subordinated to others If two desires are incompatible, one must choose to act on the basis of one of them at the expense of the other Such choices take place in the broader context of the plans and projects that we have These plans and projects are themselves determined by what we think will make us happy

The idea of happiness functions as a universal by means of which our given desires, drives etc. are consciously organised But there is no independent standard to determine what the content of happiness itself should be This content will therefore depend on what each individual takes happiness to be In this respect, the content of happiness remains contingent and particular

( 5) Autonomy When the will has universality, or itself as infinite form, as its content, object, and end, it is free not only in itself but also for itself. (§ 21) The actualisation or realization of the concept of the will consists in making what the will essentially is (in itself) into an object of consciousness (for itself) Implicit → explicit Hegel identifies ‘the will which is free in and for itself’ with ‘right, or ethics [Sittlichkeit]’ (§ 15R)

This will is characterised by (1) Universality – ‘the being which has being in itself and for itself has as its object the will itself as such, and hence itself in its pure universality’ (§ 21R) (2) Necessity – ‘This self-consciousness which comprehends itself as essence through thought and thereby divests itself of the contingent and the untrue constitutes the principle of right, of morality, and of all ethics’. (§ 21R) Autonomy = being subject to laws (principles of action characterised by universality and necessity) that are in some sense self-imposed

Kant on autonomy: [T]he will is not merely subject to the law but subject to it in such a way that it must be viewed as also giving the law to itself and just because of this as first subject to the law. (Groundwork of the Metaphysics of Morals) For Kant, the mark of law is (1)universality (something that is valid for all moral agents) (2) necessity (it ought to be unconditionally obeyed - it is a matter of duty) Rational will is subject to a law that it gives itself in the sense that this law conforms to agent’s own essential (rational) nature

Identity of the will and the constraints to which it is subject in virtue of their common rationality means that the will is not subject to purely external constraints The will which has being in and for itself is truly infinite, because its object is itself, and therefore not something which its sees as other or as a limitation. (§ 22) (Infinity = not being limited by something other than oneself) Only in this freedom is the will completely with itself [bei sich], because it has reference to nothing but itself, so that every relationship of dependence on something other than itself is thereby eliminated. (§ 23) A form of freedom in which being subject to limitations need not be experienced as a form of external constraint

5. Right Right is any existence [Dasein] in general which is the existence of the free will (§ 29). Forms of right outlined in PR are all ways in which the free will objectifies itself while remaining with itself: (1) External objects or things (abstract right) (2) External and internal actions, including their consequences (morality) (3) Social and political institutions (ethical life)

Institutions provide objective guide to action in two senses: (i) They exist in the world (ii) They are objectively valid in relation to one’s own will – one has the duty to act in accordance with them Moral and social norms (duties) from the relation of our own wills to such institutions At the same time, these institutions actualise certain rights that we have in the sense of being enabling conditions of our freedom Freedom through institutions rather than freedom defined in opposition to institutions

As conditions of freedom, these institutions, and the practices associated with them, have a justified claim to be maintained by individuals and by society as a whole (a right to exist) Do individuals have rights in relation to institutions? Their justification lies in them being such conditions of freedom Structure of Hegel’s Theory of Right The stages of right are increasingly adequate objectifications of all the moments of freedom: Each stage in the development of the Idea of freedom has its distinctive right, because it is the existence of freedom in one of its own determinations … Morality, ethics, and the interest of the state – each of these is a distinct variety of right, because each of them gives determinate shape and existence to freedom. (§ 30R)

Abstract → concrete A later stage is more concrete than an earlier one in the sense that it more fully actualises freedom An earlier one is subordinate to a later one (§ 30, including R) A later stage cannot be adequately explained in terms of a lower one A later stage in some sense completes and limits the claims of an earlier one The development that the concept of right undergoes is conceptual not temporal (§ 32)

Right as ‘second nature’ (1) Right is not something given in the same way as natural things are but is instead a human construct (2) It nevertheless concerns the essence or ‘nature’ of human freedom and reason (3) People typically obey laws and conform to institutional demands unreflectively, that is, as a matter of habit