Legal Reasoning
Legal Reasoning
Abstract and Keywords
This chapter discusses Hegel's theory of legal reasoning. In order to set up the theory, the first four sections address Hegel's metaphor of an inverted world, how meaning is transformed in the inverted world, the consequences of the identity of law in the inverted world, and the role of the philosopher in the inverted world. Against the background of this metaphor, the fifth section turns to Hegel's insights about the intellectual differentiation of rules in a seemingly uncontrollable objective world. Hegel calls this Verstand, which associates legal units with externally posited rules. From Hegel's critique of Verstand, sections six and seven consider Hegel's theory of legal reasoning that aspires to institutionalize Vernunft. Vernunft links concepts with particular context-specific social experiences of the subject who is immersed in an ethos of which she or he feels an intimate part. Vernunft incorporates such a broad spectrum of research materials that one needs to ask whether legal reasoning is really anthropology. The eighth section discusses why this is not so; section nine explains that the identity of legality rests with truth about the content of rules.
Keywords: Hegel, inverted world, legal reasoning, anthropology, objective world, Verstand, Vernunft, legality, rules
It is one thing to recount the logic of freedom within the subject's consciousness. It is another to understand how Hegel relates the logic of freedom to legal reasoning. When we turn to theories about legal reasoning today, we might ask whether there is a special method that lawyers and judges adopt to fulfill objectives in a statute or to fulfill legal rules posited in precedents. So, for example, contemporary constitutional analysis in the United States or Canada often takes a “fundamental interest” or “constitutional value” as an objective or “given” standard and then examines the means that a legislature chooses to fulfill the “given.” The courts elaborate detailed tests and doctrines concerning the means. The “givens” are usually posited in a text called “the Constitution” or in the intent of the Founding Fathers or in unwritten conventions such as the “rule of law” or the “independence of the courts.” In like vein, Joseph Raz accepts that reasoning can take one only so far until one must post a “given” value.1 Hegel's theory of legal reasoning is, in contrast, an antimethod in that he attempts to explicate the activity of thinking immanent in the movements of legal consciousness before the official ever posits the fundamental interest or objectivity of a statute. Legal reasoning is and can be presuppositionless, Hegel claims. Before one assumes that there are values or rules or a state in an objective world, one must investigate the activity of thinking. As Hegel says in Lesser Logic, it is absurd to know the world intellectually as if posited by objectives, rules, or values “out there” beyond human consciousness, before the philosopher or even the observed official has any capacity to think (EL 10R). We need to explain and justify the act of thinking in concrete circumstances. Accordingly, legal reasoning must bracket any objective or “given” or presupposition. Instead (p.84) of working within intellectual differences amongst rules and other concepts in objectivity, Hegel directs his attention to human experience as constituting legality. In order to set up Hegel's theory of legal reasoning, I address his metaphor of an inverted world, how meaning is transformed in the inverted world, the consequences of the identity of law in the inverted world, and the role of the philosopher in the inverted world. These are the themes of sections one to four.
Against the background of this metaphor, I turn in section five to Hegel's insights about the intellectual differentiation of rules in a seemingly uncontrollable objective world. Hegel calls this Verstand, which associates legal units with externally posited rules. Concepts are “self-standing” or discrete units, isolated from the phenomenal world of appearances which, in contrast, are conditioned by experiential space and time.2 A concept (and a rule or principle is a concept) is self-standing when it only relies upon itself for knowledge. Verstand begins when one subject intellectually produces an indeterminate abstraction that is fixed in time and space. But this fixity in space and time contradicts the sense of experienced time that is exhibited as the thinking being moves through implied structures of consciousness. Verstand reifies legal units vis-à-vis social phenomena.
From Hegel's critique of Verstand, I turn in sections six and seven to Hegel's theory of legal reasoning that aspires to institutionalize Vernunft. Vernunft links concepts with particular context-specific social experiences of the subject who is immersed in an ethos of which she or he feels an intimate part. The family, civil society, the organic legal order, and various shapes of the international legal orders exemplify such ethé. In this way, Hegel links the posited rules and values with the legitimacy of the legal order as a whole (or of Recht) because legitimacy hangs upon the self-determining subject and such a subject is self-determining if, as an act of thinking, she or he feels at one with the objectivity of the ethos. Vernunft incorporates such a broad spectrum of research materials that one needs to ask whether legal reasoning is really anthropology. I explain in section eight why this is not so and proceed to explain, in section nine, that the identity of legality rests with truth about the content of rules.
1. The Inverted World
As an introduction to Hegel's theory of legal reasoning, one needs to grasp the radicality of his method. Hegel offers a metaphor to aid us in this regard. Although he had scientific laws in mind when he wrote Science of (p.85) Logic and Lesser Logic, his metaphor also extends to written and unwritten human laws. The metaphor, introduced in his early essay, “On the Nature of Philosophical Criticism” (1802),3 elaborated in important passages of Phenomenology of Spirit (PS 143–65) and explained in detail in Science of Logic (SC 499–511), imagines the world as inverted. Hegel is not the first to use this metaphor.4 With the aid of the inverted world analysis, Hegel is able to reread the two dominant traditions of legal thought of his time and of ours.
a) The First Legal Supersensible World
The first supersensible world, which Kant describes as the “thing-in-itself,” is juxtaposed to appearances. Like the dog owner who feels insulted when one steps aside to avoid the dog on a pathway, the subject feels immediate with her or his object, in this case a dog. The immediacy is indeterminate because there is no constraint upon the subject's beliefs or intuitions. The immediacy identifies with itself. Truth lies in the essence of this immediacy (SC 499). Appearance lacks the essence that Kant (and Hart) located in the noumenal realm of knowledge. Thus, appearance is an illusory show whose essence is an abstract reflection (SC 500–01).
So, there are two sides of the supersensible world. The essence or criterion of a rule is posited as an indifferent, indeterminate abstraction. Appearance is contingent, unessential, and ever changing (SC 501). The one side is the negative of the other. Hegel locates laws in appearance, however. Laws are “immediately present” in appearance (SC 503). Laws mirror appearance. When one claims an essence for an appearance, the unity is a law of appearances (SC 502). That said, laws are indifferent to appearance because laws are abstract reflections. Because there is an untranslatable gap between the thing-in-itself as essence and the appearance, a focus upon the former erases the latter (SC 501). Each depends upon the absence of the other.
For example, to take the Hegel/Hart distinction between legal versus prelegal, legality depends upon the absence of prelegal phenomena. Legality is fixed in time and space. The prelegal phenomena, excluded from legality by general jurisprudence, manifest change. The distinction, like the North Pole versus the South Pole, could have been the other way around (EL 119A1). Each concept is conditioned by the other, and each concept thereby exists in relation to the other. There is still a remainder to the essence of legality, though. The remainder is the content of a law (SC 505). Put differently, a law is empty of being (immediacy) in the first supersensible world. Legality is what the legal is not (the prelegal in appearances).
(p.86) In explicating the first supersensible world, Hegel begins with the separation of objective facts from subjective values, or the thing-in-itself from appearance. This dichotomy works through much professional legal education and adjudication today. First, legal reasoning, whether of the classroom or the courtroom, is presupposed to be objectivity as the locus of legality. Second, ever more pressing in former colonies of the European states, there is the distinction between a legal and a prelegal world. This distinction, introduced by Hegel5 and accepted as a “given” by Hart's Concept of Law,6 works to exclude the prelegal tribal legal orders from the concept of legality. Third, the distinction also excludes bodily experiences—associated with subjectivity—from legality. What the observing philosopher and observed legal official accept as legal “actuality” is a supersensible world that is above and separate from human experience. This world is what Hegel considers the “first supersensible world.” It includes the rules and principles, the statutes and judicial decisions, and state institutions, all of which are considered objective, measurable in space and time, and the object of legal analysis. The “given-ness” of the externality reinforces the assumption that objectivity constitutes the “practice of law.”
Such a supersensible world presupposes that legality and legitimacy are external to human experience, experience being understood as consciousness. Stuck in the first supersensible world, the philosopher intellectually differentiates concepts by clarifying their boundaries, identifying their features or criteria, and analogizing from one concept to a revised concept. Such concepts, being external to experience, are lifeless, frozen in space and time, and inauthentic (in the sense of being reified) explanations as to how one concrete individual differs from a stranger, and vice versa. Being external to experience, the units of legality are estranged from social relations. As such, their social content matters little. They are, to use a common phrase from general jurisprudence, “content-independent.”7 At best, the first supersensible world merely copies or re-presents actuality. Such has often been the effort of the law and society and access to justice movements.8
The problem is that when rules and the particular institutions are posited external to consciousness, they are hung so high, Hegel explains, that only experts who specialize in the knowledge of them can claim knowledge of them (PR 215R). Even then, knowledge of the supersensible world is inaccessible because our knowledge is conditioned by appearances. We can only evaluate the institutions and rules in terms of appearances. This requires that we turn to the only thing that philosophers can know: consciousness. Thus, what philosophers need, according to Hegel, is a second supersensible world that encapsulates both the noumena and ever-fluctuating particular (p.87) experiences. This second supersensible world is constituted from a reflective Sittlichkeit, as elaborated in Chapters 9 and 10.
b) The Second Legal Supersensible World
If the abstract rules and institutions were incorporated into the consciousness of individuals, the populace would be able to access them. This possibility always exists in the earlier first supersensible world. But it only becomes an actuality in a second supersensible world which joins the abstractions to subjective consciousness. The individual now becomes conscious of her- or himself through mediating rules and institutions which the individual shares with strangers as each recognizes the other through the rules and institutions. The individual's self-consciousness becomes the center of the inverted world. Hegel describes the second supersensible world as “the world of appearance and the world-in-itself” (SL 505). The content of the second supersensible world is distinct from the content of appearance (or what Kant describes as “phenomena”) in the first supersensible world.
In particular, the second supersensible world does not necessarily represent, as consciousness, the intellectual differentiations of the first world. And yet, the second supersensible world is above the world of appearance in the first (SL 507). The second world contains not only simple, changeless laws but also flux and multiplicity (SL 507). “That which was previously law [that is, primary and secondary rules per Hart] is accordingly no longer only one side of the whole whose other side was Appearance [the prelegal] as such, but is itself the whole” (SL 506). The second supersensible world is both sensuous (because it includes appearance) and super-sensuous (because it explains more than one single instance). It contains the immediacy of experience but also reflected indeterminate essence of existence. It is the multiplicity of social experiences (or implied structures of consciousness) which embodies determinacy but also the determinacy in respect to this content (SL 508). Appearance now has a ground that is in appearance rather than in the first supersensible world.
The second world does not take the social relationships between individuals per se as legal actuality. The first supersensible world required that one would retrospectively “leap” from the legality back into the phenomenologically prelegal world in order to access the fluctuating social relationships. If the latter scenario were followed, the “legality versus prelegal” would be hierarchically reversed. There would remain an externality to the act of thinking. Only, in this case, the externality would be prelegal experiences rather than the “legal” world of intellectual abstractions. This (p.88) would continue the old problem of founding knowledge in an externality to structures of legal consciousness. Accordingly, the second supersensible world does not suppose that the two worlds oppose each other: “[b]ut such antitheses of inner and outer, of appearance and the supersensible, as of two different kinds of actuality, we no longer find here” (PS 159).
Hegel's point is that the second supersensible world contains the phenomenal and the noumenal worlds. There is no externality in itself, whether the externality be the “practical law” of abstract rules and institutions or the “law and” world of legal sociology, psychology, political science, or anthropology. The particularity of appetitive drives, needs, and values are now unified with the shared universals which manifest how one individual recognizes another. The individual will now feel “at home” (Dasein) with such a unity.
The metaphor of the inverted world makes the point that actuality only lies in appearances (the phenomenal world), not in the objectivity presupposed in the first supersensible world. Any educational structure or judicial institution that only aims to clarify, decompose, and intellectually differentiate concepts lifts the philosopher and the official into the make-believe world of the first supersensible world. The traditional analytic role of philosophy and law is removed, though, in the second supersensible world. In its place, the official observes how individuals recognize each other in contingent, context-specific differences through mediating concepts and institutions. Nothing is external to the second supersensible world—no presupposition, no rule of recognition, no state. Accordingly, freedom in the second supersensible world is positive because it is internal to the process of appearance itself.
The idea of the inverted world is that before the philosopher or official presupposes that centralized institutions, with their externally posited rules, are sources of binding laws, the philosopher must work her or his way through disorder (PS 144).9 Relating this point to the observed official or observing philosopher of the contemporary legal order, we usually assume that legislatively and judicially posited rules are fixed in time and space. Certainty marks the possibility of access to justice if posited rules are considered equivalent with justice. But before such an institutional order exists (analytically speaking), continual flux characterizes social relations. What is a binding unit of law—whether a written rule, a constitutional value, a policy, or a social interest, for example—appears ambiguous and opaque. But the inverted world renders such certainty illusionary. The posited statutory and judicially posited rules do not even copy the dynamic movement of social relationships. The metaphor of the inverted world thereby brings into question whether posited rules are fixed or even binding despite their (p.89) apparent objectivity. The sources thesis of Joseph Raz,10 the rule of recognition of Hart,11 kelsen's foundation of legality in a Grundnorm,12 and Dworkin's “law beyond law”13 are put to the side or bracketed. Legal philosophy always comes on the scene too late to be able to instruct the law professor or judge as to how we ought to design a just society.
Instead, first, the inverted world locates the subject as the center or source of objectivity. Second, like the individual who stands before a life-sized mirror, what the first supersensible world presupposed as objectivity is now determined by the subject's consciousness. Objectivity—the legal institutions, the statutes, the precedents, treatises, conventions—is now nested in the individual's consciousness. The individual acts. In the first supersensible world, the individual is acted upon. In the second, one becomes conscious that one actually determines what had heretofore been projected as objectivity. In like vein, the individual's consciousness is mirrored through the universals of rules and institutions.
Hegel uses the metaphor of an inverted world to explain the possibility that the legitimacy of an institutional structure rests in the immanent thinking of a self-determining being. Laws are no longer binding because some external institution has posited the rule of recognition nor because a posited rule accords with some one Grundnorm or set of moral principles such as “equal respect and concern.” Of course, the subject in the inverted world is not the empirical subject with an arbitrary will, a concept that I shall address in the next chapter. The subject must struggle with her- or himself and with strangers who, like the subject, are immediacies. But each individual recognizes strangers in the inverted chaotic world. Peace will reign in the inverted world only when each individual reciprocally recognizes the other. What is taken as a binding law in an inverted world is determined by the individual as she or he recognizes strangers as well as her- or himself.
How is it possible for a philosopher or observed legal official/inhabitant to comprehend such an inverted world? The key is that the observed subject becomes the center of the world. Four characteristics color how the observed subject is at the world's center. First, instead of gazing outward, I, as a subject, turn inwardly into my self-consciousness. This consciousness structures how I read texts and interpret the acts of officials. Second, my process of thinking is continually moving because it emanates from my consciousness. Third, I presuppose my structure of consciousness before I even begin to become conscious about it. Fourth, although my initial immediacy to any stranger denies and excludes the stranger from my legal reasoning, I become conscious that I determine the stranger as I read myself in the stranger and as the stranger in my consciousness. I become (p.90) conscious of my role in such self-determination. And my structure of legal consciousness continually leads to a new structure of consciousness with no closure in sight.14 I become conscious of an emerging structure by recognizing that the old one constrained my ability to comprehend my awareness of my self-determining role in my determination of objectivity. The consequence of these four elements of the inverted world is that I determine myself as I recognize strangers in the inverted world. More, I determine particular laws as well as the legal structure as a whole. My self-determination legitimates the legal order and its units.
2. The Transformation of Legal Meaning in the Inverted World
Legality, then, is the reverse of what one might often take for granted as objectivity As just noted, this does not suggest that the inverted world turns the prelegal world on top of the intellectual differentiations of a noumenal realm as law and society scholars often presuppose. The positing of the prelegal above the legal would imagine the inverted world in a physical sense of sensation: a preestablished, independently existing world of phenomena or the prelegal would oppose the elements of legal reasoning. That would retain a hierarchy with a different content. If that were so, we would relapse into the former world of abstract constant unities in the first supersensible world. We would try to access the essence of the prelegal world by intellectually differentiating a new set of concepts from context-specific phenomena.
Instead, all presuppositions, values, and habits are now incorporated into one's consciousness. No external presupposition founds legitimacy. In the first supersensible world, the prelegal was the nonlaw. The prelegal was ab-original. Now, the inverted world is both the prelegality and legality, both in-itself and for-itself. The legal and the prelegal depend on the other and this, inside the appearances of experience (that is, of consciousness). Both the prelegal and the legal of the first supersensible world have thereby dissolved (SC 509–11). Appearance is redefined in the second supersensible world. The inverted world makes the point that actuality is itself contradictory. As a consequence, “the law of one world … is confronted by an inverted supersensible world where what is despised in the former is honoured, and what in the former is honoured, meets with contempt” (PS 159). Or, as Hegel puts it in Lesser Logic,
(p.91) according, then, to the law of the inverted world, what is like in the first world [of statutes and precedents] is unlike to itself [that is, the prelegal multiplicity of particular experiences in subjectivity], and what is unlike in the first world [that is, the prelegal] is equally unlike to itself [that is, posited as abstract rules and institutions], or it becomes like itself [that is, a multiplicity of social differences in the prelegal world] … this means that what in the law of the first world [posited rules] is sweet, in this inverted in-itself is sour, what in the former is black is, in the other, white. (PS 158)
There can be no closure that will give the philosopher or the observed official peace of mind as she or he may have experienced in the first supersensible world. The law student must continually struggle. And the resource material of the competent law student/scholar/lawyer, we shall see, is very different from the aggregation of rules and arguments. Legality becomes actual and therefore legitimate.
Actuality is finally understood as both the truth projected in the abstract constant rules about the inaccessible in-itself and the perversion of such a world. But the perversion is a good perversion (PS 160). This is so for two reasons. First, the legal consciousness of the observed official inverts itself when it begins to reflect about its thinking process. That which is inverted (the first supersensible world of constant abstract laws) is a false actuality or “practical law,” to use the familiar excuse of law students for choosing courses that summarize the forms of empty rules. The true actuality is the instance of the legal form. The second or inverted world encapsulates the instance and its dissimilarity. The new world constantly changes. This change repeatedly overthrows the abstract rules and institutions that the official had taken for granted in the first supersensible world (PS 156).
The inverted world is a good perversion, second, because it embodies both the legal and the prelegal. What the observing philosopher had formerly recognized as chaos or prelegal now constitutes binding laws. Legal and prelegal, North Pole and South Pole, render the other determinate in a self-defining relationship. All social differentiations are internal to the second supersensible world: “[t]hus the supersensible world, which is the inverted world, has at the same time overarched the other world and has it within it … Only this is the difference as inner difference, or difference in its own self, or difference as an infinity” (PS 160). As a consequence, the rules and institutions that were the objects of analysis are brought within experience. The legal/prelegal dichotomy collapses into consciousness itself. Actuality is appearance qua appearance. And this is in constant flux.
Again, the inverted world raises issues that might seem counterintuitive to Anglo-American general jurisprudence. We legal officials often take (p.92) the world of courts and legislatures and precedents and regulations as constitutive of the phenomenal world. But the inverted world suggests otherwise. For the inverted world offers the possibility that the individual's acts are located in experience. The inverted world is not a supersensible or transcendental structure of objectivity superimposed upon legality. The inverted world turns everything inside out and upside down so that the courts, institutional structure, precedents, and statutes are, as elements in a binding legal structure, mere appearances. They are determined by the subject. This subject breaks from Beingness (or immediacy) between her- or himself and objects. The dog is no longer an element of the identity of the solipsistic dog owner. Although the observed subject might desire to dominate others in this inverted world, she or he comes to recognize the stranger through action. Hegel's inverted world thereby describes appearance which ontologically precedes what the legal philosopher might take as legal objectivity. Such an appearance even precedes statehood, lawyers, judges, law schools, and philosophers. Indeed, the inverted world represents a world before legal language has assigned a sign to a posited rule and before legal consciousness has become structured with a boundary between subjectivity and objectivity. Legality is thereby turned back into itself before the legality/prelegality is presupposed. Legal philosophy is transformed into a circle that turns back into itself rather than being imprisoned in abstract rules posited by the external “the Constitution” or the “intent of the Founding Fathers” (EL 147), PR 267R).
Once the legal philosopher gets this far, one becomes aware that one has read the exterior world of posited rules and institutional sources through presuppositions that one has hitherto taken for granted. The most important such presupposition has been that laws are binding because of their institutional source in the state bureaucracy. We become aware of one more thing: namely, that we have presupposed a structure of consciousness that located the observed subject as being autonomous of the objectivity of consciousness as represented by state institutions such as courts. Once we become conscious of these two propositions, philosophy takes on a new role. For legal philosophy must now retrieve different implied structures of legal consciousness. The identity of a legal unit is nested in the social relation of one individual with another. Institutions, such as a legislature or court, will manifest, as a possibility, such a relation. When all inhabitants share such social recognition to and from the other, the institutions are universals as are their posited rules. My process of self-determination lies at the center of both the prelegal and the legal because both are inside the second supersensible world. Each continues itself in its stranger for each (p.93) now recognizes its stranger in the inverted world. The appearance of the first supersensible world dissolves in favor of a second world where the legal and the prelegal recognize their dependence upon each other by virtue of the self-determining process of thinking.
3. The Consequence of the Inverted World
Because the legal versus prelegal distinction is dissolved into experience, life is assimilated into the radically different idea of legality. In the first supersensible world, a human experience was an instance of laws posited by institutions. A law as an abstract rule, then, was reified from living experiences in appearance or phenomena. This indifference to the instance was all the more solidified the more that consciousness changed. This was so because the posited laws were fixed in time and space. What is more, as intellectually constructed modes of the explanation of experience, laws enabled science (that is, legal officials) to manipulate life (PS 153). But when the second supersensible world overarches the first into a unity of laws and appearances, the constant flux of appearance is introduced into self-consciousness (PS 160). Indeed, the humanly constructed laws become alive.
As a consequence of Hegel's inverted world analysis, what was formerly posited external to the subject's consciousness—the statutes, precedents, courts, and bureaucracy—is brought into the subject's consciousness. Life, for Hegel, is not Kant's pure transcendental ego. No. Nor does life involve the scientific or even the “internal” point of view towards the content of a legal standard.15 Nor are laws externally posited separate from subjectivity. Laws are binding upon inhabitants when the inhabitants bring cognitive experiences into the objectivity of rules and institutions (PS 162). The observing official and philosopher observe that inhabitants incur a process of thinking which encloses abstract laws. Laws thereby become alive in contrast with the dead abstractions of the first supersensible world within which legal officials often remain content to work. As Gadamer notes in Truth and Method, the organic being draws into itself everything which is outside it.16 Life is nourished by what is alien to it.17 Instead of the constant, abstract, externally posited rules and procedures of courts; governmental bureaucracy; and the police constraining the freedom of the observed subject, the subject's own consciousness constrains itself. I am “at home” in such an inverted world because I am its center. I help build a legal order as mine and then I recognize myself and strangers in such a legal order. I am free.
(p.94) In this manner, life displaces the social alienation in the first supersensible world. As fixed abstract forms, laws in the first supersensible world were the most important part of social alienation. But consciousness in the inverted world comprehends life by becoming inwardly aware of how the abstract forms had concealed experience. Because contradiction is internal to the inverted world, the process of legal self-consciousness lacks closure. The inverted world closes the unbridgeable gulf that had plagued the inaccessibility of the knowledge of objects in the first supersensible world. The legal official is finally brought into direct contact with the objectivity of consciousness through practical action.
The structures of legal consciousness grow immanently from within the consciousness of the subjects. The philosopher recognizes such structures as if she or he were gazing at a mirror. Institutions and posited laws are now located in appearance qua appearance. What opens up in this appearance is the constant play of differentiating experiences that, when uniform, constitute the law of particularity. Plato's world of pure forms lacks any such movement or change. In addition, despite the role of intentionality in Socrates' defense, Plato's world of transcendental forms also lacks any room for such a subject-centered actuality. Changes in concrete experiences (that is in structures of consciousness) require that officials retheorize the nature and identity of law.
4. The Inverted World and the Legal Philosopher
The inverted world metaphor exists in the ethos in which one lives. This takes one to the social bonding of the clan and of the city in antiquity.18 The challenge for Hegel is to describe how an ethos emerges when individuals begin to represent their former identity of immediacy that had characterized the clan or family.19 With the dissolution of the immediate bonding with objects in the family, an inward-looking subject can only represent the immediacy. Romanticism, the quest for salvation, conscience, and inward self-consciousness become separate from objectivity. This separation introduces the first supersensible world. It raises the possibility that an individual has a will. In the ethos of Greece, for example, there was no such subject because the individual identified with the objective laws of Fate, Nature, and the polis. The philosophical consciousness recognizes the collapse of such a beautiful ethical life with the rise of the self-conscious individual. Such a subjectivism, best represented by Socrates, (p.95) is imagined as corrupt from the standpoint of the immediacy of the tribe and then of the polis (PR 185R).
How is it possible for a questioning individual, such as Socrates, to be bonded with the rules, institutions, legislature, and adjudicative procedure where there is no Volk or common religious experience today as there was in the clans and city-states of ancient Greece? If there is war, insurrection, or natural disaster, why will the citizen have a duty to sacrifice her or his life for the state? To kill another human being for the state? To ask, as a journalist or cabinet minister, how many of the enemy have been killed today? Hegel feared that the emerging “community” of his day might become “hollow, spiritless and unsettled” as had been the legitimacy of the kings and princes of the German principalities (PR 138A). Further, there was a risk that, as with Socrates, the Stoics of Rome, and the romanticists of his contemporary Germany, the individual would “flee from actuality and retreat into his inner life” (PR 138A).
5. Why is Verstand Unconnected with Actuality?
We are now in a position to address the nature of legal reasoning. Hegel has a term to describe the legal reasoning in the first supersensible world: Verstand. Verstand is the method of logic that reinforces the external presuppositions that Hegel disfavored. When philosophers and legal officials use Verstand as their method, the abstract laws become estranged from appearance. The possibility of actuality is inaccessible. Hegel explains that this is so because of the self-standing character of a concept. He elaborates what he means by this in Inner Logic and Philosophy of Mind.
a) A Self-standing Concept
As I explained in Chapter 2, the act of thinking begins with the moment of immediacy in an individual's consciousness. The mind intellectually constructs a concept. In the first supersensible world, such a concept stands by itself as a discrete unit. Such a concept is isolated from space and time and, therefore, estranged from the experience of immediacy which the concept represents. Verstand reinforces the first supersensible world by decomposing such a discrete and self-standing concept. The parts of the concept are taken as the “reality” or “practice” in that the more one decomposes a concept into its discrete parts the closer does one access legal reality—or, so it is believed in the first supersensible world.20 The parts (p.96) stand for or are the metonyms for the concept as a whole. The parts and the concept itself are abstracted from the time and space experienced in the immediacy. The unit of analysis is fixed in time and space (PM 389R). But such a discrete fixed abstraction contradicts the beginning of the act of thinking: that is, the moment of immediacy in consciousness. Verstand is stuck in such a contradiction: the lawyer, law student, or legal scholar—or, indeed, the legal philosopher of general jurisprudence—cannot break from the division of the world between the subjectivity of immediacy and the objectivity of fixed abstract concepts.
In this light, the philosopher of Verstand is caught in an intellectual world where differences are intellectually constructed in terms of concepts. The philosopher thinks about or “think[s] over” or re-presents the immediacy of subjectivity (EL 2R). We think about intuitions; we reflect about them. Both subjectivity and objectivity remain “out there,” separate from the thinking being. The representing concept is distinguished from immediacy. The act of thinking mediates between the initial moment of immediacy on the one hand and the object which represents the immediacy on the other hand. Representation (Vorstellung) mediates by categorizing the immediacy. The representation confers form onto the particular immediacy of the subject. The categorizing representation displaces the immediacy as the object of study (EL 3R). Such a category is self-standing because “there is nothing to be thought with a concept save the concept itself” (EL 3R).
Thus, if the philosopher remains stuck in an intellectual world of concepts, the representation is alienated from the immediacy. The fixed representations, such as posited rules by the state, are erroneously taken as “genuine” or practical constituents of legality. The reasoning involves intellectual distinctions about the rules. Since social phenomena draw from such moments of immediacy, legal reasoning, as Verstand, excises social phenomena from what the legal philosopher and lawyer take as legality (EL 6R). What is taken as “the law” is the “empty” first supersensible world with no return to the prior immediacy of subjectivity (EL 192A).
Hegel calls this “picture thinking.” At one end of the concept-social spectrum, there is the self-standing concept. At the other end there are the social phenomena. The legal reformer who works through Verstand cannot access the social phenomena despite the need of the reformer to address the relation of legality with social phenomena. The self-standing concept never perfectly fits with the social phenomenon it represents. Hart himself echoes Verstand (and the first supersensible world) when he admits that a rule merely “approximates” or “very nearly reproduces” social phenomena.21 The representation through the act of intellectualization leaves the (p.97) inner immediacy (or what Hegel calls “being”) of the subject in favor of a representing concept (PR 454). The former immediacy is represented. Any claim that analytic reasoning is “practical” law is thereby fantasy. Such a claim remains imprisoned in the decomposition of concepts (rules) into their parts, without returning to the moment of immediacy which began the process of thinking. To access actuality, the philosopher returns to the observed subject's immediacy that the intellectualization represents.
b) Interaction of Concepts
Hegel is dissatisfied with Verstand because the philosopher remains “imprisoned” in an external world that posits representations without retrieving the immediacy with which the act of thinking began. Verstand becomes important in this loss of the immediacy. Immediacy is excluded from legality as prelegal. For the units of observation are concepts rather than the immediacy experienced by individuals in social phenomena. One concept is exclusively represented in terms of another concept: freedom in terms of necessity, culture in terms of nature, actus reus in terms of mens rea, a legislature in terms of a court, civilization in terms of barbarism. The aim of the philosopher in the first supersensible world is to clarify self-standing concepts, to categorize the concepts, and to identify the boundaries of the concepts inter se. From the philosopher's “hundreds of assurances about reason, knowing, thinking, etc.,” the concepts gain self-acceptance in the philosopher's discourse “through endless repetitions of one and the same [statement]” (EL178R). With the introduction of concepts, then, there is a leap from the prelegal into the legal world, as both Hegel and Hart express, and the philosopher forgets that she or he has forgotten about the prelegal immediacy that was experienced.
c) Verstand's Representation of A Multiplicity of Particular Experiences
When legal analysis remains imprisoned in the first supersensible world, what is erroneously believed to be legal knowledge is estranged from subjectivity The legal official, preoccupied with particular rules of objectivity, aims “to state what is right and legal [Rechtens], i.e. what the particular legal determinations are” (PR 2R). With Verstand, the particular determinations are other concepts/rules. Rules are verbalized as “concepts of right or of such ‘concepts of right’ as are defined in this or that legal code” (PR 3R). But the codes, whether of debtor-creditor law or tax law, real estate law or constitutional law, lack any explicit reference to presupposed structures of legal (p.98) consciousness or social communication (PR 3R). A statute posits “general determinations of right, propositions of the understanding, principles, laws, and the like” (PR 3R). The judge or lawyer can identify a definition by virtue of the etymology of a word and this abstracts a concept from a context-specific experience. The more contradictory the rules in the abstract acts of intellectualization, the more difficult does one find it to posit a general definition. For, a definition claims to be universal whereas contradictions render such universality impossible. But, as Hegel (and Hart) point out, such a definitional approach to legality possesses shortcomings (PR 2R).22
d) Difference as a Difference Between Concepts
The self-standing concept becomes the object of decomposition into its parts. With Verstand, what is taken as difference is an intellectual difference amongst concepts. Social differences are immaterial and, indeed, forgotten. The more minute the parts and the clearer the identity of the shared features of concepts, the closer does one access the concepts of law. The distinctions between concepts approximate truth (PR 31R). Hegel explains such formalism of Verstand in this manner: “in the empirical sciences, it is customary to decompose what is found in representational thought [Vorstellung], and when the individual instance has been reduced to the common quality, this common quality is then called the concept” (PR 32A).
Hegel's description of the decomposition process of a self-standing concept may be familiar to the legal scholar whose methodology is Verstand.23 Hart and Raz perhaps have best described and used this method in general jurisprudence today.24 The official clarifies the boundaries of a concept (that is, a rule or principle). The official then decomposes the concept into its microfeatures. The official then identifies a common criterion of the microfeatures. The criterion constitutes the essence of a revised concept. The concept constitutes the knowledge of the perceived “facts of a case.” The official, though, never accesses such facts because she or he is caught in a network of concepts. One concept is justified in terms of another concept. The philosopher's role is to describe and clarify “the pathology” of the system of concepts so decomposed in the objectivity of consciousness.25 The system is even said to have “a life.”26 The boundary of the concept encircles a territorial-like metaphysical space. By discerning analytic truths about the boundary of a concept in an a priori manner, one “hopes that by doing so, we will learn something interesting, important, or essential about the nature of the thing the concept denotes.”27
(p.99) Hegel describes Verstand, much as does Hart, as the decomposition of a concept into distinct elements that are also self-standing independent of the particularity of social relationships. The microparts of a concept are inseparably bound together into a supersensible world that is erroneously taken as social existence. This is the first supersensible world. Thinking is the negation of something that is immediately experienced. Put differently, “it is a mistake to assume that, first of all, there are objects that form the content of our representations, and then our subjective activity comes in afterwards to form concepts of them, through the operation of abstracting that we spoke of earlier” (EL163A2). Actuality is this forgotten immediacy when the philosopher enters into the act of mediation about the immediacy, a mediation where individuals recognize each other such as happened in the second supersensible world (EL12R).
6. Hegel's Critique of Verstand
Verstand has several elements that stand out as conducive to social alienation according to Hegel.
For one thing, with Verstand, social relations are excised from an analysis of intellectual differentiation (PR 26R). Hegel describes the analysis of a concept in this manner: the method “takes an object [Gegenstand], proposition, etc. given to feeling or to the immediate consciousness in general, and dissolves it, confuses it, develops it this way and that, and is solely concerned with deducing its opposite—a negative mode which frequently appears in Plato” (PR 31R). The cumulative aggregate of such analyzed concepts stands for a system of concepts emptied of all social particularities despite the rhetoric of making distinctions about differences.
Second, this focus upon the intellectual differentiation between concepts deters officials from scrutinizing the substantive content of a concept. Because particularities are not addressed in the clarification of the boundaries and the differentiation of concepts, legal knowledge is entirely formal. If the “philosopher” retrieved the content of the concepts, philosophy would link an indeterminate concept with the social ethos in which the philosopher and the observed subject are immersed. The “content-independence” of legal arguments is a good thing according to some contemporary legal philosophers.28 Such content-independent reasons may be considered the units of legal objectivity.29 The key to the formalism of Verstand is just this content independence. Hegel's complaint with Verstand, not surprisingly, is (p.100) that the clarification and intellectual differentiation of concepts is “entirely superfluous,” as his handwriting indicates (W13, fn 23).
Instead of focusing upon Verstand, Hegel relates truth to the content of concepts/rules. Legal truth addresses the relation of the particularity of the social content of rules with their form. This relation addresses the presupposed structure of consciousness. But if such a structure were excised from the analysis of concepts, as in Verstand, and if legal analysis ignored the recognition of individuals inter se, rules (that is, concepts) would lack legitimacy. Even the mere application of the rule to posited facts fails to address the ethos in which the official and litigants play a role. For the social events may be represented as concepts and, even if this is not so, the social event is enclosed inside the boundary of the rule/concept. Even legal historians, if they string concepts into a systemic explanation of social events, may become imprisoned in a theoretical world of concepts. Although we believe that we are “learning the law,”30 we “learn” empty concepts and posited facts without considering the social differences that constitute the meanings. Hegel lectured in 1824/25 that, “To think that the concept will determine everything is a prejudice. It is not true, because there is an immense sphere into which the concept does not descend … The concept proceeds through a specific development, up to a specific point of detail in its determinations, but these determinations remain universal (1824/25 W13). As a consequence, Verstand “unconsciously achieves the opposite of what it intends” (PR 3R).
Third, the irony about Verstand, according to Hegel, is that although the philosopher and observed subject may believe that they are dealing with social practice, they are trapped in an intellectual world that only recognizes concepts as the units of legality. The particular experiences are enclosed by the concepts. The concepts are applied to posited facts but the latter also become concepts. The social context-specific content is immaterial to the analysis of concepts. Accordingly, this theoretical education “stops short at the universal and so does not reach actuality” (PR 207R).
Against this background, it would seem that Hegel would view a great deal of his (and our) professional legal education as theoretical. First, legal analysis composes general rules from an endless multiplicity of detailed microrules (PR 189). The decomposition of such rules draws from “the material of finitude and individuality [Einzelheit] whose extent is infinite” (PR 216R). Second, we may believe that we are satisfying social needs or accessing social phenomena by decomposing rules when in fact we are only decomposing rules about food, shelter, and clothing into more microconcepts. Any one concept is related to another concept. Instrumental rationality, a form (p.101) of knowledge I examine in Chapter 8, becomes highly specialized to such a point that individuals have “an inability to feel and enjoy the wider freedoms, and particularly the spiritual advantages, of civil society” (PR 243).
Indeterminacy plagues Verstand. How so? Because the boundary of a rule/concept is another concept, the relations between concepts miss the context-specific drives, needs, and values of particularity. Most importantly, the intellectual differences between concepts miss the particularity of the social relationships presupposed in the content of the concepts. Even context-specific events are categorized as concepts, although we are deceived into believing that they are “facts.” The social event, represented as a concept, is subsumed inside the boundary of a concept when the rule is applied to the posited facts (PR 3). The facts are taken as objective. Both the rule and the facts are posited external to and onto the subject. As a consequence, for Hegel, such an analytic approach to the philosophy of law is “pseudo-philosophy.” The authority of a rule becomes a mere “half-measure” (PR 31R) and “one-sided” because it fails to incorporate the social ethos into the content of the rules. Sarcasm permeates Hegel's treatment of Verstand. The closest that the formalist method of knowledge accesses social contingency is to subsume the facts, themselves swallowed in objective representations, under a category (PR 3R). As a consequence, the pursuit of logical consistency amongst concepts “has nothing to do with the satisfaction of the demands of reason and with philosophical science” (PR 3R).
Fourth, legal institutions lose any connection with experiential prejudgments or prejudicial. Social meaning, according to Hegel, draws from the intentionality of the subject, not from the criterion of some concept. The criterion intellectually transcends the control of the subject. The criterion is external and above the subjectivity. The institutional risks being estranged from actuality, “the [external] institution has thereby lost its meaning and its right [to exist]” (PR 3R). Or, as Hegel also emphasizes, “[t]his method leaves out of account what is alone essential to science—with regard to content, the necessity of the thing [Sache] in and for itself (in this case, or right [that is, of legally binding concepts]), and with regard to form, the nature of the concept” (PR 2R). The association of legitimacy with institutional sources when the institutions themselves are empty of any relation with actuality merely continues a rhetorical and reified shadow of actuality. In order to confer content into the relation of self-standing concepts with actuality, we need to recollect what went on before we represented concepts with concepts. With Vernunft, we bring to consciousness what we had forgotten during our preoccupation with the clarification, decomposition, and differentiation of concepts.
(p.102) 7. Vernunft
Hegel offers a form of reasoning that coheres with the inverted world analysis. Vernunft holds that an authentic philosophic method must focus upon the emergent presupposed structures of consciousness. Savigny's historicism had left no such role for the subject. So too, Kant's transcendental referent had held out that intuitions without concepts were blind. By applying concepts to sensible experience, we worked the latter into unities—that is, into a “sense.” A judgment thereby incorporated inclinations of the body into the individual's will.31 Once we bring inclinations into a judgment in this manner, though, we lose the possibility of universal moral rules. The latter are located in a noumenon rather than knowledge of phenomena.32 I shall now examine Hegel's differentiation of legitimacy from truth, how Verstand fails to access such truth, how Vernunft differs from Verstand, the retrospective role of the philosopher of Vernunft, and how legal reasoning can institutionalize Vernunft. Only a speculative philosophy rooted in Vernunft, according to Hegel, deserves the name philosophy.
a) Truth of the Content of Rules
For Hegel, the legitimacy of a binding law depends upon truth. Truth addresses the relation of the form of a concept with its particularized content. The particularity is the very act of thinking through which subjects are “becoming.” Through this content, individuals reciprocally recognize each other. Without a particularization in its content, a concept is indeterminate in scope. I do not relate to “this” or “that” external representation. I do not have an idea of this or that rule. If rules are reconciled with my subjectivity, the rules are “mine.” The subject embodies (confers the experiential body into) the content of rules and institutions. The particularity of an object of consciousness, such as a rule, becomes my own thinking. For Hegel, the social particularization of an indeterminate concept incorporates the subject's implied structure of consciousness or, in Hegel's terms, “the whole preceding exposition and development of thinking” that observed subjects have considered their own (EL 213A). The philosopher's role is to unconceal such implied structures “however painful the process may be” (PR 13A). Such implicit structures of consciousness manifest how the act of thinking links with objectivity. The implicit structure itself, not the institutions or discrete posited rules, “gives itself the form of external thereness” (EL 213). Hegel argues that both the empiricism of Locke and (p.103) the rationalism of Kant and Fichte miss this nexus of objectivity with the subjective consciousness.33
b) Reason
Philosophy, for Hegel, involves reason (die Vernunft) rather than the intellect (der Verstand). Der Verstand involves the analysis of the interrelation of concepts in an intellectual world. The English term most frequently used to translate Verstand is understanding. As noted in Chapter 1, understanding erroneously suggests Gadamer's very different use of the term (understanding as experiential knowledge). We had better translate Verstand as intellect or, better, as intellectual knowledge.34 Hegel believes that Kant had been preoccupied with Verstand when he had considered concepts as things-in-themselves. Again, much as Hart describes of “meaning,” Verstand presupposes that a concept has an essence.35
The fixity of a concept in time and space, described as such by Verstand, is accepted in contemporary Anglo-American jurisprudence.36 The importance of Verstand is exemplified in law courses that introduce the student to the vocabulary and method of analytic distinctions between concepts. Perhaps Hart best describes Verstand in his Introduction to Concept of Law.37 As noted earlier, both Hart and Joseph Raz exemplify Verstand in their essays about concepts.38 Also noted earlier, Raz suggests that because intellectual distinctions can only take one so far, the official must ultimately posit a value to end the struggle to reconcile intellectual contradictions or, as Hegel puts it “establish [festsetzen] for the sake of establishing” (PR 214R).39 Verstand thereby privileges a professionally trained elite of expert knowers of indeterminate concepts, knowers who ultimately posit their arbitrary wills behind the legal analysis of concepts or the posit of constitutional values (PR 215–16).
Vernunft, in contrast, involves synthetic reasoning in that particulars are added to the analysis of concepts. This particularity is a singular context-specific experience that the individual brings into her or his self-determined concepts as she or he recognizes strangers. In this way the experience of reciprocal recognition between strangers links the self-determined act of thinking with appearance. After all, the philosopher began the enterprise of philosophy with immediacy. And immediate knowledge involves mere appearances, not pure concepts in a noumenal realm (EL 45A). The appearances become determinate.40 Because jurists tend to associate subjectivity with such appearances and law with objectivity, the speculative (p.104) reasoning that Hegel advocates is often excluded from both philosophic and lawyers' reasoning in general jurisprudence.
What becomes important with such an exclusion of concrete experience in Verstand, as noted above, is the presupposed legitimacy of the posit of an arbitrary will by a state official or institution. Vernunft, in contrast, is concrete in that it relates indeterminate concepts with contingent, context-specific experiences. Vernunft crosses the boundary between the noumenal and phenomenal worlds. Concepts are actualized in the individual's social experiences. Hegel thereby collapses the distinction between the rule/value, is/ought, law/politics dichotomy by locating concepts inside the structures of consciousness of the observed subject. Values are implied from the universals shared with strangers in one's implied structure of consciousness. The observed subject is ultimately free when she or he becomes conscious that the subject shares the concepts with strangers through laws and institutions that they have constructed. Hegel calls such a consciousness, Reason or Vernunft.
The philosopher cannot discover or learn Vernunft. Nor can the philosopher analyze, theorize, or institutionalize Vernunft by occupying an office in a faculty of education or of law or, for that matter by being called professor of philosophy, in a university that prides itself in the production of skills. I shall explain why this is so in Chapter 8. Vernunft synthesizes concepts with contingent, context-specific experiences. This synthesis is marked by an interesting contrast between an act of representation and the experience of immediacy or presence with an object. Instead of distinguishing concepts as we do with Verstand, we access Vernunft through the immediate identity of self with object. The individual most successfully accesses Vernunft if she or he has reached the highest standards of Bildung.
Hegel's philosophical method, then, is an immanent process of the retrieval of the act of thinking. The philosopher observes how concepts mediate between immediacy and the objects of nature. The philosopher also observes how the content of the mediation differs from one ethos to the next. Because the retrieval is immanent in the act of thinking, consciousness is “an immanent progression and production of its own determinations” (PR 31). If the philosopher limited the study of law to the intellectual distinctions amongst a priori concepts, the concepts, being representations external to the philosopher, would have to be posited onto the observed individual's particular context-specific experiences. Such an act of thinking would be violent. Even if the concepts were applied to what are held out as “the facts” of a case, the concepts would have to be posited from the vertically higher concepts onto the concepts about “the facts.” The (p.105) “facts” would become an instance of the intellectually differentiated concept. But with Vernunft, the subject is initially immediate with objectivity and then the philosopher recognizes the objectivity in the subject's implied structure of consciousness.
Such a structure, though, is not peculiar to each individual. Rather, it is shared in a social-cultural ethos in which the philosopher and observed individual live. An ethos manifests the possibility of reciprocal recognition. It is just such an ethos that inculcates immediacy into the collective consciousness of the populace. How does the philosopher recognize when one structure of legal consciousness is evolving into another? The philosopher identifies when a populace begins to challenge what it had heretofore taken for granted without deliberation. Athenian democracy, for example, had evolved into a hollow, spiritless, and unstable social order which had no space for the rise of an intentional subject according to Hegel. Aristophanes mocked the polis (PR 138A). Faced with such a hollow structure of consciousness, Socrates retreated into his own inner consciousness (PR 140R). The role of the legal philosopher is to make conscious what has hitherto been unconscious in terms of how someone like Socrates relates to others through shared unconscious values.
The philosopher of Vernunft looks backward into the structures of legal consciousness implied in any particular society at any particular epoch of time. In this way, Vernunft is recollective of the collective unconscious. In the passage with which I began this book,
[a]s far as the individual is concerned, each individual is in any case a child of his time; thus philosophy too, is its own time comprehended in thoughts. It is just as foolish to imagine that any philosophy can transcend its contemporary world as that an individual can overleap his own time or leap over Rhodes. If his theory does indeed transcend his own time, if it builds itself a world as it ought to be, then it certainly has an existence, but only within his opinions—a pliant medium in which the imagination can construct anything it pleases. (PR 21–22)
Put differently, the philosophic method that Hegel advocates and manifests describes phenomena rather than constructs justificatory arguments about a priori concepts. Reason, for Hegel, involves the movement of structures of concepts immanent to the act of thinking.
There are two points that one needs to bear in mind in this respect. First, the logic of the immanent movement of legal consciousness lacks any externally posited presupposition. Most disciplines of study carry a presupposition with them. Political science, for example, presupposes that the state is the object of study. The study of law usually presupposes that the (p.106) rules of legislatures and courts bind inhabitants by virtue of their source in the state's bureaucracy. To be sure, Hegel admits that a philosopher presupposes that philosophy must begin with something that is either immediate or mediated (SL 67). But legal reasoning, according to Hegel, claims that the legal philosopher must not come to her or his subject of study with any presupposition about an externally posited source of legitimacy.
The absence of any such presupposition in Hegel's method—at least as Hegel sees his method—helps to explain why most of Hegel's analysis in Philosophy of Right concerns a stateless condition. Each structure of legal consciousness is socially and historically conditioned. Structures of consciousness relate to nature, objectivity, subjectivity, and the collective unconscious of the subject. The philosopher must retrospectively identify the boundaries of objectivity and subjectivity in the implicit structures of consciousness of the observed actors. Such structures will vary from society to society and from epoch to epoch.
Second, as Gadamer would caution,41 Hegel's approach to philosophy is not really a method. For one thing, a method suggests a technique to reach a goal. Such reasoning is instrumental. Verstand is characterized by such instrumental reason, a point that Max Horkheimer (1895–1973) and Theodor Adorno (1903–1969) picked up over a century later in their powerful Dialectics of Enlightenment.42 Because Verstand accepts the externally posited source of reasoning as a “given,” the immanent process of thinking “is precisely what the understanding always describes as incomprehensible” (PR 7R). Even a philosopher needs to become conscious of the boundary of her or his own presupposed structure of consciousness in an ethos. Further, a “method” suggests that there are rules about thinking in a certain way. Hegel's aim, though, is retrospectively to identify the rules that any particular ethos might have. The philosopher observes how nonphilosophers also feel immediate with “the law.” There is no external factor or criterion that mediates between subject and law. In sum, Hegel's “method” is hardly what one might consider a “scientific” method.
c) Legal Reasoning as Vernunft
Let us contrast how a philosopher might reason as Verstand and as Vernunft,43 Let us take the monarch as the object of study. With Verstand, the monarch is a mere concept. Reasoning as Verstand differentiates the concept of the monarch from other concepts, such as of the legislature or the electorate. This is Verstand. The concept represents the monarch. The concept of the monarch—or a court or legislature or a right—is located in (p.107) a network of self-referring concepts. In such a view, though, one could, at best, have faith in the unity of the parts of the analyzed concept (PR 280R). As Hegel notes, “[t]he concept of the monarch is therefore extremely difficult for ratiocination—i.e. the reflective approach of the understanding—to grasp, because such ratiocination stops short at isolated determinations, and consequently knows only [individual] reasons [Gründe], finite viewpoints, and deduction from such reasons” (PR 279R). If the monarch were the object of Vernunft, however, the concept of the monarch would relate to the context-specific social phenomena that particularize the concept. Such a synthesis of concept and particularization would be “entirely self originating” much like Hegel describes of the logic of freedom.
Hegel cautions that there is little point to analyze concepts in a manner that parses sentences from “predicates, principles and the like” (PR 269A). The latter parsing involves “formalistic thinking [Formalismus] that endeavours to rationalize away [wegzuräsonnieren] the substantial and concrete nature of the thing [Sache] in favour of individual aspects which belong to its external appearance and of abstractions which it derives from these” (PR 319R). Such rhetoric turns on “the art of allusions, turns of phrase, half-utterances and semi-concealment” (PR 319R). The legal reasoning in the sense of Vernunft inquires into the beliefs and ideals embodied in customs, religious practices, intermediate social institutions, posited codes, the social relations between men and women, languages, political and legal institutions, and the social-cultural practices of such institutions. This inquiry renders conscious the implied structure of the collective unconscious. Legal studies need to unconceal the spirit of social actuality from the reified old forms.
Hegel is not the first constitutional lawyer to associate the units of legality with such a wide spectrum of resources: Aristotle was another.44 Hegel builds legal units from social relations rather than from the intellectual differentiation of rules. Unless rules are contextualized in social relations, choices are made as if human beings were abstracted from the social world. Instead, rights and duties are articulated in the context of an ethos. Particularity (the desires and inclinations) is identified from a medium (a universal). The universal joins with particularity to manifest the presupposed social relationships between strangers. Hegel thereby connects his method to actuality, a term I introduced in Chapter 1 (PR 320). Actuality may be unwritten and unconscious behind the ratiocination of statutes and precedents.45 Further, the jurist must have a “disposition” to seek out such social actuality (PR 270R). Only philosophical consciousness—not the instrumental and analytic method of legal reasoning—can comprehend (p.108) a particular judicial decision as Vernunft.The jurist must identify how immediacy between subject and objectivity is manifested in reciprocally recognized relationships in an ethos. Legal reasoning, then, is directed to the immanent relationships between individuals in an ethos. But the judge or philosopher may well share a presupposed structure of consciousness with the observed subject's immediate identity with objectivity. The role of the philosopher or judge is formidable (PR 320).
8. Anthropologist or Philosopher?
It is tempting to describe Hegel's theory of legal reasoning as an anthropological exercise. The Roman Stoics, such as Seneca, and the Roman Epicureans, such as Lucretius, as well as modern legal philosophers, such as Locke and Rousseau, had claimed a temporal origin to the state. Even leading Anglo-American legal philosophers, such as Hart, have asserted or implied that a modern legal order anthropologically develops from a “rudimentary and primitive” or “prelegal” one.46 Philosophy of Right also draws heavily from historical and anthropological sources (PR 32, 19R). This is especially so when Hegel distinguishes civilization from barbarism as outlined in Chapter 2 (PR 32R, 349, 351). Hegel's lectures just before his writing of Philosophy of Right also suggest an anthropological method. There, he claims that the modern state has its historical roots in the family or clan (1817/18 122R). We evolve historically from the nomadic life of savages (1817/18 103), to an agricultural community (103), to a trading class (1817/18 104), and to a universal class of public servants (1817/18 105). Even the corporation is a historical phase that has replaced the nuclear family of the town: “[i]t is very often the case with us that states developed out of corporations, e.g. through feudalism … As third estate [Stand] the people in turn formed corporations, by means of which they took advantage of the weakness of the state to secure privileges for themselves” (1817/18 125R). More generally, “[t]he ensuing stage of history is always higher, and this is the perfectability of spirit … In sublating its phenomenal form, the spirit of the age [Zeitgeist] attains in the transition a higher stage” (1817/18 126R). The intimate association of a social practice with an ethos reinforces the anthropological character of the object of study.47
That said, Hegel has in mind in his mature legal philosophy a philosophical, not an anthropological, method. The different forms of Sittlichkeit, I shall explain in Chapter 6, presuppose universals that strangers share. Hegel's mature legal philosophy describes the recognition of the stranger (p.109) as the central issue in ethicality. It is not any social-cultural ethos with which Hegel is concerned. Rather, legal reasoning focuses upon the logical progression of presupposed structures of consciousness that increasingly recognize a self-conscious subject's role in subjective and objective legal consciousness. There are no interrupted moments in linear progress: no “two steps forward and one step backward.” Further, a historical event is not the same as the structure of consciousness. Each structure of consciousness is the logical foundation of the next. As Frederick Copleston suggests, the movement from one structure of consciousness into a higher level of consciousness (and, therefore, of civilization) is a thinking movement for Hegel, not a historical one.48 This movement of thinking is what Hegel describes as Reason or Vernunft.
If Hegel were following an anthropological method, he would not initially concern himself with private property and begin with the family as a social institution. Indeed, Hegel admits that we might be able to have a family, such as takes place in some nomadic tribes, without private property (PR 32A). Hegel first examines property, however, when the individual begins to think because it is a shape of consciousness that preconditions the possibility of a family where a self-conscious subject is possible. The anthropological genesis of a subject's social institutions come on the scene before the philosopher becomes conscious of what is transpiring in the observed subject's self-conscious relation with objectivity (EL 83A). The observed subject brings such institutional practices and their products into her or his consciousness. The observed subject thereby holds her- or himself responsible for the content of any one rule or institutional act. Legal knowledge becomes practical rather than theoretical. The philosophic perspective recognizes how this role of the subject with objectivity is transformed from the feeling of immediacy with customs to a reflective ethos.
Accordingly, an anthropological origin to a legal system is of no concern to Hegel except by way of example to his argument. Rather, he aims to explain why the posited rules and institutions of a state are binding when the inhabitants are internally driven to become self-conscious through acts of thinking. The act of thinking is immanent in an already existing social ethos (PR 31R, 189R). Even morality, according to Hegel, is located in social relationships. The observed subject (and philosopher) cannot separate her- or himself from social relationships. The inhabitant may not even opt from the public character of the state's laws: “if no state is there then reason [the reason associated with the progress of self-conscious will] demands that one be founded” (1822/23 W67). Historically, a state comes first and then the civil society with property, contracts, and institutions arrives on (p.110) the scene (1819/20 W188). Indeed, even in Hegel's own terms, the origins of history—a stateless society of barbarians—is a mythological “prehistory” He rigidly distinguishes between barbarism and civilization in order to render experienced time possible. Although commentators of Hegel's works have often understood the organic legal order as the final moment of history,49 this entirely misses the time-consciousness of Vernunft. There is no historical closure to the development of presupposed structures of legal consciousness. Recht involves a cumulative process of the subject becoming ever more conscious of her or his role in determining and mirroring laws and centralized institutions.
9. Truth and the Identity of Law
The philosopher's role in all this, though, is not, as appears to be the case today, that Hegel's philosopher become the specialist of applied ethics, a market economy, public policy, human rights, or gender politics. Nor does Hegel's philosopher aim to clarify concepts such as “free speech,” the nature of a right, or the concept of law itself. Further, too often the contemporary legal philosopher assumes that legality is constituted from what lawyers and judges claim they do. The rules and values posited by state institutions are often considered authoritative or binding. We have all been reminded: the law student must learn to think like a lawyer. The philosopher's role (and that of the lawyer or judge) are too important for that. For the legal philosopher's objective is the search for truth, according to Hegel.
This is the entry point for the contemporary lawyer or legal scholar to appreciate Hegel's laws. When the lawyer or judge examines the binding character of a legal rule, the object of study is a proposition. The clarification of the boundary of the proposition and the consistency between propositions identify a legal unit. The judge plays the role of a disinterested third party who appeals to concepts that transcend the particular context-specific experiences of the parties. The judge appeals to a rule (this being a concept) as the unit of legality. Of course, human values are important, though our lawyers, legal scholars, and judges often find difficulty in running too far or fast with them. When we humans are weighed down with subjectivity, we defer to representations (Darstellungen) of a concept in hopes that we access objectivity. When we recognize the contingency of knowledge, though, we fall back upon subjectivity as the ultimate referent of legal reasoning. Both judges and philosophers acknowledge that posited human values or beliefs end the otherwise infinite ratiocination of (p.111) rules.50 The values function to evaluate the content of the rules.51 We try to relate such values to their source in the institutional bureaucracy of the state-centered legal order to legitimize our beliefs as binding on others.
The philosopher's role, as well as the lawyer's, does not end here, though. This trace of a legal unit to some external founding authorizing origin may be true or untrue. Contemporary legal philosophers are comfortable, more often than not, when they associate legitimacy with such an external legitimizing origin such as habits of obedience and when this origin is recognized as a rule of recognition. Hegel's point in this enterprise is that the content of such a legitimizing externality, as well as the content of the rule of recognition, are immaterial if the legal philosopher or the legal official are only concerned with “what is the identity of the unit of legality?” Hegel's facetious comments about the rule-chasing lawyer are as vivid as are Cicero's.52 Hegel might also describe the policy expert of today as a mere “pseudo-philosopher.” Why? The concept-chasing lawyer or policy expert fails in the quest to access truth of a legal unit. Hegel proceeds to examine how the posit of a value relates to a presupposed structure of consciousness that the subject—the official widely defined—presupposes.
Truth lies, then, in the social relationships presupposed in the content of a concept or rule. Such a rule manifests an implied structure of consciousness where individuals may or may not reciprocally recognize each other. But because the subject's structure of consciousness evolves over time, truth wanders through time. A philosophy of law is a narrative about experiences in time-consciousness. An analytic syllogism does not address such. One reads the rules and institutional acts through an opaque window. The challenge is for the philosopher to identify the spirit of one's epoch, better understood as Weltanschauung. For Hegel, legal existence rests in the act of thinking about an event during the experience of time. The content of statutes and precedents incorporates the social-cultural assumptions and expectations that one takes for granted when one intellectually distinguishes one rule from another. The observation about the presupposed self-conscious recognition of strangers through shared mediations, such as institutions, religious practices, and all the other indicia of Vernunft, would be the objective of legal education. I shall expand upon Hegel's theory of legal education in Chapter 9. The importance of the act of thinking prior to any presupposed external foundation attributed to an authorizing origin is otherwise missed by legal philosophers. Sources external to consciousness, such as a hypothetical state of nature (Hobbes), habits of obedience (Bentham and Austin), the regularity of social behavior (Hart and Coleman), an invisible author (Rousseau), an (p.112) a priori thought (Kelsen), bonding (Hart and Raz), or an idealized rationally cohesive narrative (Dworkin), are removed from the act of thinking.
Truth, though, is not accessed by such a trace of authority to some exteriority to self-consciousness. One cannot pass through the process of thinking from such a superficial act of learning. The identity of the social phenomena in the content of a rule, the examination of how the content of such rule represents how each individual recognizes the other, and then the nexus of such social recognition with the presupposed structures of consciousness in an ethos: such inquiries involve speculation, Hegel admits. The philosopher must not rest content with the mere accumulation of speculative ideas. Hegel explains his point more clearly in this way:
The truth concerning right, ethics, and the state is at any rate as old as its exposition and promulgation in public laws and in public morality and religion. What more does truth require, inasmuch as the thinking mind [Geist] is not content to possess it in this proximate manner? What it needs is to be comprehended as well, so that the content which is already rational in itself may also gain a rational form and thereby appear justified to free thinking. For such thinking does not stop at what is given, whether the latter is supported by the external positive legitimacy of the state or the mutual agreement among human beings, or by the legitimacy of inner feeling and the heart and by the testimony of the spirit which immediately concurs with this, but starts out from itself and thereby demands to know itself as united in its innermost being with the truth. (PR Pref. 11)
There simply is no closure to the pursuit of self-consciousness by observed individual or deserving philosopher. The human subject can evolve to higher and higher levels of self-consciousness where the individual recognizes her- or himself in the stranger and the stranger in her- or himself. To this end, Hegel begins with the stateless society that characterized the Germany of his day.
This absence of closure, manifested by the thinking being, marks Hegel's problematic of a modern state-centric legal order. For if an individual gains a consciousness of her or his separation from the universals of one's tribe or polis, why would one feel obligated to follow the laws of the newfound state-centric legal order? In order to set the stage for this fundamental question, we need to turn to Hegel's explanation of the moment of immediacy with objectivity when the former member of the tribe or polis unknowingly emerges from an implied structure of consciousness centered about a thinking being.
Notes:
(1.) Raz, “On the Autonomy of Legal Reasoning” in Ethics in Public Domain: Essays in the Morality of Law and Politics. (Oxford: Clarendon Press, 1994), 326–40, at 335, 338–39. [Raz, Ethics].
(2.) The possibility of experiential space and time in legal reasoning is developed in Conklin, “A Phenomenological Theory of the Human Rights of the Alien” in Ethical Perspectives 13 (2006), 245–301. I examine this possibility more closely in the Conlusion.
(3.) In this essay Hegel advises that the world of philosophy is inverted. The essay was written as the Introduction for the short-lived journal, Critical Journal of Philosophy, edited by Hegel and Schelling, of which there were three issues for each of 1802–04. It is reprinted in part in Hegel: a Reinterpretation, ed. by Walter Kaufmann (Notre Dame, IN: University of Notre Dame Press, 1978 [1965]), 56.
(4.) Hegel elaborates the metaphor in PS 143–65. The metaphor is not Hegel's. We learn from Donald Verene that the inverted world is the title and object of plays by Ludwig Tiech in 1799 (eight years before Hegel published Phenomenology of Spirit, where the inverted world first appears), Christian Weise (1683), Johann Ulrich von König (1725), and in German literature generally in the Middle Ages. See Donald Phillip Verene, Hegel's Recollection: a Study of Images in the Phenomenology of Spirit (Albany: State University of New York, 1985), 50–55. In addition, Shakespeare's fool in King Lear inverts the world of legitimacy.
(5.) Philosophy of Fine Art, trans. by F.B.P. Osmaston, 4 vols. (New York: Hacker, 1975), vol. 1, p. 250 as quoted in text, supra chapter 2 at fn 40.
(6.) Hart, Concept of Law, ed. with Postscript by Penelope A. Bulloch & Joseph Raz, 2d. (Oxford: Clarendon Press, 1994 [1961]), 94.
(7.) Coleman and Simchen, “Law” in Legal Theory 9 (2003), 1–41, 41.
(8.) See generally, e.g., Windsor Yearbook of Access to Justice, vols. 10 (1991) & 19 (2001). For a review of how access to justice scholarship is stuck in the first supersensible world see William E. Conklin, “Whither Justice? The Common Problematic of Five Models of ‘Access to Justice’” in Windsor Yearbook of Access to Justice 19 (2001), 297–316.
(9.) The inverted world here is described in PS 143–65. See esp. Gadamer's discussion of this in his “Hegel's Inverted World” in Gadamer, Hegel's Dialectic: Five Hermeneutic Studies, trans. by P. Christopher Smith (New Haven & London: Yale University Press, 1976), 35–53, at 40. Gadamer's essay is also translated by John F. Donovan in Review of Metaphysics 28 (1974–75), 401–22. Hegel's inverted world analysis is discussed in general in Joseph C. Flay, “Hegel's ‘Inverted World’” in Rev of Metaphysics 23 (1969–70), 662–78. Also see Murray Greene, “Hegel's Notion (p.347) of Inversion” in International Journal for Philosophy of Religion 1 (1970), 161–75; Donald Phillip Verene, “The Topsy-Turvey World” in Hegel's Recollection, supra note 4, 39–58; Joseph Flay, “Hegel's Inverted World” in Review of Metaphysics 23 (1970), 662–78; and Robert Solomon, In the Spirit of Hegel (New York: Oxford University Press, 1983), 376–85.
(10.) The reason why the institutional source of a state-posited law is important to Raz is that he claims that the analysis of concept can only go so far, at which point a value has to be posited. Raz claims that this ultimate posit of a value renders the judicial decision a political decision. Raz, “On the Autonomy of Legal Reasoning” in Raz, Ethics, supra note 1, 339. Raz accepts that the positing of a personal value would be illegitimate. But the positing of the same value by an institution of the state is legitimate. Ibid. 335, 338–39. The institutional posit of a value is thereby a “moral fact.” See Raz, Practical Reason and Norms (Princeton: Princeton University Press, 1990; 2d.), 12. All rules that derive their authority from the posited value are also binding. See Raz, Authority of Law (Oxford: Clarendon Press, 1979), 22–25, 234–37. Raz, of course, believes that he saves the decision from naked violence because the value is posited by objectivity as represented by an official of the institutional structure of the state. Raz, Practical Reason and Norms 2d. (Princeton, NJ: Princeton University Press, 1990), 12. This is what Raz calls the “sources thesis,” best explained in Raz, Authority of Law. The institutional structure of the state, though, is presupposed before Raz examines the act of legal reasoning despite his claim to the contrary. The state is external to the act of thinking by an official.
(11.) Hart, Concept of Law, supra note 6, 100–10.
(12.) Hans Kelsen, Pure Theory of Law, trans. by Max Knight (Berkeley: University of California Press, 1970), 194.
(13.) Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), 400–13. Although it may seem counterintuitive for Dworkin to claim that there can be a transcendent pure “law beyond law” implicit in an imperfectly coherent narrative structure, one is encouraged to return to Dworkin's final chapter, a chapter that has been ignored in the prolific rereadings of Dworkin's works.
(14.) The best explanation of this, though addressing human experience generally rather than legal experience, is H. S. Harris, Hegel: Phenomenology and System (Indianapolis: Hackett, 1995), esp.17–21.
(15.) Hart distinguishes between an external and internal point of view. The observer takes an external viewpoint when she or he observes and describes a social practice as existing despite the fact that the observer may personally object to the practice. The external statement recognizes that others accept the internal statement as binding. The external statement recognizes a legal obligation; an internal statement expresses the feeling of being obliged. Hart, Concept of Law, supra note 6, 57–61. Although Raz interprets Hart as supporting the idea of a “committed” viewpoint to the legal order as a whole, William Twining quite rightly points out that although officials may be so committed, this may not be so for the outside non-expert or the outside observer who takes account of the internal point of view of others. See generally, William Twining, “Other People's Power” in Globalisation and Legal Theory (London: Butterworths, 2000), 108–35, at 132–33. Indeed, (p.348) Hart very clearly states that the internal standpoint is that of the official, not that of the nonexpert.
Raz adds a third form of external point of view: the scientific. Raz, Authority of Law, supra note 10, 137–39. With an internal viewpoint, according to Raz, the official may well subscribe to the content of a rule as just or unjust. The official may be committed or internally bonded with the standards that the statement recognizes. This commitment may incorporate experiential factors into legal reasoning. Instead, the official should take the viewpoint of the legal system as a whole. Raz suggests that with the scientific viewpoint, the official may “endorse” the content of a standard without being personally committed to it.
(16.) Gadamer, Truth and Method (New York: Crossroad, 1985).
(17.) Gadamer draws on Paul Graf Yorck von Wartenburg, Briefwechsel zwischen Wilhelm Dilthey und dem Grafen Paul Yorck von Wartenburg 1877–1897, (1923; Reprint Hildesheim, 1995).
(18.) The best explanation of this point is J. Glenn Gray, Hegel and Greek Thought (New York: Harper & Row, 1941), 53–67. Also see Hegel on Tragedy, ed. by Anne Paolucci & Henry Paolucci (Garden City, New York: Anchor, 1962), 165–236 (Dramatic Motivation and Language); and A. C. Bradley, “Hegel's Theory of Tragedy” in ibid. 367–88.
(19.) The contrast between the two different ethical lives is discussed in M. J. Inwood, “Hegel, Plato and Greek ‘Sittlichkeit’” in The State and Civil Society: Studies in Hegel's Political Philosophy, ed. by Z. Pelczynski (Cambridge: Cambridge University Press, 1989), 40–54.
(20.) Of the contemporary jurists of general jurisprudence, Jules Coleman best describes the self-standing character of concepts. See generally, Coleman, “Methodology” in Oxford Handbook of Jurisprudence, ed. by Jules Coleman and Scott Shapiro (Oxford: Clarendon, 2002), 311–51, at 314, 345, fn 43.
(21.) Hart, Concept of Law, supra note 6, 90. There remains a remainder which a concept cannot incorporate within its boundary. A concept is a fixed thing that brings meant objects within its boundary as if the boundary had a territorial character. Hart also realizes that “buried” in a concept there is a multiplicity of experiential meanings. The buried meanings constitute the “prelegal” world for, being bodily, they characterize the customs that Hart attributes to tribes. See generally, Conklin, Invisible Origins of Legal Positivism (Dordrecht: Kluwer, 2001), 209–11, 214–31. I use the term meaning as the embodiment of a signification. The latter relates a sign to the signified object. The former incorporates the experiential body. See Conklin, Phenomenology of Modern Legal Discourse (Aldershot: Dartmouth, 1998), 37, 90, 161–62.
(22.) Hart, Concept of Law, supra note 6, 13–17.
(23.) See generally, Coleman, “Methodology”, supra note 20. Also see Bernard Williams & Alan Montefiore, “Introduction” to British Analytical Philosophy (London: Routledge & Kegan Paul, 1966); Thomas Baldwin, “Analytic Philosophy” in Routledge Encyclopaedia of Philosophy (London: Routledge, 1998), 223–29; and Donald C. Galloway, “The Axiology of Analytical Jurisprudence: A Study of the Underlying Sociological Assumptions and Ideological Predictions” in Law in a Social Context: Liber Amicorum Honouring Professor Lon L. Fuller, ed. by Thomas W. Bechtler (Netherlands: Kluwer, 1978), 49–97.
(24.) The classic statement along these lines is Hart, “Definition and Theory in Jurisprudence: An Inaugural Lecture.” Delivered before the University of Oxford on May 30, 1953 (Oxford: Clarendon Press), 1–28. Reprinted in Law Quarterly Review 70 (1954): 37–60, and in Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 21–48. Also see Hart, Concept of Law, supra note 6, 13–17, 239–44.
(25.) Hart, Concept of Law, supra note 6, 117–23.
(26.) Hart, Concept of Law, supra note 6, 101.
(27.) Jules Coleman, Practice of Principle (Oxford: Oxford University Press, 2001), 179.
(28.) As Coleman and Simchen write, for example, “[o]ur understanding of what law is would be greatly diminished if we failed to appreciate law as providing content-independent reasons for action.” Coleman and Simchen, “Law”, supra note 7, at 41.
(29.) Coleman and Leiter, “Legal Positivism” in A Companion to Philosophy of Law and Legal Theory, ed. by Dennis Patterson (Oxford: Blackwell, 1999 [1996]), 241–60, at 244. Raz and Hart recognize the importance of the immediate bonding of an individual with state institutions as the ultimate grounding of legitimacy. Raz, “Government by Consent” (1987) in Ethics, supra note 1, 355–69, at 366–69. For examples of Hart's reliance upon social bonding as the ultimate source of legitimacy, see Conklin, Invisible Origins of Legal Positivism, supra note 21, 215–22. However, once the leap into the modern centralized institutions has been made, legal units are considered content independent. See, e.g., Coleman and Leiter, “Legal Positivism” ibid., 259; Coleman, “Constraints on the Criteria of Legality” in Legal Theory 6 (2000), 171–83, at 181.
(30.) See, e.g., Glanville Williams, Learning the Law (London: Sweet and Maxwell, 2002); Stephen Waddams, An Introduction to the Study of Law (Scarborough: Carswell, 2004).
(31.) Kant, Critique of Practical Reason, trans. by Lewis White Black (New York: Macmillan, 1956 [1788]).
(32.) Kant, Grounding for the Metaphysics of Morals, trans. by James W. Ellington, 3d. (Indianapolis: Hackett Publishing, 1993 [1785]).
(33.) H.G.W. Hegel, Faith and Knowledge, trans. by Walter Cerf and H. S. Harris (Albany: State University of New York Press, 1977 [1802]), 63–66.
(34.) This is the suggestion of Adriaan T. Peperzak, Modern Freedom: Hegel's Legal, Moral, and Political Philosophy (Dordrecht: Kluwer, 2001), at 34, fn 43 and 56–60.
(35.) Hart, Concept of Law, note 6, 13–17. See text, supra corresponding to note 24.
(36.) Joseph Raz does accept that there is room for the interpretation of a concept although “[l]egal philosophy merely explains the concept that exists independently of it.” Raz, “Two Views of the Nature of the Theory of Law,” Ethics, supra note 1, 280. Raz continues that “having a concept can fall well short of a thorough knowledge of the nature of the thing it is a concept of … [A] philosophical explanation … aims at improving [people's] understanding of the concept in one respect or another.” Emphasis added but italics on first three words removed. There is a truth in the legal philosopher's project, according to Jules Coleman, but such a truth stands “at a greater distance or remove from experience than do other beliefs” such as synthetic claims. Coleman, “Methodology”, supra note 20, 344.
(37.) Hart, Concept of Law, supra note 6, 15–17, 78–81.
(38.) Also see, supra note 24. For Raz's adoption of this method, see how he approaches social and moral issues in his Ethics in the Public Domain, supra note 1. Also see Matthew H. Kramer, N. E. Simmonds, & Hillel Steiner, A Debate over Rights: Philosophical Enquiries (Oxford: Oxford University Press, 1998).
(39.) See Raz, “On the Autonomy of Legal Reasoning” in Ethics, supra note 1.
(40.) See Hegel, The Jena System, 1804–5: Logic and Metaphysics, trans. by John W. Burbidge & George di Giovanni (Kingston: McGill-Queens, 1986 [1804–05]), 53.
(41.) Georg Hans Gadamer, Truth and Method, supra note 16.
(42.) Max Horkheimer & Theodor Adorno, Dialectic of Enlightenment, trans. by John Cumming (New York: Continuum, 1972 [1944]). Also see Horkheimer, Critique of Instrumental Reason, trans. by Matthew J. O'Connell (New York: Seabury Press, 1974); Horkheimer, Critical Theory: Selected Essays, trans. by Matthew J. O'Connell (New York: Continuum, 1982 [1968]. Also see William E. Conklin, “The Legal Theory of Horkheimer and Adorno”, supra note 8.
(43.) This can best be located in PR 31–33.
(44.) In his studies of the constitutions of Sparta, Crete, Carthage, and Athens in The Constitution of Athens (New York: Hafner, 1974 [1950]), Aristotle examines social practices, political practices, the distribution of wealth, the relations between the sexes, economic obstacles to access to office, the de facto relationship of one institution to another, the consequences and, finally, the objectives of legislation. These are just indicia of the unwritten constitution of each city-state. Aristotle evaluates the social practices in terms of who is a flourishing or complete person (eudaimonia]. The flourishing person in a particular city-state informs one of the end or telos of the persons in the society. That constitution is best where each citizen participates as a flourishing person.
(45.) This social understanding of a constitution is best elaborated in Michael Salter & Julie J. A. Shaw, “Towards a Critical Theory of Constitutional Law: Hegel's Contribution” in Journal of Law and Society 21 (1994), 464–86.
(46.) H.L.A. Hart takes this view in the “step” from the prelegal to the legal reality in Concept of Law, supra note 6, 94. For this interpretation of Hegel's climb up the ladder of civilization, see Howard P. Kainz, Hegel's Philosophy of Right with Marx's Commentary: a Handbook for Students (Hague: Martinus Nijhoff, 1974), 42.
(47.) Alan Brudner, Constitutional Facts (Oxford: Oxford University Press, 2004), 302–09.
(48.) Frederick Copleston, A History of Philosophy 9 vols. (New York: Doubleday, 1985), vol. 7, at 211.
(49.) See, e.g., Leo Rauch, “Hegel, spirit and politics,” in The Age of German Idealism, ed. by Robert C. Solomon and Kathleen M. Higgens (London: Routledge, 1993), 281; Jürgen Habermas, The Philosophical Discourse of Modernity, Frederick Lawrence trans. (Cambridge, MA: MIT Press, 1987), 39–41. Also see Habermas, Theory and Practice (Boston: Beacon Press, 1973).
(50.) Joseph Raz for one has recognized this. See, e.g., Raz, “The Autonomy of Legal Reasoning” (1993) in Raz, Ethics, supra note 1, 335, 338–39.
(51.) Raz, “Authority, Law and Morality” in Ethics, supra note 1, 210–37, at 237.
(52.) See, e.g., Cicero, De Republica 5.5; De Legibus 1.17.
