Hegel’s Civic Republicanism

Integrating Natural Law with Kant’s Moral Constructivism

Kenneth R. Westphal, Kenneth Westphal

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9781032337753
• eBook ISBN:
  9781000740899
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

In this book, Westphal offers an original interpretation of Hegel's moral philosophy. Building on his previous study of the role of natural law in Hume's and Kant's accounts of justice, Westphal argues that Hegel developed and justified a robust form of civic republicanism. Westphal identifies, for the first time, the proper genre to which Hegel's Philosophical Outlines of Justice belongs and to which it so prodigiously contributes, which he calls Natural Law Constructivism, an approach developed by Hume, Rousseau, Kant, and Hegel. He brings to bear Hegel's adoption and augmentation of Kant's Critique of rational judgment and justification in all non-formal domains to his moral philosophy in his Outlines. Westphal argues that Hegel's justification for the standards of political legitimacy successfully integrates Rousseau's Independence Requirement into the role of public reason within a constitutional republic. In these regards, Hegel's moral and political principles are progressive not only in principle, but also in practice. Hegel's Civic Republicanism will be of interest to scholars of moral philosophy, social and political philosophy, philosophy of law, Hegel, eighteenth- and nineteenth-century philosophy.

1 Hegel’s Moral Philosophy

A Conspectus

Pour être bon philosophe, il faut être sec, clair, sans illusion. Un banquier, qui a fait fortune, a une partie du caractère requis pour faire des découvertes en philosophie, c’est-a-dire pour voir clair dans ce qui est;

Ce qui est un peu différent de parler éloquemment de brilliantes chimères.

– Stendhal (1855, 2:87)

1 Hegel a Moral Philosopher?

Hegel’s main work in moral philosophy, Philosophical Outlines of Justice, or Natural Law and Political Science in Outline (1821, designated ‘Rph’), has been condemned from Marx to Cassirer and Popper as totalitarian, because, for example, Hegel rejected atomistic individualism, the social contract and open democratic elections. The assumption that Hegel’s rejection of these views results in totalitarianism rests on dichotomies Hegel criticised and rejected (Kaufmann 1951; Wood 1990, 8–14, 36–42; Westphal 1993, 234–244; James 2017; below, §§2, 58–61). Recent scholarship demonstrates that Hegel’s social theory ‘is unsurpassed in its richness, its philosophical rigour, and its insights into the nature of good social institutions’ (Neuhouser 2000, 1). Hegel belongs to the classical or ‘civic’ republican tradition and espouses collective liberalism, as do Rousseau, T.H. Green and John Dewey.¹

1On civic republicanism, see Pettit (1997), Honohan (2002), Laborde & Maynor (2008), Lovett (2018). Here I develop independently an analysis and justification of ‘a way in which citizens might realise freedom more effectively than is currently achieved’ (Honohan 2002, 2). Hegel’s powerful justification of civic republicanism builds directly upon Kant’s Critical account of rational justification in all non-formal domains, rather than by appeal to psychology (Pettit 2001). This is not at all to deny the psychological goods fostered by civic republicanism (see below, §§55–61), though it is to avoid psychologism, for reasons detailed later.

2 Some Theoretical Context of Hegel’s Moral Philosophy

Hegel treats moral philosophy as a genus comprising two coördinate species: ethics and justice, a conception which predominated from the Greeks through the nineteenth century (c.e.) and still prevalent on the European Continent, because many of the most basic conditions required for individuals to engage with ethical issues are social, political and legal; and conversely, one of the most vital tasks of any society is to empty the nursery and to populate the commons with able, responsible adults. Hegel agrees with the ancient Greeks that the best way to raise a virtuous child is within a city with good laws (Rph §173r). Recent historical experience should make this plain even to those most committed to the primacy of individual ethics over political philosophy.

Hegel realised that the standard distinction in social ontology between atomistic individualism and monolithic collectivism is not exhaustive. He developed an alternative, intermediate view, which may be called ‘moderate collectivism’, comprising three theses:

1. Individuals are fundamentally social practitioners because everything a person does, says or thinks is formed in the context of social practices that provide material and conceptual resources, objects of desire, skills, procedures, techniques and occasions and permissions for action, etc.;
2. What any individual thinks or does depends upon his or her own responses to his or her social and natural environment;
3. There are no individuals – no social practitioners – without social practices, and vice versa, there are no social practices without social practitioners, that is, without individuals who learn, participate in, perpetuate and modify social practices as needed to meet their changing needs, aims and circumstances (including procedures and information).

Hegel argues that individual human beings and the social groups to which they belong are mutually interdependent for their existence and characteristics; both aspects are mutually irreducible and neither is primary. Hegel’s moderate collectivism supports the comprehensive conception of moral philosophy noted above and is consistent with ‘methodological individualism’, the thesis that all social phenomena must be understood in terms of individuals’ behaviour, dispositions and relations (Westphal 2003, §§32–37).

Hegel rejected open democratic elections for three basic reasons. First, such elections require a well-informed, sufficiently republican citizenship of a kind not found in Hegel’s day in Prussia, a period of intensive liberal reform of largely feudal conditions antedating the Prussian Restauration, which Hegel saw on the horizon but which occurred a decade after his death. Without that kind of citizenry, the mere procedural institutions of democratic elections inevitably produce illiberal, anti-republican and unjust outcomes due to tyranny of the majority (or of the vocal minority) or through demagoguery. Second, open elections do not ensure that each socio-economic sector of society is represented in the electoral process. Third, by basing representation on geographical districts rather than on socio-economic sectors of society, open elections divorce political life from civil and economic life, thus undermining the political process (Rph §303r). (Hegel’s alternative system of political representation is indicated below, §§54.4, 55, 57, and detailed in §§65–70.)

Hegel rejected the social contract model primarily because any social contract must be based on contractors’ manifest beliefs, attitudes, preferences or feelings, etc., which alone can provide grounds for elective choice (regardless of whether the choice to contract is implicit, explicit, or hypothetical). Hence a tenable social contract model must meet three requirements:

1. To identify a positive contribution of voluntary agreement—distinct from justifying reasons as such—to the identification or justification of basic social norms and institutions; (cf. O’Neill 2000)
2. To identify such a contribution which does not reduce to group preferences or attitudes, thus conceding too much to conventionalism or to relativism;
3. To provide adequate criteria or procedures to preclude individual social contractors from neglecting or denying relevant grounds of other-regarding duties.

If to the contrary there is no such constitutive role for elective choice in identifying or justifying norms of public conduct, including social principles, procedures, or institutions, then the justifying reasons for these latter carry the full justificatory burden and contractual choice is otiose (Westphal 2016a, §§29–34). Like other non-contractualist Modern natural lawyers – most prominently Hume (Buckle 1991; Westphal 2016a, §§10–17), Rousseau and Kant – Hegel accordingly distinguished the task of identifying and justifying basic norms of conduct as such from the task of justifying them to individual members of a society. The latter task involves bringing citizens to understand the results of the first task. Only this order of priorities can provide a just answer to the Euthyphro question (Euthyphro, 10d–11a); constitutive appeal to whatever may be agreed is legitimate only within the domain of permissible, elective public policy. Agreement-independent principles of justice set the parameters of permissible policy, not vice versa.

An important task of any social philosophy is to determine the extent to which the requirements of enlightened self-interest coincide with moral requirement. Though this extent is large, by the nature of the case the coincidence is imperfect. Contractarian (or also ‘contractualist’) strategies for justifying basic social norms confront a severe problem justifying moral norms to egoists and to moral sceptics. However, if (as Hegel contends) basic norms of conduct can be identified and justified independently of any form of contractarian agreement, this provides a significant basis for reanalysing egoism and moral scepticism as failures of understanding, perhaps resulting from failures of moral education (cf. Green 1999). If Hegel is correct, any reasonably just society can require egoists or moral sceptics either to abide by its norms of conduct, to emigrate, or to face social sanctions (informal or legal, if necessary, coercive) for violating those norms.

Hegel agrees with Kant, against utilitarianism, that the right is prior to the good, though he also holds that fully achieving justice requires achieving the common weal (Rph §§114, 129, 130, 336). Hegel’s concern that Kant’s moral principles do not suffice to guide specific action—the infamous charge that Kant’s moral theory is an ‘empty formalism’ (Rph §135r)—addresses an important though widely neglected feature of Kant’s moral philosophy. Throughout his moral writings, Kant insists that his system of ‘pure’ or ‘metaphysical’ moral principles requires for its application to human circumstances and action appeal to ‘practical anthropology’, a systematic body of information regarding human capacities and incapacities for thought and action, due to our finite form of human agency or our circumstances of action. Though his examples and analyses provide much relevant information, Kant assigned ‘practical anthropology’ to an unwritten ‘appendix’ to his moral system. Yet on Kant’s own account, his a priori system of moral principles as such, without this ‘practical anthropology’, is merely a system of principles devoid of implications for the human condition (TL §45; below, §29.2). Only by ‘schematising’ the a priori principle of ethical obligation does this principle pertain to actual, occurrent cases of human (inter-)actions. A central, express task of Hegel’s analysis of ‘ethical life’ (Sittlichkeit), the final, third part of his Outlines, is to provide the practical anthropology required to obtain determinate, justified, legitimate normative prescriptions, including principles, procedures and institutions, by using Kant’s basic normative principles, criteria and procedures. To do so Hegel pays unprecedented and unparalleled attention to how the modern market economy and a series of non-governmental authorities—taken together, these constitute ‘civil society’—contribute to individual freedom (below, §§54–57, 61–63, 68–70).

3 Freedom: Legal, Personal, Moral & Social

In contrast to Hobbes’ stated view that liberty consists in the silence of the law² —a central component of the liberal, negative conception of individual liberty (Skinner 1984, 2006), especially pronounced in libertarianism—Hegel recognised (as do civic republicans, jurists and practising lawyers) the vast extent to which the principles and institutions of justice, including statutory law, are enabling conditions: Only because specific legitimate principles and institutions are established within a society can we as individual members of that society engage in a vast range of voluntary activities which otherwise can be neither specified nor executed; neither could we benefit from the many kinds of actions by others which likewise are possible only due to legal institutions. Examples of this range from the simplest purchases using currency to commercial contracts, provisions for public safety, public services (including utilities: water, gas, electricity, streets, sanitation), voting, petition of government, or trial at constitutional court (cf. Jhering 1904). Hegel thus agreed with Hume’s key insight:

2Hobbes states: ‘Right, consisteth in liberty to do, or to forbear; whereas Law, determineth, and bindeth to one of them: so that law, and right, differ as much, as obligation, and liberty; which in one and the same matter are inconsistent’ (L 1.14.3). I hasten to add that this is only one facet of Hobbes’ view; he too recognises how law provides enabling conditions for social activity—this is central to his reasons to expect absolute monarchs to rule moderately (Westphal 2016a, §44).

Though the rules of justice be artificial, they are not arbitrary.

(T 3.2.1.19)

Social practices and institutions are literally artifices. Hegel also agreed with Hume that the artifice of justice is necessary to human society (and so ‘not arbitrary’) because it is necessary for social coördination, but he further argued that the principles and practices of justice are rationally justifiable because they are required to establish, protect and promote the rational freedom of individual agents.

Central to Hegel’s analysis of civil society and the grounds it provides for legitimate statutory law is the sociological ‘law of unintended consequences’, according to which a group of interacting individuals can collectively produce results unintended by any or all members of that group; e.g., Smith’s ‘invisible hand’ of the market. These consequences may be good or ill; Hegel’s point is that a host of civil and political institutions are responsible for monitoring such unintended consequences of group behaviour to curb those which undermine legitimate free individual action and to encourage or when needed to legally protect those which support or enhance legitimate free individual action. In brief, this is Hegel’s basis for legitimate statutory law.

Hegel identifies three forms of individual freedom, which may be called ‘personal’, ‘moral’ and ‘social’ freedom (Neuhouser 2000; below, §§58–64). Each of these is a form of free rational self-determination of one’s own conduct. Personal freedom is the freedom to pursue one’s elective ends; it is a form of self-determination because one elects one’s own ends to pursue. This form of freedom is common to liberal individualism, though Hegel argues that we now enjoy a distinctly modern version of this form of freedom, not only to choose one’s own profession, but more broadly to modify various socially available roles, especially professional roles, or to create new roles to suit one’s own character, talents and interests. (Social roles have never strictly determined their occupants’ actions, though in the Occident they now tend to allow more room for individual innovation than, say, three centuries ago).³ Exercising personal freedom legitimately also requires avoiding unjust interference with others. Understanding what counts as ‘unjust interference’, why it is proscribed and why it ought to be avoided requires richer reflections and a richer form of self-determination than is afforded by the simple pursuit of elective ends because it requires moral reflection upon practical norms and principles of action. Hence personal freedom must be augmented by moral freedom.

3This historical-sociological issue cannot be examined here. One source of support for the claim made here is Landes (1999), whose historical, cross-cultural research on economic innovation shows how various societies differ in their receptivity to inventions made by individual innovators, who reconfigure their own social roles—with greater or lesser success, depending upon their society—where adopting innovations can enable others to modify their social roles.

Moral freedom, a richer conception of rational agency, involves evaluating and affirming moral principles that inform one’s behaviour in pursuit of one’s elective (morally permissible) ends, in respecting others as moral agents, and in pursuit of the moral good. As noted, Hegel contends that moral subjectivity, as articulated by Kant’s moral theory, does not suffice to generate a genuine, non-arbitrary, though sufficiently concrete conception of the right or the good to guide individual action. So doing is a collective undertaking ultimately involving social freedom.

Social freedom involves consciously participating in social institutions which expressly protect and promote personal, moral and social freedom. Such participation is itself an act of freedom: Once rationally understood, such institutions and practices (etc.) can be rationally endorsed on the basis of their sufficient justifying reasons in a way which allows and encourages members to affirm the principles, aims, procedures and institutions of their (reasonably just) society. In this way, these social institutions contribute to constituting and specifying individuals’ identities as free rational agents. Social institutions which perform these functions provide an objective form of social freedom in which individuals participate and through which they recognise each other as free, rational contributing members.

Hegel’s account of social freedom involves both objective and subjective aspects. Objectively, rational laws and institutions must provide social conditions required to realise the freedoms of all citizens, including satisfying the conditions of justice; subjectively, rational laws and institutions must allow citizens to affirm them as good because they are just and because they facilitate and achieve both freedom and welfare, so that citizens can regard the principles which inform their social involvements as coming from their own wills. Personal freedom to elect and to pursue one’s ends requires social and legal protection to restrict unjust interference of others. A social order which supports moral freedom is one which both encourages and withstands critical assessment of the reasons which justify its principles, procedures and institutions. No social institution, procedure or practice can be fully justified or ...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Acknowledgements
• Analytical Contents
• Methods of Citation
• Introduction
• 1 Hegel’s Moral Philosophy: A Conspectus
• 2 Modern Moral Epistemology
• 3 Natural Law Constructivism: Hobbes, Hume, Rousseau
• 4 Kant, Aristotle & Our Fidelity to Reason
• 5 Kant, Hegel & our Fate as a Zoôn Politikon
• 6 Hegel’s Justification of the Human Right to Non-Domination
• 7 Hegel, Natural Law & Moral Constructivism
• 8 The Analytical & Justificatory Structure of Hegel’s Philosophical Outlines of Justice
• 9 Hegel’s Standards of Political Legitimacy
• 10 The Centrality of Public Reason in Hegel’s Civic Republicanism
• 11 Hegel’s Civic Republicanism: Progressive Principles & Practices
• Appendix
• Bibliography
• Name Index
• Subject Index