Recently I have argued that Hegel’s procedures for identifying, assessing and justifying practical norms are adapted directly from Kant’s.1 More specifically, Hegel identifies in Kant’s practical philosophy a distinctive and very powerful form of constructivism about normative principles that preserves the objectivity sought by natural law theories, while avoiding issues involved in moral realism, in just the ways identified recently by Onora O’Neill. Hegel hails Kant’s analysis of rational autonomy as Kant’s cardinal contribution to practical philosophy.2 Hegel likewise follows Kant’s key strategy for determining legitimate normative principles by pursuing the Critical question, To what principles are we committed by even the most elementary free outward actions? Most importantly, like Kant, Hegel insists that only those practical principles are legitimate for which sufficient justifying reasons can be given to all parties affected by actions based on and guided by those principles. A consequence of this requirement is that reason is the ultimate and sole source of normative authority; no independent or external sources of authority can be taken as justificatory premises for normative principles. This is central to the normative autonomy of reason.
If Hegel’s procedures are as deeply indebted to Kant as I have argued, then the question arises – kindly put to my by Sharon Byrd – why shouldn’t we just focus on Kant’s views? What could Kantians (among others) learn from Hegel’s Rechtsphilosophie? The philosophical debates between Kant and Hegel are enormously rich and complex, even if we restrict our attention to practical philosophy.3 No brief essay can answer this question thoroughly. Here I identify several key issues regarding which Hegel developed his views beyond Kant’s, in ways that philosophers, Kantians included, should welcome. In this way I hope to suggest that those, like Joachim Hruschka, who expect as a matter of course nothing less than the fullest philosophical, historical and textual acuity, may indeed have occasion to benefit from Hegel’s developments of and beyond Kant’s Rechtslehre.4
The general theme explored here concerns the aim and structure of practical philosophy, and what is required to determine specific duties. I develop this theme by discussing the following issues: two oversights in Kant’s justification of rights to possession (§ 2),5 the role of philosophical anthropology in Kant’s universalization tests (§ 3), the roles of social institutions in specifying our ethical obligations (§ 4), Kant’s under-developed view of government (§ 5), and Hegel’s claim that, unlike Kant’s Rechtslehre, his Rechtsphilosophie provides an “immanent” doctrine of duties (§ 6).6
Demonstrating how rights to possession are possible is the key first step in Kant’s Rechtslehre, for two reasons. It is Kant’s most basic case of demonstrating how our innate right to freedom can ground further acquired rights to possess things distinct from ourselves, even when we do not occupy or hold them, and these provisional rights to possession (provisorisches Besitzrecht) provide a key premise in Kant’s justification of our membership in a politically organized state. The centrality of rights to possession for Kant’s whole analysis is made clear by the questions Kant posed in the first paragraph of his “Deduction of the Concept of merely rightful Possession of an outer Object (Gegenstand) (possessio noume-non)”:
The question: How is it possible for something external to be mine or yours? resolves itself into the question: How is merely rightful (intelligible) possession possible? and this resolves itself in turn into the third question: How is a synthetic proposition of right possible a priori?7
One striking feature of Kant’s formulation is his repeated use of the term “how” (“wie”). Asking how something is possible presupposes that it is possible. Kant’s entire analysis omits the logically prior and more fundamental question, whether it is possible for something external to be mine or yours. The underlying, unanalyzed, and as such dogmatic assumption that rights to possession without detention are possible is no proper basis for a truly Critical examination and justification of rights to possession.
Kant’s focus on “how” rights to possession are possible also omits a second important question: Why are rights to possession necessary? Why are they required? Obviously, rights to possession solve a problem of social coordination, as was clearly recognized in the Modern natural law tradition. This raises the question, under what conditions does this coordination problem arise? This question Kant does not answer, indeed he does not even consider it, in his published Rechtslehre. Hegel’s analysis of property addresses these two fundamental questions first, and answers Kant’s question of “how” rights to possession are possible very much along Kant’s lines.8
I hasten to add that Kant did have the resources to answer those two fundamental questions.9 However, providing a sound Kantian analysis and justification of the claim that de jure rights to possession are possible and are necessary requires using vastly richer information about our human form of finite rational agency than Kant ever mentions in The Metaphysics of Ethics. To fully justify legitimate intelligible rights to possession (possession without detention or holding) using a Contradiction in Conception requires answering these three fundamental questions: Are intelligible rights to possession possible? Under what conditions are such rights are necessary? If such rights are both possible and necessary, how are they possible? Only sufficient affirmative answers to these three questions can justify the legitimacy of de jure rights of possession without detention. To provide such answers using a Contradiction in Conception test, however, requires analyzing the implications of universal mutual interference with otherwise legitimate free individual actions if no one respects anyone’s claims to possess objects of use. These implications are not discussed in Kant’s Rechtslehre. Yet Kant’s working notes clearly show that he was fully conversant with these crucial considerations, including at least implicit awareness that rights to possession are necessary (they are required) under social conditions of sufficient population density that mutual interference is at least a real prospect (“possibility”), at least potentially a genuine threat.10
Notice that Kant mentions such (broadly speaking) anthropological considerations expressly when analyzing our duty to become members of politically organized states, indeed directly in his “postulate of public right”, namely: “In conditions of unavoidably being together with all other [persons] you should quit the natural condition and enter a rightful condition, that is, one of distributive justice”.11 Kant elaborates this anthropological condition somewhat more fully in the remainder of this section. Yet precisely Kant’s reference here to the social conditions for the necessity of principles and institutions of distributive justice highlights his omission of such factors in his analysis of other metaphysical principles of right, including rights to possession. Failing to answer the two prior questions about whether rights to possession are possible, and under what conditions they are necessary (required), constitute two crucial oversights in Kant’s analysis and justification of rights to possession. These oversights underscore the importance of broadly anthropological information for using Kant’s Contradiction in Conception tests.
Kant is clear already in the Grundlegung that his metaphysical principles of practical reason require “anthropology” to be applied to us as human beings, so to generate specific moral injunctions or permissions.12 Here lies a crucial issue: Kant expressly provides a Metaphysics of Ethics.13 The key case of justifying rights to possession (§ 2), together with this observation in Kant’s Grundlegung, underscore the fact that, and the extent to which, Kant’s metaphysics of ethics comprises a set of principles and procedures,14 though as such it is not a doctrine of ethics (Sittenlehre). Any Kantian doctrine of ethics, of actual, specific, action-guiding human duties, permissions and prohibitions requires combining Kant’s Metaphysics of Ethics with a philosophical anthropology of human nature and agency and our human circumstances of action. Obviously, Kant does include anthropological considerations along these lines in his published writings on these topics. However, the closest Kant came to providing the relevant philosophical anthropology in any systematic form are his lectures, Anthropology from a Pragmatic Perspective, which is not quite the same undertaking. Kant’s metaphysical principles require a specifically “practical anthropology” for their application to human beings.15
Hegel accepts this further task of Kant’s program in practical philosophy, and seeks to provide, not only a metaphysics of practical reasoning, but a doctrine of ethics that specifies our specific rights, duties and permissions.16 Hegel does this by trying to show how normative principles relate to our actual form of human agency in our actual circumstances of action, including their natural, social and historical features. One main aspect of Hegel’s notorious charge that Kant’s Categorical Imperative is “empty” is that the tests of the Categorical Imperative cannot themselves specify any actual duties, not without also taking other kinds of particular information into account.17 This charge may appear unwarranted, precisely because Kant indicates expressly that anthropology is required to apply his metaphysical principles of practical reasoning to any human agent or circumstance. Indeed, Kant even states that the complete system of the Metaphysics of Ethics requires a transltion that, by applying the pure principles of duty to cases of experience, would schematize these principles, as it were, and present them as ready for morally practical use.18
Although such considerations form no division of Kant’s system of practical philosophy, they are a “proper appendix” to it, for “even this application belongs to the complete presentation” of Kant’s system of practical philosophy.19 Given it’s official importance to Kant’s programme in practical philosophy, it is surprising that Kant never wrote this appendix in practical anthropology, not even in lecture form. Can it be surprising, then, that there has been so much controversy about whether or how Kant’s “pure principles of duty” can be presented as “ready for morally practical use” and thereby provide, determinate guidance for specific human actions? Hegel aims to provide more than a metaphysics of ethics in order to resolve such issues by providing a doctrine of duties. To this extent, and in this important regard, Hegel makes common cause with Kant. It is deeply unfortunate that this has been so widely overlooked in discussions of these issues.
The role of some kind of practical anthropology in using Kant’s Categorical Imperative to determine the deontic status of maxims is evident throughout Kant’s own examples of using the tests of the Categorical Imperative, and is often recognized as crucial in the secondary literature. Onora O’Neill and Barbara Herman – two of the most acute and insightful expositors and defenders of Kant’s practical philosophy – have been especially explicit about its role.20 Kant’s tests of the Categorical Imperative use the Principle of Hypothetical Imperatives, namely, that “whoever will the end, also wills (insofar as reason has decisive influence on his actions) the indispensably necessary means [to it] that lie within his power”.21 This principle requires considering what we can will It thereby serves to introduce relevant anthropological information into Kant’s tests of the Categorical Imperative. Our duty to speak the truth (if and when we speak) in part rests on our lack of omniscience and our ability to think without speaking, and thereby to conceal our beliefs or intentions, to the disadvantage of others;22 our duty to refrain from extortion likewise rests in part that we are fearful and suffer pain in ways that allow us to be coerced; likewise our duty to aid others in distress rests in part on our lack of omnipotence, our liability to distress, and others’ capacity to help. These kinds of anthropological information, however, are provided only piecemeal in Kant’s examples, and Kant provides no real guidelines for how general or specific this information should or may be. Likewise, aside from the highest good as the necessary object of practical reason, Kant remarks only in passing on such apparently important and relevant topics as “obligatory ends” (of which there are two: one’s own moral perfection and the happiness of others), “necessary ends”, and “true needs”.23 This simply is not enough practical anthropology to underwrite the use of Kant’s metaphysical principles of ethics to guide determinate actions in actual human circumstances.
Among Kant’s examples of using the tests of the Categorical Imperative are cases of making false promises, absconding with unregistered deposits, bearing false testimony, and theft. In all these cases, it is easy to understand how each of the intended acts requires an established and stable social institution, and how in each case the universalized counterpart maxim of an unethical agent would obviate the relevant institution, and thus obviate an essential precondition of the unethical maxim. There are two key problems with Kant’s use of these examples.
First, finding that an action violates a social institution does not of itself determine the deontic status of that action. Rather, that action is only ethically proscribed if the social institution itself is legitimate and obligatory. (Violating an institution of slavery by setting slaves free is a step forward in the progress of freedom and justice; violating racist or sexist institutions or acts of civil disobedience can also be important steps in this progress.)
Second, any obligatory, legitimate social institution as such contains deontic provisions to the effect that to engage at all in that institution rightly requires conforming with its provisions, at least in part by acting in accord with it. Consequently, we don’t need to use any test of the Categorical Imperative to determine whether actions that violate a legitimate social institution are ethically proscribed. If property is legitimate, theft is thus unethical; if one makes a promise, one is thus ethically obligated to keep it, and so on.24 Hence the key issue here is not whether violating this or that institution is wrong, but whether the institution itself is legitimate. This is something too many of Kant’s examples presume rather than demonstrate.
Precisely this is a key point of Hegel’s objection to Kant’s Tests of the Categorical Imperative:
That there is no property as such (für sich) contains a contradiction just as little as that this or that individual people, family, etc. doesn’t exist or that altogether no human beings live. If instead it is established and presupposed that there are property and living human beings and that they [both] should be respected, then it is a contradiction to commit a theft or murder…25
Now Kant does justify de jure possession, though as noted above (§ 2) his justification requires reconstruction along the lines Hegel provides. Thus dispossession by theft or fraud is wrong. (Though dispossession for reasons of insolvency can be legitimate.) When Kant turns to contract, however, he considers the rights and obligations of the contracting parties, while disregarding whether the “single sum (system) of principles” comprised in contractual right (Vertragsrecht) is itself justified or justifiable.26 Under what conditions is any system of contractual rights justifiable? Under what conditions is it legitimate? Answering these questions requires much more than developing the metaphysical principles that can govern such institutions. It also requires answering the “anthropological” question of when, under what social conditions, are contractual rights necessary for beings like us? (The relevant conditions are social, at the very least, because contracts are forms of agreement among two or more parties.) We find the same circumstance in Kant’s discussion of domestic rights, which defines duties and obligations within the household without first inquiring into the justification or legitimacy of households as such. We find much the same circumstance in Kant’s discussion of rights of acquisition through court decisions.27 Kant’s published Rechtslehre leaves behind a hefty docket of unfinished philosophical business which must be addressed in order to determine whether, when or to what extent Kant’s metaphysical principles of justice are relevant to human affairs, and so may serve or at least help to determine specific action-guiding duties, permissions or prohibitions. In view of these issues and problems, it is not surprising that O’Neill and Herman acknowledge that Kant’s record in casuistry is disappointing, in part because so many of our duties are specified, if not defined, within the specific context of social institutions.28 As in the case of possession, however, Hegel’s Rechtsphilosophie addresses these equally crucial questions about the necessity of social institutions before articulating the principles that legitimately govern them. It is to Hegel’s credit that he recognized the shortcomings of Kant’s account and sought to address them comprehensively.29
The form, functions, and proper authoritative scope of government are central issues in political philosophy. Kant discusses these in his Rechtslehre, though he forewarns his readers that his views on government are not fully developed:
Towards the end of the book I have developed some sections less fully than might be expected by comparison with what comes before: in part because they appear to me to be easily inferred from the preceding discussion, in part also because the last (concerning public justice) are just now subject to so much discussion and yet are so important, that they easily justify postponing final judgment for some time.30
Additionally, at this time Kant sought to avoid having his Rechtslehre censored.31 Though he is not very explicit about just what is involved in republicanism, Kant’s Rechtslehre clearly advocates republican rather than despotic forms of government.32 Kant identifies three governmental authorities: legislative, executive, and judicial. Each of these is to be exercised by distinct officials.33 Kant models his government on a complete separation of powers. Unfortunately, in other passages he muddles these powers together, and in others he fails to recognize how the judicial authority could legitimately restrain illegitimate acts of the executive or legislature. Most egregiously, Kant’s stated argument against any right to rebel against tyranny conflates the executive and judicial powers in a way that can only be called, on Kant’s own account, despotic.34 Part of the problem with Kant’s constitutional theory is his failure to consider governmental checks and balances of power, or to consider judicial powers of impeachment, though he considers something verging on impeachment in some of his unpublished Reflexionen.35 Plainly Kant was right to recognize that his account of government was not fully developed, and required further thought prior to final Critical judgment. On these topics, too, Kant’s Rechtslehre leaves open a large budget of important issues, on which one should hope his successors would improve.
At the risk of raising incredulity, if not outrage, I say again: it is to Hegel’s credit to have developed a much more thorough account than Kant’s of governmental structure, function, and authority. Hegel’s retention of hereditary monarchy36 and the hereditary rights of landed aristocrats to sit in the upper house of the Estates Assembly37 have been understandable sources of consternation. I certainly don’t defend these provisions, but it is very important to understand several important features of Hegel’s governmental theory. First, Hegel deliberately outlined a form of government he believed was feasible for contemporaneous Prussia. Within that context, Hegel’s advocacy of constitutional monarchy38 was a highly controversial, liberalizing proposal, as was his advocacy of a permanent representative assembly. (None existed in Prussia until the fateful year of 1848.)
Second, Hegel’s liberal credentials are established by several key provisions he advocated. Hegel insisted that legislative, executive, and judicial powers are mutually interdependent,39 though it is obvious that in practice their interdependence would provide checks and balances when and as needed. Hegel placed responsibility for drafting legislation in the expert hands of cabinet ministers, who are fully accountable for their actions.40 Hegel defended several fundamental civil rights, such as equal rights and freedoms of person, belief, property, profession, and trade,41 including equal civil rights for jews and other groups,42 along with rights to political representation for all.
Third, Hegel’s entire governmental apparatus, and especially the Estates Assembly, has a clear telos. Hegel rejected open democratic elections because they are too unstructured to insure that each of the important economic and civil groups and structures within society are properly represented in government, and he clearly saw in 1821 precisely the problems that have befallen, e. g., democracy in the United States of America. Though Hegel had to avoid calling his political position “republican”, it plainly is; on Hegel’s view, only the whole, politically organized nation in which all participate is sovereign.43 Individuals play a role in forming the content of law by maintaining and modifying social practices as needed to secure their freedom and their individual ends. Those social practices necessary for achieving freedom are, in Hegel’s view, the proper basis of and content for legitimate statutory law. Codification makes explicit the normative principles embodied in and crucial to social practices.44 Promulgating codified law contributes to informing people about the structure of their social context of action.45 This is why law must be codified and promulgated in the national language,46 and why judicial proceedings must be public.47 The enforcement of law regularizes the context of individual action and protects and preserves the social practices people have developed to exercise their freedom and achieve their individual aims.48 As conditions change, so must laws change in order to remain legitimate and effective; assessing and revising statutory law is the prerogative of the legislative branch of government.49 Citizens, through their political representatives in the Estates Assembly, monitor and advise legal developments and government policies and acts.
The political and historical telos of Hegel’s governmental apparatus becomes evident when the points just reviewed are related to his account of the Estates Assembly. Through its representational functions, the Estates Assembly provides popular insight into the fact that the laws enacted by the Crown and administered by the Executive are laws that codify and protect the social practices in which one participates and through which one achieves one’s ends.50 The Estates Assembly thus places the government under popular purview.51 The main function of Hegel’s Estates Assembly is educative, to inform people systematically and thoroughly about the activities of their government and the principles, procedures, and resources for acting within their society, so that individuals can resolve to act in an informed and responsible manner, unencumbered so far as possible by unexpected consequences. This education and information enables individuals to act voluntarily and autonomously within their society.52 Hegel expected that when people in a just society understand how their society meets their needs, facilitates their ends, and satisfies the requirements of justice they would affirm their membership in society and would act within it willingly. Though Hegel held that constitutional law ought to be regarded as fixed an eternal,53 in fact it is not. The constitution and constitutional law must and do change over historical time.54 When they change rightly, they keep in step with other social, political, and legal developments which themselves occur when people devise new ways of expressing or advancing their freedom, whether personal, social, or political. Hegel recognizes that these gradual legal and constitutional changes can and do result in momentous social transformations.55 Because Hegel’s governmental institutions are designed to protect, facilitate, and improve individual autonomy, it is altogether appropriate to recognize and to stress that his governmental institutions, and especially his Estates Assembly, allow for rather simple modifications that would transform them into democratic institutions, albeit unconventional ones. The fact that the institutions of government, especially the legislative assembly, are necessary for free, autonomous action is their primary political justification, according to Hegel. In these key regards, which can be summarized only very briefly here, Hegel’s Rechtsphilosophie advances substantially beyond Kant’s account of government in his Rechtslehre.
A key component of Hegel’s objection to Kant’s Categorical Imperative as a criterion of normative legitimacy is that it affords no “immanent” doctrine of duties. Hegel makes this objection after praising Kant’s account of autonomy:
As essential as it is to highlight the pure unconditioned self-determination of the will as the root of duty, as is done in knowledge of the will, first achieved by the Kantian philosophy, which reached the fixed ground and point of departure of that knowledge through the thought of the will’s infinite autonomy (cf. § 133), it is equally the case that seizing on the mere moral standpoint, which does not become the concept of ethical life (Sittlichkeit), reduces this achievement to an empty formalism and moral science to a blather about duty for duty’s sake. On the basis of this standpoint no immanent doctrine of duties (immanente Pflichtenlehre) is possible; one can of course bring in stuff from without and thereby reach particular duties, but from that determination of duty, as the lack of contradiction, the formal correspondence with itself … there can be no transltion to the determination of particular duties …56
Understandably, Kantians have been scandalized by this passage. The previous discussion of the contrast between a metaphysical system of practical principles (Metaphysik der Sitten) and a doctrine of duties (Sittenlehre) (§ 2), and Kant’s express indication that his Metaphysics of Ethics requires practical anthropology for its application to human circumstances and actions (§ 3), should enable us to examine Hegel’s claim dispassionately and sensibly, and to appreciate how deeply Hegel valued Kant’s achievement, his discovery of the autonomy of the will, expressed in this very passage.57
The first important point to note is that Hegel seeks to respond to the problem he poses here by supplementing Kantian moral theory (summarized in Hegel’s discussion of “morality”, part Two of his Rechtsphilosophie58) with his own account of ethical life (“Sittlichkeit”, part Three of his Rechtsphilosophie), in order to provide a genuine doctrine of duties. To this very great extent, Hegel regards himself as furthering Kant’s project in practical philosophy. Despite the apparent tone of Hegel’s objection to Kant’s theory, Hegel could hardly have made plainer his intention to rectify this shortcoming in Kant’s theory.59
The second important point is to ask, what exactly does Hegel mean by an immanent doctrine of duties? Hegel uses this term only twice, both occasions are in the published Grundlinien, though I have found none in his extant lectures.60 Yet it is worth puzzling out the answer to this question, even if only a preliminary account may be ventured here. One obvious part of the answer is that an immanent doctrine of duties must somehow avoid the bifurcation between a metaphysical system of principles and an independent, heterogenous philosophical anthropology, on the basis of which alone that system can be used to determine specific duties. Somehow, an immanent doctrine of duties must justify specific duties without appealing to extraneous considerations. This observation, however, only restates the task. What counts as “immanent”, as opposed to “extraneous”? Immanent or extraneous with regard to what, exactly?
We get some help from Hegel’s second use of this phrase. The relevant passage appears in the context of Hegel’s introductory account of ethical life and its bearing on the nature, status, and determination of our duties.61 Hegel’s basic aim in “Ethical Life” (part Three of his Rechtsphilosophie) is to take his account of moral reflection and autonomy developed in “Morality” (part Two) and integrate it with his account of property, contract and injustice developed in “Abstract Right” (part One). He seeks to show that both “Abstract Right” and “Morality” are (important) abstractions that are rooted in our concrete social life, the structure of which Hegel analyzes in “Ethical Life”, including the family, civil society and government. Hegel contends that ethical life is the concept of freedom instantiated in an extant living community.62 By examining how the various features of social life, and the various features of individual lives within it, are systematically integrated in ways that facilitate, promote and protect the freedom and autonomy of individual members of society, Hegel aims to show that the social institutions he examines are necessary, legitimate and authoritative, so that our compliance with and participation in them is right and dutiful.
In this context Hegel states:
The ethical (ethische) doctrine of duties, i.e., as it is objectively … is thus the following systematic development of this circle of ethical necessity, presented in this third part. The difference between this presentation and the form of a doctrine of duties lies only in this, that in the following the ethical determinations present themselves as the necessary relations; this suffices, without appending to each of them: thus this determination is dutiful for each person. … An immanent and consequential (konsequente) doctrine of duties can …. be nothing other than the development of those relations that are necessary through the idea (Idee) of freedom, and are thus actual (wirklich) in their entire range, within the state [as a whole].63
This passage does not immediately appear to provide much of an answer to our questions. The closing two phrases appear to suggest that a proper doctrine of duties is immanent within or with respect to “the idea of freedom” and “the state”. Noting that Hegel here means the state as the whole of a civilly and politically organized society, rather than the government, does not offer much insight. It appears that Hegel proposes to begin with hazy notions of “the idea of freedom” and “the state as a whole” and somehow derive on their basis determinate duties for individuals. This suggestion fits with standard views of Hegel’s modus operandus, common especially in German scholarship, according to which Hegel’s approach is strictly “top down”, beginning with the most general and purporting to derive from that the most particular.64
This “top down” approach, however, is completely contrary to Hegel’s actual analysis and justificatory procedure in his Rechtsphilosophie. Hegel adapted and extended his analytical and justificatory strategy from Kant’s regressive strategy of transcendental proof in the Critique of Pure Reason.65 Hegel’s justificatory strategy in his Rechtsphilosophie is regressive. It begins with the simplest outward act possible, taking something into possession. Hegel then seeks to determine through internal critique of that kind of act in its context those principles and institutions to which one is committed in order to perform that act legitimately and freely. Hegel extols Kant’s discovery that the basis of right lies in the will.66 Hegel’s exposition immediately makes clear that his concern is not with some vague “will in general”. His concern lies in every and any particular individual will, which he analyzes precisely along the same lines as Kant’s “Incorporation Thesis”, namely, that no inclination, principle, fact, or reason is either justifying or motivating for an agent unless and until it has been incorporated by that agent into a maxim by an act of judgment that assesses the relevance and importance of that consideration within the present context of rational deliberation.67 Hegel clearly realized that for both strategic and intrinsic reasons, he must and can only justify his normative theory by addressing it to individual rational agents. This is necessary strategically because he knows full well that we are living in an age of individualism.68 It is necessary intrinsically because Hegel’s normative theory seeks above all to preserve and to promote individual rational autonomy.
The relevance of these fundamental features of Hegel’s normative theory to the present point, the interpretation of the passage quoted just above, is confirmed by Hegel’s marginal note to this sentence from that passage:
The difference between this presentation [in part Three of Hegel’s Rechtslehre] and the form of a doctrine of duties lies only in this, that in the following the ethical determinations present themselves as the necessary relations; this suffices, without appending to each of them: thus this determination is dutiful for each person.69
To this sentence Hegel appended in his margin: “Pflicht – ist Recht, Dasein seines Willens”.70 The relevant “immanence” of Hegel’s doctrine of duties thus involves showing that the principles, institutions and duties Hegel advocates are immanent with respect to the wills of individual rational agents.
To show that the principles, institutions and duties Hegel advocates are immanent with respect to the wills of individual rational agents requires analyzing what individuals will, that is, how they exercise their rational agency, and determining how and under what conditions they can exercise their rational agency legitimately. This is precisely Hegel’s task in his Rechtsphilosophie: “to comprehend drives (Triebe) as the rational system of determinations of the will is the content of the philosophical science of right”.71 Here Hegel understands our drives broadly, to include both inclinations and rational impulses, including our drive towards freedom. To understand our drives as a rational system thus requires considering the metaphysical principles of practical reason of the kind Kant ascribed to our rational will (Wille), together with our empirical drives and inclinations which Kant ascribed to our freedom of choice (Willkür). Programmatically seen, Hegel’s Rechtsphilosophie draws upon the kinds of considerations of natural and social facts and circumstances found in pre-Kantian Modem natural law theory, including Hume’s,72 in order to answer the questions of why and under what circumstances various normative provisions (whether principles or institutions) are required and are properly functional, while appealing to Kant’s constructive methods of justifying normative principles and institutions in order to determine which principles or institutions are legitimate, and insofar as they are, to explain why they are rationally justified. To fill out his account of those circumstances that involve or require normative provisions, Hegel updates the empirical resources of Modem natural law theory by drawing deeply from Scottish political economy. All of these factors Hegel weaves together using his regressive method of analysis and proof. Hence Hegel can and should subtitle his Grundlinien der Philosophie des Rechts as “Naturrecht und Staatswissenschaft im Grundrisse”. All of these considerations are required, Hegel recognizes, to provide a determinate doctrine of duties underwritten by Kant’s constructivist methods and principles for identifying and justifying legitimate practical principles and social institutions.
Showing that the principles, institutions and duties Hegel defends are immanent within the individual wills of rational agents requires many significant reconsiderations of the social bases of our individual activities. Only one of these may be highlighted here. Central to Hegel’s Rechtsphilosophie is to transform our understanding of the requirements placed by legitimate law on individual actions. The common notion, typical in Anglophone legal and political thought and to individualist legal and political thought everywhere, is that freedom or liberty reside in the silence of the law. We are free, it is said, precisely in those domains of action that are not proscribed by law or morals or God. Hobbes put it succinctly: “For where liberty ceaseth, there beginneth obligation”.73 Regarded in this way, legal and other obligations are inevitably nothing but restrictions on freedom. This view, too, was expressed pithily by Hobbes: “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.”74 This notion that law is essentially restrictive is also found centrally in Kant’s thought. For example, Kant states:
Thus the universal principle of right, act outwardly so that the free use of your choice (Willkür) can coexist with the freedom of everyone in accord with a universal law, is indeed a law which obligates me, though it does not at all expect, much less require, that I myself should limit my freedom to that condition due to this obligation; instead reason only says that in its idea freedom is limited in that way and that it may be so limited in fact by others..…75
Hegel paraphrases this passage and cites it as an example of this common notion that concerns him gravely, that principles of right and legitimate law are inherently and solely restrictive of our freedom.76 Hegel directly indicates his aim to improve upon this notion,77 though he doesn’t directly make it clear exactly how he proposes to do so.
One common way to understand Kant’s tests of the Categorical Imperative is that inclinations propose actions, while the Categorical Imperative disposes of them (that is, decides which are permissible or obligatory, and which are prohibited). This simple model resonates with the circumstances identified earlier (§2), that Kant’s metaphysical principles of right require a distinct source of information, a practical anthropology which is only an unwritten appendix to Kant’s system of practical philosophy, in order to determine any specific duties of human beings. Barbara Herman rejects the idea that Kant’s practical principles simply provide external constraints on human action. Instead, she contends, Kantian deliberation occurs in view of a “deliberative field” which includes all of one’s heterogenous interests and principles, whether these are moral, prudential, or personal considerations, or some other source of whatever gives one reasons. Morality provides one set of central considerations among others, it does not constrain our lives from without or only at the periphery.78 Herman’s model is attractive, though the metaphor of a “deliberative field” requires careful articulation, in part in order to explain just how this model provides an alternative to the simplistic view of external constraint by moral principles mentioned previously, especially if the Categorical Imperative is the supreme practical principle, and if moral considerations do and must take precedence over other considerations if and when they conflict. It is revealing to consider Hegel’s Rechtsphilosophie as the articulation of our “deliberative field,” precisely because Hegel’s analysis expressly aims to integrate, as noted above, all our drives into a rational system in which autonomy, and hence the legitimacy of action, is paramount.
One key aim of Hegel’s explication of our deliberative field is to show, to convince us of, and to bring us to appreciate the vast extent to which principles and institutions of justice, including legitimate law, are enabling conditions: only because certain legitimate principles and institutions are established within a society can we as individuals engage in a vast range of activities that otherwise couldn’t even be specified, much less executed, nor could we benefit from the many kinds of actions of others which are likewise made possible only by such principles and institutions. In these regards, Hegel recognizes, in effect, that Hume was right that justice is an artifice.79 This holds true across the entire range of topics Hegel treats in his Rechtsphilosophie, from rights to acquisition, possession, and contract; to juridical determination of wrong; the principles that guide our moral assessment of intention, guilt, intention, welfare; the rights and responsibilities of the exercise of conscience; and the structure of (as well as structures and relations within) the family, civil society, and government, and these all together within the state as a civilly and politically organized whole.
To say that justice is an artifice is not at all to say that justice is arbitrary. Quite the contrary: one key difficulty in rightly understanding social and political principles and institutions is to recognize both that they are artificial, they are literally created by us, although we can only create them legitimately, and we can only create legitimate forms of them, insofar as we fulfill the demanding requirements built into Kant’s and Hegel’s normative constructivism: To what principles are we committed by even the most elementary free outward actions? To what extent, and precisely how, can those practical principles be legitimated by providing sufficient justifying reasons for them that can address all parties affected by actions based on and guided by those principles? While we are free to create and to re-create these principles and institutions (and their correlative obligations and permissions), we can do so legitimately only insofar as we answer to each and everyone’s rational agency and autonomy. Because these demands are so enormous, it is no surprise that both Kant and Hegel looked to historical reform and progress in improving the justice of our actual principles and institutions.
I hope these reflections further illustrate and at least to that extent reinforce my thesis that Hegel adapted his justificatory methods directly from Kant’s constructivism about normative principles. I hope further that they clarify why and how Hegel sought to develop his deeply kantian programme in Rechtsphilosophie beyond the scope of Kant’s Rechtslehre. Hegel sought to address two key questions omitted by Kant’s focus on “how” principles of right are possible, on the one hand, whether they are possible, and on the other, when or under what conditions they are required (necessary). Addressing these two questions adequately requires, as Hegel realized, reintegrating Kant’s constructivist approach to justifying norms and institutions within the broader, pre-Kantian Modern natural law tradition, though it also requires greatly updating traditional empirical data with the rich findings of Scottish political economy. Doing this, Hegel saw, allows for an immanent doctrine of duties and a much richer and far more adequate account of the principles of government. These results provide, in turn, for a much richer and more comprehensive account of individual human freedom and autonomy.80
Hegel hat sich an Kants praktischer Philosophie gerade die kraftvolle Art der Konstruktion bei der Identifizierung und Rechtfertigung von Normen zu eigen gemacht, wie kürzlich von Onora O’Neill gezeigt wurde. Falls dies so ist (und ich habe an anderer Stelle dafür argumentiert, dass es sich so verhält), fragt sich, worin denn Hegels eigener Beitrag zur praktischen Philosophie bestanden haben mag. Die vorliegende Untersuchung beantwortet diese Frage, indem sie Kants und He-gels Sicht von Ziel und Struktur der praktischen Philosophie analysiert und fragt, was erforderlich ist, um spezifische Pflichten zu bestimmen. Diese Thematik ist weiter untergliedert durch eine Untersuchung der folgenden Probleme: Zwei Versehen bei Kants Rechtfertigung des Rechts zum Besitz (§ 2), die Rolle der philosophischen Anthropologie in Kants Verallgemeinerungstest (§ 3), die Rolle sozialer Institutionen bei der Spezifizierung unserer ethischen Pflichten (§ 4), Kants unterentwickelte Auffassung von Regierung (§5) und Hegels Behauptung, dass im Unterschied zu Kants Rechtslehre, seine Rechtsphilosophie eine „immanente” Pflichtenlehre zur Verfügung stelle (§ 6). Ich behaupte, dass Hegel versucht hat, auf seine eigene Kritik an Kants Kategorischem Imperativ zu antworten, und dabei einen Beitrag zur Praktischen Philosophie in einer Weise geleistet hat, die es verdient, von Kantianern und anderen Moral-, Sozial- und Rechtsphilosophen ernst genommen zu werden.
1 In: Kenneth R. Westphal, “Objektive Gültigkeit zwischen Gegebenem und Gemachtem. Hegels kantischer Konstruktivismus in der praktischen Philosophie”, Jahrbuch für Recht und Ethik/Annual Review of Law and Ethics 11 (2003): 177–98.
2 Rph §§ 133, 135 Anm.; G. W. F. Hegel, Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse, Berlin, Nicolei, 1821; rpt. in: E. Moldenhauer & K. M. Michel, eds., Werke in Zwanzig Bände, Frankfurt am Main: Suhrkamp, 1970; cited as “Rph”, by section (§), published Remark (Anm.), or lecture notes (Z) appended to Hegel’s sections by his editors.
3 The genuine philosophical debates between Kant and Hegel have been occluded by unfortunate and deeply mistaken associations of Hegel’s views with reactionary and fascist politics, by often poor secondary literature on Hegel’s views, by the unfortunate tendency of philosophers to form factions and schools, by the professional hazzard of being prone, after having extended the enormous effort to understand a great philosopher’s views, to defend those views almost no matter what, and to find the demands of mastering any two such philosopher’s views over-taxing. While all of this is understandable, none of it is philosophically tenable. Fortunately, philosophical scholarship is beginning to move beyond those stalemates. If Hegel held the terrible views commonly ascribed to him, he would deserve the scorn poured upon him; however a modicum of responsible scholarship suffices to show that the Hegel myths are entirely unsubstantiated by Hegel’s texts.
4 For a conspectus of Hegel’s Rechtsphilosophie, please see K. R. Westphal, “The Basic Context and Structure of Hegel’s Philosophy of Right”, in: F. C. Beiser, ed., The Cambridge Companion to Hegel, Cambridge: Cambridge University Press, 1993, pp. 234–69; idem., “Hegel on Political Representation: Laborers, Corporations, and the Monarch”, The Owl of Minerva 25.1 (1993): 111–16; and idem., “Hegel’s Standards of Political Legitimacy”, Jahrbuch für Recht und Ethik/Annual Review of Law and Ethics 10 (2002): 307–20.
5 Parenthetical section numbers in the text refer to sections of the present essay.
6 I have examined further issues in Hegel’s constructive critique of Kant’s practical philosophy in K. R. Westphal, “Hegel’s Critique of Kant’s Moral World View”, Philosophical Topics 19.2 (1991): 133–76; and “How ‘Full’ is Kant’s Categorical Imperative?”, Jahrbuch für Recht und Ethik/Annual Review of Law and Ethics 3 (1995): 465–509. Regarding the irrelevance of transcendental idealism for defending the possibility of moral freedom and responsibility, see idem., Kant’s Transcendental Proof of Realism, Cambridge: Cambridge University Press, 2004, § 61.
7 RL § 6, 6: 249.30–33. I refer to the volume:page.line numbers of Kants Gesammelte Schriften, Königlich Preußische (now Deutsche) Akademie der Wissenschaften, Berlin: G. Reimer (now De Gruyter), 1902 –; usually referred to as “Akademie-Ausgabe”. The Akademie pagination is reproduced in all recent translations. All translations are my own. Kant’s Rechtslehre appears in volume 6 and is designated “RL”. Other individual works are occasionally referred to by their title, by a key word from their title, or by the initials of their German title. The passage quoted here is analyzed in detail by Hans Friedrich Fulda, “Kants Begriff eines intelligiblen Besitzes und seine Deduktion (“Metaphysische Anfangsgründe der Rechtslehre”, § 6)”, Jahrbuch für Recht und Ethik/Annual Review of Law and Ethics 5 (1997): 103–19.
8 §§ 34–64.
9 I examine this issue in detail in K. R. Westphal, “Do Kant’s Principles Justify Property or Usufruct?”, Jahrbuch für Recht und Ethik/Annual Review of Law and Ethics 5 (1997): 141–94. A briefer summary, with one improvement in substance, appears in idem., “A Kantian Justification of Possession”, in: M. Timmons, ed., Kant’s Metaphysics of Ethics: Interpretive Essays, New York: Oxford University Press, 2002, pp. 89–109.
10 “Do Kant’s Principles Justify Property or Usufruct?” (op. cit., ftnt. 9), §§ 3.7–3.10.
11 RL § 42, 6: 307.8–11; cf. 306.22–28, 307.14–308.2
12 Gr 4: 412.4–5, cf. MdS 6: 216.34–217.8.
13 Kant’s use of “Sitten” is broad, including both Rechts- and Tugendlehre, or justice and morals. Here I use the term “ethics” to designate Kant’s broad sense of “Sitten”, “justice” to designate “Recht”, and “moral” (and its cognates) to designate issues within Kant’s doctrine of virtue.
14 Cf. TL 6: 468.11 – 13.
15 Gr 4: 388.9–14,4: 388.35, MdS 6: 216.34–217.11.
16 Rph § 148 Anm..
17 Rph § 135 Anm. Another aspect of Hegel’s charge that Kant’s Categorical Imperative is “empty” concerns moral motivation. Hegel highlights the tension between Kant’s official insistence that respect for the moral law must be the sole motive in dutiful action, and his ultimate recognition that our happiness is inevitably a determining ground (unvermeidlicher Bestimmungsgrund) of our will. If so, then human actions satisfying Kant’s official account of moral motivation that accords with the Categorical Imperative belong to the null set; hence the Categorical Imperative is empty. For discussion, see “Hegel’s Critique of Kant’s Moral World View” (op. cit. ftnt. 6), §V.
18 TL § 45, 6: 468.28–31.
19 TL § 45, 6: 469.8–12.
20 Onora O’Neill, Constructions of Reason, Cambridge: Cambridge University Press, 1989, pp. 74, 105–06, 114–15, 121, 133–34; Barbara Herman, The Practice of Moral Judgment, Cambridge, Mass.: Harvard University Press, 1993, pp. 122, 203, 204–06, 235.
21 Gr, 4: 417.8–10
22 Compare Kant’s example, not developed in this connection, of beings who can only think by speaking aloud (Anthr. 7:219.30–33).
23 Obligatory ends: TL 6:382–388; necessary ends: KdpV 5: 115.9–11; true needs: TL6: 393.30, 432.12, 7:201.34
24 These cases are examined by Christian Schnoor, Kants Kategorischer Imperativ als Kriterium der Richtigkeit des Handelns, Tübingen: J.C.B. Mohr (Paul Siebeck), 1989; the key points are summarized in K. R. Westphal, “How ‘Full’ is Kant’s Categorical Imperative?” (op cit. ftnt 6), §§2.6–7, 2.14.
25 Rph § 135 Anm.
26 RL §§ 18–21.
27 I say “much the same,” because Kant contends that the judicial authority is one of the three authorities inherent in the state (RL § 45, 6: 313.17–27), though his justification for this claim is far from clear or convincing.
28 Constructions of Reason (op. cit. ftnt. 20), pp. 88, 103, 150, 152, 154, 158; The Practice of moral judgment (op. cit. ftnt. 20), pp. 205–07, 234–35; discussed in Westphal, “Hegel’s Critique of Kant’s Moral World View” (op. cit. ftnt. 6), §IX, and in “How ,Full’ is Kant’s Categorical Imperative?” (op. cit. ftnt. 6), §§ 3.4–5, 3.22, 5.7.
29 Philosophers, particularly liberals, often resist social analyses of norms or their justification because they assume, implicitly if not explicitly, that social analyses cannot avoid either or both of two untoward results, namely, historicist relativism or the subordination of individuals to a social whole. These assumptions rest on false dichotomies that Hegel identified and resolved. (Failure to recognize this has produced enormous misunderstanding in the literature.) See K. R. Westphal Hegel’s Epistemology: A Philosophical Introduction to the Phenomenology of Spirit, Cambridge, Mass.: Hackett Publishing Co., 2003, §§ 16–20, 29–37. Some of the key points are summarized, with particular consideration of practical philosophy, in idem., “Rationality and Relativism: The Historical and Contemporary Significance of Hegel’s Response to Sextus Empiricus”, Esercizi Filosofici 6 (2002): 22–33. An Italian translation of this essay, by Cinzia Ferrini, is available on the web: “Razionalità e relativismo: Il significato storico e contemporaneo della risposta hegeliana a Sesto Empirico”, Etica e Politica 4.1 (2002), http://www.units.it/-etica/2002_1/index.html.
30 RL Vorrede, 6: 209.8–14.
31 See Frederick Beiser, Between Kant and Fichte, Cambridge, Mass.: Harvard University Press, 1992, chapter 2, especially pp. 48 – 52.
32 I discuss the details of Kant’s account of government in “Kant on the State, Law, and Obedience to Authority in the Alleged ‘Anti-Revolutionary’ Writings”, Journal of Philosophical Research 17 (1992): 383–426, reprinted in: S. Byrd & J. Hruschka, eds., Kant and Law, Aldershot: Ashgate, 2005, § IV.
33 RL § 49, 6:316–318.
34 These claims can be established only by detailed analysis, which I provide in “Kant on the State, Law, and Obedience to Authority,, (op. cit. ftnt. 32), §§ V, VI. However, in that essay (§§ VII, X) I argue that Kant’s strict prohibition on the right to rebel only holds within his metaphysical principles of justice, and so only pertains to a fully legitimate government, though Kant also provides strong though conditional grounds for prohibiting rebellion against actual states.
35 See “Kant on the State, Law, and Obedience to Authority” (op. cit. ftnt. 32), §§ VIII, IX.
36 Rph § 275.
37 Rph § 307.
38 Rph § 273.
39 Rph §§ 272 Anm., 286 & Anm., 301 Anm., 308, 310 & Anm.
40 Rph §§ 283, 284.
41 Rph §§ 35, 36, 38, 41–9, 57, 62 Anm., 66, 206, 207, 209 Anm., 252, 270 Anm.
42 Rph § 209. Hegel explicitly repudiated the anti-Semitism of his contemporaries (Rph § 209 Anm.; cf. § 270ftnt. 2).
43 Rph § 278. Hegel distinguished between the government and the state as a whole. He called the government the “strictly political state” (Rph §§ 273, 276) and reserved the term “state” for the whole of a civilly and politically well-organized society (Rph §§ 257 – 71). He called civil society – sans representative government – “the state external” (Rph § 183). Ignoring these distinctions is one fundamental error underlying fascist misrepresentations of Hegel’s politics.
44 Rph §§ 209–12; cf. §§ 187R, 249.
45 Rph §§ 132 Anm., 209, 211 Anm., 215; cf. 228 Anm.
46 Rph § 216.
47 Rph §§ 224, 228 Anm.
48 Rph§§ 208, 210, 218, 219.
49 Rph § 298.
50 Cf. Rph §§ 314, 315. Hegel’s “Crown” includes both the prince and the cabinet ministers; Rph § 275.
51 Rph § 302.
52 Rph § 301 & Anm.
53 Rph § 273 Anm.
54 Rph §§ 273 Anm., 298.
55 Rph § 298Z.
56 Rph § 135 Anm., cf. § 148 Anm.
57 Hegel’s charge, that even the most highly immoral action can pass the Contradiction in Conception test (Rph § 135 Anm.), appears to rest on his acute awareness of problems specifying the relevant maxim of the agent. He notes in one of his lectures that an act of theft, if conceived within an agent’s maxim simply as acquiring something that was not previously one’s own, would pass the Contradiction in Conception test; see Hegel, Vorlesungen über die Philosophie des Rechts (Berlin 1819/1820), nachgeschrieben von J. R. Ringer, E. Angehrn, M. Bondeli, & H. N. Seelmann, eds., Hamburg: Meiner, 2000, p. 676.561–571. Obviously, this is a deeply flawed maxim, but as Onora O’Neill points out, Kant’s tests must work with the agent’s own maxim; see Onora Nell, Acting on Principle, New York: Columbia University Press, 1975, pp. 21–31, 34–42, 112–43.
58 Rph§§ 105–41.
59 It is a serious blemish on scholarship that this simple but crucial fact has eluded the attention of commentators.
60 Rph §§135 Anm. (just quoted), 148.1 would appreciate receiving further references to Hegel’s use of this phrase or clearly related phrases.
61 Rph 142–57.
62 Rph § 142.
63 Rph § 148 Anm. Hegel’s use of the term “ethische” at the beginning of this statement is unusual. He wrote this about it in his margin: “Ethisch – statt moralisch – sittlich”.
64 Reasoning such as this leads, e.g., no less a scholar than Karl-Heinz Ilting to charge that Hegel’s exposition of governmental powers is backwards, because only the prince could and should represent the ultimate synthesis within Hegel’s state of the governmental powers; see Ilting, “The Structure of Hegel’s Philosophy of Right”, in: Z. A. Pelczynski, ed., Hegel’s Political Philosophy, Cambridge: Cambridge University Press, pp. 136–50, pp. 90–110. Ilting overlooks the fact that Hegel sought to integrate (“synthesize”) self-conscious individuality with the collective bases of individual action, not simply for the prince, but for all citizens; the last step of this integration is achieved by and in the Estates Assembly; see K. R. Westphal, “Hegel on Political Representation” (op. cit. ftnt. 4), p. 115, and idem., “The Basic Context and Structure of Hegel’s Philosophy of Right” (op. cit. ftnt. 4), especially pp. 259–62.
65 See Karl Ameriks, “Kant’s Transcendental Deduction as a Regressive Argument”, Kant-Studien 69.3 (1987): 273–87. For concise discussion of Hegel’s view, see Westphal, Hegel’s Epistemology (op. cit. ftnt. 29), §§ 1 – 11, 16–20.
66 Rph §§ 4, 133Z, 135 Anm.
67 Rph §§ 5–7. For discussion see Westphal, Hegel’s Epistemology (op. cit. ftnt. 29), § 20.3
68 Rph § 29 Anm.
69 Rph § 148 Anm.
70 Werke (op. cit. ftnt. 2) 7: 297 note **; original emphasis. “Duty – is right, existence of his will”.
71 Rph § 19.
72 See Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume, Oxford: The Clarendon Press, 1991.
73 Thomas Hobbes, De Cive, chapter 2 § 10; the same statement occurs in Elements of Law, Part I chapter 15 § 9.
74 Thomas Hobbes, Leviathan, chapter 14 ¶3.
75 RL Introduction § C, 6: 231.10–17.
76 Rph § 29 Anm. The passage paraphrased by Hegel from Kant is misidentified by Allen Wood in his editorial notes to Hegel, Elements of the Philosophy of Right, Cambridge: Cambridge University Press, 1991, p. 403, note 2. The restrictive notion of freedom is also found, e.g., in the very title to Robert Brandom’s semi-Hegelian essay, “Freedom and Constraint by Norms”, American Philosophical Quarterly 16.2 (1979): 187–96.
77 Rph § 30.
78 Herman, The Practice of Moral Judgment (op. cit. ftnt. 20), pp. 152, 166, 168, 172, 179, 180–83, 191, 193–94, 196–202.
79 I discuss some thematic links between Hegel’s Rechtslehre and Hume’s account of justice in K. R. Westphal, “Von der ‘Konvention’ zur ‘Sittlichkeit’. Humes Begründung einer Rechtsethik aus nach-kantischer Perspektive”, in: D. Heidemann & K. Engelhard, eds., Ethikbegründungen. Zwischen Universalismus und Relativismus, Berlin: DeGruyter, 2005, 153–180.
80 It is a distinct honor and pleasure to contribute this essay to this Festschrift for Joachim Hruschka. It is an honor, because Professor Hruschka’s effortless and illuminating combination of historical, philosophical, legal and juridical approaches to issues in practical philosophy, together with his deeply informed, broad-ranging and inquisitive intellectual style, are exemplary. It is a pleasure to acknowledge here my sincere gratitude to the editors of the Jahrbuch für Recht und Ethik for their long-term interest in, and support and encouragement of, my unconventional research in practical philosophy.