The passage from the state of nature to the civil state produces a very remarkable change in man, by substituting justice for instinct in his conduct, and giving his actions the morality they had formerly lacked. Then only, when the voice of duty takes the place of physical impulses and right of appetite, does man, who so far had considered only himself, find that he is forced to act on different principles, and to consult his reason before listening to his inclinations … What man loses by the social contract is his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietorship of all he possesses. If we are to avoid mistakes in weighing one against the other, we must clearly distinguish natural liberty, which is bounded only by the strength of the individual, from civil liberty, which is limited by the general will . . We might, over and above all this, add, to what man acquires in the civil state, moral liberty, which alone makes him truly master of himself; for the mere impulse of appetite is slavery, while obedience to a law which we prescribe to ourselves is liberty (J-J Rousseau, Tlie Social Contract, [1762] 1973: 195–6).
[While] money buys everything else, it cannot buy morals and citizens (J-J Rousseau, Discourse on the Arts and Sciences, [1750]).
An ambiguous writer, who internalised the enlightenment’s conflicting trends of optimism and pessimism, Rousseau (1712–1778)1 appreciated that the process of modernisation was creating a radically different context for humanity. In that modern society transgressed – or moved beyond – any natural state, a basic question becomes that of legitimation. What could make the differences in power and reward in the modem social structure acceptable?2
Rousseau was no social insider; his literary career began with his prize-winning essay entided Discourse on the Arts and Sciences (1750). This was a work of tremendous rhetorical power which argued that morals had been corrupted by the replacement of religion by science, by sensuality in art, by licentiousness in literature, and by the emphasis upon logic at the expense of feeling. It made Rousseau instandy famous and his later writings received wide recognition.
The context of the modern subject – new organisations, procedures and new powers – threatened to prevent freedom, or autonomy. The themes of powerlessness, alienation and purity underpin Rousseau’s concerns. Modernity forces upon the subject the questions ‘who am F, and ‘where am I?’ But the subject is racked with conflicting emotions, hopes and fears and can hardly cope with understanding his/her personal position; how then can the social be judged? Understanding this weakness was itself a start, proposing a first principle, namely, that the personal and the social were intertwined. Our personality – our personhood – is a function of the social and historical context we find ourselves in. What then of the new society of the Enlightenment? How is this context to be understood and what was the impact of emerging modernity upon the human condition? Rousseau was convinced that a new form of human existence had been created. In opposition to Hume, Rousseau suggested that human nature was not a constant but had been changed through involvement in society. As a consequence, self-criticism is a form of social criticism, and social criticism is self-criticism. The new ‘modern’ self is a social self, made possible by a new social order, but that social order needs the self to recreate itself, modernity demands that the (pre-)modern social subject transform itself into a new social self.3 But, in socialising humanity for this new order, what is gained and what lost? Is the civilising process the progressive and irreversible development of a fully modern individual, or the sublimation of aspects of human nature by a facade of inhuman constraints in the name of proper socialisation?
In what way do our emerging modern institutions express the truth of mankind’s natural condition? Does the ‘escape’ from the domination of religion, tradition, custom and ‘natural ordering’ in favour of modernity, make mankind more free, or simply the servants of a new master? Does freedom allow us to become fully human – in that we develop our own ends and desires as opposed to those imposed upon us by nature? If we follow the projects of our ‘self-assertion’ are we engaging in a more fully ‘human’ behaviour, as opposed to following the impulses of our nature, no matter how satisfying the latter are?
The idea of a fundamental disjunction between the social and the natural condition provides the basis of all Rousseau’s work serving as the backdrop to his writings on law and politics (the classic text is The Social Contract; references given as SC). Through socialisation man is transformed ‘from a stupid, limited animal into an intelligent being and a man … [to obey] the impulse of appetite alone is slavery’. The political and legal constitution effects a creative ‘denaturing’ of man. Thus, modernity could offer scope for the radical development of a new kind of humanity; conversely, it could subject us to confining practices and turn us into mere objects of rule. We need moral concepts to judge the transformations of modernity. Rousseau suggests that institutions that do not in some way embody our freedom to define our own ends, strip us of our humanity. Moreover, if our institutions do not recognise and incarnate our humanity they are an obstacle to freedom. Humans have many contradictory impulses; our institutions ought to allow complexity, but aim to overcome contradiction: ‘all institutions which put man into contradiction with himself are worth nothing’ (SC, 3: pp 464 and 128 of the Complete Works). Social institutions should express and reconcile the truths of the human self, else we are doomed to inhuman contradictions and incoherences. The sources of dissatisfaction lie in both the social order And the composition of the human self. There can be no retreat to an analysis of either the social without the personal, or the personal without the social. The personal is created by the social, and the social is the realm where the personal takes its life.
The emerging discourses on law and society tended to deny this interrelationship. ‘Modern’ discourses separated realms of analysis, compartmentalising the human condition; in discussing politics, for example, they stressed effectivity rather than the affectional.4 The proto-liberalism of the day stressed that the legal structure will only lay out tools of impersonal social interaction – the realm of the abstract citizen entering into contracts. As a consequence, the (social) ‘meaning’ of life will become a private pursuit. Rousseau imagined that the past held a greater social belonging and purity; as he put it in Discourse on the Arts and Sciences: ‘Ancient politicians spoke incessantly about morals and virtue, ours speak only of business and money’ ([1750] 1973: 19). The ancient pagan republics of Athens and Sparta seemed to offer examples of social belonging; a way of life and political discourse where the social constitution provided a home for the persons who made it up, in contrast to an empty individualism increasingly espoused in the name of modern freedom. Classical republics were inhabited by strong men who were bursting with pride; their plays reflected the heights of tragedy and comedy. Looking at his fellow citizens, Rousseau could only see the Hobbesian quest for felicity:
You are neither Romans nor Spartans; you are not even Athenians. Leave aside these great names that ill suit you. You are merchants, artisans, bourgeois, always occupied with private interest, work, business, and gain; people for whom freedom itself is only a means of acquiring without obstacle and possessing without security (Letters from the Mountain, 3: 881).
How could men become as good as those of the ancient past in the conditions of early modernity? Rousseau’s answer was in a just social order. How would this be made possible? Only if the social contract founding the new society expressed the general will.5
Rousseau does not use the social contract idea to describe the transition from the state of nature to civil society, rather the social contract provided an answer to the question ‘why should a person obey the laws of a modern society?’ The Social Contract is an extended essay upon the legitimation of modernity. It is an attempt to transform an instrumental idea into an expressive phenomenon.
Note that the expressive tradition is also normative. Rousseau’s essays are not dryly descriptive of the historical development of modernity, rather they are aesthetic readings of the conditions for ascertaining legitimacy in early modernity. Rousseau creates his essay on justice, for example, to enable us to criticise the social from a ‘provisional’ point of view. We need to attain a site, a distance from our context, wherefrom we may better understand and critically judge our conditions. But we can never transcend our context; the Platonic simile of the cave cannot be experienced in real life; how then can we escape from our immersion in convention? We do this by ‘setting all the facts aside’ and creating hypothetical models and images in comparison to which we may better understand our present: ‘The researches concerning [the origins and foundations of inequality among men] must not be taken for historical truths, but only for hypothetical and conditional reasoning, better used to clarify the nature of things than to show their true origin’ (Discourse on the Origins and Foundations of Inequality among Men, 1964: 103).
The Social Contract intermixes the historical, the theoretical, the fictive and the hypothetical; while we may be dissatisfied by the impurity of this methodology, it may also reflect Rousseau’s recognition of the inherent impossibility of telling the ‘truth’ of the human condition. Rousseau refers to a discourse which lays out a genealogy of the modern individual, while providing a discourse of speculative truths on mankind. We cannot have a total or absolute science of the modern subject since the modern subject is no longer natural, but rather social-cultural: ‘The passage from the state of nature to the civil state produces a truly remarkable change in the individual. It substitutes justice for instinct in his behaviour, and gives to his actions a moral basis which formerly was lacking (SC, i, viii, 1973:177).
How does the social contract found justice? Man was happy in the state of nature in that he enjoyed an absolute independence and obeyed only the laws he gave himself. Although he was primarily motivated by the desire for self-preservation, this desire led him to recognise the need for virtue and his common humanity. His natural innocence became corrupted: through social contacts man developed vices and was motivated to raise himself over his fellows. The competition to succeed and dominate others was the source of the crimes and evils men perpetrated upon each other. How could a social association be created which reconciled the independence which men naturally had with the necessities of social life? The task was to develop an ‘association which will defend and protect with the whole common force the person and the goods of each associate, and in which each, while uniting himself with all, may still obey himself alone’. To solve the problem of the tension between the individual and the social, the social must become the embodiment of the personal; the laws will command obedience because they are what we have commanded to ourselves and express our general will.
The social contract was not some event of the past but a living reality present wherever there was legitimate government. This living contract is the fundamental principle underlying a political association in that it provides a mechanism whereby everybody adjusts their individual conduct to harmonise with the legitimate freedom of others. Man trades his ‘natural liberty’ for a ‘civil liberty’ and the enforcement of property ‘rights’.6 In a famous phrase Rousseau defines the social contract in terms of each individual putting his person and power into a common holding under the supreme direction of the general will, whereby we relate to each other as constituent parts of an ‘indivisible whole’.7 Moreover, by the terms of the contract, those who refuse to obey the general will can be compelled to do so; men can be compelled to be free. The social contract is the mechanism by which the problem of constructing the modern is solved, namely the constituting force of law.8
The social contract gives ‘the body politic existence and life\ but legislation gives it ‘movement and will’. The idea of the general will solves a pressing problem. Namely, Rousseau wants the law to be free from the domination of a small elite and express the will of the people as a whole – whereby the citizen who can be compelled to obey the law, obeys not an instrument of specific domination, but of general value.
That all should obey, yet nobody take upon him to command and that all should serve and have no masters? … These wonders are the work of the law. It is to law alone that men owe justice and liberty. It is this salutary organ of the will of all which establishes in civil right the natural equality between men … The first of all laws is to respect the laws (A Discourse on Political Economy; 1973: 124).
How can the diverse groupings and subjective wills of the population be linked together into a rational system?9 Only if the law is the product of the general will, and this general will is the will of the ‘sovereign’, then the law speaks for the rationality of the whole social body. The will of the Sovereign is not the arbitary will of an individual or groups of individuals; the prince, or the elite body of men who make up the Sovereign, is a distinct body from the jurisprudential entity of the Sovereign. The Sovereign is the centrality of power and the general will which directs that power through law.10 In ideal form, the Sovereign would consist of the total number of the citizens of the society; the general will is therefore the single will of the total of the citizens. The many and diverse wills of the population can be considered a single will because everyone is a party to the social contract and in that contract they have agreed to direct their actions to achieving the common good. Each citizen understands that he should refrain from any action which would cause the others to turn upon him; in this way each realises that his own good and the common good are intertwined.11 Ultimately, through the contract, each individual’s will becomes merged with others in that all are directed to the same purpose, namely the common good.
The general will is a specific concept; it is not the simple mathematical calculation of the ‘will of all’, such as a mere empirical manifestation of the votes in some simple voting system. The will of all becomes the general will only when it is in accordance with the purposes of the common good; often it is simply the will of a majority or a minority who have the vote. A society may not have a general will; instead its ‘will of all’ may be that of a political faction, and its purpose only the expression of dominant interest groupings12 Rousseau appeared to believe that a diffusion of adequate knowledge concerning particular social problems would enable the opinions of the citizens to be shaped into a general will.13 Knowledge concerning the social problem leads to a consensus and the wills of all are directed to the common good; the general will thereby directs us to social justice.
On what grounds can obedience be compelled? Only when we are operating under the idea that the law was made with the common good or social justice in mind; in which case the law expresses the general will, as opposed to being the instrumental outcome of special interests.14 In this case the person who goes against the law is going against his own best interests; he is in error in that he is misguidedly putting his subjective desires in opposition to the just state of which his will, objectively, should be part. Politically, the voting system and the passing of law should be guided by the overriding purpose of the common good or social justice. It is only when the whole system is directed to the attainment of social justice and the laws and institutions express that commitment that we can be sure that the laws passed are actually in line with the general will.
Can we be sure that the idea of the general will is of actual use? How could an actual general will, a just political system, be established? What would provide the foundational point for this vehicle of pure modernity? The answer Rousseau gives in a chapter entitled ‘The Law-giver’ or ‘The Legislator’ (SC, 1973: 194–197) demonstrates the impossibility of modernity founding itself.
In order for an emerging people to appreciate the healthy maxims of politics, and foDow the fundamental rules of statecraft, the effect would have to become the cause; the social spirit, which should be the result of the institution, would have to preside over the founding of the institution itself; and men would have to be prior to laws what they ought to become by means of laws.
We find ourselves in a vicious theoretical circle where the effect must precede the cause! The social consciousness which would be the product of modern institutions would have to be in existence to produce modern institutions. Free institutions will only work if the citizens are free men; but only free men can (freely) bring about free institutions. Thus we must have some form of founding moment and founding mechanism which sets in place the conditions by which a free system can take life. The free state needs a deus ex machina, a ‘law-giver’, to found its institutions:
The discovery of the best rules of society suited to nations would require a superior intelligence, who saw all of men’s passions yet expenences none of them; who had no relationship at all to our nature yet knew it thoroughly.
No one body has this disinterested prescience, but the elites must try to recognise the path to a just social order in an essentially corrupt society, proposing laws by arguments addressed to the populace in such a form as would make them acceptable to a people not yet ready for the demands of pure freedom. The usual tactic historically, Rousseau notes, had been ‘to have recourse to the intervention of heaven and to attribute their own wisdom to the gods’, and thereby ‘convince by divine authority those who cannot be moved by human prudence’ (in Complete Works references at SC, 3: 381, 383–4; 67–68, 69–70). Rational discourse is grounded on the irrational; modern truth upon a falsehood. Modernity is founded on the lie that it is modern; the modern needs the tactics of the pre-modern to be effectual.15
What are we to make of Rousseau’s bluntness? Is he telling the rulers that they can successfully rule only by fraud and trickery? Or is he cautioning the people to be wary of the promises and illusions that their rulers would impose upon them? And what of the general unit? That regulative idea which, because it is easily misunderstood as if Rousseau were describing a reality, all too easily becomes the excuse for a totality? Does Rousseau, albeit in his desire to ensure that the social constitution does not lose its expressive nature, sacrifice the individual to the totality? In Rousseau’s system the modern citizen is meant to be the fully social man, a man so conscious of his social interdependence that he will not risk destroying the social bonds by retreating into his arbitrary subjectivity.16 But, in describing how our rulers will need to convince us that it was not they who created our new laws but that the laws flowed from some form of God’s will or functional necessity, Rousseau holds up both the image of a weapon for our subjection and the possibility of our demystifying such domination. Whether awareness of the tactics for creating legitimacy works to mystify us, or to offer us greater transparency concerning our social existence, may lie with our social imagination and willingness to create and defend our liberties.
Rousseau speaks of the inherent tensions of social life highlighted by modernity; law is interlinked with social institutions and cultural understandings. A law which forgets to express the culture of the people will be bad law.17 We need each other as we fear each other; through the alienation of the individual to the community (the theoretical incorporation of the individual in the general will). Rousseau tries to legitimise and make bearable the chains of dependency we bear in civil society. We justify our loss of self-sufficiency and self-regarding happiness only by creating a political freedom wherein we make of ourselves something greater than we are in any natural state and create a new individuality worthy of respect. For several commentators this is the central political tension in Rousseau’s position: he demands the complete subordination of the individual to the social for the sake of the individual, and in order to create an individuality that is more fully human than a non-social individuality. Political institutions not only secure the conditions through which the individual seeks satisfaction, but should ennoble his character and reconcile the conflicting demands of socialisation. The legitimate state is to produce healthy individuals as well as secure property.18 What is the point of living in a ‘law-and-order’ society, in which one is free to accumulate property and engage in contracts secure in one’s right to enforce them, if one’s humanity is debased in the struggle and pulled apart by internal struggles and contradictions? The question raises itself in our own times with renewed force; not only have we come to appreciate Rousseau’s contention that the cultural underpinnings of legal order are of vital importance in determining the ‘kind of law’ we have, but the fact that the idea of inherent contradictions as defining the human condition in (liberal) modernity is central to the Critical Legal Studies movement (see chapter 16 of this text) is only one contemporary manifestation that Rousseau’s dilemma has not been overcome. Rousseau’s message to us may well have been simple: beware of all social theories which purport to make modernity appear natural!19
The silent acquiescence in things as they are, the hopelessness, the patient endurance of a vast, overmastering fate, has turned to hope, to expectation, to the will for something different. The vision of a better and a more just time has entered alive into the souls of men, and a desire, a longing, for a purer, freer condition has moved every heart and has alienated it from the existing state of affairs … Call this, if you like, a fever-paroxysm, but it will end either m death or in eliminating the cause of the disease …
How blind are they who can imagine that institutions, constitutions, and laws can persist after they have ceased to be in accord with the morals, the needs, and the purposes of mankind, and after the meaning has gone out of them; that forms in which understanding and feeling no longer inhere can retain the power to bind a nation (Hegel, Werke, 1798: 150–151; quoted in Sabine and Thorson, 1973: 574–575).
While Rousseau argued that only the state that attained perfect social justice could resolve the contradictions of the human condition, and Kant appeared to leave us suspended into two divided worlds, Hegel argued that reconciliation was, at least theoretically, possible.20 His message is, however, deeply ambivalent. While Hegel appeared to lay out the philosophy of the perfect social justice – the social totality of the ethical community – he did so within a philosophy of history and social development capable of multiple interpretations. Hegel gave us the image of social development as driven by dialectics (the clash of opposites); history was moved by the clash of opposing tendencies. Any static position contained conflicting – apparently contradictory – tendencies, and as apparent contradictions clashed and worked themselves into a new position (a temporary synthesis of the best elements in the two opposing positions), new conflicts and apparent contradictions became visible. Could we ever overcome social conflict and contradictions? Or is human history an inescapable process of continual movement wherein conflict and opposition is negotiated, compromises worked out, only for these in turn to be immediately rendered the subject of new conflicts?
Influenced by Kant, Rousseau and others, Hegel accepts the principle of autonomy and the social project of realising freedom as the core of modernity, but argues that a new relationship of happiness and freedom was made visible when we situated what we empirically observed around us within the totality of philosophic history. The traditional aim of happiness as the end of human existence transposed to this world implied that man could only be happy when he was free. While freedom should be the regulative principle for guiding the historical destiny of mankind, Hegel argued freedom should be read in the widest, most expressive sense. Freedom ought to be the freedom to become; man must develop a consciousness of himself as a part of a socio-historical process moving towards the goal of absolute freedom. We must not rest an analysis of society upon static conceptions, or any philosophical analysis that proposes its analysis as if the truth of social existence could be divorced from the social-philosophical context; an essentially historical context.21 Freedom is a historical process; the freedom which man seeks in modernity is to be realised through a normatively based society. A society which recognises individual autonomy and particularity, while its structures mediate individuality into an ethically constituted whole. The just society combines personal particularity and substantive unity within the objective forms of civil sovereignty.
If happiness is a question of living the truly free life, the social constraints that one is subjected to ought to be morally defensible. Law, as a regime of coercive power, must reflect the moral striving of the society. In pursuit of this aim, Hegel appears to remove any distinction between right and morality – between human law and morality – situating them instead within the context of an ethically constituted social order. In the Philosophy of Right, Hegel explicidy rejected the idea of the social contract as a basis for the explanation of the nature of political obligation. In contrast to Hobbes and Locke, where the legitimacy of civil government was rooted in the consent of its subjects, Hegel argued that the legitimacy attaching to governmental institutions of the state was grounded in principles of political morality immanent in the pre-legal norms, customs and practices which comprised what he called civil society. The dominant utilitarian trend to enlightenment thought saw in civil society the grounding of a form of association in which the contractual nexus – the coming together of essentially separated and atomistic individuals for mutual profit and security – predominated. Hegel’s idea of community was much greater:
If the state is confused with civil society, and if the state’s specific end is laid down as the security and protection of property and personal freedom, then the interest of the individuals as such becomes the ultimate end of their association, and it follows that membership in the state is something optional. But the state’s relation to the individual is quite different from this. Since the state is spirit objectified, it is only as one of its members that the individual himself has objectivity, truth (Wahrheit), and ethical life … The individual’s calling (Bestimmung) is to live a universal life. His further particular satisfactions, activity, and mode of conduct have this substantial and universally valid life as their starting point and their result (Philosophy of Right, para 258).
The so-called modern ‘free’ citizen of civil society, liberated from tradition and custom, is not free enough. He becomes immersed in the play of economic forces; following the contingent content of his desires he seeks out pleasures and lives a fate generated by the decisions of others in the market. A new form of objectivity is required to provide the modern with a rationally valid, yet free way of life. The aimless strivings of economic man’ must be directed into a striving for the common good.
The state is the actuality of concrete freedom. But concrete freedom consists in this, that personal individuality and its particular interests not only achieve their complete development and gain explicit recognition for their right … but, for one thing, they also pass over of their own accord into the interest of the universal, and for another thing, they know and will the universal… They take it as their end and aim and are active in its pursuit. The result is that the universal does not prevail or achieve completion except along with particular interests and through the co-operation of particular knowing and willing; individuals likewise do not live as private persons for their own ends alone, but in the very act of willing these they will the universal in the light of the universal and their activity is consciously aimed at none but the universal end (Philosophy of Right, para 260).
For Hegel, however, civil society was made up of forms of human association, like the family and the household, which were essentially non-contractual in nature, and which, in consequence, generated principles of legitimacy and obligation that were binding irrespective of the consent or voluntary agreement of their members. Hegel insisted that such forms of association were metaphysically prior to the individual, in the sense that the family, the household and the other institutions constitutive of civil society could not properly be understood as instrumental associations – that is, as associations which existed merely to promote the realisation of the private aims and objectives of their members. Thus, Hegel characterised the true state as an ethical community, or more precisely as a form of Sittlichkeit, which embodied moral goods and values that were internal to its formal system of rules, laws and institutional procedures.22
The state is the actuality of the ethical Idea. It is ethical mind qua the substantial will manifest and revealed to itself, knowing and thinking itself, accomplishing what it knows and in so far as it knows it (Philosophy of Right, para 257).
The true or ideal political constitution, the ideal society, the just state, is to reflect the progressive dialectical arguments concerning the social position and recognition of the worth of individual human dignity. The state is fully rational when it organises itself according to the totality of knowledge of the human condition and develops its substantive arrangements to reflect this knowledge. The state cannot abandon the question of justice, of the right, to some hidden hand of the market or other underlying ‘natural’ mechanism of civil society, rather, the idea of the general will is to be given substantive content. Hegel argues that social contract theorists, with their ideas of natural liberty, ignore the historical fact that human liberty is dependent upon social belonging. Hegel finds even Rousseau’s idea of the social contract unacceptable, since he believes it:
… reduces the union of individuals in the state to a contract and therefore to something based on their arbitrary wills, their opinion, and their capriciously given express consent; and abstract reasoning proceeds to draw the logical inferences which destroy the absolutely divine principle of the state, together with its majesty and absolute authority. For this reason, when these abstract conclusions came into power, they afforded for the first time in human history the prodigious spectacle of the overthrow of the constitution of a great actual state and its complete reconstruction ab initio on the basis of pure thought alone, after the destruction of all existing and given material. The will of its re-founders was to give it what they alleged was a purely rational basis, but it was only abstractions that were being used; the Idea was lacking; and the experiment ended in the maximum of frightfulness and terror (Philosophy of Right, para 258).
In their desire to universalise the freedom and liberty which they thought to underpin the French Revolution, the actors ignored social wisdom; Jacobean terror sprang from unbridled freedom. The multitude of individual actors and groups championed subjective rationality without incorporating and constraining the principle of individual autonomy within the objectivity of historical consciousness. Conversely, the fully modern state must be aware of the dialectics of history.
The state needs to be a legally constitutional state in the broadest meaning of the term. It needs to be an imperium of law’s dominion. But this power must be ethical; law’s imperium was to build Law’s Ethical Life.23 The French Revolution demonstrated that the divisions between social classes, between the rural and the urban, between the various groups, factions and individuals, ran so deep that some superior mode of attaining unity was required. Hegel refused to retreat to the tradition of patriarchal absolutism, or to turn to the vague imagery of some pure Germanic, organic Volksgeist. Instead the goal is for humanity to attain a perfect self-consciousness about the whole of its being; modernity was to be provided unity in the social power of knowledge itself and the social commitment to create a rational state obeying the dictates of that knowledge. ‘The rational state’, the living substantive incarnation of rationality, would provide the unifying mechanism and a site fit for mankind’s fully modern life. But unity must not destroy individuality; the state must resolve the divisions of civil society without abandoning the principle of liberty. The individual was to be preserved by positioning individuality through the development of a jurisprudence of individual rights (property rights, contractual rights, recognition of being rights) into an objectively given historical reality of the state. The individual can only be preserved as a real living life-force if individuality is recognised as dependent upon a social totality organised around the dialectical progression of the particular and the universal, the individual and the social.
Individuality and sociality were not poles that cancelled each other out, they were rather conceptual tools whereby we recognised different sites of historical movements. When we recognise that individuality can only exist as part of a totality we understand that desiring the universal is both a movement of ‘overcoming and preserving’ the individual (the particular) in favour of the universal, and the safeguarding of individuality against the danger of a non-ethical totality. The development of law, the development of the rational constitutional state, was the centre of Hegel’s social theory; it depicted how the primary social institution was constructed through social dialectics (Aughebung), or the processes whereby the opposing sides of rational argument clashed and the best aspects of both were incorporated in the new position.
Hegel has given inspiration to both the right and the left: of the political spectrum. In part he reads like an historical romantic offering uplifting images, but while we can only make sense of our identity through history, and appreciate the glories of the past, we should neither underestimate nor overestimate the progressive and accumulative effects of our social development. We need a motivating spirit to guide social development, a Geist, which can enthuse us and be incorporated into all our social institutions. But what can provide this Geist? How can we be sure that this philosophy has any grounding in real history?
Hegel offers a reading of the history of the world in terms of the tensions between individual subjectivity and ideological totality. The ancient city states of Greece offered visions of strength and purpose but could not withstand the challenges of individuality. In the Phenomenology of Spirit Hegel abandons the spirit of the polis as the standard by which to measure modern social life, while Greek culture may offer us a beautiful unity, by contrast with which we often become ashamed of our divisions, the freedom of the modern outweighs what we have lost. Hegel depicted early Greek culture as exhibiting a basic contradiction, in that Greek life did not have the intellectual resources to sustain subjectivity but could not prevent subjectivity from coming into play. The society could only progress through bringing subjectivity to light, but once effective, subjectivity disturbs the equilibrium of Greek rationality. It disrupts its patterns and a new equilibrium is only possible on the basis of the principle of the self as a free independent subject. This individuation must, however, be sound; it must exist within a way of life which sets just limits to subjectivity and harmonises it within a larger, institutionalised ethical life.24 For Hegel, this is the foundational problem of social existence. He appears to have feared that the world requires subjectivity but that no way of life could accommodate it effectively. His official position, though, is that the modern state, with its complex layering of the independent agent, the family, together with the mechanisms of market society, the universal orientation of the civil service, the will of the monarch and the unifying power of rational identification within this totality, is capable of housing each of these elements in a common life which harmonises them together. Modernity will transcend the tragic character of Greek life – hopefully … The legal order, however, was in danger of ignoring the need for expressive unity:
The statues are now mere corpses from which the living soul has flown, just as the hymns are words from which belief has gone. The tables of the gods provide no spiritual food and drink, and in his games and festivals man no longer recovers the joyful consciousness of his unity with the divine. The works of the Muse now lack the power of the spirit, for the spirit has gained certainty of itself from the crushing of gods and men. They have become what they are for us now – beautiful fruit already picked from the tree, which a friendly fate has offered us, as a girl might set the fruit before us … But, just as the girl who offers us the plucked fruits is more than the nature which directly provides them – the nature diversified into their conditions and elements, the tree, air, light, and so on – because she sums all this up in a higher mode, in the gleam of her self-conscious eye and in the gesture with which she offers them, so, too the spirit of fate that presents us with those works of art is more than the ethical life and the actual world of that nation, for it is the inwardising in us of the spirit which in them was still outwardly manifested.
The message is simple – we moderns are in danger of losing our intellectual imagination to the dry writings of utilitarianism – but response is difficult. In part, Hegel contrasted utility to romantic passion,25 and created a philosophical reading of the world which provided the state with an abstract purpose to give social life expressive meaning. For without expressive unity we could soon be lost in Hobbesian felicity, the pursuit of individual pleasure via playing the games of bourgeois life; our daily life more a reflection of our capital. Modernity would turn humans either into petty conformists without any sense of personal mission,26 or alienated individuals incapable of finding meaning for life.27
Hegel argues that the legal order of the rational state comprises three elements: (i) the constitutional nature of sovereignty; (ii) the basic nature of law as principles which strive for universality – each ‘idea’ of spirit at any one time is undeveloped and must be constandy worked further; (iii) the need to contrast legal principles with empirical reality – the purity of the idea of law must face knowledge of its actuality in concrete situations.
The fact that the sovereignty of the state is the ideality of aD particular authorities within it gives rise to the easy and also very common misunderstanding that this ideality is only might and pure arbitrariness while ‘sovereignty’ is a synonym for ‘despotism’. But despotism means any state of affairs where law has disappeared and where the particular will as such, whether of a monarch or mob (ochlocracy), counts as law or rather takes the place of law; while it is precisely in legal, constitutional, government that sovereignty is to be found as the moment of ideality (Philosophy of Right, para 278).
The constitutional state – legality – is the answer to the question ‘how can a rational modernity be organised?’ The early modern freedom of philosophy needs to find empirical recognition and a medium through which it can achieve results. Law is to be the medium which recognises and responds to the rational necessity of the spirit of humanity. But Hegel goes further: because he argues that law already does this, he can present law as the medium that will articulate and concretise this rational necessity. We can see this when we seek a general understanding of law’s operationality. Our analysis of law must be socially aware and historically located in the full knowledge that law mediates intrasubjective relations in an unequal division of roles. We must separate legality from despotism and read in the historical development of the progressive unfolding of the spirit of modernity that the key to harness power is constitutionality. In a sense we build upon the undeveloped rationality bequeathed by Hobbes. The Hobbesian image is the incorporation of mana into the reality of power within the centrality of the will that is the power of the state. Hobbes centralises the otherwise diverse wills of a naturally chaotic array of subjectivity – for social peace it is in crucial respects the sovereign’s will which is to count, and his power makes that will the organising point for social progress. The absence of a generally operative social will – a whole will – necessitates that a single will be produced and buttressed by force. For Hegel, conversely, society is the ground for the articulation and actualisation of reason, this can only take place when the members of society are integrated with, and identify with, the social project of reason; they cannot be forced successfully to act against the path of reason. An example is the history of the master-slave relationship.
History is founded on the domination of men over men. Law reflects this. The relations of master and slave manifest an historically accepted division of roles; what consciousness makes this possible? Consider Aristode:
… is there anyone thus intended by nature to be a slave, and for whom such a condition is expedient and right, or rather is not all slavery a violation of nature?
There is no difficulty in answering this question, on grounds both of reason and of fact. For that some should rule and others be ruled is a thing, not only necessary, but expedient; from the hour of their birth, some are marked out for slavery, some for rule (Aristotle, Politics, 1, 4–5).
Aristotle ‘trusted’ nature. Aristotle was deeply embedded in the network of social relations in which he lived. He could not perceive these – as the modern does – in terms of contingency or social construction, but saw them as ‘natural’.28 However, as individuals break free of the totality of the ideology that comprised the socially accepted mode of life, ‘existential trust’ disappears.29 This comes about because no matter how strong the dominant image of the world, and the naturalness of the ‘roles’ that are on offer, conflicting social perceptions, and contradictions of interest, exist. The master-slave relationship is one of domination, and no matter how ‘natural’ this domination can look, the master and the slave occupy different social locations which contain – at least potentially – a conflict (see discussion, Taylor, 1975: 153–7). And whatever the dominant social consciousness which legitimates the master-slave relationship, there is the possibility of another concept – such as that of’natural equality’ – which calls it into question.
As Hegel describes it, the master, the ‘superior’ subject, holds off the upsetting idea of equality by interposing upon the ‘other’ the status of inferior, and using the ‘inferior’ subject as a means of procuring achievement. The slave is compelled to labour in order to procure freedom for the ‘superior’ subjectivity of the master. But in this labour the ‘inferior’ engages his own subjectivity in the world of the real, and develops a subjectivity independent of, although related to, the subjectivity of the master. Domination invites resistance, both in physical and intellectual terms; the conflict results in the development and articulation of new norms of conduct, and new ways of perceiving of the relationship. The slave negates the domination of the master, an activity which signifies the capacity for self-creation and expresses the search for freedom which transforms nature into culture. We ‘moderns’ understand that the difference between the slave and the master cannot be found at the level of nature, rather it is located in the history of the institutionalisation of social relationships. A history in which the concrete history of domination and subjugation is encoded in legitimate social categories – laws of the society. The search for freedom involves a struggle against these forms of ‘legitimacy’ – against the jurisprudence which provided intellectual weight to these social institutions. As jurisprudence becomes ‘modern’, it invalidates the reason embodied in pre-modern social institutions – this struggle is the constituting force of freedom.
But if this freedom becomes rampant subjectivity – if, in other words, modernity becomes only a mass of individuals with their differing perspectives – then no real freedom is possible. No real freedom is possible because there would be no way of coming to agreement on what constituted the moral facts of modernity, and no absolutely guaranteed way of demarcating the good from the bad, the moral from the immoral. In that case, law could neither guarantee freedom or be the facilitating mechanism of a free modernity.
Jurisprudence also must be provided with an historical consciousness in which we tell ourselves we are progressing, otherwise jurisprudence could not serve as the record of our progressive institutional imagination. Thus, Hegel assures us, we should treat history as the progress of reason becoming self-conscious.
In the light of this, we read the changing forms of the master-slave conflict as the development of the consciousness of freedom through which mankind is established as an object for itself. Interpreting this tangible situation, we witness not only reason’s historical development, but the real embedment of reason in a normative institutionalisation within the world reality of domination and subjugation, of blood and despair. Hegel assures us that reason has three sites in the world: language (representation), fighting (the struggle for the norm of recognition; the province of politics) and work (labour; the province of the economy). At the beginning of the master-slave conflict two opposing subjective positions were in contradictory relation, in the course of the conflict each opposing subjectivity supersedes their particularity, and both the identity of the slave and the master are transformed, with each becoming a modern free human being. Each now must grant mutual (self-)recognition of each as (an)other, a real human being. This is only possible through the mediation of (modern) law which constitutes the state of freedom and guarantees to the (past) slave modern rights. Through being granted rights, the slave is brought out of nature and turned into a modern person; similarly, the master is humanised.
At any one time individuals and groups, their writings and concepts, are in a conflict which drives historical development, although individuals are not consciously striving to create progressive history. However, through their interaction and the social communication of knowledge, out of their various, multi-layered struggles, the reason of modernity emerges and becomes institutionalised in a political-legal constitution.30
Law is the medium which both records this ethical progress of concrete humanity, and structures the conditions for the next stage. The activities of state officials, the living reality of the constitution, the operation of the legal system, are a series of institutional reference points for collective and individual identity and will-formation. The development of the legal system must serve as the development of the representation of humanity.
Principle – plan of existence – law – is a hidden, undeveloped essence, which as such, however true in itself, is not completely real (Philosophy of Right).
At any one time, law is a both a present and hidden phenomenon. It is always a possibility, a potentiality, which emerges through human endeavour. Law emerges through will, through the passion of man to make principles come to light.31 The individual passion of the legal actor rnust be fused into duty, into an ethical appreciation of his task. The actor – the judge, the advocate – cannot escape his personal desires and aims, but these need to be fused into conceptions of justice and duty to transcend arbitrary desire.32 Above all we need to see the law as a ‘whole’ – the particularity of any law and of any decision, is an expression of LAW as it works itself pure in the (historical) dialectical progression of the rationality of man’s nature.
Legal development in its totality is the state pursuing the universal interests of humanity as these gradually become known. The operation of the institutions of the state offers ‘the firm foundation not only of the state but also of the citizen’s trust in it and sentiment towards it. They are the pillars of public freedom since in them particular freedom is realised and rational’ (Philosophy of Right, para 265). Universal lessons are drawn from the particularity of social conflicts. Through this history of social conflict, through the realisation of the interdependency of the particular and the general, of the individual and the social, the state is ‘educated’ and develops institutions which ‘actualise’ rationality. By a rigorous analysis of its laws, of their development, and the social effects of these laws, the state comes to a consciousness of its operation and refrains from serving only particular or vested interests.
The abstract actuality or the substantiality of the state consists in the fact that its end is the universal interest as such and the conservation therein of particular interests since the universal interest is the substance of these … [The state] works and acts by reference to consciously adopted ends, known principles, and laws which are not merely implicit but are actually present to consciousness; and further, it acts with precise knowledge of existing conditions and circumstances, inasmuch as its actions have a bearing on these (Philosophy of Right, para 270).
What drives law is an ambition: the ambition to develop ‘the principle of rational being and knowing, ie into the rationality of right and law’. Law is the instrument by which men’s will is expressed – a social will – but law can only be rational law where it refuses to be merely a matter of plain facts or an empty instrument of the chaotic or arbitrary will(s) of the powerful. Hegel (romantically) tells us that law has indeed become free of its merely arbitrary positivity, it has refused barbarity and entered into the service of truth, while knowledge has ceased to be tied to extra-worldly concerns and come to focus upon the actuality of the world.33 As a result the legal system has come to express the development of social reason – it is the path by which the ideal world becomes the real world. Hegel thus calls upon the legal actor to dream the full dream of the enlightenment wherein the world becomes knowable and to pursue the rational reconciliation of universal and particular interests through the forum of laws’ ‘ethical life’.
In modernity mankind agrees to go where knowledge leads without hesitation. Knowledge makes both goodness and evil possible. Before humanity came to know – epitomised in the biblical story of the fall from the garden of Eden – humanity could do neither good nor evil.
What [the fall] really means is that humanity has elevated itself to the knowledge of good and evil; and this cognition, this distinction, is the source of evil itself Being evil is located in the act of cognition, in consciousness (Lectures on the Philosophy of Religion, III: 301).
We can only know sin through knowledge; thus we can only know true salvation through knowledge. This is not to be a negative knowledge, not a realisation of what we do not know, or of the insurmountable reality of mystery, but the full confidence in the realisation of Absolute Spirit, or a coming to that stage where we have total self-consciousness and reflexivity.
By contrast Hobbes’s social contract and defence of sovereignty is constructed through knowledge of our weakness; the sovereign makes possible the conditions wherein our pursuit of felicity is equivalent to our pursuit of’happiness’. Ultimately we pursue happiness through the market protected by civil and criminal law. Behind the law lies the absolute power necessary to save us from our weaknesses and death. But how are we to be legitimated to live?
Hegel is specific: we must construct a knowledge capable of recognising our social totality.
But how is this total representation possible? Hegel turns to the desire at the basis of religion asking what is our science – indeed the totality of our science (s) – to look like if we convert the spirit of religion – God – into a spirit that pervades this world? If instead of dreaming the religious dream of an eschatology of a final judgement, an all powerful observer who gained full knowledge of our human weaknesses and projects – the God which is above this world – we converted the ideas of right and wrong, the just and the unjust, the present and the future, the immanent and the transcendent into sub-concepts of a human knowledge of the whole of human existence. But even if we were to create a philosophical understanding which worked this way, what guarantees the actual coincidence of the totality of what happens, history, human knowledge and our attainment of’true’ existential happiness?
Perhaps nothing but the desire to believe in the project of modernity. In a sense Hegel is saying that all the efforts of the medieval tradition were correct, but the target was wrong. Christian theology was right, provided that it is read as applying not to a transcendental and imaginary God but to man himself, living in the real world. The basic problem is man’s inability to find a home for himself in the world; man’s alienation from existence. The goal of philosophy should be not particular knowledge, but knowledge of the totality – in short the state of complete wisdom.34
The progress of knowledge serves as a model for social advancement. Thus, Hegel assures us we can to look to science as our model. The error of the mediaeval tradition – a tradition in which religion defined what was the rational, the real and the truth – has been converted into the truth of today. Similarly, with the ethical, we can only judge the truly just at the end of history.35 The bad can be converted into the good, sin can be forgiven. Since, if it is successful, it becomes the new order; it becomes the real, the rational, the structure of the good. The future good is always something that transcends the structure of the good of the present. The revolution is always to be feared, but it is also the deliverer of the (future) good.
Critics point to the absence of any encouragement by Hegel for widespread public discussion affecting the state’s operations. Since the state is required to follow reason, mere popular opinion is a distraction. While freedom of speech is guaranteed, the fact that the constitution is rational, the government is stable, and debates in the Councils of State are publicised, is taken to guarantee that the state pursues the public interest and therefore what the citizens say is of no great importance (see Philosophy of Right, para 319).
How can the average citizen gain reassurance that the state is indeed rational, and that by consenting to the legal order he is ‘willing the universal in the light of the universal’, instead of being tricked into assenting to laws which are only promoting selfish interests? Although he can follow the political debates, his confidence that the whole system is rational rests on non-rational grounds. Religion and patriotism serve as the real foundations.
The guarantee of the constitution … lies in the spirit of the whole people, namely in the determinate way (differentiated and structured) in which it has the self-consciousness of its reason. Religion is this consciousness in its absolute substantiality (Encyclopedia, para 540).
The political sentiment, patriotism pure and simple, is assured conviction with truth as its basis … and a volition, which has become habitual … in general, trust … or the consciousness that my interest is contained and preserved [in] the state’s interest and end (Philosophy of Right, para 268).
But how can we be sure that this deeper consciousness – this protection from mere popular opinion – is common, rational and capable of providing a real foundation? What prevents it from being just another particular interest masquerading as universal? What prevents the populace giving their allegiance to the law from an irrational, merely habitual, state of (un)consciousness? Ultimately Hegel’s scheme offers no guarantees against false consciousness. The citizen cannot know that the state is actually rational, he can only trust that the state is rational.36
Hegel offers a philosophical dream where the goal of modern freedom is to attain a state of total knowledge and reconciliation of human tensions. Law is both the medium of social construction – structuring the resolution of conflicts – and the artefact wherein the humanity of modern rationality is expressed. By implication, Hegel warns that if law were to lose its expressiveness and become viewed merely as an empty instrument, the modern age would lose its spirit. Modernity needs to consider not only its goals, but also its means. If law is the instrument of power – as in the legacy of Hobbes – what will power will? What is the contract for? Mere survival is not enough, and we need to transcend the possibility of rampant individuality.
In this narrative, history is the struggle of intersubjective human rationality, acts of human willing, to create a social whole – the totality of Geist, mind. History is the progress of man’s consciousness as it moves through the dialectical struggles of time. The modern constitution – is both legal and non-legal. The constitution of the modern social entity rests upon the framework of law, but law is the mediation, the setting into relationship of the subjectivities of concrete human beings. And, as modernity develops, it loses any transcendental guarantor – God disappears to be replaced by human desire. There can be nothing absolutely to found ‘natural law’ except human rationality. The effects are dramatic – what for example, guarantees that a just state can be achieved? How could we be sure that we could recognise it? The modern loses the capacity to transcend the immanent in search of the purity of the pure or naturally just’, by reference to which he wishes to cleanse the law of the unjust. It comes as little surprise that legal positivism was to dominate the jurisprudential imagination from the middle of the 19th century, since, with modernity, all law that is posited as law becomes real, becomes proper law. As the legal consciousness – in its critique of natural law – becomes an early form of legal positivism, then the ability to distinguish the just from the unjust law is not something which inheres in the capacity to recognise law, but moves itself into the capacity to say what law ought to be (come). But this may mean that, with modernity, law is only an instrument of power – or put in language that Nietzsche was to give us – as God disappears, as we lose all teleological imagination, the question of justice becomes a battle between different wills to power. The will to inscribe into the positivity of law the ‘oughts’ which the intellectuals – those who create and control the jurisprudential imagination – present us with. Does then law become the instrument of dreams? In the dreams of the philosophical prophet, are we – the subjects of the intellectuals of modernity – presented with images of potentiality and asked to create?
As natural law disappears, law can no longer be read as a declaration which nature makes as to what ought to be; it can only arrange what nature ought to be. Law may shape our nature, our social world, our socially constructed being, but the modern becomes a contingency.
The classical questions: who am I? what am I? are asked again. But, if nature does not trap us in her laws, those questions transform into ‘who should I become?’ ‘What shall I make myself into?’ In the classical conception of Plato and Aristode, law was to enable us to live out our natural roles and purposes and, ultimately, to die honourably. In turn, Hobbes tied law to fear; fear of destruction. Now Hegel asks us to throw away the fear that underlies liberalism and become; we are to join ourselves to the spiritual movement of world history. We are to dream of the greatness of our own reason, and, by living it, make ourselves great. Or put in more Hegelian terms, we must dialectically oppose the individualist nightmare with the dream of total unity. We must believe that the only reason the fear of social chaos is in us, is that we may dream of the totality of an expressive modernity in which we become what we dream we will be, and then come to know what we have become. We then will live a way of life that expresses the truth of our free, but communal, nature, in that city made possible by Law’s Ethical Life.
1 Rousseau was born in Geneva in 1712; his mother died soon afterwards, and his father, a watchmaker, left him from the age of 10 in the care of an aunt who raised him. After a short period in a boarding school where he learnt ‘all the insignificant trash that has obtained the name of education’ (as he put it in his Confessions) his formal education finished at 12. However, he was an avid reader. After being an apprentice to an engraver of watchcases, he left Geneva and wandered from place to place, meeting a series of people who alternately helped him make a meagre living, or referred him to still other potential benefactors, finally settling in France. His most consistent work was copying music, though he was for a while tutor to the children of M de Mably, grand provost of Lyons, and later secretary to the French Ambassador to Venice. The most obvious influence upon him was his imaginative readings of the ‘classics’ of Plato, Virgil, Horace, Montaigne, Pascal, and Voltaire. In Paris he moved in literary circles but was struck by the great extremes of wealth and social existence, the majesty of cathedrals and the desperate poverty of slums, the gaiety of salons and the tragic themes of Racme’s plays. Although moving increasingly within upper social circles he never felt at home in them and, in 1746, he formed a lifelong relationship with an uneducated young servant girl, Therese Levasseur, whom he finally married in 1768.
2 In 1755 Rousseau identified the problem of social order in terms of a paradox: ‘Man is bom free, and everywhere he is in chains … How did this change occur? I do not know. What can make it legitimate? I believe I can answer this question … the social order is a sacred right that serves as the basis for all others. However, this right does not come from nature; it is based on convention. The problem is to know what these conventions are’ (opening sentence of Book I of The Social Contract). Man desires freedom but delivers himself into chains; a subjection legitimated by the conventions of the social order. The social order, however, is not a mere reflection of a natural order, it is an artifice created by man.
3 The context of this social order is the city. The city stands for both the new freedom, a freedom in anonymity, and terror, the terror of uncontrollable (un)sociality.
4 The new discourses of modernity were stressing distance and control. Man was taken out of his ‘natural’ position in the name of freedom; but this increased the need for a discourse and a technique for creating a new order which would command the (new) individual’s allegiance. The traditional form of legitimation and allegiance, that of the ‘natural law’ was fractured: i observe that in the modem age men no longer have a hold on one another except by force or self-interest; the ancients, by contrast, acted much more by persuasion and by the affections of the soul because they did not neglect the language of signs … The face of the earth was a book in which their archives were preserved’ (J-J Rousseau, Emile, 1979: 321).
5 This answer is open to varying interpretations. Each idea can be analysed and deconstructed and repositioned in varying schemes. Rousseau has been seen as the theoretical instigator of the French Revolution, as the rhetorical father figure of Marxism, as a defender of the rule of law, and as leading to totalitarian results.
6 What is this civil liberty to consist of? In the terms of our earlier discussion derived from Hobbes it looks as if it will be a negative liberty (defined by Hobbes when he refers to ‘natural liberty’, and which carries over to liberalism’s idea of freedom from restraint, as ‘Liberty, or freedom, signified!, properly, the absence of opposition; by opposition I mean external impediments of motion’ (L, Ch 21)), orfreedom from constraint, etc. Rousseau appears to be searching for a new form of civic freedom, or freedom to live as a more fully human being than allowed in the past, without being destroyed by personal and social conflict.
7 ‘The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before …
The clauses of this contract … are everywhere the same and everywhere tacitly admitted and recognised … These clauses, properly understood, may be reduced to one – the total alienation of each associate, together with all his rights, to the whole community … for, if the individuals retained certain rights, then there would be no common superior to decide between them and the public, each, being on one point his own judge, would ask to be so on all, and the state of nature would continue’ (SC, 1973: 174).
8 For Rousseau the central problem of politics was how ‘to place law above man’; this he compared ‘to the squaring of the circle in geometry’. Modern freedom was tied to the project of coming to obey laws and not men.
9 ‘How can a blind multitude, which often does not know what it wills, because it rarely knows what is good for it, carry out for itself so great and difficult an enterprise as a system of legislation?’ (SC, 1973: 193)
10 In the original sections which were in the Geneva Manuscript of the Social Contract, (contained in 1973: 281) Rousseau defines sovereignty as follows: ‘There is … in the State, a common force which sustains it and a general will which directs this force; the application of the one to the other constitutes sovereignty. From this it becomes clear that the sovereign is, by its nature, only a corporate entity, that it has only an abstract and collective existence, and that the idea which is attached to this word cannot be united to that of a single individual.’
This means that the actual body of men exercising sovereign power can be constrained by the jurisprudential imagination. Thus: ‘… the dominant will of the prince is, or should be, nothing but the general will or the law; his force is only the public force concentrated in his hands, and, as soon as he tries to base any absolute and independent act on his own authority, the tie that binds the whole together begins to be loosened. If finally the prince should come to have a particular will more active than the will of the sovereign, and should employ the public force in his hands in obedience to this particular will, there would be, so to speak, two sovereigns, one rightful and the other actual, the social union would evaporate instandy, and the body politic would be dissolved’ (SC 1973: 211–212).
11 Thus ‘whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than he will be forced to be free; for this is the condition which … secures him against personal dependence’ (1973: 107).
12 For Rousseau limited sovereignty is a contradiction in terms. The sovereign has the right to enforce whatever the common good requires. How then does he establish ‘the limits of sovereign powers’? (SC, Bk II, Ch 4). Quite simply, the limits are those of justice. The state has the unlimited right to intervene for the common good of the whole when it needs so to intervene, but has no right to intervene when this condition is not satisfied. The sovereign cannot impose upon its subjects any fetters that are useless to the community, nor can it even wish to do so.’ Of course, empirically, it has done so: often in countries that might trace their history of revolutionary fervour and ideas of enforcing the common good back to Rousseau.
13 This requirement probably limits the scope of legislation that Rousseau envisaged a rational state engaging in. He clearly states that ‘no function that has a particular object belongs to the legislative power’ (SC, 1973: 192). Rousseau distinguished ‘magistracy’ from the marks of’sovereignty’. Making particular decisions, or creating specific ‘commands’ which affect only ‘a particular matter’, fall into the first category rather than being proper activities of law. Rousseau blamed the decline of democracy in ancient Athens upon the Greeks passing laws to satisfy personal whims, and creating particular favours (see discussions in Discourse on Inequality; also SC, 1973: 187, and on social decline through not understanding the role of law Bk III, Ch 11).
14 Let us remember that these laws are for Rousseau small in number (‘a state so governed [according to Rousseau’s principles] needs very few laws’ SC, 1973: 247), and the political process is open to scrutiny, ensuring that the necessity for a particular law is easily recognised.
15 Rousseau did not appear to realise that the processes he was witnessing at the birth of modernity would speed up rather than stabilise over time. His entire work was a project in setting out the framework for modernity to establish and stabilise into a coherent form. He looked to the power of custom to establish practical allegiance. The new society, based on reasoned discussion, social justice and transparency, would be stable.
16 ‘The legislator must take away from man his own resources and give him instead new ones alien to him, and incapable of being made use of without the help of other men. The more completely these natural resources are annihilated, the greater and more lasting are those which he acquires, and the more stable and perfect the new institutions; so that if each citizen is nothing and can do nothing without the rest, and the resources acquired by the whole are equal or superior to the aggregate of the resources of all the individuals, it may be said that legislation is at the highest possible point of perfection’ (Rousseau, SC 1973: 194).
17 In SC, Bk II, Ch 12 (1973: 206–7) Rousseau stresses that the ‘real constitution of the State’ is ‘not graven on tablets of marble or brass, but on the hearts of the citizens’. That is, morality, custom, and public opinion form social powers ‘unknown to political thinkers, on which nonetheless success in everything else depends’.
18 The fact that the emerging modernity had not made people into better individuals was his chief ground for rejecting the form that modernity was taking. Thus, modern institutions had deformed mankind; they had made humans weak and miserable creatures.
19 But at the same time we have a desperate need to feel that the world makes sense. The tension has only increased since Rousseau’s time.
20 Kant’s implication is that metaphysics is beyond science, that it is impossible for the human mind to achieve theoretical knowledge about all of reality. But Hegel began from the assumption ‘what is rational is real and what is real is rational’, and therefore everything that exists is knowable and furthermore has a rational construction. This was a total conception which provided a new basis for thinking about the very structure of reality and about its manifestations in morality, law, religion, art, history, and, above all, thought itself. His ideas have had a substantial impact. Much of 20th century philosophy represents revisions or rejections of aspects of his absolute idealism.
Hegel was born in Stuttgart in 1770 and the young Hegel was influenced both by the romantic movement in poetry and the writings of Plato and Aristode. He attended the theological school at the University of Tübingen, was caught up in lively discussions over the issues of the French Revolution and his interest gradually turned to the relationship between philosophy and theology. In a sense Hegel developed Christian eschatology, where man meets his destiny with the final judgment and the life hereafter, into a philosophy of history where the development of the totality of human knowledge is essentially the same as the rational ordering of history, and so (replaces) our destiny with God.
In 1801, Hegel was appointed to the faculty of the University of Jena, and his first major work, The Phenomenology of Mind, was finished at midnight before the Battle of Jena in 1807. As this battle closed his university, Hegel supported himself and his wife, whom he married m 1811, by becoming rector of the secondary school at Nuremberg, where he remained until 1816. There he wrote his influential Science of Logic, which brought him invitations from several universities. In 1816 he joined the faculty of Heidelberg, where in the following year he published his Encyclopedia of the Philosophical Sciences in Outline, the work in which Hegel presents the grand structure of his philosophy in its three-fold aspect, namely logic, philosophy of nature, and philosophy of mind. Two years later, Hegel was given the chair of philosophy at the University of Berlin, where he remained until his death from cholera in 1831 at the age of 61. At Berlin Hegel’s writings were massive, although most of them were published after his death. His works during this period included his Philosophy of Right and lectures, posthumously published, on Philosophy of History, Aesthetics, Philosophy of Religion, and History of Philosophy.
21 In essence for Hegel:
1 Reality is an historical process.
2 The historical process determines factors within it, for example, how humans behave. Human nature is not a constant but is embedded in ways of life, in societies.
3 There is a development discernible in history; history ‘progresses’ and this development is dialectical.
4 The aim of humanity is happiness but happiness is to be found in freedom; history is a movement towards realising human freedom; this process is reflexive, ie it involves our awareness of freedom and of increasing knowledge of ourselves.
5 The danger to freedom is alienation; alienation is the situation where part of ourself appears foreign to our real self- where humanity is at odds with itself. Alienation will be overcome when both social reason and personal reason are understood to be one and that this one is truly rational.
6 Knowledge brings freedom. In previous stages of world history we have not been in control, since things have been happening to us without our realising why they were happening nor understanding fully what they were. But, in that we now realise that the social world is our creation, our own reason can lay out its laws.
7 We seek life in a rationally ordered society. To achieve this society we should not impose some template of rationality upon it but bring out the rationality in the processes which have historically constituted it and build upon these. The technique is to find what is rational in the real, enhance it and develop it so as to allow it to fulfil itself.
22 Hegel’s work has had a huge influence far beyond the usual identification with Marxism. In the British tradition Hegel’s communitarian view of political association was taken up and restated by the influential philosopher Green in the posthumously published Prolegomena to Ethics (1883) and Lectures on the Principles of Political Obligation (1886), as well as by Bradley in his Ethical Studies (1876). In contemporary times the conservative scholar Michael Oakeshott followed Green and Bradley in acknowledging no absolute distinction between the legal and constitutional arrangements of the state and the cultural, economic and religious practices which made up the sphere of civil society. It was a mistake, he contended, to conceive of the state as merely ‘a collection of persons’, whether organised for legal, economic or political purposes, or to conceive the state as merely a physical territory subject to the jurisdiction of a particular system of law and civil administration. The authority exercised by the formal institutions of state government, he insisted, always presupposed the context provided by the social whole – that is, ‘the totality in an actual community which satisfies the whole mind of the individuals who comprise it’ (The Authority of the State. 10). Instead of the authority of the state arising from the voluntary consent or promissory agreement of its subjects, it lay solely in the completeness of the satisfaction which the state itself affords to the needs of’concrete persons.
23 To give the title of the Third Part of Hegel’s Philosophy of Right (law).
24 Hegel viewed pre-Socratic Greek society as exhibiting a harmony between reason, desire and action. Socrates disrupted this simple harmony by asking ‘what is justice? Why obey the law? What is the meaning of life?’ Socrates subverted the social order by encouraging individual thought. Once in movement, subjectivity can only find a home in a social environment which allows individual conscience.
25 ‘ … we may affirm absolutely that nothing great in the world has been accomplished without passion’ (Philosophy of History, 163).
26 Hegel’s image of the modem social subject was that of the bourgeois: ‘The subject sows his wild oats, builds himself with his wishes and opinions into harmony with subsisting relationships and their rationality, enters the concatenation of the world, and acquires for himself an appropriate attitude toward it. However much he may have quarrelled with the world, or been pushed about in it, in most cases at last he gets his girl and some sort of position, marnes her, and becomes as good a Philistine as others. The woman takes charge of the household management, children arrive, the adored wife, at first unique, an angel, behaves pretty much as other wives do; the man’s profession provides work and vexations, marriage brings domestic affliction’ (Aesthetics, 593).
27 For Hegel the ancient Greek worked with substantive ideas as to what the good life was. Everyday practices acknowledged and recognised the person according to the social roles and the place of those roles in the overall totality. But while each role took its meaning from its place and operation in the whole, it was open to the possibility of disagreement as other roles interact. As societies mature, a greater differentiation in roles and social knowledge occurs; this division can be interpreted as disintegration and social opposition, but is essential to the development of greater levels of social knowledge and perspectives. In short to the development of Geist or spirit. But the individual may find the development of differentiation too great to comprehend. While the complexity of modernity allows the individual to assert him/herself and begin to choose a personal identity for him/herself (as opposed to an ascribed one), this may result in the failure of freedom, and personal meaninglessness: the only hope is for the individual to understand that they only gain their recognition as an individual by participating within a larger community (see discussions in Taylor, 1975. 433–36, 487–88; Kolb, 1986: ch 2).
28 Aristotle can be described as preparing an inventory of the ethics, the duties, and the modes of perception of the Greek world. Aristode – unlike Plato, who was originally a slave – ‘settled into’ his empirical world. Aristotle’s ‘subject’ was not a contingency. The ‘Greek master’-’barbanan slave’ relationship was not an ‘accident’ in the sense of an historical creation – and thus might as easily have been something else – instead it appeared as if it were ‘natural’, ie simply the performance of each one’s respective role and purpose.
29 ‘The single, individual consciousness as it exist in the real ethical order, or in the nation, is a solid unshaken trust in which Spirit has not, for the individual, resolved itself into its abstract moments, and therefore he is not aware of himself as being a pure individuality on his own account. But once he has arrived at this idea, as he must, then this immediate unity with Spirit, his trust, is lost. In thus establishing himself… the individual has thereby placed himself in opposition to the laws and customs. They are regarded as mere ideas having no absolute essentiality, as abstract theory without any reality, while he as this particular ‘I’ is his own living truth’ (Phenomenology of Spirit, 1977: 259).
30 There is a sense in which Hegel takes the idea of the underlying natural functioning of the world – put forward by Hume and Adam Smith – and treats this as the progressive unfolding of reason. Whereas, however, Smith founds a policy tradition in which this rationality must – absolutely must – be left to the hidden hand of nature to develop (the major expression of this being the hidden hand of the market), Hegel is replying that we take charge of this process and make sure that the interactions recognise significant action. By contrast liberalism will have doubts as to any overriding scheme of historical interpretation which claims, by reference to a total vision, to discern the truly significant basis for human community.
31 In language remarkably similar to the discourse of legal integrity invoked by Ronald Dworkin nearly two centuries later (see Chapter 15 of this text) Hegel argues that it is ‘the absolute right of personal existence – to find itself satisfied in its activity and labour. If men are to interest themselves in anything, they must have part of their existence involved in it; find their individuality gratifying by its attainment’ (Philosophy of History, 163).
32 ‘The aims which the agents set before them are limited and special . [but in their rationality] the purport of their desires is interwoven with general, essential considerations of justice, good, duty, etc, for mere desire, volition in its rough and savage forms falls not within the scene and sphere of universal history’ (Philosophy of History, 166).
33 ‘The realm of fact has discarded its barbarity and unrighteous caprice, while the realm of truth has abandoned the world of beyond and its arbitrary force, so that the true reconciliation which discloses the state as the image and actuality of reason has become objective’ (Philosophy of Right, para 360).
34 We need not go into the complicated and often obscure writings where Hegel tries to follow through these ideas. Suffice to say that Hegel draws our attention to various, perhaps paradoxical, features of the drive to total knowledge; specifically, (i) the unreasonable origins of reason, or the unjust origins of the just; (ii) the dialectics of destruction and construction: all epochs are the dialectic of the desire for freedom and the terrorism of the (de)struction of the present; (iii) the inevitable of the friend-other relationship in human affairs. The other – the enemy, the error, the unforeseen, the yet-to-be, – is the opposite of the same – the friend, the conformation, the repetition, the rediscovered, the similar; (iv) the continual question: how are we to conceive of the totality of existence? The ultimate is the presentation of God as he is in his eternal being before the creation of nature and of a finite mind. If, however, the grounding of the search for knowledge was the unreasonableness of myth, turned into a faith m God, then the course of modern knowledge is faith in the absolute reach of the sum of man’s knowledge (s). And this is dangerous. For what if we were to lose this faith – as many would define the post-modern condition as demonstrating? Then nihilism threatens. If we lose our faith in the possibility of mankind coming to a full knowledge of eternity then why believe anything? What then of the project of social constructionism? For, as Hegel has defined it, the goal of politics, of writing, of struggle, is the creation and reproduction of a stable normative order that facilitates the universalisation of social individuality – an ethical individualism which owes the truth of its (legitimate) existence to its indivisible particularity of a social whole. A whole whose legitimacy is founded upon the guarantee of total knowledge. Put another way, what prevents nihilism for Hegel, is not the fact that God lives on but that we humans will not be affected by the death of God, since man always desired to be God. And modern law will be the instrument by which God’s creation is turned in law’s (human) empire. But this must – absolutely must – be saved from the institutional imagination of mere positivity; we must believe in the dream of ethical totality – in law working itself pure, and in the existence of’right answers’ to legal and ethical questions.
35 Since all that is real is rational, all that exists is natural, thus all that exists is good inasmuch as it exists. All action must of its nature upset what currently exists; thus it must contradict the good of the present. Thus all action is, in that sense, bad, or sinful (to use the Christian phraseology).
36 Liberals claim that the philosophy of Hegel leads to a state which is a single, organic whole, which aims to behave rationally and order everything rationally, but which cannot permit individual enterprise, initiative, eccentricity or dissent, to operate, since these would constantly go against rational planning. It becomes intolerant of individual initiative and thereby totalitarian in character – the opposite of (individual) freedom. Hegel was not opposed to individual freedom, but his vision of freedom was different to that of the liberal. Take the idea of freedom in the economic sphere, in the … market. The Liberal view holds freedom as people being able to do as they prefer, to follow their preferences. The choice of programmes to view or concepts of obscenity, for example are questions of preference. The individual is free when he or she is not prevented from viewing the material they prefer. That is all the liberal economist needs to know to decide if one is free. But to followers of the Hegelian legacy this is a simplistic view of freedom, they want to know why I prefer to view x over y, why I wish to purchase certain goods rather than others. It may appear to them that I’m being manipulated, that my preferences, rather than being ‘my own’ are a result of advertising campaigns, of others forming my opinions for me. I become a slave to fashion. And if I have been manipulated then I am not free. To know that I am free, from this perspective, one needs to know not only that I can do what I prefer, but why it is I prefer what I do. Are my preferences rational?
For Hegel freedom would be more than the ability to follow my desires, my caprice, to follow desires that others have induced in me so that they can sell me something. Freedom will consist in fulfilling myself as a rational individual.
But who can know what real needs are, and when desire is truly known? Can the gap between reason and desire, or between morality and self-interest, really be overcome? Can we build a social synthesis to create a harmonious society in which the divisions of human nature are reconciled? The Liberal prefers to say no, that the entire image is suspect.