Tag: Law

Toward Self-Consciousness

The Force and Understanding chapter of Hegel’s Phenomenology concludes with two sections I find particularly difficult.

In the first, the supersensible in comparison with the world of appearances is treated as a sort of “inverted world” where negation and universality rather than concrete form play the main role in intelligibility as law. The subsequent return to the world of appearances that explains it as law-governed and takes us back to positive things again is then described as a “second inversion”.

According to Harris in his commentary, Hegel wants to establish that the formal necessity of mathematics is insufficient to account for the rationality of experience. The Understanding wants to explain everything in terms of force, including the Understanding itself. All the movement of explanation is in the Understanding. Hegel argues that the explanation of necessity in the world turns out to presuppose free activity in the Understanding. The fixing of distinctions Hegel meanwhile associates with sensuous representation as distinct from the supersensible.

In the second, what Hegel wants to call a kind of infinity emerges from Understanding’s looking at the world of appearances as a law-governed but constantly moving and restless whole that is unconditioned by anything other than itself.

Harris notes that this infinity is a result. Because infinity or the absolute is a result rather than a starting point, Hegel is able to say that the old neoplatonic problem of how the Many emerge from the One does not arise for him. Harris says Hegel is here making an Aristotelian response to Plotinus.

“Our approach to this problem has shown that Unity and Multiplicity are logically internal to one another, that the real Infinite must embrace the finite because the Infinite is precisely the raising of finitude to Infinity. This is how we can express the significance of the ‘second inversion’ in the speculative-theological terminology of finite and Infinite” (Hegel’s Ladder I, p. 303).

Because the Understanding wants to explain everything and everything includes itself, its own momentum pushes it toward self-consciousness. At this stage, what Hegel will call the Concept with a capital “C” — which will become the new continuum, folded upon itself, between subject and object, that displaces the substantiality of both in their separate forms — has yet to emerge. Hegel says that for the Understanding, what plays the role of the Concept is the Understanding itself.

Harris says “The human desire to know — to understand the situation we are in — is the most primitive way in which the Absolute is with us from the start…. The world of which the true Infinite really is the ‘soul’ is the world of our quest for the absolute truth. Our quest itself is the ‘spirit’ — the self-consciousness — of that living soul…. The understanding intelligence is the self-consciousness of the unconditioned universal that it contemplates.”

“The Understanding remains naive in its self-enjoyment; it keeps positive and negative, attraction and repulsion, all separate from one another, and from itself. It knows nothing of the ‘second inversion’. But the comprehension of the necessary relation a priori of the opposite moments of all its concepts is what the Understanding is, because it moves continually from the organized appearance to its concepts, and back again” (pp. 303-304).

“The theoretical Understanding has the whole world before it as an object. In the ‘second inversion’ it becomes aware of itself as the positing activity for the whole cycle that moves from perception (the ‘play of forces’) to the natural order as ‘Law’. But now that ‘free self’ (the ‘distinguishing of the undistinguished’) actually distinguishes itself and asserts its independence, without having any consciousness of the cycle from which it has logically emerged. It will discover by experience what the Fichtean philosophical Ego cannot help knowing from the first: ‘that this distinct [self] is not distinct’. It will make this discovery many times, in different ‘shapes’, before it returns finally to the practical comprehension of its identity with the ‘Infinite'” (pp. 305-306; brackets and italics in original).

“The truth for us… is that the universal concept of Force (or Necessity) has become the universal concept of Life (or the ‘true Infinite’ as living Freedom). But if we look at what has happened from the point of view of Understanding itself, two worlds have come into being. There is the world of Necessity which the Understanding wants to construct, but can never be sure that it has successfully duplicated; and the world of its own intellectual activity. In this second world it experiences itself as a free motion. It does not know that these two worlds are moments of one Concept, which is equally the objective world and itself as intelligence. But it does know, necessarily, that it is alive and free in the world of necessity that appears to it. It still has to discover that it is identically what appears. But it knows that it is what is appeared to” (p. 307).

“[F]rom the conscious certainty that the Understanding has of its eternal truth, we have thus come back to the certainty of the peasant-wife that this farmyard and these cows are hers. We know now, why she would not come with us on our theoretical odyssey. She was the self at home in its world; and that meant that she already knew something that we were ignoring. Truth, we thought, is an absolute object. It cannot belong to anyone. Frau Bauer, on the other hand, realized that in order to know anything one must be alive” (p. 318). (Later, it will also turn out that we were right that truth cannot belong to anyone.)

“As the implications of my identification with another self-consciousness which exemplifies what I want to be are unpacked, we shall discover that the supposedly ‘supersensible’ world is the real present world that we live in; or that ‘the spirit’ is the real substantiality of our sense-experience” (p. 335).

Next in this series: Self, Recognition, Work

Concept of Law

When Kant distinguishes free beings as acting in accordance with concepts of law rather than merely in accordance with law, he makes a vital point that deserves to be expanded upon. Even inanimate objects exhibit rule-governed behavior, and mere obedience is at best a low degree of virtue. To act in accordance with concepts of laws is to act in a principled and thoughtful way, exercising judgment on how best to realize the high-level ends behind a body of law, charitably interpreted in a spirit of universal fairness. It is to take our place as co-legislators in the universal community of rational beings.

Ricoeur on Justice

Among Paul Ricoeur’s last publications were two small volumes of lectures on justice, The Just and Reflections on the Just. These apply the ethics he had formulated in Oneself As Another (see also Solicitude; Ricoeurian Ethics). As in Oneself As Another, he combines Aristotelian and Kantian elements (see also Aristotle and Kant).

Ricoeur notes that Plato and Aristotle often mentioned “the unjust and the just” in that order, and suggests that the initial impulse for justice is a sense of indignation against things like unequal shares, broken promises, and excessive retributions.

He identifies justice fundamentally with equity or fairness, as mediated through institutions and Kantian obligation by universals. In contrast with the I-Thou of friendship, it involves relations of distance with others conceived in the third person. “The other for friendship is the ‘you’; the other for justice is ‘anyone’…. In fact, we have already encountered this ‘anyone’ in those exemplary situations in which our youthful indignation lashes out against injustice: unequal shares, failure to keep one’s word as given, unfair retributions — all institutional circumstances, in the broadest sense of the term, where justice presents itself as a just distribution” (The Just, p. xiii). “An important equation, whereby the just begins to be distinguished from the unjust, presents itself here: the equation between justice and impartiality” (p. xi). It is “under the condition of impartiality that indignation can free itself of the desire for vengeance” (p. xvii; emphasis in original).

He will consider the interaction of two axes: a “horizontal” one of the “dialogical constitution of the self” (p. xii), and a “vertical” one with three levels — an initial Aristotelian one concerned with ends and the good life; an intermediate Kantian one concerned with formal elaborations of procedural justice and universality; and a final one concerned with Aristotelian practical wisdom that also draws on Kant’s Critique of Judgment. He suggests that the Critique of Judgment has more to tell us about justice than the Critique of Practical Reason. Procedural justice, Kantian universality, and deontological obligation here do not supersede or conflict with Aristotelian practical judgment about concrete particulars, but rather mediate its relations to ends. This seems like a very nice way of expressing a harmonization of Aristotelian and Kantian ethics.

Relating justice to Aristotelian ends, Ricoeur wants to defend “the primacy of the teleological approach in the determination of the idea of the just” (p.xvi). “Justice… is an integral part of the wish to live well” (p. xv). “It begins as a wish before it becomes an imperative” (ibid).

According to Ricoeur, the very import of the claim to universality ensures that procedural justice cannot entirely separate itself from a substantive idea of the good in terms of ends. Provisionally adopting John Rawls’ abstraction of equitable distribution of goods as including procedural considerations, he argues that overall equity cannot be realized without “taking into account the real heterogeneity of the goods to be distributed. In other words, the deontological level, rightly taken as the privileged level of reference for the idea of the just, cannot make itself autonomous to the point of constituting the exclusive level of reference” (p. xix; emphasis in original). Ricoeur accepts Rawls’ claim that a pure theory of procedural justice can be developed autonomously, but argues that its real-world applications still require Aristotelian practical judgment.

All people, Ricoeur suggests, have a kind of “power over” others, as a result of the capacity to act. This “offers the permanent occasion for violence in all its forms…. What do we get indignant about, in the case of shares, exchanges, retributions, if not the wrong that human beings inflict upon one another on the occasion of the power-over one will exercises in the encounter with another will?” (p. xvii; emphasis in original). The kind of impartiality that frees indignation from the desire for vengeance, Ricoeur suggests, is embodied in the idea of universally valid law and deontological obligation to avoid harming others.

Ricoeur says actually the most serious issue about justice has to do with what he calls the “tragic dimension of action. It is at this stage that the moral conscience, as an inner forum, one’s heart of hearts, is summoned to make unique decisions, taken in a climate of incertitude and of serious conflicts” (p. xxi; emphasis in original).

The ultimate need for open-ended Aristotelian practical wisdom above and beyond the best discipline of the abstract application of rules, Ricoeur says, is a kind of correlate of the irreducibility of a consideration of ends. This will be the most important thing in the practice of jurisprudence. (Leibniz also suggested something like this with his idea of justice as “wise charity”.) Ricoeur relates such practical wisdom to Aristotle’s notion of (non-sophistical) rhetoric as speaking well in the sense of saying things that are persuasive because rightly said; to hermeneutics; and to poetics. (See also Ricoeur on Practical Reason.)

Justice’s “privileged moment” of mediation through formal universality, while neither self-sufficient nor ultimately decisive, is nonetheless essential to the process. The same kind of mediation appears in Ricoeur’s works in numerous contexts. Freedom is mediated by necessity; our understanding of the self is mediated by a “long detour” through cultural objectifications; open-ended interpretation is mediated by disciplined explanation. Similarly, here an ultimately open-ended approach to justice that begins and ends with Aristotle is enriched and made more rigorous by the additional mediation of Kantian universality.

These examples help clarify the main sense of Ricoeurian (and Hegelian) “mediation”, which is very different from the sort of theologically perfect, transparent mediation invoked, e.g., by Aquinas. Ricoeurian and Hegelian mediation are always bumpy, and the last word is never said.

Due Process

I previously likened Kant’s categorical imperative to a kind of procedural justice. Due process and kindred notions are one place where it seems to be — at least in part — implicitly recognized by practitioners of law that rational ethics is a higher authority than any law, agency, or official. I have in mind not the particular historical form embodied in the U.S. Constitution, but the general idea. On the other hand, as I glance at the history, it does seem that what I think of as the general idea — construed as limiting the authority of laws, governments, and their agents — was in fact especially developed in the American legal tradition. This is a precious thing that should be protected, along with civil rights and civil liberties.

Kant’s Groundwork

Groundwork for the Metaphysics of Morals (1784) was Kant’s first major ethical treatise, predating the Critique of Practical Reason (1788). Perhaps the most famous and commented upon of all Kant’s ethical works, Groundwork introduced the categorical imperative. Kant says that the true vocation of reason is not to give us the means to some end, but to produce a moral will that is good in itself. He goes on to sharply distinguish actions done from duty from actions done from inclination, as the only ones deserving of praise. He says that actions from duty get their moral worth from the worth of the maxim (i.e., rationale) that guides choice, rather than from the worth of the aim of the actions. Duty, he says, is the moral necessity of an action from respect for the law. The relevant kind of law must be universal, and the only thing fitting this requirement is the categorical imperative, which is defined in terms of a pure universality.

Kant goes on to argue that while we are constantly tempted to excuse ourselves from acting in accordance with universal moral duty, no utilitarian, prudential, or other excuses have any place in ethics. Everywhere, he says, “one runs into the dear self, which is always thrusting itself forward”. Any resolution of these issues requires common human reason to move into the field of practical philosophy. To be genuine, morality should hold with absolute necessity, binding for all rational beings. Of course, for Kant this does not mean that our subjective conclusions hold with such necessity. To believe that would be to fall for a trick of the “dear self”, and to claim it would be dogmatism.

For Kant, any genuine supreme principle of morality must depend on pure reason, independent of all experience. We should seek a “fully isolated” metaphysics of morals, “mixed with no anthropology, with no theology, with no physics or hyperphysics”, although its application to human beings also requires anthropology. All moral concepts originate in pure reason. The will, Kant says, is just pure practical reason. (See also The Autonomy of Reason.)

Kantian Will

Will for Kant is the ability to act in accordance with a conception of law. In spite of his confusing rhetoric about free will, this is clearly not the voluntarist notion of a faculty superior to reason, free to do or choose any arbitrary thing. However much I dislike images of law in ethics — which by default suggest what Hegel called “positive” or empirically existing, first-order law — acting in accordance with a conception of law is clearly not acting arbitrarily.

Kant also distinguishes between acting in accordance with a conception of law from merely acting in accordance with law. The latter would be mere obedience, without thought. So the important thing is not really the law as such, but thought about how to interpret it. (See also Kant’s Groundwork; Kantian Freedom; The Autonomy of Reason.)

Rights

Rights are an important legal concept, and in the interest of justice in an imperfect world sometimes need to be defended, but ethics should guide law, not the other way around. Mutual recognition makes the blunter instrument of unilateral “rights” superfluous for ethical purposes. Kantian respect for others and the Aristotelian spirit of friendship already do so. If we respect others in our actions and treat them in a friendly way, they need not worry about enforcing any putative rights in relation to us. (See also Leibniz.)

If we examine what Hegel called “positive” (actually existing) law, it is often not guided by good ethics as it should be. All too much law is devoted to institutionalizing unilateral privilege (etymologically, “private law”) of one sort or another. We are supposed to be consoled that by the fact that everyone is assigned at least a few privileges, but the whole model of unilateral privilege is ethically deeply wrong.

It is an unsavory fact that the unilateral, unconditional privileges associated with modern ownership and sovereignty historically descend from medieval European libertas or “liberty”, or the arbitrary “right” claimed by the Master to rape the peasant’s daughter and generally do as he pleases, with no regard for others. This kind of “liberty” is an ugly voluntarist fantasy associated with what Plato called the worst sort of character, that of a tyrant. Just such ugliness is recalled by, e.g., the old British Tory slogan “liberty and property”. It is the liberty of the privileged to walk over the rest of us.

Years ago, I was shocked to learn that the classic modern development of the notion of rights explicitly models all rights on unilateral property rights, making reciprocal rights of people a derivative afterthought. (See, e.g., C. B. Macpherson, The Political Theory of Possessive Individualism.) Hobbes and Locke did this, and specifically on the question of rights Kant and Hegel unfortunately followed suit, even though their views provide resources for a much better, people-first account, based on respect or mutual recognition.

All rights deserving of legal recognition should be grounded in respect. If we respect property, it should be rationally related to respect for people. No one has a “right” to be a billionaire. (See also Freedom from False Freedom.)