- Hegel's Laws: The Legitimacy of a Modern Legal Order
Insofar as GWF Hegel has not loomed large in Anglo-American legal philosophy, a thorough, accessible, and carefully argued introduction to his ideas concerning law, such as William Conklin's Hegel's Laws, must explain why one should bother. Conklin does explain by reminding us that Hegel excoriated his contemporaries for holding that legality can be established without addressing legitimacy, a not uncommon view in contemporary Anglo-American jurisprudence. As Conklin points out, much of contemporary Anglo-American jurisprudence explores the character of legal reasoning, 'whether legal reasoning works with rules, policy, principles, constitutional values, or other standards' (2), without considering why norms are legally binding. Separating legality from legitimacy will lead to legal formalism, the justification of posited laws by appeal to a factor given apart from consciousness, such as another's arbitrary will, the intentions of founding fathers, custom, or tradition. Worse still, divorcing legality from legitimacy will result in political terror, a political order that demolishes the existing social order, eliminates persons considered suspect by the new order, and annihilates any new organization. 1 [End Page 530] That political terror would be a disaster goes without saying. It is not, however, immediately clear what is wrong with founding legal obligation on some factor given apart from consciousness. Understanding precisely why Hegel rejects that strategy is crucial for understanding the alternative that Hegel, in Conklin's view, offers.
Conklin argues that, in Hegel's view, the legitimacy of legal norms cannot be established by appealing to some factor external to consciousness, be it 'tradition, a priori duties, the original intent of the Founding Fathers of the state [or] a social contract' (2). Conklin interprets Hegel as maintaining that we are driven by a pre-subjective and pre-objective life force immanent in human consciousness to know what is external to our consciousness. That is perhaps best, and almost certainly most famously, illustrated by the example of Socrates. Socrates inquires into the legitimacy of the laws and the objective state he confronts, although he cannot explain why he is compelled to do so. Importantly, if one follows Socrates and inquires into the validity of posited laws and the state, one will come to feel independent or autonomous from the laws and the state. If one reflects on concepts, one will, Hegel maintains, come to feel independent or autonomous from those concepts. Likewise, a member of a family, tribe, or polis who reflects on the objective customs he or she confronts will come to feel autonomous or independent from the customs of the family, tribe, or polis. With modernity, there appears a subjectivity in which the individual thinks independently, and the inhabitants of a modern legal order will, consequently, regard themselves as autonomous from the objective order confronting them - that is, the posited laws and the reigning state. As a result, the question of why autonomous individuals should regard themselves as obligated by legal norms and the state necessarily arises. Appeal to some factor external to consciousness fails to explain why autonomous thinking individuals ought to regard legal norms founded on some factor external to consciousness as justified and legally binding. Why, after all, should the inhabitants of a modern legal order, individuals who think on their own and thus regard themselves as autonomous from that order, consider posited laws founded on a factor given apart from thinking valid laws?
If a modern legal order cannot be justified by appeal to a factor external to consciousness, then legal obligation must 'be located internal to the individual's act of thinking'(2). Justifying a modern legal order means, therefore, showing that the autonomous thinking individual constructs the objective order confronting the individual. Establishing that such an order is just means establishing that the autonomous individual, [End Page 531] not some external factor (such as the arbitrary will of another individual), is responsible for objective laws and institutions.
To put the matter in somewhat different terms, justifying a modern legal order involves effecting...