- Hegel and Right. A Study of the Philosophy of Right by Philip J. Kain
There are many studies of Hegel's Philosophy of Right. Philip Kain does not break new ground in Hegel and Right. Nor does he deal with the German scholarship that did, by posing the possibility of an esoteric Hegel belying the exoteric author caving to censorship pressure. Still, he has provided us a worthwhile book that touches on some controversial issues. Kain professes to be a Marxian and social democrat who opposes capital punishment and supports same-sex marriage and, perhaps not coincidentally, his Hegel is open to at least the latter three positions. Some scholars of Hegel may be dismayed that there is little reference to Hegel's Logic, though they should appreciate Kain emphasizing how the Absolute is the final stage in Philosophy of Right, and connecting the Phenomenology and Philosophy of Right in claiming that the former work proves the Absolute, a proof Hegel is said to take for granted in the latter work (32–38).
While Kain's review of Abstract Right, Morality, and Ethical Life may not uncover anything new, he does offer several illuminating ways of understanding key elements of Hegel's work. His discussion of corporations is quite helpful. Kain emphasizes how Hegel wants the corporations back after they had been "abandoned," to fulfill a function similar to labor unions in helping address the problem of poverty (122–24). In explaining how Hegel finds Kant's formula of universal law lacking in content, Kain supposes I pocket an apple from a fruit stand: "How do I tell whether [that] was an act of theft?" It depends on if I live in a market or communist society. Kain's simple example powerfully and effectively makes his point: we must have a world with content to know what is right (60).
Kain's discussions can illuminate, but not always. I will focus on what he says about Hegel's theory of punishment. Kain says that Hegel's justification of punishment "fails" and that he gives a valuable argument against punishment despite himself (43). He quotes Hegel echoing Kant, that in committing the crime the criminal lays down a principle and we punish him by universalizing that principle and turning it back on the criminal. Kain finds that view unsatisfying: "If the criminal's principle is a crime for the criminal, if it is wrong for the criminal, if it is irrational for the criminal, how can it flip into being right, just, and rational for us?" (44–45). But I think he has misunderstood Hegel. For Hegel, we punish to vindicate right: if we did not punish in some way, it is as if what the criminal did was not wrong (and Kain is aware of this justification, 50–51). Hegel also says the criminal's will is split: the thief's particular will is to steal, but his implicit will is the universal—to respect property. The criminal, after all, does not want someone else to steal what he illicitly took and now possesses. Hegel's argument is not that we should universalize the principle that theft is right, as Kain says. Rather, it is that in committing the crime, the criminal goes against his implicit will: the criminal, insofar as he is rational, knows that respecting property is right, and punishment is merely turning the universal will, which is the criminal's implicitly, [End Page 355] back on himself. Kain then says we do not need to establish a right to punish because there is a right of self-defense: we can exclude the criminal, rather than impose what he calls "San Quentin" punishment (48–49). Yet punishment is not essentially that. For Hegel it annuls crime and vindicates right, and how we inflict it depends on custom and objectives like deterrence and reform. Hegel may well criticize "San Quentin" punishment in a stable society, but not punishment per se.
Perhaps the biggest challenge in interpreting the Rechtsphilosophie is explaining Hegel's account...