Page 192 - DPOL201_WESTERN_POLITICAL_THOUGHT_ENGLISH

Western Political Thought

Notes Hegel perceived the state as an end in itself; it was Mind realizing itself through history. As an
idealist, Hegel viewed the state as an organism having “the highest right over the individual,
whose highest duty in turn is to be a member of the state”. Hegel emphasized the public nature of
the state, yet he did not distinguish between the private and the public spheres. Hegel examined
the different components of the state like the rule of law, the bureaucracy, and the monarchy.
Rule of Law

The rule of law was one of the key formulations in the Philosophy of Right. Hegel did not see law
as a hindrance to freedom : it was a characteristic of freedom. He had both a broad and a narrow
conception of law. In the wider sense, it was one of the instruments for realizing social cohesion.
Here law was seen not as a code, but one that reflected ethical values which governed cultural life.
In this holistic concept, justice was linked to the institutional ordering of entire society.
In the narrower sense, law was linked to positive legal justice. In an important clarification, he
stated in the context of positive law, “it is the legal which is the source of our knowledge of what
is right or more exactly of our legal rights”. The emphasis on the conventional principles of law
made him reject a conception of higher or natural law. The basis of this argument stemmed from
the fact that modem civil codes were becoming more rational and public. The dignity of the rule
of law had to be honoured.
Laws were for universal application, and had to be based on impersonal and universal values.
Under such a system, every person was a legal entity who was entitled to dispose of the objects
which were his property. The quantity of that property was a question of legal indifference.
What mattered was the legal authority to acquire, use and exchange property with others, based
on the principle : “Be a person and respect others as persons”.
An interesting aspect of the Hegelian legal system was that it lacked the idea of command normally
associated with Hobbes. The determining characteristic of a legal norm was its form, which had its
basis in practical rationality. The embodiment of a rule was more important than command. It was
this rule that gave meaning and shape to the rule of law, and distinguished it from arbitrary
power. In an important distinction between command and law, Hegel asserted that commands
and orders were specified purposes for identified people, whereas the ambit of law was much
wider, as it addressed a larger and unknown audience, and was equally applicable to all within its
jurisdiction. Command was from a superior to an inferior. The basis of rational authority had to
have the sanction of law.
Hegel also rejected the notion that the purpose of law was the realization of a lofty ideal of human
excellence, or the full development of human capacities. The ancient view on this was rejected by
Hegel. For instance, in Aristotle, the purpose of law was to instil in citizens a very high level of
civic virtue. But in Hegel, all such issues were left to the private discretion of the individual. One
major difference between the ancient and modern formulations was that in the former, the emphasis
of law was on determining details of conduct and behaviour, whereas the modern perception was
on the generality of the law, as it provided personal initiative and freedom. Hegel was critical of
“the legislation of the ancients”, as it is “full of precepts about uprightness and integrity which are
unsuited by nature to legal enactment because they fall wholly within the field of the inner life”.
In contrast, the modern rule of law consisted of a few necessary features, which were common to
all. Laws were established by the rationality of free individuals. Laws were impersonal. They had
to be rational and written. Burke’s appeal to tradition and custom was rejected by Hegel, as such
attitudes developed ill feeling and hatred for all laws and legislations. For conferring legitimacy
to tradition, one had to go back to a situation that existed before tradition began, namely the
animal kingdom of the state of nature, where only the law of the jungle prevailed. All traditions
were based on “the irrational power of brute force”. The purpose of written and codified law was
that people would know about it. For getting conformity and consent of the governed, laws had
to reflect intelligible rules.

186 LOVELY PROFESSIONAL UNIVERSITY