Natural Law

The Scientific Ways of Treating Natural Law, Its Place in Moral Philosophy, and Its Relation to the Positive Sciences of Law

G. W. F. Hegel, T. M. Knox

• Publisher: University of Pennsylvania Press
• Year: 2011
• ISBN:
  9780812200256
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

One of the central problems in the history of moral and political philosophy since antiquity has been to explain how human society and its civil institutions came into being. In attempting to solve this problem philosophers developed the idea of natural law, which for many centuries was used to describe the system of fundamental, rational principles presumed universally to govern human behavior in society. By the eighteenth century the doctrine of natural law had engendered the related doctrine of natural rights, which gained reinforcement most famously in the American and French revolutions. According to this view, human society arose through the association of individuals who might have chosen to live alone in scattered isolation and who, in coming together, were regarded as entering into a social contract.In this important early essay, first published in English in this definitive translation in 1975 and now returned to print, Hegel utterly rejects the notion that society is purposely formed by voluntary association. Indeed, he goes further than this, asserting in effect that the laws brought about in various countries in response to force, accident, and deliberation are far more fundamental than any law of nature supposed to be valid always and everywhere. In expounding his view Hegel not only dispenses with the empiricist explanations of Hobbes, Hume, and others but also, at the heart of this work, offers an extended critique of the so-called formalist positions of Kant and Fichte.

The Scientific Ways of Treating
Natural Law, Its Place in
Moral Philosophy, and Its
Relation to the Positive
Sciences of Law

The science of natural law, like other sciences such as mechanics and physics, has long been recognized as an essentially philosophical science and, since philosophy must have parts, as an essential part of philosophy. But with the other sciences it has shared a common fate; the philosophical element in philosophy is assigned exclusively to metaphysics, while the sciences have been allowed little share in it. On the contrary, in their special principle they have been kept aloof in complete independence of the Idea. In the end, the sciences cited as examples have been compelled more or less to confess their removal from philosophy. As a result they acknowledge that what is commonly called “experience” is their scientific principle and therefore they renounce their claim to be genuine sciences. They are content to consist of a collection of empirical observations and to make use of the categories of the understanding only as suppliants, without wishing to assert anything objective.

If, originally against its will, what had called itself a philosophical science was shut out of philosophy and, generally, the category of science, and if in the end it has accepted this position, the reason for this exclusion is not that, although these so-called sciences issued from philosophy itself, they failed to maintain a conscious connection with it. For every part of philosophy is capable in its individuality of being an independent science and acquiring a complete inner necessity of its own, since it is the Absolute which makes philosophy a genuine science. In this form the Absolute alone is the special principle which lies above the sphere of science’s knowledge and freedom, and, by relation to this principle, the science is possessed by an external necessity. But the Idea itself remains free of this determinacy and it can be reflected in this determinate science just as purely as absolute life is expressed in every living thing, though the scientific element in such a science, or its inner rationality, does not come to light in the pure form of the Idea, which is the essence of every science and which in philosophy, as the absolute science, is present as this pure Idea. Of this independent and yet free scientific development of a science, geometry supplies a brilliant example that is the envy of the other sciences. All the same, it does not follow that sciences like those mentioned above must be denied all reality because they are, strictly speaking, empirical. For just as each part or aspect of philosophy is capable of being an independent science, so each such science is thus immediately an independent and perfect picture and, in the form of a picture, can be accepted and expounded by an intuition which purely and happily keeps itself free from contamination by fixed concepts.

But the perfection of the science requires not only that perception and picture be united with the logical element and taken up into the purely ideal, but also that the separate, though genuine, science be stripped of its separateness; its principle must be recognized in its higher context and necessity, and thus and only thus be completely freed. In this way alone is it possible to know the limits of the science; and without this principle the science must remain ignorant of its limits, because otherwise it would have to be superior to itself and recognize the nature of its principle according to its determinate character in the absolute form. For from this knowledge the science would derive directly the knowledge and certainty of the extent of the equality of its various specifications. But, as it is, its attitude to its own limits can only be empirical, and it must now make vain attempts to go beyond them, now think them narrower than they are, and thus experience wholly unexpected extensions of scope, as happens even in geometry (which, e.g., can prove the incommensurability of the diameter [diagonal] and the side of the square, but not that of the diameter and the circumference of a circle),* and even more in arithmetic; and, most of all, geometry and arithmetic in combination provide the greatest example of science fumbling in the dark along its borders.

The Critical philosophy has had the important negative effect on theoretical sciences of proving that the scientific element in them is not objective, but belongs to a middle realm between nothing and reality, to a mixture of being and not-being, and thus making them admit that they belong only to the sphere of empirical thinking. The positive effect of the Critical philosophy has turned out all the poorer in proportion, and it has not been able to recover these sciences for philosophy. On the other hand, the Critical philosophy has placed the Absolute wholly within practical philosophy, and there the Critical philosophy is positive or dogmatic knowledge. We must regard the Critical philosophy (which also calls itself transcendental idealism) in general, and particularly in natural law, as the culminating point of that opposition which (like circles on the surface of water spreading outward concentrically from the point where the surface was disturbed and finally, in small movements, losing their relation to a center and going on ad infinitum) from feeble beginnings in earlier scientific endeavours, outgrew the confinement of barbarism and became ever greater until it reached understanding of itself in the Critical philosophy by means of the absolute concept of infinity and, as infinity, now also cancels itself.*

The earlier ways of treating natural law, and also what would have to be regarded as its various principles, must therefore be denied all significance for the essence of science, because their element is opposition and negativity, yet not absolute negativity (i.e., infinity) which alone is the element for science; on the contrary, they no more possess the purely positive than they do the purely negative, but are mixtures of both. Only one curious about the history of science could be interested enough to linger over them in order, first, to compare them with the absolute Idea and to discern in their distortion the necessity whereby, intertwined with a determinate principle, the moments of absolute form are distortedly displayed and yet dominate these attempts even under the dominion of a narrow principle, and, second, to see the empirical condition of the world reflected in the ideal mirror of science.

As for the second, it is of course true that, since all things are interconnected, empirical existence and the condition of all sciences will express also the condition of the world. But the condition of natural law will do so in particular because natural law bears directly on the ethical, the mover of all things human; and, insofar as the science of ethics has an existence, it is under the necessity of being one with the empirical shape of the ethical, a shape equally necessary. And, as science, natural law must express that shape in the form of universality.

As for the first, the only true distinction that can be acknowledged as marking the principle of the science is whether the science lies within the Absolute, or outside absolute unity (i.e., in opposition). If the latter, it simply could not be science if its principle were not some incomplete and relative unity or the concept of a relation, even if the principle were only the empty abstraction of relation itself under the name of attractive force or the force of identity. In sciences whose principle is not a concept of relation, or only the empty force of identity, there remains nothing ideal except the first ideal relation, the way the child is different from the world, as with the form of picture-thinking in which the sciences place empirical qualities and can rehearse their variety—these sciences would be called pre-eminetly empirical sciences. But because practical sciences bear by their nature on some real universal or on a unity which is a unity of differences, the feelings too must comprise in practical empiricism not pure qualities but relations, be they negative like the urge to self-preservation, or positive like love and hate, sociability, and the like. And a more scientific empiricism differs from this pure empiricism, not in general by having as its object relations rather than qualities, but rather by fixing these relations in conceptual form and clinging to this negative absoluteness, though without severing this form of unity from its content. These we will call empirical sciences, while we term a purely formal science that form of science in which the opposition of form and content is absolute, and pure unity (or infinity, the negative absolute) is wholly separated from the content and posited independently.

Although there is thus established, between the two spurious ways of treating natural law scientifically, a specific difference whereby the principles of the one are relations and mixtures of empirical perception with the universal (while the principle of the other is absolute opposition and absolute universality), it is obvious nonetheless that the ingredients of both empirical perception and concept are the same, and that formalism, in passing over from its pure negation to a content, can likewise arrive at nothing else than relations or relative identities. Because the purely ideal or the opposition is absolutely posited, the absolute Idea and unity cannot be present. With the principle of absolute opposition, or of the absoluteness of the purely ideal, the absolute principle of empiricism is posited; and therefore, with reference to perception, the syntheses, insofar as they are not supposed to have just the purely negative meaning of annulling one side of the opposition but also a positive meaning of perception, portray only empirical perceptions.

These two ways of treating natural law scientifically must first of all be characterized in more detail, the first with reference to the manner in which the absolute Idea appears in it according to the moments of absolute form, the second with reference to the manner in which the infinite, or the negative absolute, vainly attempts to achieve a positive organization. The analysis of the latter attempt will lead directly to treating the nature and relation of the sciences of the ethical as philosophical sciences, and to their relation with what is called the positive science of law. The latter holds itself aloof from philosophy and, by voluntarily renouncing philosophy, imagines that it can avoid philosophy’s criticism; yet it also claims to have absolute subsistence and true reality—a pretension not to be condoned.

As for that way of treating natural law which we have called empirical, the first point is that we cannot concern ourselves with the matter of the determinacies and relational concepts which it seizes upon and asserts under the name of principles. On the contrary, this separation and fixation of determinacies is just what must be negated. The nature of this separation implies that the scientific procedure applies only to the form of unity; and in an organic relation to the manifold qualities into which the unity is divided (if they are not simply to be enumerated), one certain determinate aspect must be emphasized in order to reach a unity over this multiplicity; and that determinate aspect must be regarded as the essence of the relation. But the totality of the organic is precisely what cannot be thereby attained, and the remainder of the relation, excluded from the determinate aspect that was selected, falls under the dominion of this aspect which is elevated to be the essence and purpose of the relation. Thus, for example, to explain the relation of marriage, procreation, the holding of goods in common, or something else is proposed [as the determinant] and, from such a determinate aspect, is made prescriptive as the essence of the relation; the whole organic relation is delimited and contaminated. Or, in the case of punishment, one specific aspect is singled out—the criminal’s moral reform, or the damage done, or the effect of his punishment on others, or the criminal’s own notion of the punishment before he committed the crime, or the necessity of making this notion a reality by carrying out the threat, etc. And then some such single aspect is made the purpose and essence of the whole. The natural consequence is that, since such a specific aspect has no necessary connection with the other specific aspects which can be found and distinguished, there arises an endless struggle to find the necessary bearing and predominance of one over the others; and since inner necessity, non-existent in singularity, is missing, each aspect can perfectly well vindicate its independence of the others.

Such qualities, taken up out of the multiplicity of the relation into which the organic is fragmented by empirical or inadequately reflective perception and put into the form of a conceptual unity, are what knowledge of this kind calls essence and purposes. And since their form of the Concept is expressed as the absolute being of the specific character constituting the content of the Concept, they are set up as principles, laws, duties, etc. Of this conversion of the absoluteness of pure form (which, however, is negative absoluteness or pure identity; the pure Concept; infinity) into the absoluteness of the content (and the determinacy taken into the form), more will be said in connection with the principle of the Critical philosophy. In the empirical knowledge which is here in question, this conversion comes about unconsciously, while the Critical philosophy enters upon it reflectively and as absolute reason and duty.

This formal unity, into which the determinacy is placed by thinking, also provides the appearance of that necessity which science strives for. For the unity of opposites in relation to science, regarded as a real unity, is science’s necessity. But because the matter of this formal unity is not the whole of the opposites but only one of them (i.e., only one determinacy), the necessity too is only formal and analytic and is concerned only with the form of an identical or analytic proposition in which the determinacy can be presented. But by this absoluteness of the proposition an absoluteness of content too is smuggled in, and in this way laws and principles are constituted.

But this empirical science finds itself surrounded by a multiplicity of such principles, laws, ends, duties, and rights, none of which is absolute. It thus is bound also to conceive the picture of, and need for, the absolute unity of all these disconnected characteristics, and of an original simple necessity. We are considering how it will satisfy this demand rooted in reason, or how the absolute Idea of reason will be displayed in its moments when it is under the domination of what, for this empirical knowledge, is the insuperable opposition of the one and the many. For one thing, it is interesting in itself to discern in this scientific endeavour, and its murky medium, not only the reflection and the domination of the Absolute, but also its perversion. For another thing, the forms which the moments of the Absolute have received here turn into a species of prejudices and indubitable and universally valid thought whose nullity criticism must expose in order to justify science for ignoring them. This proof of their nullity is presented most convincingly by showing the unreal basis and ground from which they grow, and whose flavor and nature they absorb.

At first, empirical science envisages scientific totality as a totality of the multiplex or as completeness; while a strict formalism envisages it as consistency. The former can at will elevate its experiences to universality, and can push the consistency of its putative determinations up to the point where other empirical matter (which contradicts the first but has just as much right to be excogitated and expressed as a principle) no longer leaves room for the consistency of the preceding, and compels its abandonment. Formalism can extend its consistency so far as is generally made possible by the emptiness of its principle, or by a content which it has smuggled in; but thereby it is in turn entitled to exclude what lacks completeness from its apriorism and its science, and proudly revile it as “the empirical.” For formalism asserts its formal principles as the a priori and absolute, and thus asserts that what it cannot master by these is non-absolute and accidental—unless it saves itself by finding in the empirical field generally (and in the movement from one characteristic to another) the formal transition of progression from the conditioned to the condition and, since the latter is in turn conditioned, so on ad infinitum. In this process, formalism not only abandons all its advantages over what it calls empiricism; rather, since in the context of the conditioned with the condition these opposites are posited as subsisting absolutely, formalism itself is completely submerged in empirical necessity and by means of the formal identity or negative absolute whereby it holds opposites together, endows empirical necessity with a resemblance of genuine absoluteness.

But this linking of consistency with the completeness of the picture—whether of the latter, more complete, formal and empty consistency, or of the former consistency which, with specific concepts as principles, proceeds from one of them to others and is consistent only in inconsistency—immediately alters the place of multiplicity in pure empiricism. For pure empiricism, everything has equal rights with everything else; one characteristic is as real as another, and none has precedence. We shall return to this point later when we compare pure empiricism with our present topic, scientific empiricism.

In this formal totality we must consider how absolute unity appears both as simple unity, which we may call the original unity, and as totality in the mirror of empirical knowing. Both unities, which are one in the Absolute and whose identity is the Absolute, must occur in such knowledge as separate and different from one another.

As for absolute unity, as that essence of necessity which for appearance is an external bond, the first point is that empiricism can have nothing to say about it; for in the unity which is the essential one, the multiplex is immediately annihilated and is null. Since multiplex being is the principle of empiricism, empiricism is precluded from pressing on to the absolute nullity of its qualities which for it are absolute and which besides, owing to the concept in accordance with which they are many, are infinitely many. This original unity can therefore mean, so far as possible, only a single, simple, and small mass of qualities, whereby it believes it can suffice for a knowledge of the rest. In that ideal, empiricism, in which what thus passes vaguely for capricious and accidental is blurred, and the smallest indispensable mass of the multiplex is posited; it is chaos in the physical as in the ethical world. Chaos in the latter is conceived now by the imagination more in the image of existence, as the state of nature, now by empirical psychology more in the form of potentiality and abstraction, as a list of the capacities found in man, as the nature and destiny of man. In this way, what on the one hand is asserted to be simply necessary in itself, absolute, is at the same time acknowledged on the other hand to be something not real, purely imaginary, an ens rationis—in the first case to be fiction, in the second a mere possibility; and this is the harshest contradiction.

For the ordinary understanding, which holds to the murky confusion of what is essential with the transitory, nothing is more unde...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Contents
• Foreword
• Introduction
• Translator’s Note
• The Scientific Ways of Treating Natural Law, Its Place in Moral Philosophy, and Its Relation to the Positive Sciences of Law
• Index