Hegel's Political Philosophy: Interpreting the Practice of Legal Punishmentby Mark Tunick
To scholars of Western intellectual history Hegel is one of the most important of all political thinkers, but politicians and other "down-to-earth" persons see his speculative philosophy as far removed from their immediate concerns. Put off by his difficult terminology, many participants in practical politics may also believe that Hegel's idealism unduly legitimates the status quo. By examining his justification of legal punishment, this book introduces a Hegel quite different from these preconceptions: an acute critic of social practices. Mark Tunick draws on recently published but still untranslated lectures of Hegel's philosophy of right to take us to the core of Hegel's political thought. Hegel opposes radical criticism like that later offered by Marx, but, argues Tunick, he employs "immanent" criticism instead. For instance, Hegel claims that punishment is the criminal's right and makes the criminal free. From this standpoint, he defends specific features of the practice of punishment that accord with this retributive ideal and criticizes other features that contradict it. In a lucid account of what Hegel means by right and freedom, Tunick addresses Hegel specialists and those interested in criminal law, the interpretation of legal institutions and social practices, and justification from an immanent standpoint.
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Hegel's Political Philosophy
Interpreting the Practice of Legal Punishment
By Mark Tunick
PRINCETON UNIVERSITY PRESSCopyright © 1992 Princeton University Press
All rights reserved.
Introduction to Hegel's Political Philosophy
1.1 Why Hegel?
Why take seriously a metaphysician notorious for his prolix writing? Hegel's writing is dense, obscure, always difficult, and sometimes impossible to understand. Even if we can wade through it, the promised land is either nightmare or deluded Utopia to anyone with the modern sensibility: its world has an "absolute rational design"; it is governed by God ("the actual working of His government—the carrying out of His plan—is the history of the world"); and in this world "the state is absolutely rational."
I should be clear about my intentions at the start. I share in the modern sensibility that rejects at least these first two claims. (The third claim, that the state is absolutely rational, is too cryptic to pass judgment on at this time.) Hegel makes many metaphysical claims that, taken literally, I find unacceptable. Hegel claims to have discerned the objective and absolute justifications for and meanings of our practices and institutions, calling his account of our practices "science." For those, like myself, who reject "foundationalism," or the position that social practices have noncontroversial explanations and justifications with which any right-thinking person is compelled to agree, Hegel's metaphysics and claims to science pose a serious obstacle to appropriating his philosophy. To nonfoundationalists, committed to the position that practices like punishment possess not one fixed meaning but a whole synthesis of meanings all of which are a matter not of knowledge but of interpretation, Hegel, by claiming to discern with his metaphysical insight the definitive meanings of and objective justifications for our practices, forecloses debate and discussion about competing interpretations. But the obstacles presented by Hegel's foundationalism are not insurmountable. I believe we can leave aside the metaphysics and appropriate Hegel as a theorist who can help us think clearly about our practices and about problems regarding these practices that we face every day and must resolve in some way.
Hegel scholars disagree about whether it is legitimate to appropriate Hegel by bracketing the metaphysics. Z. A. Pelczynski argues that "Hegel's political thought can be read, understood, and appreciated without having to come to terms with his metaphysics." Stanley Rosen takes the opposite view: "I venture to assert that none of [Hegel's] writings or lectures can be read in a proper manner without a grasp of the main tenets of his logic." I take a middle road. I agree with Pelczynski but acknowledge Rosen's point, and pay due respect to the texts, by calling attention to the fact that the Hegel I appropriate is a nonfoundationalist, nonmetaphysical, that is, a rehabilitated Hegel.
The charge that Hegel is an obscure writer is perhaps the more serious, for no theorist or practitioner of legal punishment will have the patience to endure texts written in language that is so cryptic. I take this charge seriously.
Some have defended Hegel, or at least rationalized his use of dense language, by pointing to certain historical circumstances pressuring Hegel and his contemporaries to be obscure. Robert Solomon suggests that Hegel's difficult language, and also his claims for doing "science," are a result of Hegel's professional ambitions:
In 1799 Hegel's father died, leaving his son enough money to allow him to think for the first time about an ill-paid but prestigious career in the universities.... Unfortunately, to be a philosopher with professional ambitions, then as now, meant that one had to be profound, i.e. obscure and serious, i.e. humorless and extremely tedious, and so Hegel began to learn the jargon and elongate and qualify his sentences in the "speculative" style of Schelling.
In this view, it is significant that Hegel's earliest work, written before these ambitions had surfaced, and some of his later work, written by an already established professor, are relatively less obscure, and sometimes even clear. Karl-Heinz Ilting argues in a similar vein that, given the situation in Hegel's Prussia, Hegel used his notoriously difficult language as a means of camouflage. Such arguments, while perhaps conducive to greater tolerance of Hegel's writing style, do not make understanding his philosophy any easier.
Hegel was not always an obscure or incomprehensible writer—he was capable even of great elegance. What is more important, he was not an obscure lecturer. Particularly with respect to his political philosophy, or, as I shall refer to it in this work, following German commentators, his Rechtsphilosophie (literally "philosophy of right"), Hegel lectured with clarity, precision, and a concern for making himself understood by his audience—his students. We are fortunate to have reliable transcripts of many of Hegel's lectures, though most have not been translated into English, and I shall refer to these lecture notes repeatedly. In my view, the charge of obscurantism loses much of its force once we take these lecture notes as a text of Hegel's Rechtsphilosophie. Since I have a great stake in the authenticity of these lecture notes, and in the legitimacy of using them as texts, I shall, in the next section, defend my use of them.
1.2 The Texts of Hegel's Philosophy of Right: The Lecture Notes and the Philosophy of Right
The student of Hegel faces an immediate problem in approaching his works: what should count as the texts? Some of Hegel's works were published as books, for the academic community in general (the Science of Logic and the Phenomenology). Others were published as teaching tools, or compendiums to help Hegel lecture to his students (the Propadeutik, Encyclopaedia, and Philosophy of Right). Other sources of his philosophy include materials never published by Hegel—student lecture notes (History of Philosophy, Philosophy of History, Philosophy of Religion, Lectures on Aesthetics). While our concern with Hegel's political philosophy makes virtually all of these texts relevant, the text most important to us is the Philosophy of Right. Hegel gave a course of lectures on this subject seven times, and we have available to us, in addition to the compendium he published under the title Grundlinien der Philosophie des Rechts, several sets of notes of these lectures. The issue we face is, how seriously should we take the lecture notes?
In general we should be leery of accepting as an authentic and accurate source of a philosopher's ideas lecture notes taken by his students. Students might misunderstand, or be too rushed to be accurate transcribers, or consciously or unconsciously interpret what they hear before writing it down, so that the result is a distortion of the lecturer's intentions. But also, a philosopher who lectures might assume that what he says is "off the record," and so he understandably might pursue lines of thought without thinking through all of the consequences of what he says. When he publishes his ideas he commits himself in a way that he does not intend to do when lecturing. For these reasons, some have avoided or used only with hesitation the famous "Additions" to the Philosophy of Right, which are translations of selected passages from some of the lecture notes. In the case of Hegel, however, several important facts warrant, I think, a suspension of skepticism about the lecture notes.
First, it is generally agreed that Hegel was simply better at lecturing than at writing:
One gets the impression that Hegel was one-sidedly given over to abstractions, given the schematic picture we receive in the Encyclopaedia , and that he reduced the actual world to a pair of conceptual formulas through his logical constructions. His audience, who were told in his lectures of the wide scope of the phenomenal world and the empirical knowledge of his time with astounding command of the material, knew better.
In addition, unlike many professors, Hegel spoke slowly when lecturing, so that exact transcripts could be taken. From one student's account, Hegel lectured in front of notebooks, constantly hunting back and forth; he coughed repeatedly; he would begin faltering, make an effort to continue, start all over again, pause, speak, and reflect. The editions of the lecture notes of the Rechtsphilosophie that we have recently received through the labors of Karl-Heinz Ilting, Dieter Henrich, Claudia Becker, and others indicate what was originally written down, crossed out, and revised, so that we can virtually see Hegel at work taking an initial stab, pausing, rethinking, and correcting himself. This suggests both that when Hegel lectured he did so with care and reflection, and that the students whose lecture notes we have received were diligent transcribers. We know that Hegel himself used the transcripts of one of his students, Karl Gustav Julius von Griesheim, to help him in subsequent lectures.
Many Hegel scholars disagree regarding the weight of another reason that with Hegel we have cause to take special interest in the lecture notes: that because of political pressures culminating in the Prussian Carlsbad censorship decrees, Hegel was not able to publish his genuine views about politics, and so it is only in his lectures that we can pierce the mask and reach the man. In this view, the authentic Rechtsphilosophie (Hegel's philosophy of right) is not in the published Grundlinien der Philosophie des Rechts (which English-speakers know as the Philosophy of Right), but in the lecture notes.
In order to follow this contentious argument, we need to know some essential information about when Hegel lectured and when he published the Philosophy of Right. Hegel gave his first lecture on the Rechtsphilosophie in the winter semester at Heidelberg in 1817/18; recently the notes of one of his students, Peter Wannenmann, have been published in German, and they are referred to as Rph I. Hegel gave his next set of lectures in Berlin, in the winter semester of 1818/19—this is referred to as Rph II, Carl Gustav Homeyer's transcription of which has been published by Ilting in the first volume of his four-volume edition of the Rechtsphilosophie. Hegel lectured the following year (winter 1819/20), and Dieter Henrich has published a set of notes of these lectures taken by an unknown author, notes he found at the University of Indiana library. They are known as Rph III. Rph III is considered especially important, as these lectures began just after the Carlsbad decrees were announced (August 1819) and immediately preceded publication of the Philosophy of Right. The Philosophy of Right was published, according to most scholars, in October 1820—though for various reasons that need not concern us here, the exact date remains a point of controversy among some. After a one-year pause, Hegel resumed lecturing on the Rechtsphilosophie in the winter semester of 1821/22; this set of lectures is called Rph IV, but no transcript of them is available at present. Hegel lectured again in the winter semesters of 1822/23 (Rph V—Gustav Heinrich Hotho's notes are published by Ilting in volume 3) and 1824/25 (Rph VI—Griesheim's notes are published by Ilting in volume 4). After a long pause, during which his student Eduard Gans took over the course, Hegel resumed lecturing on the Rechtsphilosophie in the winter semester of 1831/32 (Rph VII), but he died after only two meetings. We have a transcript of the two lectures he managed to give, taken by the famous Hegelian David Strauss, published by Ilting in volume 4 of his edition.
The argument that there is an exoteric and an esoteric Hegel was advanced by Ilting. He argues that we can see from the lecture notes that the 1820 Philosophy of Right is not an authentic representation of Hegel's political philosophy. The Philosophy of Right was published in exceptional circumstances—directly following the Carlsbad censorship decrees. Ilting argues that Hegel, concerned with his professional career, changed his outward political position between 1817 and 1820. Ilting focuses on two points in supporting his claim: discrepancies between the Philosophy of Right and the lectures regarding both Hegel's view on monarchy and the famous passage from the preface of the Philosophy of Right declaring that the "actual is the rational."
In his Philosophy of Right Hegel seems to take a royalist position, declaring that governmental power derives from the monarch and that the monarch is head and beginning of the whole; but, notes Ilting, in both Rph II and Rph V Hegel says the monarch merely dots the i's, suggesting that Hegel sees in the monarch not the source of real authority, but a mere symbol of unity. Hegel was taken as a philosophical royalist, for example, by Franz Rosenzweig and Rudolf Haym, on the basis of the published Philosophy of Right, but, argues Ilting, really he is not: Hegel's real views are expressed in the lectures. Ilting concludes that Hegel's monarchist view in the Philosophy of Right is a response to censorship pressures imposed by the nonconstitutional monarchy of Prussia and does not reflect a genuine change of view.
In the preface to the Philosophy of Right Hegel writes that "what is rational is actual and what is actual is rational," suggesting that the practices and laws of the existing Prussian monarchy are rational, and that proposals for liberal reforms are unnecessary or even dangerous. Again Ilting argues that what Hegel says in the lectures goes against the apparently conservative position he made public in his book. Ilting notes that in Rph II and Rph VI Hegel makes clear that irrational positive law can exist, contrary to what he writes in the preface or expresses elsewhere in the Philosophy of Right. Ilting also notes that in Rph VII Hegel says: "What is actual, is rational; but not all that is actual is what exists. What is bad is something that is nothing in itself"; and from other passages in Rph VII Ilting concludes that Hegel's meaning in his final set of lectures is: "The rational should be actual"—hardly the view of a conservative justifier of all status quo laws and practices.
With both examples Ilting accuses Hegel of publishing conservative opinions that he did not genuinely hold. Why would Hegel do this? Ilting points to the political circumstances of the time. On March 23, 1819, Karl Ludwig Sand, a Jena theology student and radical member of the liberal and nationalist student fraternities, murdered the writer Friedrich Kotzebue, an alleged Russian agent who opposed the French Revolution and liberal freedoms. Kotzebue was admired by Klemens von Metternich, who prevailed upon Prussia's Friedrich Wilhelm III to issue the Carlsbad decrees in August 1819. These decrees were just one of several measures the government took to end the liberal reforms it had begun and to begin the restoration. Hegel had been a spiritual leader of the fraternities with which Sand was identified. On February 9,1819, Hegel had taken part in fraternity celebrations of Prussia's stand against Napoleon. Hegel knew he could be seen as a spiritual leader of the fraternities. In September 1819, a colleague of Hegel's, Professor Wilhelm Martin Leberecht de Wette, was dismissed after discovery of a letter of his to Sand's mother that expressed support for her son. Hegel feared for himself and began to distance himself from the views of his colleague. On November 13, he declared that the state has the right to remove a teacher from the university's faculty, so long as the teacher is left his salary. Hegel's colleague Friedrich Schleiermacher called Hegel's action "wretched."
Excerpted from Hegel's Political Philosophy by Mark Tunick. Copyright © 1992 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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