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The Democratic Reconstruction of the Hegelian State in American Progressive Political Thought

Published online by Cambridge University Press:  02 October 2015

Blake Emerson
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Abstract

Both critics and defenders of the modern American administrative state have recognized the influence of Hegelian ideas upon the American progressives. But existing scholarship on this connection has not delved into the institutional details of Hegelian political theory and its transformation in progressivism. This article traces the continuities and adaptations between Hegelian and American progressive theories of the administrative state through three conceptual pairs: individual rights and social welfare, civil society and the state, and legislation and execution. For both German Hegelian legal scholars and the American Hegelian progressives, these conceptual pairs staked out the basic normative and institutional tensions underlying the modern state. The progressives, however, gave these concepts a democratic interpretation, and thus sought to involve the public at multiple levels of the policy-making process. This Hegelian progressive theory provides a compelling basis for a public philosophy of the contemporary American state.

Type
Research Article
Information
The Review of Politics , Volume 77 , Issue 4 , Fall 2015 , pp. 545 - 574
Copyright
Copyright © University of Notre Dame 2015 

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References

1 Ronald J. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman & Littlefield, 2005), 16–17; Pestritto, Ronald J., “The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis,” Social Philosophy and Policy 24, no. 1 (2007): 16–54 CrossRefGoogle Scholar; Tiffany Jones Miller, “Freedom, History, and Race in Progressive Thought,” in Natural Rights, Individualism and Progressivism in American Political Philosophy, ed. Ellen Frankel Paul, Fred D. Miller Jr., and Jeffrey Paul (Cambridge: Cambridge University Press, 2012), 220, 254; Philip Hamburger, Is Administrative Law Unlawful? (New York: Columbia University Press, 2014), 447–78; Jean M. Yarbrough, Theodore Roosevelt and American Political Thought (Lawrence: University Press of Kansas, 2012), 19–24, 44–46.

2 James T. Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (Oxford: Oxford University Press, 1986), 51; Marc Stears, Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and Britain, 1906–1926 (Oxford: Oxford University Press, 2002), 35. For a less uneasy but nonetheless casual discussion of Hegelian motifs in progressivism, see Eisenach, Eldon J., “Progressivism as a National Narrative in Biblical-Hegelian Time,” Social Philosophy and Policy 24, no. 1 (2007): 55–83 CrossRefGoogle Scholar.

3 See, e.g., Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States (New York: Norton, 1969); Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (Cambridge: Cambridge University Press, 1982); Anne Kornhauser, Debating the American State: Liberal Anxieties and the New Leviathan, 1930–1970 (Philadelphia: University of Pennsylvania Press, 2015).

4 See, e.g., Hamburger, Is Administrative Law Unlawful?, 9, 443–70. The technocratic interpretation of progressivism is common in legal scholarship, even among leftist commentators. See, e.g., Morton J. Horwitz, The Transformation of American Law: The Crisis of Legal Orthodoxy, 1870–1960 (New York: Oxford University Press, 1992), 223–25.

5 My reading is generally aligned with the interpretations of Shlomo Avineri, Hegel's Theory of the Modern State (Cambridge: Cambridge University Press, 1972), 132–54; Jürgen Habermas, The Philosophical Discourse of Modernity, trans. Frederick Lawrence (Cambridge, MA: MIT Press, 1987), 23–74; Herbert Marcuse, Reason and Revolution: Hegel and the Rise of Social Theory (Boston: Beacon, 1960), 169–223. Interpretations that place greater stress on holism and reconciliation in Hegel's political philosophy include Frederick Neuhouser, Foundations of Hegel's Social Theory (Cambridge, MA: Harvard University Press, 2000), 114–43; Michael O. Hardimon, Hegel's Social Philosophy: The Project of Reconciliation (Cambridge: Cambridge University Press, 1994); Robert Pippin, Hegel's Practical Philosophy: Rational Agency as Ethical Life (Cambridge: Cambridge University Press, 2008); Goodfield, Eric, “The Sovereignty of the Metaphysical in Hegel's Philosophy of Right ,” Review of Metaphysics 62 (2009): 849–73Google Scholar.

6 Stein is the linchpin of Hegelian influence. As Carl Schmitt points out, “Lorenz von Stein is the foundation for nineteenth-century German thinking on constitutional theory (and, simultaneously, the conduit through which Hegel's philosophy of the state remains vital). Stein's thought is recognizable everywhere, in Robert Mohl, in the Rechtsstaat theory of Rudolf Gneist, in Albert Haenel” (Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer [Durham, NC: Duke University Press, 2008], 62).

7 Michael Stolleis notes that Gneist and Stein “were active participants in the Revolution of 1849 and bore the negative career consequences of this participation for some years later. Both were liberals of a Hegelian stamp who sought, each in his own way, to conquer the basic problems of their time, that is, the character of the class-divided society and the tension between the society and the state” (Michael Stolleis, Public Law in Germany, 1800–1914 [New York: Berghahn Books, 2001], 380). Mohl was elected to the revolutionary Frankfurt National Assembly and, like Gneist and Stein, suffered professional consequences for his politics (Wolfram Siemann, The German Revolution of 1848–49, trans. Christiane Banerji [New York: St. Martin's, 1985], 23, 123). He would nonetheless achieve lasting intellectual influence for his pioneering work in developing the concept of the Rechtsstaat. As Dieter Grimm notes, “The concept of the Rechtsstaat, which was foundational for public law in Germany, gained its significance with Mohl” (Dieter Grimm, Recht und Staat der bürgerlichen Gesellschaft [Frankfurt: Suhrkamp, 1987], 298; my translation).

8 G. W. F Hegel, Elements of the Philosophy of Right, trans. H. B. Nisbet, ed. Allen W. Wood (Cambridge: Cambridge University Press, 1991), §§15, 21.

9 Ibid., §§4–6; Pippin, Hegel's Practical Philosophy, 25, 31.

10 Hegel, Philosophy of Right, §41.

11 Ibid., §36.

12 Hegel distinguishes between the “purely historical task” of considering “the emergence and development of determinations of right as they appear at a particular time” from the “philosophical approach” which has to do with the rationally immanent “development from the concept” of law itself, which on Hegel's view is “valid in and for itself” (ibid., §3). Ronald Pestritto is therefore incorrect when he claims that for Hegel “there can be no principled or universal notion of liberty or rights” (Woodrow Wilson, 17). Quite the contrary, Hegel purports to deduce philosophically the requirements of property and contract from the premise that “the will is free” (Philosophy of Right, §4). That rights are universal for Hegel, however, does not mean that he thinks they are absolute. Rather, liberal rights are “abstract” and “negative” universals, which must be complemented by “more concrete,” positive institutions of family, society, and state in order for the concept of freedom to be fully realized (ibid., §§29–30).

13 See Stephen Smith, Hegel's Critique of Liberalism: Rights in Context (Chicago: University of Chicago Press, 1989), 65–85, 103–14.

14 Hegel, Philosophy of Right, §§189–95.

15 Ibid., §243.

16 Ibid., §§236–43.

17 Ibid., §§231–45. Polizei was a general term for the regulatory functions of the state in nineteenth-century Germany, and served as the foundation for the development of German administrative law (Verwaltungsrecht). See Michael Stolleis, “Was bedeutet Normsetung bei Policeyordnung der frühen Neuzeit?,” in Ausgewählte Aufsätze und Beiträge, ed. Stefan Ruppert and Miloš Vec (Frankfurt: Klostermann, 2011), 1:219–39.

18 Robert von Mohl, Die Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates, 3rd ed. (Tübingen: Verlag H. Laupp'schen, 1866).

19 See Theodore Maunz and Reinholdt Zippelius, Deutsches Staatsrecht, 30th ed. (Munich: Beck'sche, 1998), §13.

20 Mohl, Die Polizeiwissenschaft, 1:19 (my translation). Compare with Hegel's claim that “the system of right [Recht] is the realm of actualized freedom” (Philosophy of Right, §4).

21 Mohl, Die Polizeiwissenschaft, 1:5–6.

22 Rudolph von Gneist, Der Rechtsstaat und die Verwaltungsgerichte in Deutschland (Berlin: Springer, 1879), 31.

23 Ibid., 271.

24 Hegel, Philosophy of Right, §187.

25 Ibid., §260.

26 Max Weber, “Politics as a Vocation,” in Max Weber: Essays in Sociology, ed. and trans. H. H. Girth and C. Wright Mills (New York: Oxford University Press, 1946), 78.

27 Hegel, Philosophy of Right, §286.

28 Ibid., §258A.

29 Bernhard Schlink, “The Inherent Rationality of the State in Hegel's Philosophy of Right,” in Hegel and Legal Theory, ed. Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson (London: Routledge, 1991), 347–53.

30 Raymond Plant, Hegel: An Introduction, 2nd ed. (Oxford: Basil Blackwell, 1983), 215–16.

31 Hegel, Philosophy of Right, §§209–28.

32 Seyla Benhabib, “Obligation, Contract, and Exchange: On the Significance of Hegel's Abstract Right,” in The State and Civil Society: Studies in Hegel's Political Philosophy, ed. Z. A. Pelcynski (Cambridge: Cambridge University Press, 1984), 163.

33 Hegel, Philosophy of Right, §§250–56.

34 Compare Karl Marx, Critique of Hegel's “Philosophy of Right,” trans. Joseph O'Malley and Annette Jolin (Cambridge: Cambridge University Press, 1977) with Jackson, Jeff, “The Resolution of Poverty in Hegel's ‘Actual’ State,” Polity 46, no. 3 (2014): 331–53CrossRefGoogle Scholar.

35 Gneist, Der Rechtsstaat, 28.

36 Lorenz Stein, Handbuch der Verwaltungslehre und des Verwaltungsrechts, ed. Utz Schliesky (Tübingen: Mohr Siebeck, 2010), 6 (my translation).

37 The state Hegel describes in the Philosophy of Right was not, as some commentators have assumed, simply a copy of the Prussian state of his time. Rather, it represents Hegel's “constitutional plan” for Prussia in an era of political reform. See Lübbe-Wolff, Gertrude, “Hegels Staatsrecht als Stellungsnahme im ersten preussischen Verfassungskampf,” Zeitschrift für philosophische Forschung 35 (1981): 476Google Scholar. That Hegel was not simply idealizing the Prussian state can be seen, for example, from the fact that he provided for a form of representative government which was absent in Prussia at the time.

38 Hegel, Philosophy of Right, §272A (H).

39 It is not accurate to claim, as Philip Hamburger does, that “Hegel dismissed the conventional separation of powers as incompatible with state unity” (Is Administrative Law Unlawful?, 449). It is more accurate to say that Hegel dismissed what M. J. C. Vile calls the “pure” as opposed to “partial” separation of powers, as did most thinkers who relied upon this constitutional mechanism. See M. J. C. Vile, Constitutionalism and the Separation of Powers, 2nd ed. (Indianapolis, IN: Liberty Fund, 1998), 14–20.

40 Hegel, Philosophy of Right, §273.

41 Ibid., §287.

42 Ibid., §§287–90.

43 Ibid., §299A.

44 Ibid., §296.

45 Mohl, Die Polizeiwissenschaft, 45.

46 Ibid.

47 As the German legal scholar Ernst Forsthoff observed shortly after the founding of the West German Federal Republic, “We encounter the first conception of a social constitutional state in the shape of constitutional monarchy in the work of Lorenz von Stein. Starting out from the dialectical contradiction between the state, based upon civic equality, and society, in which a condition of natural difference prevailed, he saw the social task of the state as the hindrance of the development of legal classes and thus the removal or impairment of civil equality. That is only possible, if in the state there exists a will, a decisive instance which considers all interests and is obliged to the whole. This instance was for Stein the monarch who was abstracted from every social class” (Ernst Forsthoff, “Begriff und Wesen des sozialen Rechtsstaates,” in Veröffentlichungen der Vereinigung des Deutschen Staatsrechtslehrer, vol. 12 [Berlin: de Gruyter, 1954], 13; my translation).

48 Stein, Handbuch der Verwaltungslehre und des Verwaltungsrechts, 16.

49 Lorenz von Stein, Die Verwaltungslehre, vol. 1 (Stuttgart: J. G. Cotta'schen, 1869), 5.

50 As Richard Thoma put it, “the statute provides the frame in which administration unfolds its free purposive activity. This frame reaches so far as to distribute to the organs of the executive authority accordingly far reaching powers to issue ordinances, individual orders, dispensations, and legal changes” ( Thoma, Richard, “Rechtstaatsidee und Verwaltungsrechtswissenschaft,” Jahrbuch des öffentliches Rechts 4 [1910]: 204Google Scholar; my translation).

51 See Ernest Weinrib, “The Intelligibility of the Rule of Law,” in The Rule of Law: Ideal or Ideology, ed. Allan C. Hutchinson and Patrick Monahan (Toronto: Carswell, 1987), 72, 83; Fuller, Lon, “Forms and Limits of Adjudication,” Harvard Law Review 92 (1978–79): 403CrossRefGoogle Scholar; and Mirjan A. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven: Yale University Press, 1986).

52 On the function of the rule of law for preserving rational agency, see Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1963), 9.

53 Hegel, Philosophy of Right, §279A.

54 Ibid., §280.

55 Ibid., §279.

56 Ibid., §§317–18.

57 Ibid., §315. See also Jürgen Habermas, Structural Transformation of the Public Sphere, trans. Thomas Burger (Cambridge, MA: MIT Press, 1989), 117–23.

58 It is noteworthy that Hegel at one point compares the monarchical principle to public opinion: “We have considered subjectivity once already in connection with the monarch at the apex of the state. Its other aspect is its arbitrary appearance in public opinion as the most external manifestation” (Philosophy of Right, §320A).

59 Marx, Critique of Hegel's “Philosophy of Right,” 114–21; Axel Honneth, Freedom's Right: The Social Foundations of Democratic Life (New York: Columbia University Press, 2014), 253–55; Habermas, Philosophical Discourse of Modernity, 39–41; Pippin, Hegel's Practical Philosophy, 261; Hamburger, Is Administrative Law Unlawful?, 448; Fred Dallmayr, “Rethinking the Hegelian State,” in Hegel and Legal Theory, 321–47.

60 Sager, Fritz and Rosser, Christian, “Weber, Wilson, and Hegel: Theories of Modern Bureaucracy,” Public Administration Review 69, no. 6 (2009): 1143CrossRefGoogle Scholar; see also Robert D. Miewald, “The German Tradition and the Organic State,” in Politics and Administration: Woodrow Wilson and American Public Administration, ed. Jack Rabin and James S. Bown (New York: Marcel Dekker, 1984), 19–20.

61 John Dewey, “Hegel's Philosophy of Spirit,” in John Dewey's Philosophy of Spirit, ed. John R. Shook and James A. Good (New York: Fordham University Press, 2010); John Dewey, “From Absolutism to Experimentalism,” in John Dewey: The Later Works, 1925–1953, ed. Jo Ann Boydston, vol. 5 (Carbondale: Southern Illinois University Press, 1984), 194.

62 Rosser, Christian, “Examining Frank Goodnow's Hegelian Heritage: A Contribution to Understanding Progressive Administrative Theory,” Administration & Society 45, no. 9 (2012): 1064–94Google Scholar.

63 Stever, James A., “Mary Parker Follett and the Quest for Pragmatic Administration,” Administration & Society 18, no. 2 (1986): 159–77CrossRefGoogle Scholar.

64 Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1921), 2.

65 Woodrow Wilson, The State: Elements of Historical and Practical Politics, rev. ed. (Boston: Heath, 1901), 633.

66 John Dewey and James H. Tufts, Ethics (New York: Henry Holt, 1908), 438. Dewey and Tufts cite Hegel's Philosophy of Right as a source for part 3 of the book, “The World of Action.” I refer to Dewey as the author here because, as the preface states (vi), he was the principal author of the particular sections of the book in which administration, and political institutions more broadly, are discussed.

67 Dewey and Tufts, Ethics, 439.

68 While I emphasize the continuities between this set of progressive thinkers, an important difference is worth noting: Dewey and Follett tended to treat individual freedom and democratic governance as fully compatible ideals, whereas Wilson and Goodnow saw individual rights and democracy as distinct and potentially conflicting constitutional norms. In the conclusion, I argue that individual rights should be seen as a preconditions for democratic governance, which therefore delimit governmental power in extreme cases.

69 Frank J. Goodnow, The Principles of the Administrative Law of the United States (New York: Putnam, 1905), 371.

70 Frank Goodnow, Social Reform and the Constitution (New York: Macmillan, 1911), 230.

71 Ibid., 231.

72 Wilson, Woodrow, “The Study of Administration,” Political Science Quarterly 2, no. 2 (1887): 200–201 CrossRefGoogle Scholar.

73 Lorenz von Stein, Die Verwaltungslehre, Zweiter Theil: Die Lehre von Innern Verwaltung (Stuttgart: J. G. Cotta'schen, 1866), 10 (my translation). See also Sager and Rosser, “Weber, Wilson, and Hegel,” 1141n10.

74 Wilson, “The Study of Administration,” 217. Because Wilson's article was occasioned in part by contemporaneous merit-based civil-service reform, I interpret him to refer to the election only of legislators and the president, rather than administrators themselves.

75 Wilson, The State, 576, 735.

76 Dewey and Tufts, Ethics, 451. Though “civil society” may have carried a broader meaning in early nineteenth-century America—connoting religious organizations and other forms of private order outside the state—Dewey uses the term in more or less the same sense as Hegel, to refer to the institutions of the market and various forms of civic associations that grow from it (ibid., 451–555).

77 Ibid., 451.

78 Ibid., 473.

79 John Dewey, The Public and Its Problems (Athens: Ohio University Press, 2006), 67.

80 Ibid., 109.

81 Ibid., 206.

82 Ibid., 208.

83 Mary Parker Follett, Creative Experience (New York: Longmans, Green, 1924), 212–13.

84 Dewey, Individualism Old and New (Amherst, NY: Prometheus Books, 1999 [1930]), 8–9.

85 Mary Parker Follett, The New State: Group Organization the Solution of Popular Government (New York: Longmans, Green, 1918), 19.

86 Stears, Progressives, Pluralists, and the Problems of the State, 156–66.

87 Follett, The New State, 306.

88 Ibid., 308.

89 See generally Mancur Olson Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (New York: Schocken Books, 1971).

90 The Papers of Woodrow Wilson, ed. Arthur S. Link, vol. 7 (Princeton: Princetion University Press, 1969), 128–29.

91 Ibid., 121.

92 Frank J. Goodnow, Politics and Administration: A Study in Government (New York: Macmillan, 1900), 24.

93 Ibid., 17.

94 Ibid., 38.

95 As Goodnow stated elsewhere, “There has been a continuous attempt on the part of the people to control the discretion of administration in the exercise of the sovereign powers of the state. This attempt has resulted in a formation of a new body of law which determines and delimits administrative action and discretion; and this body of law is made as a general thing by the legislature, the representative of the people and the supposed protector of individual rights. The administration is thus brought within the law, but it does not lose its position as the representative of the sovereign power” (Frank Goodnow, Comparative Administrative Law, vol. 1 [New York: Putnam's Sons, 1986], 11).

96 Goodnow, Politics and Administration, 82; M. J. C. Vile, Constitutionalism and the Separation of Powers, 308.

97 Wilson, Constitutional Government in the United States, 68.

98 Jeffrey K. Tulis, The Rhetorical Presidency (Princeton: Princeton University Press, 1987), 125.

99 Wilson, Constitutional Government in the United States, 68.

100 Ibid., 76.

101 See, e.g., Sidney M. Milkis, The President and the Parties: The Transformation of the American Party System since the New Deal (New York: Oxford University Press, 1993), 21–51.

102 See Bruce Ackerman, We the People, vol. 1, Foundations (Cambridge, MA: Harvard University Press, 1991), 105–30.

103 Roosevelt's Commonwealth Club address was influenced by Dewey's Individualism, Old and New. See Milkis, The President and the Parties, 39, and Eden, Robert, “The Origins of the Regime of Pragmatic Liberalism,” Studies in American Political Development 7 (1993): 74–150 CrossRefGoogle Scholar. Charles Edward Merriam, who served on Roosevelt's Committee on Administrative Management as well as the National Resources Committee, cited Mary Parker Follett's pluralist theory of administration in his scholarship. See, e.g., Charles Edward Merriam, Public and Private Government (New Haven: Yale University Press, 1944), 46. He also argued that Hegel's philosophy had contributed to the development of activist theories of the democratic state: “the development of the doctrine of democracy was aided on the ideological side by concurrent theories that were not primarily concerned with democracy, but that when brought together contributed to the strengthening of the mass position. Among these were the philosophies of Hegel, who lifted the state out of artificiality by declaring it to be the highest form of human association” (Charles Edward Merriam, The New Democracy and the New Despotism [New York: McGraw Hill, 1939], 54).

104 Goldberg v. Kelly, 397 U.S. 254 (1970); Mathews v. Eldridge, 424 U.S. 319 (1976).

105 Pub. L. 79–404, 60 Stat. 237 (1946) (codified at 5 U.S.C. §§554–557 [2014]).

106 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971); Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 497 U.S. 837 (1984); 5 U.S.C. §706(a) (2014).

107 5 U.S.C. §553 (2014).

108 Golden, Marissa Martino, “Interest Groups in the Rulemaking Process: Who Participates? Whose Voices Get Heard?,” Journal of Public Administration Research and Theory 8 (1998): 245–70CrossRefGoogle Scholar.

109 See Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca: Cornell University Press, 1985); and Eric Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (Oxford: Oxford University Press, 2011).

110 Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. Jacob E. Cooke (Middletown, CT: Wesleyan University Press, 1961), Nos. 48, 51, 78.

111 Federalist, Nos. 1, 12, 15, 22, 27, 30, 33, 70, 71, 72. See also Max Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (Oxford: Oxford University Press, 2008); and John A. Rohr, To Run a Constitution: The Legitimacy of the Administrative State (Lawrence: University Press of Kansas, 1986), 14–53.

112 Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (New Haven: Yale University Press, 2012), 29–78.

113 Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001).

114 See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), 73–179.

115 See, e.g., John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999), 52–53.

116 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).

117 Nonet, Philippe, “The Legitimation of Purposive Decisions,” California Law Review 68, no. 2 (1980): 274CrossRefGoogle Scholar.