What is the principal aim of Hegel’s philosophy of right? It is, in my view, to set out the true concept of freedom. Hegel was long accused of being a supporter of the Prussian Restoration, but, like Kant and Fichte before him, he is above all a philosopher of freedom.
I. The arbitrary will
In his Elements of the Philosophy of Right (1820) Hegel maintains that ‘the commonest idea we have of freedom is that of arbitrariness [Willkür]’ (PR: §15 Remark).Footnote 1 The arbitrary will, we are told, encompasses three different moments. The first is the ‘absolute possibility of abstracting from every determination in which I find myself’ (PR: §5 Remark). This capacity for abstraction rests on the ‘pure reflection of the I into itself’ or the ‘pure thinking of oneself’ (PR: §5). As creatures of nature we are determined in manifold ways by natural drives. In understanding myself to be a pure indeterminate I, however, I am conscious that my identity is not bound to these drives and that I can always separate myself from them.
Second, the arbitrary will includes the capacity not just to distance oneself from one’s natural drives but also to return to them and to identify oneself positively with one or other of them. In this case the I is no longer passively determined by the drive concerned, but it lets itself be determined by it.
Third, in giving itself a determinate character in this way, the arbitrary will retains the capacity to separate itself from the drive once again and to let itself be determined by a different drive. The I thus remains ‘indifferent’ to the drive with which it has provisionally identified itself. It considers that drive to be ‘a mere possibility by which it is not restricted but in which it finds itself merely because it posits itself in it’ (PR: §7).
Understood in this way, the freedom of the arbitrary will consists in the capacity to choose in an unconstrained manner between one’s drives (and their objects), while always keeping further options open. Hegel does not deny at all that we enjoy this freedom. He believes, however, that it is inherently contradictory.
The freedom of the arbitrary will consists in determining oneself and not simply being determined by one’s given nature. In order not to be determined by nature, the I abstracts itself from its natural drives and thinks of itself as purely indeterminate. This I, however, also gives itself a determinate character, so that it is free not just in a negative, but also in a positive way. Yet since it is indeterminate in itself, it turns back to its natural drives to find the determinacy it seeks. That is to say, the indeterminate I freely lets itself be determined by its given nature. In so doing, however, the I, in its unrestricted freedom, makes itself dependent on that given nature; but this dependence is at odds with the self-determination that it claims for itself.
How then is this contradiction to be avoided? This is possible, Hegel claims, only when the content affirmed by the free will is no longer simply given to it, and this happens when the free will has itself and its own freedom as its content and object. In this case, the indeterminate I lets itself be determined not by something else—by a drive that we are simply found to have—but by itself. The choosing will imagines that it is a truly self-determining will. Unfortunately, it can only choose from among the drives and objects that are available to it, and these are initially determined by nature, not by the will itself.Footnote 2 The will casts off this moment of dependence, however, when it takes as its content and object its very own freedom. In this way, it achieves unambiguous self-determination, because it lets itself be determined solely by itself and its freedom. ‘The absolute determination, or if one prefers, the absolute drive, of the free spirit’ is thus, in Hegel’s view, ‘to make its freedom into its object’ (PR: §27). We do not yet know what this will mean; we know, however, that the truly free will must take this form, for only in this way can it avoid the contradiction in arbitrary freedom.
II. Right as such
When freedom is understood as the object of the will in the strongest sense—that is, as an ‘immediate actuality’ (PR: §27), rather than something merely imaginary—it is understood as right. For Hegel, therefore, the essence of right is freedom; indeed, right is simply ‘the existence [Dasein] of the free will’ (PR: §29). The free will as such is something subjective. When this will is regarded as its own object, however, as something that exists for the will itself, it gives itself the form of right. Right is thus nothing but freedom, understood as an object, an actuality, for the will.
It should be emphasized that the free will must have its freedom as its content and object, if it is to free itself from dependence on what is given and relate only to itself. The will has no choice in the matter: if it wants to be truly free, it must make itself the object of its own willing. Right is thus freedom, understood not only as something actual and objective, but also as that which the will must will and affirm, if it is to be truly free. This moment of necessity belongs essentially to the concept of right. A right does not have the compelling force of a natural event or law; nonetheless, it demands recognition from the will. It confronts the will, therefore, with normative, not natural necessity. In the Philosophy of Right Hegel points to this necessity in the concept of right by maintaining that ‘right is something utterly sacred’ (PR: §30). In the lectures of 1821/22 the moment of necessity is made more explicit: ‘People say that the will is free, because it can choose. Rational freedom, the will in and for itself, does not choose, but also has necessity. […] Right is necessary [Das Recht ist notwendig]’ (Hegel Reference Hegel2005: 50, 56).
The modality of freedom in the usual sense is that of being able, of possibility: I am free, insofar as I can … but do not have to … . To avoid the contradiction in this conception of freedom, however, the will must have itself and its own freedom as its object. This ‘must’ is immanent in the free will: the truly free will is necessarily ‘the free will which wills the free will’ (PR: §27). Freedom understood as that which the will must affirm and respect is called ‘right’. The truly free will must, therefore, will and affirm right. One can always violate right, because the abstract freedom of choice is not a fiction. Yet the concept of right itself demands that right be respected. Not to see this is not to understand what the word ‘right’ means. It is to lack the proper concept of right and of true freedom.
The notion of right is, of course, not unknown to ordinary consciousness. Yet right is often understood as merely a ‘limitation of my freedom or arbitrary will’ (PR: §29 Remark). According to Hegel, by contrast, true freedom does not consist merely in arbitrariness that is then limited by right, but in the free willing of right itself, a willing that freely submits itself to its own immanent necessity.
III. Abstract right
Hegel endeavours, when he discusses a specific topic, to set aside unjustified presuppositions. In his view, this means that, to begin with, he may take up nothing but the bare matter itself in its simple immediacy. The truly free will in its immediacy relates immediately to itself in two ways.
On the one hand, it is conscious of being a finite subject with various determinate drives: ‘the inherently individual will of a subject’ (PR: §34). On the other hand, it is conscious of its freedom as an indeterminate, abstract I (PR: §35 Remark). Furthermore, it conceives of its freedom as right and so understands itself to be a person. A person, for Hegel, is a thus self-conscious individual, who understands his freedom to lie not just in the ability to choose, but in the capacity for right (Rechtsfähigkeit) (PR: §36).
Personality as such is indeterminate in itself, since I know myself to be a person only insofar as I understand myself to be a pure, universal I. My personality—that is, my freedom, my right—is thus not bound to any specific drives or external objects. Like the arbitrary will, therefore, the person still enjoys the abstract freedom to choose this or that—the freedom that consists in being able to …, in unconstrained possibility. Yet the freedom of the person is not reducible to that of the arbitrary will.
The arbitrary will identifies its freedom completely with the ability to choose. The person retains this freedom, but also knows that this ability to choose is a right that must be respected. The modality underlying the freedom of the person is thus not mere possibility, but the necessity of possibility. The person can appropriate whatever he likes (as long as the limits set by the rights of others are respected). Yet he knows not only that he enjoys this freedom as a matter of fact, but also that he has the right to appropriate things (or not), as he sees fit. As a person, therefore, my freedom consists in the rightful possibility of choosing as I please—a possibility that must be respected by all. Consequently, the right of the person takes the form, for himself and for others, of an inviolable ‘permission or warrant’ (Erlaubnis oder Befugnis) (PR: §38) to appropriate things that are not already owned by someone else.
In the sphere of abstract right, for Hegel, arbitrary freedom is thus not just limited but also secured by right. The consciousness of right necessarily coexists, therefore, with the freedom of the arbitrary will. This means, as we have just seen, that persons have the right to appropriate things as they please, as long as they are not the property of another. Yet it also means that their very willing and maintaining of right is itself exposed to the contingency of the arbitrary will. A person is conscious that his or her freedom must be respected. But what guarantees that this freedom will be respected in fact? Nothing other than another person’s arbitrary will. The necessity and actuality of right are thus dependent on the contingency of arbitrariness. The fact that in a contract two persons come together to exchange property rightfully does not alter the situation: rightful property simply becomes dependent on two contingent wills, rather than one (PR: §81). Due to this moment of contingency, therefore, there is always the danger that persons will choose not to respect the rights they know they must respect, if such respect conflicts with their arbitrary will. This is the danger of wrong (Unrecht).
In merely abstract right, therefore, right is not yet present in its fully realized form. Right is freedom, understood as something actual and necessary; in abstract right, however, contingency undermines the necessity belonging to right, because the respect that is owed to the right of persons depends upon the arbitrary wills of those persons. Abstract right must be respected; yet it can happen that such right is not respected, and this possibility is logically necessary. Abstract right thus lacks true necessity, the necessity that holds sway in spite of contingency. In this sense, right is not yet fully realized in the sphere of abstract right.
IV. Morality
The person sees his freedom embodied in the external thing that he appropriates and owns. By contrast, in what Hegel calls the sphere of ‘morality’ (Moralität) freedom is actualized and acquires ‘existence’ in and through the free will itself, that is, in subjectivity (PR: §§106–7). The moral will does not just appropriate external things, therefore, but externalizes itself and its freedom in its own action (PR: §113). This will gives itself a particular, subjective content—an aim or purpose—and then carries it out through action in the external world (PR: §§109–10).
As we have seen, both the choosing will and the rights-bearing will are dependent in their freedom on what is given to them (their natural drives and the things around them). The purposes and intentions of the acting will are also determined in part by naturally given drives; yet they are not merely found, but are formulated by the acting will itself. To this extent this acting, moral will demonstrates a more developed form of self-determination than the two wills that precede it.
Yet the moral will not only actualizes freedom and right in its action. Insofar as it is a subjective, individual will, it also differs from and stands in relation to right, which is something objective and universal (PR: §108). In the sphere of morality, such right unites the abstract right of the person to property and personal security with the right of the moral subject to achieve satisfaction and well-being through its actions. This unity of abstract right and well-being, Hegel tells us, is the good (PR: §129). Insofar as the moral will understands this good as something distinct from itself that nonetheless must be respected, it considers the good to be its duty (Pflicht) (PR: §133). The moral will is thus necessarily subject to duty, because, on the one hand, it knows that it must affirm right in the form of the good, but, on the other hand, it considers the good to be something that stands over against, and binds, the subjective will.
The modality of such moral freedom differs from that of abstract rightful freedom, because moral freedom is subject to a ‘should’ or ‘ought’ (Sollen), rather than a simple ‘must’ (PR: §131). The must contained in abstract right is a normative, not a natural necessity: it does not have the power to force us to do something, but directs itself at our freedom. Specifically, it requires us to obey its command immediately without further reflection; and, as we have seen, the person obeys this command, and respects right, as long as doing so is in agreement with his arbitrary will. The should, by contrast, does not just demand immediate obedience, but directs itself at our subjective, inwardly reflective freedom. When I am conscious that I should do something, that it is my duty, I am conscious, not just of an immediate requirement that must be fulfilled, but of a demand that I have to fulfil through my own subjective freedom. To put it another way, a moral duty is not just something that must be done, but something that I myself am responsible for doing.Footnote 3 Indeed, the moral will considers it to be its right to take upon itself the responsibility for doing what duty commands and upholding right. In this sense, the moral will is characterized by a certain heroism: it always thinks that in the absence of its own activity right would not be actualized.
The moral will also presumes that it can determine by itself the content of the good. As is well known, Hegel believes that the concept of moral duty in itself is empty of content. Whether this is true of Kant’s conception of duty, we shall leave to one side; Hegel shows, however, that duty, as it is conceived by the moral will that has emerged in the course of the Philosophy of Right, must be empty and without content. Since this concept of duty prescribes no specific duties, it falls, in Hegel’s view, to subjective conscience to decide what the duty-bound will should do. Subjective conscience thus becomes the ‘power of judgement which determines solely from within itself what is good’ (PR: §138). Indeed, conscience claims for itself the right to exercise this power of judgement, for it sees itself as a ‘sanctuary [Heiligtum] which it would be sacrilege to violate’ (PR: §137 Remark).
The moral subject who abides by his conscience is convinced that his actions are justified. Conscience, however, is something subjective; the moral subject thus always runs the risk that, even though he is convinced he is doing his duty, he actually gives free rein to his own subjective arbitrariness. In this case, the moral subject does not regress to the standpoint of the person who consciously violates right when it conflicts with his arbitrary will; rather, he becomes an evil will that indulges its own arbitrary inclinations while considering itself to be perfectly good and dutiful.
Hegel does not maintain that evil is unavoidable in human life;Footnote 4 but he argues that the moral will runs the risk of becoming evil by claiming the right to determine purely by itself, through its conscience, what counts as the good. In the sphere of morality, therefore, the actualization of right and the good is made dependent upon the subjectivity of the particular individual. This means that the good lacks true actuality and necessity, because its actualization is exposed to contingency.Footnote 5
V. Ethical life
Let us briefly recapitulate. Arbitrariness is freedom understood as possibility: it consists in being able to choose, as one sees fit. Since the I that enjoys this freedom is utterly indeterminate, it finds determinacy only in what is given to it, namely natural drives and their corresponding objects. The freedom to choose is thus dependent on this given: however unconstrained such freedom may be, we can choose only what is available to us.
To free itself from such dependence, the free will must have itself as its object: it must be the ‘free will which wills the free will’ (PR: §27). Insofar as the free will has its own freedom as its object, it understands that freedom to be something actual and existent, not merely to consist in the possibility of selecting this or that. At the same time, the will understands its freedom to be that which it must will, to be something necessary for the will. When freedom itself is understood as the actual and necessary object of the will, it is conceived as right. The concept of right then determines the further logical development of Hegel’s philosophy of freedom.
First, right is understood as something immediately actual and necessary, something that simply must be respected by the individual will. Understood in this way, however, right remains dependent on the arbitrariness of the individual, who can, if he chooses, violate right. Second, right is understood as something whose actuality and necessity is mediated. It is seen as something that is necessary, but that is actualized only in and through our own inner, subjective freedom. Right is here once again made dependent on subjective arbitrariness, though in this case such arbitrariness is always convinced that it is in conformity with right, duty and the dictates of conscience. In both these cases, therefore, right is present in a form that lacks true actuality and necessity.
In ethical life (Sittlichkeit), however, right is at last something truly actual and necessary, and so is present in its fully developed form. This is because ethical life, as Hegel puts it, is freedom as ‘the living good’, as an ‘existing world’ of objective laws and institutions (PR: §§142, 144). These laws and institutions have ‘a fixed content which is necessary for itself, and whose existence [Bestehen] is exalted above subjective opinions and preferences’ (PR: §144). They thus constitute a ‘circle of necessity’ (PR: §145) that is no longer dependent on subjective arbitrariness, but that precedes and grounds it—a world within which subjective arbitrariness first arises and comes to expression. The concept of ethical life is introduced by Hegel, therefore, not just because it gives content to empty, contentless moral duty, but because ethical life is the true actualization of right. Indeed, ethical life is made necessary by the concept of right itself.
Ethical life has its actuality in the practical action of self-conscious subjects and does not lie, like external nature, outside of subjectivity: the institutions of ethical life are organizations of active human beings. Yet for the ethical individual, who grows up and is educated in these institutions, ‘the ethical substance and its laws and powers […] are [sind], in the supreme sense of self-sufficiency’ (PR: §146). Ethical laws and institutions have the normative authority of right, so the individual knows that he must respect them; but they also constitute an existing actuality, in which the individual can participate, but which ultimately does not depend on his action or will. This point is important: the moral subject always thinks that the good is first realized through his own action. The ethical individual, by contrast, understands the good to be a reality that precedes him—one that he must sustain and can reform through his action, but whose independence he must also acknowledge and allow to hold sway.Footnote 6
In the ethical world around him the individual sees other human beings who actualize right and the good in their actions. In such ethical human beings, acting in accordance with right and the good has become a habit or ‘second nature’ (PR: §151). They do what is good without further ado, without having at the forefront of their minds that it is their responsibility and duty to do so. Or, to put it another way, they actually do what is good, rather than just thinking that they should do so. Yet the ethical individual not only encounters a world of ethical human beings around him; he also actualizes the good in his own habitual action. He knows, therefore, that freedom is a reality both in the world and in his own action.
The ethical individual, for Hegel, is thus a practical subject: ethical life is actualized in the actions of self-conscious individuals (PR: §142). The relation of the ethical individual to the laws and institutions of ethical life cannot, however, be a purely practical one, for the individual relates to a world of freedom, right and reason, whose existence is objective and independent of his own particular action. In Hegel’s view, the appropriate relation for the individual to have to this objective, independent realm of freedom is a cognitive or ‘theoretical’ one, in which the individual recognizes that the world around him is the embodiment of freedom.
According to Hegel’s Encyclopaedia, the truly free will is ‘the unity of theoretical and practical spirit’ (Hegel Reference Hegel2007: 214, §481). Crudely stated, theoretical spirit is the knowing of what is. In the practical sphere, by contrast, something is brought into being by me. The will is obviously practical, insofar it brings about changes in the world through its actions. Yet insofar as the ethical will understands freedom to be something already existent and actual in the world, it is practical spirit that is mediated by a theoretical, cognitive relation to actualized freedom.
Recall that right is freedom, understood not just as possibility, but as something actual and necessary: that which the free will must will. Recall, too, that right must take the form of ethical life, if it is to be freed from dependence on the arbitrary will and to be something truly actual and necessary: the modality of right itself leads it from abstract right, via morality, to ethical life. As we have just seen, the appropriate relation for the individual to have to the actual, existing world of ethical life is a theoretical one: that of cognition. It follows from this that right itself in its fully developed form requires the individual to stand in a theoretical relation to it. The free will is always practical: it chooses, acts and produces. In the ethical sphere, however, such practical activity is subordinated to, and informed by, theoretical cognition of the actuality of freedom and right.
As Hegel makes clear, this cognition takes the form, not just of rational comprehension, but also—and primarily—of trust. In ethical laws and institutions the individual does not see an alien authority, but rather objective structures that guarantee and actualize his own freedom. More precisely, as Hegel puts it, ‘the subject bears spiritual witness to them as to its own essence in which it has its feeling of itself [Selbstgefühl]’ (PR: §147). Such ‘spiritual witness’ is trust (Zutrauen). The properly ethical individual thus trusts the laws and institutions of ethical life; indeed, his relation to them is ‘immediate and closer to identity than even faith or trust’.
For Hegel, trust is ‘the consciousness that my substantial and particular interest is preserved and contained in the interest and end of an other’ (PR: §268). It is the feeling that my well-being and freedom are secured by that other, and that in relating to the other I am in fact relating to myself and my own essence. Such trust can remain naive and immediate, or it can ‘pass over into more or less educated insight’ (PR: §§268, 147 Remark). The main point is that trust, as Hegel conceives it here, is an essentially theoretical relation to ethical life—a knowing of oneself in the other—that underlies the ethical actions of people. Ethical action is action grounded in the consciousness and recognition that right and freedom are indeed actualized in the world. This consciousness principally takes the form of our trust in the institutions of ethical life. Action must, therefore, be rooted in trust, if it is to be truly ethical.Footnote 7
Note that, for Hegel, true trust is not blind, but it is the immediate or educated recognition that right is actualized in the world. It is the understanding, in the form of feeling, that right and the good—which include my right and my well-being—are embodied in the laws and institutions around me. This point is crucial: trust and understanding are not at odds with one another, but true trust is itself a form of felt understanding and insight. Such trust is not merely peripheral to ethical life, for Hegel, but belongs to the very essence of the latter, because it is the appropriate subjective relation to objectively existing right. In the spheres of abstract right and morality there can be no trust that right is actualized, because right has no properly independent existence, but depends utterly for its maintenance on the arbitrary will of the individual or the actions of particular subjects. In ethical life, by contrast, where right is something actual that precedes and grounds my subjective activity, the appropriate relation to right is above all that of felt recognition or trust.
This trust is itself a distinctive form of freedom that can be found only in ethical life (see Neuhouser Reference Neuhouser2000: 105, 111). For both the abstractly rightful person and the moral subject the actualization of right depends on their will and their activity. The ethical individual, however, enjoys the freedom of seeing right already actualized in a world that is, in an important respect, independent of him. The ethical individual can thus, so to speak, relax and does not need constantly to take responsibility for actualising right, because his life is informed by trust in the existing institutions of ethical life. This freedom that consists in trusting the world around us and not always wanting to put the world right through my own efforts is to be found only in ethical life and is unknown to the bearer of abstract rights and the moral subject.
However, if trust is to be the consciousness and recognition that right is actualized in the world, then the laws and institutions to which I relate must, indeed, actualize right: they must actually correspond to the trust I have in them. This means, among other things, that such laws and institutions must protect the abstract right to property and the moral right to freedom of action and particular well-being (PR: §154). As I have stressed, ethical trust is not blind, but the immediate or educated recognition of the actuality of freedom. Trust can be such recognition and insight only if there is a reality there to recognize, that is, only if freedom in all its forms is actualized in the world about us. Those who are afraid of trust and always urge us to be vigilant in face of the state, because they fear that trust will enable corruption among officials to flourish, misunderstand Hegel’s concept of trust. True trust, as the felt awareness that freedom is realized in society, is possible only when freedom is indeed realized in society.
The actuality of freedom and right must, therefore, precede the trust we place in it, and, according to Hegel, the most important objective guarantee of public freedom is the division of powers (provided that this is taken in its true sense as a moment in an organically unified state) (PR: §272 Remark). This not only means that the executive and legislative powers must be distinguished from one another—something that Hegel thinks did not happen in the French Revolution, with devastating consequences.Footnote 8 It also means that local communities and corporations must be accorded legal recognition and rights in order to protect the state and those who are governed by it ‘against the misuse of power on the part of the official bodies and their members’ (PR: §295). The objective actualization of freedom also requires that the deliberations in the Estates’ assemblies be public and that there be ‘freedom of public communication’, including the press (albeit within limits set by right and law) (PR: §319). All of this constitutes the objective condition of public trust. Such trust is, however, itself essential to ethical life and constitutes a distinctive form of freedom: the freedom of being and feeling at home in the world that is denied to the mere rights-bearing person and the merely moral subject.
I come now to my concluding remarks. What I wish to highlight in this essay is the close connection, to which Hegel directs our attention, between right and trust. For Hegel, freedom consists in part in the ability to choose; true freedom, however, consists in the willing and maintaining of right. Right always has priority, in Hegel’s view, over the unconstrained choices exercised by individuals. This right must encompass the rights of the person and of the moral subject, but its true actualization is to be found in the laws and institutions of ethical life together with the people in whom acting in accordance with the demands of right has become habitual or ‘second nature’. If such people are to enjoy the full freedom of ethical life, they must be able to trust that their freedom and rights are secured by the laws and institutions under which and in which they live. They must also enjoy the freedom that lies in this trust itself and the feeling of being at home in the world that it involves. Hegel does not maintain that the citizens of every state in the modern world live in this trust: he is well aware that there are bad states in which such trust is lacking (for example, the French Republic after 1792).Footnote 9 According to Hegel, however, a life without this trust cannot be a truly free life.
On the basis of Hegel’s insight into the close connection between right and trust, we can identify two very clear dangers that people face in the modern world. The first is that our trust might be blind after all and not involve any recognition of what there actually is. In this case, we may well place our trust in institutions that do not merit it. Genuine trust, however, is an essential element of modern freedom, for Hegel. It is important, therefore, that modern states merit such trust: they must protect individual rights, maintain the division of powers, and protect themselves from public corruption by (among other things) publicising proceedings in the assemblies and according appropriate rights to local communities and corporations. It is also important that the press and education system make it possible for citizens to gain a proper understanding of the real political and social situation in which they live. Only under these conditions can the trust that citizens place in their laws and institutions become genuine trust, as Hegel conceives it: namely, the felt recognition that freedom is, indeed, realized in those laws and institutions.
The second danger is that we might refuse ever to place our trust in the institutions of ethical life, even when they do in fact merit it, and instead cultivate an attitude of perpetual vigilance and suspicion. Vigilance is certainly warranted when signs of corruption are evident. Such vigilance and suspicion are, however, not always well grounded and can degenerate into a self-sustaining ‘culture of suspicion’—to use Onora O’Neill’s term—that undermines the possibility of trust (O’Neill Reference O’Neill2002: 57).Footnote 10 In this way, our zealous efforts to be alert and to avoid naivety threaten the very ethical life we claim to be protecting.
A life in which we trust our fellow human beings is not altogether without risk; but a life without genuine trust lacks an essential element of ethical freedom. Some see trust, especially that placed in the laws and institutions of the state, as nothing more than naivety. Hegel’s insight, however, is that a life lived in a trusting relation to laws and institutions, that are themselves free of corruption, is one to which we all have an inalienable right.
