E—
The Tentative Presupposition

1—
Hegel V. Liberalism

As a theoretical matter, Hegel's logic should eventually result in the same totalizing whole regardless of where one chooses to start. As a practical matter, however, one has to start somewhere.^[71] For practical reasons, some starting points are more productive than others. Hegel's chosen starting place for the Logic is pure being .^[72] The starting place chosen for The Philosophy of Right is the most abstract concept of selfhood which he calls "absolutely free will" —that which is an end in itself, and is not the means to some other entity's end.^[73] The fact that he logically derives the notions of property and abstract right from the notion of the absolutely free will before he derives the notion of the family does not mean that he thinks ancient human beings actually developed commercial and contractual relationships before they adopted the affective relationships of family.^[74] He is not taking the liberal position that the free individual is prior to society. Indeed, the autonomous individual of liberalism was only recognized relatively late as a historical matter.

It is true that in his analysis as a logical starting place, Hegel did start

with a creature bearing a strong family resemblance to liberalism's abstract individual. This may be, in part, because Hegel needed to address liberalism directly and immediately, as the foremost political philosophy of the time. But Hegel's dialectic is too generous ever to try to prove that his philosophical predecessors were simply wrong. Hegel agreed with Kant that there are reasons to begin one's consideration of a concept with its simplest, most universal, primitive, immediate, and minimal—and therefore least adequate—manifestation. If one wishes to study mankind generally—to make a universal statement as to human nature—there are advantages to abstracting down to the lowest common denominator.^[75] Hegel then builds upward to show how the more adequate, complex, and fully developed concept is already logically inherent in the more primitive.

Consequently, Hegel might be said to have started with liberalism and accepted that it contains a true if inadequate moment. His point was to show that liberalism's theory of the person was only partial. Accordingly, it logically and necessarily already includes its negation which will lead to the development of a more adequate concept of the person. If liberals start, and end, with the abstract, autonomous individual, Hegel starts with the autonomous individual, continues through a more complex notion of the subject, and ends with the rich concept of the individual in a state. As I have said, liberalism assumes that the abstract person is already a subject, whereas Hegel argues that the abstract person cannot yet perform this role. As Alan Brudner writes:

Our account of property law thus takes as its starting-point personality, conceived initially in the quite insular, decontextualized, and disembodied manner just described. It begins with this abstract self not because it aligns itself with a particular ideology for which this self is an unexamined prejudice, but because any quest for an unconditioned end as the foundation of right must begin with the abstraction from everything given or conditioned and hence with the most vacuous of concepts. Any richer or more affirmative conception of the self must prove itself worthy of rights from this starting-point, that is, through the immanent negation of abstract personality

as the sole unconditioned reality. So, while our account of property law begins with decontextualized personality, it does not remain there.^[76]

Or, to put it another way, liberal theory's presupposition that the individual is prior to society gives individuality preeminent, exclusive normative import. The normative import in Hegelian philosophy is different. Since the autonomous individual is a true moment of personhood, the state must always preserve and respect individualistic abstract rights. However, insofar as there are also other true moments of personhood, the state can and must take other values into account as well.

2—
The Abstract Person and the Kantian Construct

As a nineteenth-century German, Hegel could not have done otherwise than to start his political analysis from the version of liberalism developed by Immanuel Kant,^[77] rather than those more familiar to American lawyers developed by John Locke, Thomas Hobbes, Jean-Jacques Rousseau, and Jeremy Bentham. Nevertheless, Hegel is relevant to American jurisprudence in that all of these theories share the notion of authentic human nature as containing elements of autonomy, self-standing individualism, and a natural right to negative liberty. Kant is an excellent starting point for the critique of liberalism precisely because he takes this shared notion of the autonomous individual in the state of nature to its logical extreme.

To oversimplify, Hegel agreed with Kant that the most basic, simple, and abstract (and, of course, least adequate) notion of what it could be to be a person is the notion of self-consciousness as free will.^[78] The bare minimum essence of personality which distinguishes someone from something is "consciousness of oneself as simple, contentless self-relatedness that is undetermined by inclination and unrestricted by anything given."^[79]

Hegel explained the minimal concept of the abstract person as follows:

The universality of this will which is free for itself is formal universality, i.e . the will's self-conscious (but otherwise contentless) and simple

reference to itself in its individuality. . . . [T]o this extent the subject is a person .

. . . .

Personality contains in general the capacity for right and constitutes the concept and the (itself abstract) bases of abstract hence formal right. The commandment of right is therefore: be a person and respect others as persons .^[80]

So, even though Hegel starts with free will, he is not presuming that free will is a necessary aspect of human nature. That can only be demonstrated retroactively through the internal logic and consistency of the entire totalizing philosophy. That is, the primitive concept of the abstract person is abstracted from the more developed concept of the individual living in the state.

To be free is to be the means to one's own ends, rather than the means to the ends of another.^[81] The Kantian construct is a totally negative notion of personhood. To be free means not to act under compulsion. In order truly to have free will, the person can have no needs, desires, relations, or other pathological characteristics.^[82] As a consequence, pure freedom is totally arbitrary—if the person acted for a reason, it would be bound by that reason, and not be free.^[83] The person at the start is, therefore, a pure negativity. The free person can only be defined in terms of what it is not. "For the same reason [Grund ] of its abstractness, the necessity of this right is limited to the negative—not to violate personality and what ensues from personality."^[84]

To say that essence of personality is pure negativity may initially seem depressing because in this society we tend to identify the negative as the opposite of the affirmative and, therefore, as that which is bad. But, as I shall emphasize throughout this book, the Hegelian concept of negativity can be seen as not just hopeful but as the very basis of human freedom. The negative and the affirmative require each other. Pure negativity is not nothing, but pure potentiality. It is the very possibility, and therefore ability, to grow, create, and love. And so, as we shall explore in the next section, the abstract negative person as free will contains an internal contradiction which sets the engine of the dialectic in motion.