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

by Georg Wilhelm Friedrich Hegel, T.M. Knox (Translator), H.B. Acton (Introduction)

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.

Genres: Philosophy

137 pages, Paperback

First published January 1, 1975

About the author

Georg Wilhelm Friedrich Hegel (1770-1831) was a German philosopher and one of the founding figures of German Idealism. Influenced by Kant's transcendental idealism and Rousseau's politics, Hegel formulated an elaborate system of historical development of ethics, government, and religion through the dialectical unfolding of the Absolute. Hegel was one of the most well-known historicist philosopher, and his thought presaged continental philosophy, including postmodernism. His system was inverted into a materialist ideology by Karl Marx, originally a member of the Young Hegelian faction.

Reviews

[Zachary · Rating 4 out of 5]

In this essay from Hegel’s early career, Hegel articulates a conception of natural law that little resembles the notion as it is traditionally conceived. In fact, in his introduction to this University of Pennsylvania edition, H. B. Acton writes that “Hegel’s use of [natural law] in the title of this essay is somewhat paradoxical, since he rejects the whole idea that society is deliberately formed by the association of pre-existing individuals. Indeed, he goes further than this and in effect holds that the positive law of each state is more rational and fundamental than any supposed law of nature held to be valid always and everywhere” (16). It is true that in the first two-thirds of “The Scientific Ways of Treating Natural Law, Its Place in Moral Philosophy, and Its Relation to the Positive Sciences of Law,” the essay’s full, official title, Hegel critiques and rejects what he terms “empirical natural law” and “formal natural law,” each of which resembles more familiar natural law accounts. Yet however idiosyncratic and unprecedented Hegel’s conception of natural law is, he does explicitly seek to reconcile nature with law so as to rehabilitate the concept in a manner that both transcends the implicit conflict between the two and sublates deficient empirical and formal natural law accounts.

First, Hegel critiques empirical natural law, by which he means to refer to attempts to locate an absolute standard derived from observations of the world around us—what Hegel refers to as “inorganic nature.” Based on this empirical observation, the empirical philosopher can discern fundamental principles from which he can deduce an entire system of law and morals, justified with respect to the first, self-evident principle. Hobbes’s principle of self-preservation, which justifies the social contract that produces the Leviathan, offers one salient example of empirical natural law theory at work. Hegel, however, insists that because “this empirical science finds itself surrounded by a multiplicity of such principles, laws, ends, duties, and rights, none of which is absolute,” it “is bound also to conceive the picture of, and need for, the absolute unity of all these disconnected characteristics, and of an original and simple necessity” (61). In the end, Hegel claims, “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” (60). This effort manifestly simplifies the full complexity of human political and ethical life and reduces it to a principle that, in view of such complexity, seems arbitrary. There is no clear reason or set of reasons to select one self-evident principle over another. When one does make such a choice, “one facet [of human sociality or existence] (expressed as end, destiny, or statute) must be given primacy over other facets of the multiplicity, and these must be posited as unreal and null by comparison with it” (67). In this way, empiricism utterly fails to capture ethical life in its fullness and complexity. The system which the empiricist thus deduces as a result of this reduction and simplification, then, must be deficient.

Hegel terms the above iteration of empirical natural law “scientific empiricism.” Yet he also takes aim at another empirical approach, termed “pure empiricism.” Per this approach, while “everything has equal rights with everything else” and “one characteristic is as real as another, and none has precedence,” particularities in human life are set aside to make salient humanity’s pre-political existence in the so-called state of nature. “If we think away everything that someone’s obscure inkling may reckon amongst the particular and the transitory as belonging to particular manners, to history, to civilization, and even to the state,” Hegel writes, “then what remains is man in the image of the bare state of nature, or the abstraction of man with his essential potentialities” (63). From here—i.e., the perspective of the state of nature—pure empiricism can discern the natural law more clearly. Hegel finds pure empiricism just as, if not more deficient than scientific empiricism. He observes that empiricism of this sort “lacks in the first place all criteria for drawing the boundary between the accidental and the necessary; i.e., for determining what in the chaos of the state of nature or in the abstraction of man must remain and what must be discarded” (64). He also notes that “if something in the idea of the state of law is to be justified, all that is required, for the purpose of demonstrating its own necessity and its connection with what is original and necessary, is to transfer into the chaos [of the state of nature] an appropriate quality or capacity” (ibid.). That is, in order to justify some element of positive law with respect to its basis in natural law, the empirical philosopher must simply find a way to identify in the pre-political state of nature whatever ethical or political content would be necessary to warrant the natural law basis for the positive law in question. Pure empiricism, then, fails in addition to scientific empiricism. Whereas the latter cannot account for the full complexity of human social and ethical life, the former preserves multiplicity only insofar as it posits a fictional state of nature utterly detached from real social and political experience, or else molds that fictional state of nature to justify the status quo. Both, because they assume that prescriptive standards for human life simply exist as tethered to static and essential features of human nature, overlook the myriad ways in which humans actively shape the ethical milieu of their political communities.

In the second part of the essay, Hegel turns to what he calls formal natural law. Here, the foremost objects of his criticisms are the philosophies of Kant and Fichte. While commentators have often noted that Hegel’s critique of Kant’s moral philosophy is rather superficial and all too brief, the main thrust of Hegel’s objection stems from what he perceives to be transcendental idealism’s failure to overcome the tension between the real and ideal with respect to Kant’s universalizable maxims. That is, Hegel claims that when rendered applicable to actual moral life (the real, nature), the absolute standard of the moral law (the ideal, law) becomes incoherent, or even immoral. Thus he claims that “the maxim, ‘Help the poor,’ tested by being elevated into a principle of universal legislation, will prove false because it annihilates itself,” since “if the thought is that the poor generally should be helped, then either there are no poor left or there are nothing but poor; in the latter event no one is there to help them.” Alternatively, “if poverty is to remain in order that the duty of helping the poor can be fulfilled, this maintenance of poverty forthwith means that the duty is not fulfilled” (80). The central problem with Kant’s formalism, Hegel insists, is that the unconditioned rationality of the moral law does not come from beyond or above conditioned nature to shape and mold it toward its proper end, but manifests in nature as the ethos of conditioned, historical political communities. Acton summarizes Hegel’s critique of Kant on similar lines: “Hegel believed . . . that form and matter, reason and sensibility, the one and the many are much more closely connected than [Kant claimed] in the human sphere. . . . Rationality, according to Hegel, is more than logical consistency, and is exhibited by each individual through the unity of his life rather than by the mere logical consistency of the maxims he adopts. Reason shows itself in society through ‘the spirit’ of its laws and policies rather than in any single aim pursued by all its members” (25-26).

Empiricism and formalism therefore both fail to overcome the tension between nature and law, the real and the ideal. Still, both attest to some truth about the natural law which Hegel seeks to incorporate into his new conceptualization. Just as empiricism is correct to look to the laws, customs, and behaviors of empirical human communities in its effort to identify fundamental principles (more so true of scientific than pure empiricism), formalism is correct to insist that reason determines the content of natural law, albeit as embedded within “inorganic” or natural communities. For Hegel, reason (or spirit) acts on and in real human communities to help determine the dominant mores of its ethical life. This historically conditioned, community-oriented ethical content thus provides the normative standard for the community’s positive law, which, therefore, cannot exist apart from the common good of individuals in that community, but must seek to capture in law this ethical content. Law, then, is ordered toward the common good in much the same way Aristotle or Thomas Aquinas would have it. Hegelian scholar David Henreckson explains that “the character of specific political communities, revealed in moments of historical consciousness, ought to be recognized as the manifestation of the divine spirit.” Hegel thus ascribes “normative value to the positive characteristics of communities, recognizing that their norms of life-sharing provide the means to organize political regimes.” Importantly, this means that individual members of a community are not merely passive observers to the ways in which reason or spirit shapes and molds their community’s ethos. Rather, community members must take responsibility for the social norms and practices they receive from the communal ethos and actively choose to either sustain those that accurately reflect their community’s character or modify those which did once reflect that character in the past, but now do not. Henreckson writes that “all this represents something of a reditus to an earlier form of natural law, conceived in terms of common participation in ‘divine life’ rather than as a set of indifferent, prescriptive ethical principles. At the same time, Hegel’s Natural Law essay also narrates an exitus, a procession out of, the earlier tradition. What appears new—and modern—is the emerging self-consciousness that relational complexes (which were formerly viewed as relatively static natural or providential orders) rely on the recognition and participation of rational human agents.”

Hegelian natural law therefore most closely resembles Thomistic natural law, but with a modern twist that stresses conditioned historicity (and therefore mutability) and the active role humans play in the political life of their communities. For Hegel, the natural law is determined neither by empirical realities reduced to a fundamental moral principle (or bracketed to discern some essential state of nature) nor by disembodied, immaterial reason cut off from positive law or the lives of individuals in real human communities. In his own conception of natural law, these two ostensibly dichotomous accounts are reconciled so as to achieve the true unity of law and nature, the real and ideal. This unity should appeal to those attuned to the myriad differences between different sociopolitical communities and cultures around the world, yet who nevertheless wish to retain the possibility for radical social critique indexed to a community’s shared sense of an absolute Good. At the same time, one wonders whether a deeply pluralist community, like the United States, possesses an ethos sufficiently robust to transcend whatever differences exist in such a community due to its radical diversity. In an era of severe and unprecedented political and cultural polarization, one wonders whether the United States retains the sort of absolute ethical life Hegel envisions, one which demands citizens’ loyalty and self-sacrifice in order to sustain itself. Does pluralism threaten the reconciliation between law and nature that Hegel achieves in this essay? Or could pluralism itself somehow come to define the ethical character of a community, such that pluralism and its attendant virtues (like tolerance, acceptance, respect for the other, etc.) are intimately bound up with the ethos of a diverse political community like the United States? These are important questions that Hegel’s essay raises and that those of us persuaded by Hegel’s novel, yet radical vision for political and moral life must seek to answer at this tenuous and deeply uncertain moment in American politics.

[Ethan]

Very illuminating for what would be much of Hegel’s later work, particularly his ethics and conception of freedom.

his critique of Kant’s formalism is very clear and incisive, and his critique of empiricism and the State of Nature which it concludes is also pretty good.

Will need to re-read as Hegel loses me on occasion with his talk of Unity, etc as well as needing to read background on Fichte.