Constitutional Ethical Life

Hegel is acknowledged as an abstruse literator, so that his works therefore need particularly an honest and serious reading. Hegel's philosophy of rechts presents a distinct way to demonstrate the legitimacy of the state, and makes a great intellectual effort to reconstruct the natural law, especially the modern natural right. This dissertation aims to trace and elucidate Hegel's substance and purport of his conception of the state. Basing on an elaborate reading according literally to the texts, the dissertation will unfold how and why Hegel has connected the state and the fundamental structure, i.e. the constitution, with ethical life (Sittlichkeit) and national spirit (Volksgeist), and how he has reconciled the modern freedom of Subject with the university of the state by his comprehension of the recht and freedom.The reading put forward by this dissertation is retrospective, accordingly, as for the choice of texts, not only the Elements of the Philosophy of Right, a systemized mature work covering almost all of the issues on the politics and law, is regarded, which is a lecture outline published for the audience and in which the Objective Spirit is developed fully and the nature of the state is demonstrated completely, but also the two important texts of Hegel's Jena period which are seldom discussed among the academi--The German Constitution and On the Scientific Ways of Treating Natural Law, which were written by Hegel at about 1802, both aiming the same purport but presenting different stresses, the former deriving the necessity of the sovereign state from the status quo and the deficiency of the state and its constitution, especially the impairment incurred by the identity of the constitution with certain contract and private law, the latter critiquing from the perspective of philosophy--especially the philosophy of ethical life--the theory of modern natural right and its dependence on the contractual mode to justify the state and laying a new foundation for the state's legitimacy, are treated deeply and thoroughly for the fist time; besides, in order to comprehend and represent a panorama of Hegel's thinking, the dissertation will retrospect the early manuscripts on religion written during the beginning of Hegel's intellectual life, especially the ones which are titled by "National Religion and Christianity", "Life of Jesus", "The positivity of The Christian Religion" and "The Spirit of Christianity and Its Fate", aiming at searching the early clue for Hegel's thinking about the state.Through perusing the typical texts, the dissertation holds that it was the admiration and craving for the classical world, as well as the worry and refection about the constitutional crisis of German Empire which meant there only remained a semblance of the state without the substance of the state, that encouraged Hegel to critique and revise the theoretical source of the legitimacy of the modern state, and to overturn ultimately the demonstrative mode of justifying the state in terms of contract; that having removed the individualist or atomist starting point of the modern theory of natural right and its notion of social contract, Hegel superseded, or in anther word, reconstructed the natural law by the philosophy of ethical life, i.e. the rechtsphilosophie of freedom, therefore justified the sovereign supremacy and logical priority of the state, and reached to some extent the reconciliation between the classical and the modern notion with respect to natural right; and that by the aid of the reconstructed natural law, i.e. the rechtsphilosophie of freedom, Hegel could appreciate the modern freedom of subject on one hand, and on the other hand revert to the classical understanding of the human nature and the city. Neither is the sate a fiction of private law, nor an instrument whose end is simply to protect private interests; on the contrary, the state is the end itself, and the state constitutes the essence of the individual.This dissertation consists of five parts: three chapters, introduction and conclusion.The introduction involves three points. Firstly, the distinct difficulty of Hegel's system is shown in order that the primary purpose and the main content of this dissertation can be introduced, and incidentally, the major trends in Hegelian scholarship are outlined. Due to the particular terms in Hegel's texts and dialectical nature of his system, Hegel is found to be characterized by "anti-being-translated" for study and reading. Hegel's apparent peculiarity of "anti-being-translated" leads to such a situation that opposite interpretations always contradict each other, and misreadings and conflicts often result from disregard of the original texts. Thus, it is needed to return to the Hegel's texts, and to understand Hegel as close as possible exactly as Hegel expressed himself. This dissertation is an attempt to challenge Hegel's peculiarity of "anti-being-translated", to clarify the meaning of texts, and to examine his purport hidden in the texts in Chinese. Secondly, the introduction briefs Hegel's time and the theoretical background. Compared with the classical world of Greek cites, modern world has been thrown into a fragmented separation by the modern philosophy, divorcing from the substance, losing the essence and alienating from the whole. The third part of the introduction generalizes the purport of Hegel's system especially by the aid of reading Hegel's first published philosophical essay "The Difference Between Fichte's and Schelling's System of Philosophy", that is to reestablish the totality of human life and resolve the theoretical antithesis between the ancients and the moderns.The first chapter traces Hegel's initial thinking relevant to the issue of state in his early research of religion. There are some elements relating to the state in the character and history of the religion: the freedom of the city which has been the end of the individual life, customs and the way of life which shapes the individual, national spirit embodied in the community, subjective freedom and the positivity of the laws, the subjectivity and the objectivity of the freedom. The folk religion of the ancient Greek reflected the total life of the classical city. It was the unification of the public life and the private life--which contained the unification of the subjective religion and the objective religion, representing the spiritual particularity of a free people--that stimulated Hegel to seek the Germanic spirit of his own nation. The decline of the folk religion or the classical cities resulted in the separation of the individual, the political community and the religious community. During the research of the Jewish-Christian religion, using the practical reason as the weapon for critiquing, Hegel examined why the religion originally pursuing the moral freedom had transformed into an external institution or an oppressive system of laws. This examination focused on the "positivity" which was opposed to the freedom. Once the practical reason's inner demand for pursuing freedom had become positivised, the morality was no longer the affair of the spirit, but reduced to external regulations such as laws, doctrines, rituals, and institutions, and consequently the city divided into the political state and the spiritual state, which meant that citizens separated from the state, the political state was deprived of spirit, and the spiritual state was given no freedom but enslavement of the laws. In addition, Hegel found that the weapon itself for critiquing was also as positive as the object of critique to the extent that the moral laws of the practical reason implied the enslavement imposed on the inclination and desire by the reason. The subjective freedom attained by self-ruling was not the real freedom, and the quasi-positivity of the moral laws inferred necessarily the separation and the opposition between the individual and the external state aggregated by atoms. At the end of period of researching on the religion, Hegel has hoped that the reconciliation between the positivity and the freedom, between the moral subject and the external world, would be realized in the "love" and "fate", which were mysterious more or less, especially in the Jesus' religion of love, however, he was doubtful of this provisional conclusion.Dealing with Hegel's two texts, chapter two elucidates how Hegel derived the necessity of sovereign state from the factual situation of the politics and the constitution at that time, and how he theoretically justified afresh the legitimacy of the state in terms of the philosophy of ethical life. Taking the approach of actual rationalism, that is, to seek the necessity and essence from the present, Hegel pointed out that since the German Constitution had reduced to some private laws, Germany was no longer a state. The Constitution of the Empire identified with private laws and contracts was so divorced from the totality of the national ethical life that it became actually a disintegrating power. Furthermore, Hegel retrospected the free disposition of the ancient German from which originated the "legal anarchy" of the Empire or the present privatized Constitution. This subjective and capricious freedom had promoted the rising of the European feudalism, and hence the representation, but Germany refused to develop a unifying political power from the principle of the feudalism-representation as the other nations of the Europe, e.g. the French people, had done. As he revealed that wars had exposed the consequence brought by fastening on the subjective freedom or private rights, Hegel intended to illuminate that private laws must be supported by a higher end and essence, so that the subject freedom and private rights could be assured to realize. It was the examination of the German Constitution and the political existence, or in other words, his insight of the German fate, that compelled Hegel to review the foundation of the modern state and its theoretical sources, and farther to demonstrate the legitimacy and the supremacy of the state in a new way, because in the last analysis the theoretical approach of social contract based on natural right treated the state as no more than a fiction according to private laws, an approach coincident with the present political situation of the German Empire. On the Scientific Ways of Treating Natural Law as the embryo of Elements of the Philosophy of Right was the primary attempt to construct the philosophy of ethical life. In the first place, Hegel critiqued two modern ways of treating natural law, namely, the empiricist and formalist ways. Hegel took notice of the logical knot in the empiricist way: on one hand, there was a vicious circle to the extent that the natural state and the state of law (des Rechtszustandes) were regarded reciprocally as the premise for one another, and on the other hand, even though the argument on the division of the natural state and the state of law was valid, in the transition of the natural state to the state of law still exited a logical break. While the formalist way overcame the arbitrariness of empiricism in resolving and abstracting, it pushed the abstraction of pure reason to extremes, and ended in the empty moral imperative. Hegel penetrated the logical flaw in the process of practical reason to universalize a maxim of action: on one hand, only through the tautology excluding any content could realize the strict universalizing, and on the other hand, since the most extreme formalizing could not be attained in the practical deeds, the universal legislation of formalism was so doomed to allow ultimately any discretional contents to be accepted as laws that it had to confront the puzzle of moral relativism. Hegel's reconstruction of modern natural law lay in that "absolute ethical life" as the positivity of rational institution dissolved the individualism or the atomism from which all the modern theories of natural law and social contract started, by virtue of which Hegel could indicate the necessity and significance of the state as ethical individuality for the national history as well as human history. Hegel expounded the nationality of ethical life, the relation of the universality of ethical life to the particularity in the economic field (i.e. the system of reality), the relation of ethical life to the subjective morality, and the relation of the philosophy of ethical life to the positive sciences of right (i.e. science of departmental law).The third chapter construes Elements of the Philosophy of Right in order to make the foregoing argument systemized and clarified. To the extent that the universality of ethical life and the principle of subjective freedom are reconciled by mediating each other and coexist in the state comprehended by the rechtsphilosophie, Elements of the Philosophy of Right can be considered as the completion of Plato's Republic. After unfolding Hegel's prudent position of actual rationalism which claims the unification of reason and actuality, this chapter analyses detailedly the meaning of three core term--"freedom", "recht" (right), "ethical life", and views that "right" in its broad sense, "freedom", and "ethical life" can be regarded as terms with equivalent connotation which signify the same thing, that is, the property of the spirit: every stage in the development of the free spirit enjoys its rightness, it can be said, therefore, that every stage has its "right", whereas "ethical life" pertains more to the freedom as the essence of the human world, the political community of man. Thus, the natural law reconstructed by Hegel is the philosophy of ethical life, i.e. philosophy of freedom, or the rechtsphilosophie, which aims at demonstrating the nature of the state. State is the highest shape of ethical life; hence, the right of the state is superior to the abstract right and it absorbs and supports the abstract right, being the basis and essence of the latter. As the separating and different moment of ethical substance, civil society can not supersede the state, which implies that the relation of private law can not invade the constitutional relation of state. Since rational state realizes the unification of the subjective freedom and the objective freedom, correspondingly, individual freedom is realized concretely in the rational state, which means right and duty is a concrete identity in content, no longer an abstract and equivalent identity. It is in accord with the classical meaning of "politeia" that Hegel applies the term "constitution". Considering that Hegel infuses subjective freedom into the universal, and regard the total ethical life as the ground of the organization of the state, he makes the "constitution" he has said--not simply a written constitution~the realization of the reconciliation between the ancient way of life and the modern way of life, that is, in the modern rational state realize completely the classical citizen's political life as well as the modern bourgeois's economic life both of which thereby reach a reconciliation. Following the classical views, Hegel maintains that good constitution is the best school inasmuch constitution coincident with the principle of freedom cultivates good citizens having patriotic feelings and political disposition. But different from the ancients, Hegel believes that the good constitution is the inevitable product of the free spirit in its development.The conclusion displays two points. Firstly, to sum up the whole dissertation and conclude that by resorting to "ethical life" or "the idea of freedom", Hegel demolishes the absoluteness of individual-based natural right in the modern theory of natural law, and takes advantage of his own natural law reconstructed, i.e., the philosophy of ethical life or the rechtsphilosophie of freedom, to justify the logical priority and the supremacy of state, and to manifest that constitution is neither a compilation of private rights nor some contractual fiction, but exactly the embodiment of ethical life. Secondly, to discuss briefly the relation between the nature of the state and world history posited by Hegel, and try to explore Hegel's national complex which may drive him to construct the world history as well as his whole philosophical system. At the end of the dissertation presents a viewpoint which a firm Hegelianist has inferred contrary properly to Hegel's own purport. Accordingly such an open question whether the inevitable consequence of the world history will be the coexistence of sovereign states or the universalization of judicial order can be raised that the significance of Hegel's thought is illuminated further, that is, Hegel may have indeed exhausted the possibility of human beings, for both of the meaning of the past and the direction of the future depend on the present interpretation of Hegel.