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Hegel on Legal and Moral Responsibility

2008; Taylor & Francis; Volume: 51; Issue: 4 Linguagem: Inglês

10.1080/00201740802166676

1502-3923

Mark Alznauer,

Philosophical Ethics and Theory

Abstract When Hegel first addresses moral responsibility in the Philosophy of Right, he presupposes that agents are only responsible for what they intended to do, but appears to offer little, if any, justification for this assumption. In this essay, I claim that the first part of the Philosophy of Right, "Abstract Right", contains an implicit argument that legal or external responsibility (blame for what we have done) is conceptually dependent on moral responsibility proper (blame for what we have intended). This overlooked argument satisfies the first half of a thesis Hegel applies to action in the Encyclopaedia Logic, namely, that the outer must be inner, and thus provides a necessary complement for his more explicit treatment of the second half of that thesis, that the inner must be outer. The claim that agents are only responsible for what they intended to do might appear, at first, to risk conflating legal and moral responsibility and to lack the necessary means to deal with the phenomenon of moral luck, but I argue that if it is properly situated within the whole of Hegel's philosophy of action it can be saved from both of these consequences and so take its place as an essential component of Hegel's full theory of moral responsibility. Notes 1. VPG pp. 50–51 (my translation). Compare LPR, p. 214. 2. As we will soon see, what I am calling moral responsibility, following contemporary usage, is broader than the kind of responsibility Hegel would specifically categorize as moral, since it includes both external responsibility and internal responsibility, whereas Hegel restricts the adjective moral to the sphere of internal volition (PM §503). 3. For a full account of Hegel's understanding of legal responsibility, which is a complicated issue in its own right, see Böning (Citation1978) and Tunick (Citation1992). In the rest of this paper, when I speak of legal responsibility it will only be in the narrower sense in which it is roughly equivalent to external responsibility. This is legal responsibility as it manifests itself in "Abstract Right". (Hegel himself makes such a distinction in PR §113 R). 4. Legal and moral theorists have tended to approach the relationship between external responsibility and internal responsibility in different ways. The former have usually been concerned with whether the legal practice of holding individuals liable for unforeseen consequences of their actions is morally justifiable or not (see, for example, H. L. A. Hart's influential account in Punishment and Responsibility (Hart, 1964), and the debate that followed). Moral theorists, on the other hand, have typically focused on the more general issue whether it is ever correct to hold someone morally responsible for things that were not in their control or that they did not do knowingly (e.g., Zimmerman, Citation1986), an issue which has been particularly prominent in discussions of moral luck (Williams, 1976; Nagel, Citation1979). 5. The strangeness of this claim has led to significant amount of disagreement among commentators as to what Hegel's final view on accountability actually is. As Tunick notes, Hegel has been criticized both for endorsing a concept of strict liability and for placing too much emphasis on subjective requirements of moral responsibility (Tunick, Citation1992 p. 125). 6. All quotations from the Philosophy of Right (PR) are from the Nisbet translation—occasionally I have made minor alterations to be more faithful to the original (GPR). 7. There has been a spate of recent books about freedom in Hegel: Franco (Citation1999), Patten (Citation1999), Neuhouser (Citation2000). 8. See Wood (Citation1990, pp. 45–49), for a nice breakdown of the senses of "being yourself in an other." 9. That Hegel's account of action focuses exclusively on questions of the justification and attribution of actions, and not on the explanation of actions, has often been noticed: see, for example, Wood (Citation1990, p. 151), Pinkard (Citation1996, p. 272), Speight (Citation2001, pp. 45–46), and Quante (Citation2004, p. 2). Quante goes on to claim that Hegel's conclusions about "justification of action" can be rendered compatible with an account of the "explanation of actions" which includes a causal role for reasons if one attributes a roughly Davidsonian position to him: that there is a token‐identity but no nomological correlation between the descriptions in terms of intentions and in terms of causes (pp. 183–84). But as Quante himself acknowledges, Hegel would have rejected such a position, since he holds that any application of the concept of causality to spiritual phenomena involves a category mistake (SL, p. 562). (Contrast Knowles, Citation2002 pp. 184–185.) 10. It is relevant, for example, to point to Hobbes' doctrine of the state of nature in this context, especially the famous passage in the Leviathan which shows that the natural condition of man is a state of war in which "the notions of right and wrong, justice and injustice… have no place", though this state of nature includes "a possibility to come out of it, consisting partly in [man's] passions, partly in his reason" (Part I, Chapter 13, Paragraph 13, my emphasis). More would need to be said, of course, since Hobbes does admit the existence of wrong prior to contract, but these "laws of nature" have a quite peculiar status in Hobbes. 11. Blame, not praise, is Hegel's focus here. One is praised for going beyond what is required of one. The concept of praise is derivative of what is required of one (i.e., what an agent would be blamed for failing to do)—and this baseline possibility is what is at issue in "Abstract Right". 12. The whole argument would require a full interpretation of "Abstract Right". At the very least, the following claims would have to be established. 1) Rightful expression means others can be rightfully excluded from expressing their will in a given thing (when the will of another is already expressed in it), and this implies the conceptual necessity of private property. 2) Property requires alienation as a necessary possibility. 3) Alienability requires that contract, a unity of wills in which rightful claim to something is alienated by one party and acquired by another, has to be possible as well. 4) Since contracts would be meaningless if they ceased to be binding when one broke them, the concept of wrong (Unrecht) is necessary: it must be possible for the individual's will (the performance) to diverge from unity of wills (the contract) in a way that the individual would be forced to admit was wrong. 13. Compare PR §258 R. Earlier criticism of the social contract tradition in the same vein can be found in Hegel's essay on Natural Law, esp. pp. 63ff. Whether Hegel is fair to the social contract tradition or not is controversial. For a nuanced discussion of this issue, especially with reference to Rousseau, see Neuhouser (Citation2000, Ch. 6, pp. 175–224). 14. That Hegel's Philosophy of Right presupposes that the struggle for recognition has run its course, and that some sort of intersubjectivity has already been achieved, is now commonly accepted (and for good textual reasons: see, e.g., PM §436 A). Robert Williams' Hegel's Ethic of Recognition offers the best defense of this position against alternative interpretations (see Ch. 6, esp. p. 120). Chapter 4 of Allen Wood's Hegel's Ethical Thought is also quite useful for exploring this issue. For the purposes of this essay, the establishment of this minimal form of intersubjective recognition will simply be taken for granted. 15. This is why responsibility requires the establishment of mutual recognition for Hegel. But it is important to recognize that this does not imply that responsibility is only possible in modern societies. The bare condition of moral responsibility (responsibility an sich) is simply the resolution of the struggle for recognition, and the creation of rightful relationships between persons. Any state—that is, any condition where there is legitimate monopoly on the use of violence (to use a truncated version of Max Weber's definition)—satisfies this criterion. Once this condition is met, history begins. It is a second, more vexed question as to what kind of state can make it possible to fully identify with your deeds without any alienation (responsibility fur sich). Hegel will want to contend that only modern society satisfies this latter condition. But, to keep to mere slogans, the development to modernity within history takes place by means of the "cunning of reason" not the "struggle for recognition". Confusing these two issues has led to over‐extensions of the struggle for recognition in Hegel, like Alexandre Kojève's famous neo‐Marxist re‐interpretation. 16. As Hegel acknowledges in his more historical lectures, there are more primitive practices of attributing blame, like scapegoating, blood‐guilt, etc., that seem to fail to meet this criterion. But such blame is either knowingly different than an attribution of genuine moral responsibility (a self‐conscious substitution of someone or something who is not responsible for someone who is) and so a derivative phenomenon, or it depends on a religiously informed conception of self or of cause and effect, and so actually does meet the criterion. Fully answering these more empirical questions would require an account of the relation between Hegel's transcendental account of the conditions of moral responsibility and his understanding of the history of responsibility. 17. It is important to note, though, that the line between which consequences we can be held responsible for and which we can't is conventional. Hegel's analysis of action is thus open to claims, like that of Hans Jonas in The Imperative of Responsibility, that modern conditions have made some of the traditional limits on moral responsibility obsolete, given our increasing collective awareness of how our actions can dramatically affect the lives of people outside our sphere of everyday relations. 18. There is a temptation to collapse event and deed in order to contrast them to action, thereby rendering Hegel's arguments more comparable to Davidson's work on action and event (see, e.g., Quante (Citation2004, pp. 105–114)). This is understandable since from the point of view of purpose, there is no distinction between deed and event: both fall outside of responsibility in the realm of externality (PM section 504). But by failing to distinguish the two, one risks missing the real "outer/inner" issue in the Philosophy of Right, which is not the problem of reconciling causality with autonomy (event versus action), but the question of reconciling third personal practices like praise and blame and first‐personal issues of intentionality (deed versus action). Though some of Davidson's distinctions are certainly useful in explicating Hegel's theory of action, I ultimately agree with Charles Taylor that their positions on action are of fundamentally opposed types (Taylor, Citation1985, p. 78). 19. Again, it should be noted that for Hegel what distinguished a deed from an event is not a specific kind of causation (e.g., mind‐causation), but a certain expressive relation between internal and external reality. 20. Pinkard (Citation1996, p. 283). 21. John Searle, rightfully I think, complains of the total lack of such a distinction in Davidson's theory of action. Davidson seems to take any true description of an act as characterizing the deed. Taking a suggestion made by M. Dascal and O. Gruengard, however, Searle offers the following as a "rough criterion" for distinguishing descriptions that are a part of the deed (the unintentional action) from those that merely characterize the deed as event: "we [should] count an action as unintentional under those aspects which, though not intended, are, so to speak, within the field of possibility of intentional actions of the agent as seen from our view. Thus, marrying his mother is in the field of possibility for being an intentional action by Oedipus, but moving molecules is not" (Searle, Citation1983, p. 102). 22. Aristotle, even using Oedipus as an example, makes this clear in the Poetics: If a tragedy simply showed a decent man brought low by chance or external factors, this would not be "fearful" or "pitiable" but simply repugnant, and so not a fit subject for tragedy (1152b30–35). Such happenstance does not reveal anything about the hero, it cannot be recognized by him or the audience as a morally relevant consequence of his deed. Hegel follows Aristotle on this point: "A truly tragic suffering, on the contrary, is only inflicted on the agents as a consequence of their own deed which is both legitimate and, owing to the resultant collision, blameworthy, and for which their whole self is answerable" (A p. 1198). 23. Hegel eventually wants to argue that it is not narrower, that we must find a way to say that we intend the whole deed, thus overcoming the "gulf between the self‐consciousness of the human being and the objectivity of the deed" (PR §121 A). I will return to this claim in my last section. 24. "Unbefangenes Unrecht" is translated as "unintentional wrong" in the Nisbet translation. Since Hegel's quite precise concept of "intention" (Absicht) has not yet been introduced, and because consciousness of the act as expressive of the will has been introduced, I prefer "unconscious wrong". Compare the Knox translation, which offers the less literal "non‐malicious wrong". 25. Kant himself makes this point very well in the Critique of Practical Reason: "In every punishment there must first be justice and this constitutes the essence of the concept" otherwise "punishment would be the [only] reason for calling anything a crime, and justice would consist in withholding all punishment…" (p. 39). 26. We can now see that, despite the different terminology, Hegel's argument shares some of the features of the now standard complaint often made against social contract theorists like Hobbes. Such contractarians want to make the validity of all notions of right derivative of contracts, but the bindingness of contracts depends on the bindingness of promising, and it is impossible to figure out why promises need to be taken as binding without abandoning the contractarian framework. See, e.g., Alasdair MacIntyre's comments on Hobbes in A Short History of Ethics (pp. 136–37). 27. This also implies a new, internal concept of freedom: it presupposes I can act against my own inclinations, etc. 28. Hegel absolutely accepts that "what the judges pronounce must not differ from what is in the consciousness, and only when the criminal confesses does the judgment contain nothing that is alien". The fact that the criminal may lie, deny his guilt, presents only an epistemological difficulty, it does not affect the criminal's actual guilt. The trial by jury is meant to address this, providing a verdict of guilt that "emanate[s] from the soul of the criminal" even if he himself denies it. (PR §227 Z). 29. Hegel's commitment to the retrospective determination of intention has recently been discussed by Pippin (Citation2004), who focuses on the role it plays in the Phenomenology of Spirit and Laitinen (Citation2004), who argues that it undergoes some change, becoming less radical, between the Phenomenology of Spirit and the Philosophy of Right. 30. This progressivist understanding of history, and, in particular, of our relation to the Greeks, is, of course, very controversial. It would be productive to contrast it to a recent attempt to cover the same ground: Bernard Williams's Shame and Necessity (Citation1993). Williams insists, like Hegel, that in some ways Greek practices of assigning blame, in which "the responsibilities we have to recognize extend beyond our normal purposes and what we intentionally do" (p. 74), were in better shape than modern ones, which overemphasize a kind of guilt that is strictly coordinated to voluntary actions of the will. For Williams, though, acknowledging the "authority exercised by what one has done, and not merely by what one has intentionally done" (p. 69) requires not expanding our conception of freedom or intentionality so that it is not limited by an overly subjective interpretation, but rather jettisoning "the right of intention" entirely—and instead embracing a more tragic vision of action, one which accepts the deep and ineradicable role of chance in determining the meaning of what we do and who we are.