(This talk was delivered at a symposium on “Hegel and Legal Philosophy Today” organized by Durham University’s Centre for Law and Philosophy in celebration of the 250th anniversary of Hegel’s birth).
The name for this event is “Hegel and Legal Philosophy Today”. That’s far too broad a topic for two speakers to cover in two hours, so I want to speak specifically about Hegel’s relevance to the current crisis of constitutionalism in liberal-democratic states. That crisis came to a head most recently last January 6 in Washington, but it has been simmering for as long as liberal democracies have existed. We have always known, for example, that the principle of parliamentary sovereignty gives the Parliament of a Commonwealth Realm legal permission to suspend democratic elections indefinitely. A. V. Dicey told us so. So, a government with a parliamentary majority can legally rule for as long as it pleases. We told ourselves that this will never happen, because in liberal-democracies there are customary or prudential norms that restrain rulers in practice even if legal ones give them free rein in theory. We told ourselves that although political sovereignty is legally unaccountable, a theory of sovereignty told an impoverished story about the norms that actually govern the conduct of rulers. And so, we came to think that liberal democracies have, in effect, two constitutions—a formal, legal one and an informal, customary one—and that we could always count on the informal constitution to protect us from the tyranny permitted by the formal one.
The Trump presidency disabused us of that illusion. We should have known that eventually someone would come along in whom the informal norms were not internalized to conscience and whom a mysterious hold over a multitude had empowered to exploit the despotic possibilities of the formal constitution to overthrow the restraints of the informal one. We should have known that an American President would one day invoke his constitutional authority as the person in whom all executive power is concentrated to breach the customary norm enjoining the Justice Department’s independence of the person holding the President’s office. Or that a President would use his judicial appointment powers to appoint loyalists who he thought would resolve cooked-up election disputes in his favour. Or that a demagogue would leverage his sway over a party’s voters to pressure state legislatures and Congress to overturn a presidential election. It’s true that in the end the informal constitution held, but only just and by the sheerest luck. Just as Parliament has the legal authority to suspend elections, so does Congress have the legal authority to refuse to certify enough states' electoral votes for a president to swing the tally to the loser of the election. The only thing preventing that outcome was the Democratic Party’s control of the House of Representatives. What if the Republicans had controlled both Houses? What if the Senate had had more Republicans like Cruz and Hawley?
So, what does Hegel’s philosophy of the constitution have to say to all this? Two things. First, it explains the cause of the dichotomy between the formal and the informal constitutions, or between what we can call the constitution ordered to sovereignty and the constitution ordered to the rule of law and democracy. Second, it shows us the theoretical possibility for a constitution in which that dichotomy is overcome—in which all the informal norms of the rule of law are incorporated into the formal constitution of sovereignty so that customary norms binding rulers only in conscience become legal ones enforceable by constitutional remedies. In such a constitution, what Donald Trump tried to do would be impossible to do. It would be impossible to exploit the despotic possibilities of the formal constitution to overthrow the restraints of the informal one because there would be no despotic possibilities to exploit.
So, first, Hegel’s analysis of the cause. That analysis can be pieced together from his critique of the French Revolution in the Phenomenology of Spirit as well as from various remarks on Liberalism in the Philosophy of History and the Philosophy of Right. The root cause of the dichotomy between the formal constitution ordered to sovereignty and the informal one ordered to Law is liberalism’s view of humanity’s state of nature. On that view, human beings are morally self-sufficient in the sense that they owe their dignity solely to their innate capacity for freedom. Their dignity, in other words, does not depend, as it did for the ancients, on their being citizens of a polity. It is theirs prior to political association, and so humans are by nature apolitical, hence dissociated and exclusively self-interested. So, for the liberalism of Locke and Kant, humanity’s state of nature has two principal features. One, it is not a civic state but a state where the people are a formless mass, a multitude. Two, in that state, human beings, because they are dignified ends, have rights in their persons and in the things they peaceably acquire.
However, these two features of the people’s natural condition—that they are dissociated and that they have rights—stand in tension. Because they are dissociated, each is left to himself to judge and enforce his right, but that means that their rights are no rights at all, for each may do as he sees fit. No one can wrong another. And so, to realize their natural rights, individuals must surrender their independent judgment concerning matters of right and wrong to a common authority thereby authorized to make laws for them, to judge their disputes under those laws, and to enforce their rights.
It’s in that surrender that the dichotomy between the formal and the informal constitutions opens up. Under the formal constitution, the common legislative authority is the sole judge of right and wrong, which is to say that its legislative determinations of natural right are unimpeachable. So, even if the legislative authority is a representative body, that body is unaccountable for its judgments to the multitude, who have precisely alienated to the legislature their independent judgment concerning matters of right and wrong. Any accountability would entail a relapse into moral anarchy. So, because its accountability to the multitude would mean a reversion to the rule of opinion and unilateralism it was meant to replace, the legislature is now conceived as a sovereign judge of right and wrong accountable to no one.
But that is only one side of the matter, because, after all, the sovereignty of the legislature was instituted for a purpose and is justified only in fulfilling it. The other side is that the sovereign owes a duty to respect the pre-political rights for the sake of whose perfection it was established. But since, juridically speaking, the sovereign is the final judge of whether it has fulfilled this duty, the other side is an informal side, one binding more in conscience and custom than in law. This side is contingently enforced by courts through presumptions guiding statutory interpretation and by the multitude through elections. Liberalism lives in this tension between political sovereignty on the one hand, rights and democracy, on the other. Courts protect the pre-political rights but are ultimately powerless against a legislature’s resolve to limit them unreasonably. Prudence and custom counsel respect for democracy, but no legal barrier exists to stop a parliamentary majority from flouting custom and risking the consequence.
So, how does Hegel overcome this tension between the formal and the informal constitutions? He does so, first of all, by removing its cause. If the cause is liberalism’s view of the state of nature, then the cure is to reject that starting-point and to begin instead with the idea of Law as it exists in itself—that is, independently of any assumptions about humanity’s natural condition. So, instead of moving from a dissociated multitude to a Law repellent of the multitude, Hegel moves from the idea of Law to the multitude, showing how the idea of Law requires completion by the multitude’s assent to particular laws given through their elected representatives. The thought here is this: why let the nature of Law be determined as something repellent of the opinions of the masses, as if the dissociated masses were something fixed and stable from which Law has to run away, when we know that the people as a mass are not stable? Even liberalism—even the arch-individualist, Hobbes—tells us that a political union is a logical necessity for the masses. So, why not contemplate the idea of Law as it exists serenely in itself, without supposing that it has to repel a dissociated multitude given beforehand?
Well, when we do contemplate the idea of Law as it exists in itself, we see that it contains three elements or “moments,” as Hegel calls them. The first element is that of universality. Stated in the most general terms, Law is the universal medium wherein the freedom of each is made compatible with the equal freedom of all. Of course, freedom is a complicated concept about which Hegel has much to say, but for present purposes we can bracket the different conceptions of freedom—the freedom in abstract Right, the freedom in Morality, the freedom in community—that Hegel aims to integrate within a complete political life. The second element in Law’s idea is particularity, or the application of the general concept of Law to situation-types so as to arrive at particular laws, as well as the application of these laws to concrete situations so as to arrive at judgments. The thought here is that Law would not be the Law of anything if it remained something ethereal, if it were not made determinate in particular laws and if cases in the world were not subsumed to those laws. The third element is the moment of decision, whereby the judgment involved in applying the general concept of Law to situation-types and in applying particular laws to cases is willed into force, into existence, as Hegel puts it.
This third element in Law’s idea generally goes unnoticed in constitutional thought. We are accustomed to thinking of Law’s realization as a tree divided into a legislative branch, an executive branch, and a judicial branch, the occupiers of each making decisions within their respective functions. Hardly anyone thinks of decision as a separate limb of government occupied by someone who is neither legislator, civil servant, or judge. Hegel, however, assimilates the judiciary to the executive as the moment of subsuming cases under laws intellectually, and he makes the third moment one whereby the other two materialize in an act of will concluding an insufficiently determinative practical reasoning. This moment gives existential force to legislative and executive judgments, which, apart from acts of will, are but exercises of thinking. Law would not be Law if thinking about about what laws best realize equal freedom or about how such laws apply to cases did not end in a decision having effective force in the world.
Now, it’s important to see that this third moment of Law—the moment of decision—carries an inescapable element of subjective arbitrariness. That’s because judgments are, in the vernacular, judgment calls. No decision concluding an exercise of judgment is ever strictly necessitated. There is always an element of ungrounded discretion in deciding this rather than that. After all the reasons are marshalled for this conclusion and for that, the decision comes down to: I’m persuaded by this. So, an element of subjective arbitrariness belongs to the idea of Law inasmuch as that idea involves a moment of undetermined decision giving force to an otherwise merely possible determination of Law.
Now to these three moments of the Idea of Law correspond the three powers of the state. To the moment of universality belongs the law-making power; to the moment of particularity belongs the executive power; and to the moment of decision corresponds the power of the prince or monarch. “Why a monarch?” you will ask. "Why not a committee or an assembly or even a President?" Hegel’s answer is this: The third moment of the idea of Law is the moment of ungrounded, hence partly arbitrary, will. Among the several conclusions made eligible by a weighing of advantages or by an interpretation of a statute, I choose this one. Yet this one is not determined by the common good or by the statute, and so the reason for choosing it must lie in me. 'Me' is a form of the first person singular. The subjectivity of ultimate decision is that of a single person. Hence it is institutionally expressed in a way truest to its nature if it is expressed through one person. This person is a monarch rather than an elected or appointed President because the transcendence of a will that is nothing but Law's will requires that it be independent of any partisan will, even of a majority, and succession by birth guarantees that independence. Notice, however, that the monarch’s decision presupposes the other two moments of Law’s idea; he or she doesn’t just will a personal preference in a perfunctory or capricious way. The decision is a conclusion, albeit a discretionary one, resulting from the application of a universal to a particular. In other words, the decision, while ungrounded, is not unprincipled.
Now so far, all we have are three state offices and one incumbent, the person of the monarch—let’s call her Mary. We don’t just have three offices and no incumbent, because an office can’t make a decision. Only a real individual can. So, we have a legislative office, an executive office, and a monarchical office all occupied by Mary. She may have counsellors and magistrates, but she appoints and dismisses them at pleasure; they have no independence of her. They’re just her helpers. We can see, though, that insofar as all state powers derived from the idea of Law are wrapped up in Mary, the idea of Law is self-contradictory, and the contradiction is this. Inherently, the arbitrary subjectivity of the monarch is just the arbitrary subjectivity necessarily involved in Law’s acquiring existential force, in its being Law. Or we can say that, inherently, the monarch’s arbitrary subjectivity is pure—it’s a logical moment of the idea of Law. As yet actually, however, it’s just the arbitrary subjectivity of this natural individual—Mary—hence something impure. After all, Mary herself is not contained in the idea of Law: it could just as well have been Charles.
Now this self-contradiction in the idea of Law qua idea is the impetus for the unfolding of the constitution that fulfills the rule of Law or in which the rule of a natural person or persons disappears in the rule of an impersonal Law. Initially, Mary just asserts that her arbitrary fiat is nothing but the arbitrary fiat belonging to the Idea of Law—that her arbitrary fiat is pure. In order that this claim be confirmed, she must divest her natural person of legislative and executive powers, keeping only the formal power of willing into force judgments made and tested for general acceptability elsewhere. For their part, those who make legislative and executive judgments must confine themselves to the intellectual side of judgment, while putting the volitional side on one who, because she does nothing but will their ratified judgments into force, and because she has no discretion to do otherwise, purifies the decision of anyone's natural will. The model constitution will therefore be the ensemble of proofs necessary and sufficient for converting Mary’s claim that her decision is nothing but Law’s decision into an objective truth. That’s the story line of the formal constitution. It’s a story about the rule of Law’s actualization, and so there will be no need for an informal constitution behind the legal curtain.
So, what are the proofs? There are, as one might expect from Hegel, three, though I believe that, because he was constrained by the historical material available to him two hundred years ago, he gets one of them wrong. One proof is an executive independent of Mary’s natural will, an executive composed at the top of drafters of laws and, below that echelon, of professional and expert civil servants with tenure and a good income for life. Tenure assures their independence of Mary’s natural caprice; a good income for life guards against their corruption. Their vocation is just to immerse their subjectivity in the impersonal application of law, putting the residual subjectivity of the decision onto the monarch, whose sole function is to purify it. By keeping her personal will out of law-design and executive judgment, Mary supports the impersonality of those functions, while her civil servants and judges, by keeping to judgment under law and leaving the conclusion to a monarch who has no choice but to will their judgments into effect, support Mary’s claim that her will is nothing but Law’s will.
However, an independent, expert, and self-effacing executive is not a sufficient proof that Mary’s will is nothing but Law’s will because (a) Mary appoints and dismisses the top tier of the executive that drafts laws, the ministerial tier, and (b) because Mary’s will is now just the ratified judgment of a bureaucratic and judicial ruling class.
So, the second proof of Mary’s purity is that her ministers submit draft legislation to an assembly of the multitude’s elected representatives for confirmation that legislation is indeed a determination of the general concept of Law rather than a means for advancing the special interest of a ruling class, that ministers be responsible to this assembly for the rectitude of civil servants, and that Mary have no choice but to appoint ministers in whom the multitude’s representatives have expressed confidence. In short, the second proof of Mary’s purity as Law’s will is the free assent of a democratically elected Parliament, which, notice, is not sovereign here, but is rather a constituent element of Law’s sovereignty along with a professional and tenured civil service. Furthermore, if this proof is to work in overcoming a dictatorship of a ruling elite, it’s essential that the private sector itself enter Parliament through representatives of large corporate interests—for example, of various agricultural, industrial, commercial, and labour groupings; otherwise individuals will present themselves politically only as atomized units whose deputies represent their pure civic consciousness to the exclusion of their particular (identified with idiosyncratic) interests. As a result, individuals in their workaday lives will still be ruled from above by a political elite. The private sector composed of organized particular interests must itself be formally represented in Parliament—not informally by backroom lobbyists but formally and transparently by elected deputies whose vocation is to advance the interests of their corporate members as a constituent element of the public interest.
However, not even all this will be enough to prove that Mary’s fiat is nothing but Law’s fiat. It’s not enough because a ministerial council with a parliamentary majority can still legislate in the special interest of that majority, and Mary will give existential force to that interest. True, Mary’s judges will interpret legislation in accordance with rule-of-Law rights, but they’ll be powerless against a textually clear intent by a council-controlled majority to violate those rights. So, one more proof of Mary’s purity is needed. That proof is a constitutional duty on her part to withdraw legal force from statutes passed by a parliamentary majority but judged by an expert body to be incompatible with the concept of Law as equal rights to freedom in its most comprehensive sense. Because the constitution that has thus far developed is ordered to the fulfillment of Law’s sovereignty, not Parliament’s or the multitude’s, that piece fits seamlessly into the constitution as a whole. There is no longer a counter-republican problem with the review of legislation by a body independent of Parliament.
Now Hegel does not explicitly mention a body with a power to review legislation for Rightness, but he does understand an unelected House of Lords as mediating the opposition between a monarch who claims to personate Law, on the one hand, and an elected parliamentary majority representing a particular interest, on the other. Presumably, the House of Lords would veto bills that have been passed by a parliamentary majority but that it judges are against the public interest or inconsistent with the concept of Law as equal reciprocal freedom. For Hegel, what qualifies the House of Lords to perform this vetting role is its independence of Mary, her ministers, and of the masses, as well as its financial independence. The lord is not appointed by Mary on the advice of her ministers, nor is he elected by the many. He inherits his seat. And his inalienable estate is a source of financial security, which is a safeguard against corruption.
Now everyone will likely cringe at this solution, but not everyone will cringe for the right reason. Many will object on democratic grounds, but the problem with the House of Lords as Hegel knew it is not that it is undemocratic. Indeed, since its role is to hold the representatives of private interests to the rule of Law as equality of freedom, its independence of the many is a virtue, not a defect. Its problem is that it’s not expert. What qualified the lord for his seat—namely, birth—did not qualify him for his role—namely, to vet bills for conformity with the rule of Law. It doesn’t matter that Mary is elevated by birth, because she has nothing to do but to say ‘yes’ and dot the i. But the lords have an oversight role for which education, expertise, and character are required. So, let’s replace Hegel’s House of Lords with a Constitutional Court whose judges are chosen by Mary on the advice of a body of eminent jurists whose advice she cannot refuse, and let these judges have tenure and a secure livelihood for life. Of course, they will disagree on methods of constitutional interpretation (though those assuming the legislature's supremacy will wither away), just as elected deputies will disagree on what the public interest requires. Nevertheless, we now have the ensemble of state institutions necessary and sufficient for our accepting Mary's claim that her debate-ending fiat is nothing but Law’s.
Before concluding, I want to draw out the contrast between Hegel’s ideal constitution and the checks-and-balances type exemplified by the American Constitution. What they have in common is that sovereignty is located in no part of the State, as it is where Parliament is sovereign. But in the checks-and-balances constitution, sovereignty, which is assumed to be despotic and therefore dangerous, is broken up among the state powers on the theory that each branch of government will then have the power to restrain the natural inclination to self-dealing or partisanship of the persons occupying the others. So, instead of immersing the natural incumbent in his office, the checks-and-balances constitution pits natural incumbents against each other, hoping that no one or no faction will dominate. In Hegel’s constitution, by contrast, sovereignty resides in a coherent state whole, each part of which, in attending only to its own function, supports the impersonality of the others and hence the rule of Law. So, by keeping to the formality of decision, the monarch supports the impersonality of the executive and legislative functions; by keeping to intellectual judgment, the executive supports the purity of the decisional moment; by keeping to the vetting of legislation and oversight of the executive, Parliament ensures that governors hew to their executive office of applying pre-existing laws; by keeping to the review of legislation for Rightness, the Constitutional Court supports the democratic confirmation of legislation as a reasonable determination of the public interest; by keeping to review for practical wisdom, Parliament supports the impartiality of the review for Rightness. The end result is not the checking of particularism but its removal from all offices of state. What makes the constitution a coherent totality rather than a machine of separate parts is that it’s held together by the one story of the self-actualization of Law’s rule.
So, to conclude, Hegel lays out a constitution in which there is no longer a tension between political sovereignty on the one hand, rights and democracy, on the other. This is because the sovereign is neither a monarch nor a Parliament, but the totality composed of monarch, civil service, elected Parliament, and an independent body of constitutional experts, where each organ plays a role in sustaining Law’s sovereignty. So, there is no longer a dichotomy between a formal constitution ordered to an unaccountable sovereignty of persons, on the one hand, and an informal one ordered to the rule of Law and democracy, on the other. The formal constitution itself actualizes the rule of Law, in which democracy plays an essential part. Accordingly, any official who wants to use the apparatus of justice for personal ends or nullify an election must do so explicitly as an outlaw, for he will no longer have the formal constitution as cover.
