Drucilla Cornell - Hegel and Legal Theory

Edited by

Drucilla
Cornell

Michel
Rosenfeld

David Gray
Carlson

Published in 1991 by

Routledge
An imprint of Routledge, Chapman and Hall, Inc.
270 Madison Ave,
NewYorkNY 10016

Published in Great Britain by

Routledge
2 Park Square, Milton Park,
Abingdon, Oxon, 0X14 4RN

Transferred to Digital Printing 2010

Copyright 1991 by Routledge, Chapman and Hall, Inc. Chapters 2, 3, 4, 9, 10, 11, 12 copyright 1989 in the names of the authors of the essays.

All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Library of Congress Cataloging-in-Publication Data

Hegel and legal theory / Drucilla Cornell, Michel Rosenfeld, David Carlson, editors.

p. cm.
Proceedings from a conference held in March 1988 and sponsored by the Benjamin N. Cardozo School of Law.
Includes bibliographical references and index.
ISBN 0-415-90162-6 (HB). ISBN 0-415-90163-4 (PB)
1. Hegel, Georg Wilhelm Friedrich, 17701831Congresses. 2. Law PhilosophyCongresses. I. Cornell, Drucilla. II. Rosenfeld, Michel, 1948 . III. Carlson, David (David Gray) IV. Benjamin N.
Cardozo School of Law.
K230.H432H44 1991

British Library Cataloguing in Publication Data

Hegel & legal theory.
1. Jurisprudence /
I. Cornell, Drucilla II. Rosenfeld, Michel III.
Carlson, David

ISBN 0-415-90162-6
ISBN 0-415-90163-4 pbk

Publisher's Note
The publisher has gone to great lengths to ensure the quality ofthis reprint but points out that some imperfections in the original may be apparent.

Michael Theunissen

Charles Taylor

Robert Bernasconi

Arthur J. Jacobson

Alan Brudner

Peter Benson

Peter G. Stillman

Michel Rosenfeld

Ernest J. Weinrib

David Farrell Krell

Andrew Arato

Fred Dallmayr

Bernhard Schlink

Although sporadic citations to Hegels' Philosophy of Right can be found in legal scholarship, the birth of Hegelian studies within American legal scholarship can be traced to a conference held on March 2729, 1988, at the Benjamin N. Cardozo School of Law, Yeshiva University, New York, N. Y. This conference, entitled Hegel and Legal Theory, inspired the title of this volume. Some of the essays in this volume were presented at that conference, and some others are outgrowths of different papers presented there. The proceedings of this conference are published in volume 10 of the Cardozo Law Review, pp. 8471931 (1989). We gratefully acknowledge the permission of the Cardozo Law Review to reprint portions of some of the papers here.

This extraordinary conference was made possible by a generous gift by Jacob Burns and the Jacob Burns Institute. Through his generosity toward the Hegel project and, since then, several other projects which have explored deconstruction and legal theory, Mr. Burns has assured himself an important role in the recent unfolding of new energy and new/old ideas within American legal studies. It is to him that the editors are honored to dedicate this volume.

The recent surge of interest in Hegel's writings on law among scholars spanning the broad range of disciplines represented in this volume of essaysnamely, law, philosophy, political science and sociologyseems in significant measure linked to a paradox that strikes at the heart of our present relationship to law. That paradox is that ever greater numbers of people are turning (or returning) to the rule of law, at the very same time that frustration and dissatisfaction with law are on a steep increase. On the one hand, as attested by the dramatic changes over the last couple of years in Eastern Europe and by the series of transitions from authoritarian regimes to constitutional democracies in other parts of the globe, there appears to be a sweeping worldwide mobilization in support of the rule of law. On the other hand, in the United States, where respect for the rule of law has been a centerpiece of the national ideology for over two hundred years, there is a serious crisis of confidence concerning the law's objectivity as well as fractious debate and stiffening polarization concerning the proper function and legitimacy of law. In view of these developments, moreover, it is not surprising that Hegel scholars should focus with particular interest on his writings on law or that those troubled by the fragmentation and apparent delegitimation of much contemporary legal discourse should turn to Hegel's systematic approach to law for possible alternatives.

The current importance of Hegel to legal theory is clearly underscored by the concurrent retreat of Marxism and the increasingly evident failure of liberalism cogently to integrate the legitimate needs and concerns of the individual with those of the community. Indeed, there now seems to be irrefutable proof that systematic departures from the rule of law are much more prone to lead to intolerable affronts against human dignity than to any genuine emancipation. Accordingly, Hegel's vision of the legal sphere as necessary to the development of relationships of mutual recognition and respect among autonomous social actors looms as superior to Marx's one-sided grasp of law.

If Marxism has tended to underestimate the worth of the rule of law, liberalism has often erred in the opposite direction. Under some prevalent conceptions of liberalism, the legitimate role of the state is reduced to that of neutral and impartial enforcer of generally applicable legal rules. These rules are primarily concerned with securing the legal enforceability of certain fundamental individual rights in the belief that respect for such rights triggers the operation of some invisible hand mechanism that automatically harmonizes individual interests with the common good.

The various proponents of liberalism may disagree as to which particular rights deserve the greatest legal protection. For example, liberals who believe that a free market economy supplies the desired invisible hand mechanism stress negative freedom over equality rights whereas Neo-Kantian liberals insist that rights to equal concern and respect are paramount. But all proponents of liberalism tend to purge history and politics from the arena of social interaction. Liberalism thus enhances law's importance at the expense of politics and historically grounded collective norms and customs, but in so doing it impoverishes the realm of social relations by reducing it to an arena of formal rights attaching to largely a historical an unduly abstract individual subjects.

In contrast to liberalism, Hegel neither decontextualizes legal relationships nor does he overvalue the role of the rule of law. In his Philosophy of Right