Relationship between the Individual and the State in Hegels Historical Jurisprudence - Term Paper Example

Relationship Between The Individual And The In Hegel’s Historical Jurisprudence Introduction Hegel’s theory of al and public life iscentered on law although the title circumscribes an elaborate and liberal philosophy. Hegel was most vocal about the necessity to differentiate between the ambits of private and public law. His argument against the traditionalists was that under their rule there was no differentiation between the private and public law, which finally led to their downfall. The same was true in the case of Haller. In the Philosophy of Rights Hegel stated that law is an offshoot or branch of freedom. The ever-increasing justification for a structured law proved the historical progress or metamorphosis of law. The process of systematized and rationalization of legal structure is a benchmark for historical development. Through codification there is a conscious attempt to make laws systematic and rational and the rulers following this procedure are the most beneficiaries the people, Avineri (2003). Hegel’s historical jurisprudence According to Hegel the most important differentiation between despotism and an orderly state is the existence of structured unambiguous and fixed rules, which binds the government by its enactments. Hegel’s known reason for objection in both extreme situations of absolute monarchy and also majoritarian democracy there is a common aspect of law becoming inactive in dealing as an absolute regulatory machinery and can transform into tyrannical and an individual autocrat dictator. Courts of law are the repository of individual rights. The individual as a member of the civil society possesses these rights and the duty of protecting and administration of justice are entrusted on them. Every individual has the right to get justice and it has to be demonstrated clearly. Laws are supposed to be made public and promulgated. In case of laws having a binding force, it is mandatory that they must possess universal self-consciousness and universally recognized. Laws should not be so complicated that it becomes ambiguous for them to have a clear understanding. Another corollary of universal legal right is to make legal proceeding public, this is because the trial is a subject matter of universal validity and it is the concern of the parties alone but still the applicability of the rights in the issue and the judgment affects the public universally. So publicity of justice is right and it enhances the confidence level of the public. According to Hegel the ambit and scope of the legislative power of government is difficult to predict. A law may seem justified during a war but in normal situation it is harsh. Morality and moral dictates are more of private, subjective and so cannot be considered as positive legislation. Hegel argued that there should be a trial by jury before a conclusion is reached. In a particular case there are two aspects question of law, which is decided by the judge and question of fact, which requires the jury to find the fact. It is also important to prevent monopolization by law professionals that jury are going to help deliver justice in a smooth and efficient manner. Over a time as the society grows stronger there should be a progressive rationalization of law i.e. draconian laws should be substituted, Avineri (2003). Hegel constructed a system by which coined the new idea of evolution of Spirit in the world. It requires the embodiment of the historical sequence where historical sequences are taken into account along with historical realities, Vinogradoff (2008). It is a common conclusion that, sovereignty depends on the fact that the particular functions and powers of the state are not self-subsistent or strongly attached either by themselves or in the particular wish of the individual functionaries, but have their roots finally in the unity of the state as their single self. The very fact that the sovereignty of the state is the ideality of all particular authorities within it results in generalized misunderstanding that this ideality is only might and pure arbitrariness; and sovereignty turns out to be a synonym for despotism. It can be concluded that, sovereignty brings it about that each of these aspects is independent thing, self-subsistent in its aims and modes of working, and self defined, but even in these goals or aims and modes to achieve them, each is determined by and dependent on the aim of the whole, here aim being welfare of state, Hegels Philosophy of Right nd. We may speak of the sovereignty of the people in the sense that any people whatever is independent in relation to other peoples, and constitutes a state of its own, like the British people for instance. We may also speak of sovereignty in home affairs in respect to people; it means that we are speaking generally about the whole state. By sovereignty of the people it is understood a republican form of government, or to speak more specifically a democracy, Hegels Philosophy of Right nd. This ideality manifests itself in a twofold way: (i) In times of peace, there are particular objectives to satisfy their particular aims and involve in their own business, and it is in part unconsciously the self-requirement is turned into reciprocal support and to the wholesome support. Fact is, it is by the immediate influence of higher authority that they are not only continually brought back to the aims of the whole and restricted, but are also constrained to perform direct services for the support of the whole. (ii) In a situation of emergency or crisis, however, whether in home or foreign affairs, the organism, which is the parent body of these members, condenses into the single concept of sovereignty. The sovereign is entrusted with the safeguarding the state at the sacrifice of these particular authorities whose powers are valid at other times, and it is then that that ideality comes into proper utilization, Hegels Philosophy of Right nd. An earlier and more impulsive effect, is perceived to have an action in continuing and remodeling Schelling’s ideas, had come from Hegels philosophy, it has an influence and seeks to develop within natural law (first in 1820) the nature of the objective spirit, as it is perceived in law, by way of free will, its abstract object and leads to the level of ethics, whose idea finds its acceptance in the state. The most important aspect about this system was that it obviously and primarily sought to conceptualize modern social entities, society and the state in the form as mental and spiritual-natural [geistig-natürlich], which means, as required, instead of canceling them as being based merely on theoretical deficiencies, these were the ideal approach in Romanticism and historical jurisprudence, and was applicable in all restorationist and reactionary thinking. On the other hand in Hegels concept the references to the history of the world notwithstanding all historical knowledge are erased, like all theory of the true relationship between individual will and social strata Tönnies (1912). Hegels philosophy of law is not only an account of the state, it is more than its glorification, and the true state according to Hegel is that which realizes the ethical idea, the Prussian state at the restoration period, it is not possible however, in the end of it, to absolutely ignore the radical past. Hegels doctrine of the state is as ambiguous as this conservative absolutism, and its ambiguousness came to light when it was applied in practical field. The Hegelian Left led from absolutist-privy councilor liberalism to democratic liberalism and surpassed that, though there was no academic effect, Tönnies (1912). However it is contrasting that, August Comte tried to project its positive side and thus justify sociology in the manner that he tried to initiate the definitive and right shaping of social life and politics through the definitive and exact theory. It took a path and was to follow a law of development, but only that of the development or progress of human thought, the law of the three stages. There is a certain connection to Hegelian vocabulary and it is unerroneously evident in his thinking, and the idea of assimilation of creative synthesis of the practical purposes shows the progressive character and was a path breaking intellectual tendencies of the nineteenth century in general, Tönnies (1912). It was viewed that culture developed out of barbarism and savageness, it means, that humanity developed from animal like wild conditions and was looked upon by all enlightened thinkers since the seventeenth century as a fact; it replaced the belief in origins and glories from paradise. That view became obscured by the Restoration and Romanticism and became alive on the basis of Darwin theory; but the application of a biological theory of development by its nature is much less than the latter is the generalized compilation of the former. In Hegel, as in Comte, this essential autonomy is still quite clearly evident, Tönnies (1912). Hegels theories were partly existent in response to those of his predecessor, the Prussian philosopher Immanuel Kant. Kant believed that perception alone could determine what is true; Kant had established a concept of reason for Hegel to be able to use in building a complete theoretical system. It resulted in Hegel creating his own shape and form of the dialectic, it is a method of critical reasoning, and he divided it into three parts. The important aspects are: “(1) A thesis (idea) encourages the development of its reverse, or antithesis. (2) If these two combine, they form an entirely new thesis, or synthesis. (3) This synthesis is the beginning of a new series of developments.” According to Hegel life eternally forms itself by putting up oppositions, The Free Dictionary nd. In Hegels system there have been special implications for the progress of history, importantly the evolution of people and government. He believed that through logic that is based on his argument the ideal universal soul could be created. This, according to his argument, was the stepping-stone of all development. Using his three-part dialectic, he planned and laid out the development of society. In Hegels thesis the primary goal of persons is to acquire property, and the pursuit of property by all persons it is necessary to apply the antithesis of this goal, laws. ‘The association of persons and laws produces a synthesis, called ethos that combines the freedom and interdependence of the people and creates a state’. Hegel is of opinion that the state is above the individual. When allowed to reach its highest form of development, the state evolves itself into a monarchy Hegel believed, (a government ruled by a single person, often called a king or queen), The Free Dictionary nd. Hegels view of government is exactly opposite with the historical pathways pursued by the United States. The fact is that, he was a critic of the individualism at the heart of the American Revolution. But his ideas have had an unaccountable influence on modern thought in the United States as well as Europe. According to him human history is the progression from bondage to freedom, attainable only if the will of the individual finds secondary importance to the will of the majority. It is the foundation for the shaping of the development of the philosophy of idealism in the United States and Europe. Hegels dialectic was later on adapted by Karl Marx and formed the basis for Marxs economic theory of the struggle of the working class to succeed in achieving a revolution over the owners of the means of production. Hegel inspired the academic methodology called deconstructionism in the twentieth century; he applied it in various fields involving literature to law as a means to interpret texts, The Free Dictionary nd. Conclusion Hegel was largely ignored or criticized by U.S. legal scholars for two centuries; it was in the 1950s, which brought a new interest in his ideas that has prospered in the former decades. His works are seen by scholars and examined for its views on liberalism and the concepts of freedom and responsibility. Hegelian thought has been used to address everything from historical problems such as Slavery to contemporary issues in contracts, property, torts and Criminal Law. It has also influenced the Critical Legal Studies movement, The Free Dictionary nd. References Althaus, Horst. Michael Tarsh, trans. 2000. Hegel: An Intellectual Biography. Cambridge, UK: Polity Press; Oxford, UK; Malden, Mass.: Blackwell Publishers. Avineri, S 2003 Hegels theory of the modern state Cambridge University Press 7th Ed p190-194 Hegel, Georg. 1977. The Difference between Fichtes and Schellings System of Philosophy. Translated by H.S. Harris and Walter Cerf. Albany, N.Y.: State Univ. of New York Press. Hegels Philosophy of Right nd Third Part: Ethical Life (iii) The State viewed on 12th December 2009 http://www.marxists.org/reference/archive/hegel/works/pr/prstate1.htm Hoffheimer, Michael H. 1995. "Hegels First Philosophy of Law." Tennessee Law Review 62 (summer). Pinkard, T. 2000. Hegel: A Biography Cambridge; New York: Cambridge Univ. Press. The Free Dictionary nd viewed on 11th December 2009 (http://legal-dictionary.thefreedictionary.com/Hegel,+Georg+Wilhelm+Friedrich). "The Hegelian Revival in American Legal Discourse." University of Miami Law Review 46 (March). Tönnies,F 1912 Community and Society (1887). Brlin 2nd edition viewed on 11th December 2009 http://germanhistorydocs.ghi-dc.org/docpage.cfm?docpage_id=1268 Vinogradoff, P 2008 Outlines of historical jurisprudence 4th Ed p126 The Lawbook Exchange Ltd New Jersey. Read More