Previously, on the third part, we saw that it is not
strength
or posi- tive Right's sanctions what maintains a State in existence.
Hegel Was Right_nodrm
Every verbal ac- tion constitutes an ethical fact that has consequences: both the agent and the receiver who accept to participate in them assume their con- sequences.
For instance, the person who was given an advice has the obligation of not being surprised of the negative outcome if he acted contrarily to what his friend said.
And not only are the duties related to language the ones which constitute the complex that we call society and state. Let us think in the duty of not aggressing each other; in the duty of not making fires; in the duty of producing the goods and services of what I am responsible; in the duty of behaving in a way that I do not hurt anybody; in the duty of prudence and moderation of movements so that my neighbor can live calmly and in peace, etcetera.
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 305
This series of innumerable ethical duties is the condition of possibility to every act of authority, whether it is legislative, executive or judicial. To think that some governor or legislator creates out of nowhere human co- existence is pure lack of reflection. This series of rights and duties is prior to everything: it is the condition of the possibility even of speaking. Such a hypothetical 'founder' cannot be said to adopt and assume legisla- tively all these duties by transforming them into positive right, because they are innumerable: sociologists and anthropologists even nowadays would not be able to make a complete list. In what serious way can one say that the legislator or the judge make positive a series of duties that do not even know of? Evidently, there is no conscious act on the part of the legislator, the judge, or the politician in relation to these duties. The 'implicit' assumption that the positivist theorist would attribute them would be an act of such theorist and not of them, and therefore it would not be positive right but the imaginative lucubration of the theorist.
International law expert Clive Perry, who has defended the juridical character of international law despite its apparent lack of coerciveness, has rightly remarked:
No juridical system depends completely, either for its effectiveness, or for the definition and development of the norm it contains, on the application of imposition by means of a superior power. If men decided not to obey the law within these State, there could never be enough policemen that could force them not to behave like that. Exactly the same kind of recourse with which one counts for the preservation of the apparently high degree of order that prevails within the States of the world, are available to pre- serve the international order as well. Theoretically speaking, they can be employed with no lesser degree of effectiveness in both of these realms (Sorensen ed. , 1978, 55s).
As a whole, the displays of social disapproval are a sanction much more efficient than those foreseen by the law and the application of au- thority. And the same goes for the spontaneous action of the passers-by who try to prevent a homicide or an act of cruelty. The duties attached to the 'verbal actions' have as their sanction the systematic exclusion from the community for those who do not behave well. Hegel says correctly that positive right can only exist as a parasite in another right that is not written and which is called ethicity. No one can deny the character of right to ethicity, because its sanction, taken integrally, is more efficient than that of positive right.
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 306 Hegel was right
Let us only insist in the non-written precept that says 'you shall not deceive'. As it is a constitutive element of speech, it is evidently the condition of possibility of any positive precept; and evidently, society also punishes whoever does not respect this by boycotting him once his felony is discovered. Plato energetically rejects (Laws VII 793 BC) the opinion of those who think that these 'not written laws' are in fact laws, for they are, as Plato says, the fundament of the written laws and the bond that ties ones with the others together.
It would be completely paradoxical to believe that the precept 'you shall not deceive' does not exist if some legislator does not establish it. Positivism would have no other way out than saying that the entire community was legislator before some individual or group assumed such functions. In that case, there would be no difference between positivism and no-positivism, for there would be no difference be- tween legislating and not legislating, The antipositivism holds that one does not need legislators or authority in order that right exists. Positivism affirms the contrary, but in order to be a legislator one only needs to be considered by the theory as such. Reality does not need to be different than the way anti positivism describes it; for the correctness of the positivist thesis one needs only the whim of the positivist theorist. In fact, we deal there only with mental toys and nothing more.
4. State
Rousseau's disastrous mistake was to consider man good by nature. But that man is man by nature has been and still is the absolute mistake within vulgar thought, Sociology, Psychology, Politics, Pedagogy, Theology and Philosophy, despite that Plato and Aristotle demonstrated the contrary twenty five centuries ago and in spite of the fact that Hegel deepened that precise demonstration almost two centuries ago.
When Aristotle (Pol I 1253a25) and Hegel (JS 505 et passim) stridently proclaimed that by essence the State anteceded man, several thinkers tore their clothes believing than that priority of the State attempted to tell us what man ought to be. It did not even cross their minds that what man is, is what it is all about, it is a confirmation. In spite of the fact that Hegel takes heed of it since the preface itself: "To understand what man is, such is Philosophy's task. " (Rph xxi fine)
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 307
I already remarked (I, 1) that modern anthropology agrees that Hegel is right: by nature man is not man but animal; the so-called 'human nature', which according to the biased and pedant tyro is 'the same ev- erywhere', is not human but primate.
If only the anthropologists of our century had read Hegel, they would have synthesized their own research in the following phrase: "The fundamental principle is that man as such is not a natural being, he is not an animal. " (PR II, I 27)
This is everything those who scream blue murder must know when they read: "Everything man is, he owes it to the State; only there he has his essence. " (VG 111)
It does not surprise me that such a good scholar like Mure states that Karl Popper's invectives against Hegel are "blatantly ill-informed" (1965 viii), neither what Ripalda claims about them that "it is hard to read something more idiotic. " (FR xiv)
But Karl Marx, an author Ripalda does not take to be idiotic, turns out to be just as incapable as Karl Popper to understand that the State makes the man and not vice versa, even though there is no clearer issue than the fact that by nature man is an animal but not man. It is enough with the next 'critique' (? ) from Marx's pen against Hegel to make clear that the former simply never got what the point was: "I am man be- cause I was engendered without society's arrangement; this particular creature that I am can be transformed into a lord or a king just due to social arrangements. " (MEW 1 310s) What is claimed here is that man becomes man without society's intervention.
We do not find in Marx or in Popper the slightest suspicion that zoo^n politiko? n (Pol I 1253a3) is the definition of man. Both still believe, as every coffee shop philosopher, that in the beginning there was a time in which there was no State or Right, the strictly speaking contradictory time that they called the situation of nature, as if the expression 'natu- ral man' wasn't a contradictio in terminis. Notice that I am not claiming that they believe in a myth, even though such time is indeed a myth; I am saying that they have not understood the difference between man and animal. The same happens to Kelsen by the way; since only posi- tive Right is Right, supposedly before legislating and governing was invented there was a 'natural situation' in which man was not man and there was no Right.
The refutation of this superficiality was formulated in the third chap- ter (III, 7 and III, 9). There, I showed that without self-consciousness
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 308 Hegel was right
man is not man and that the rise of self-consciousness is impossible without the social appeal that demands duties and rights. I beg to confer. Whatever Marx says, no one is man by birth without the inter- vention of society.
Besides this fundamental error, Marx makes the mistake of be- lieving that civil society can exist without a State, the mistake of not understanding the Hegelian thesis according to which "civil society [. . . ] supposes the State. " (Rph no. 182 Z) A thesis Aristotle insisted on relentlessly. The Marxian text I quoted offers the advantage of making apparent that Marx's is a core mistake; that Marx denies the interven- tion of society itself in the constitution of man as man. This fundamental mistake discredits the whole Marxian critique of Hegel's State and Le- gal philosophy. And it is important to remark that according to Engels (MEW 16 362s) this critique is the origin of Marxism.
Putting Marx aside, if we are to reject the accusations of statism, it is not to calm down its accusers telling them that there has been a misunderstanding and that in the end Hegel claims the same as them. It is not about an issue of terminology, as if after clarifying that Hegel does not understand by State the same that them, everything would be settled. It is not true that anyone can define State as it pleases him. Studying an author neither consists of verifying if he holds what I already knew.
The priority of State seems to them unbearable because they identify State with government. They overlook that the identity means Legal positivism because they make the existence of individual rights de- pend on the ruler. Only who defends human rights that do not depend on any authority can logically reprove statism.
In every single European country there is a real distinction between the head of State and the head of government, which logically implies a real distinction between State and government. A theory conscious of its duties has to define State in a way that government does not get included in the definition.
No doubt the definition proposed by Hegel was crystal clear since the beginning. For example, in his 1830 review, F. J. Stahl summarizes Hegel's ideas as follows: "According to his ideas, with the concept of Right the concept of State is already given; it is enough to scrutinize the former in order to find the latter. " (In Riedel ed. I 1975, 223)
In Philosophy of Right Hegel defines State since the preface: "the ethical universe" (das sittliche Universum) (Rph xxii), i. e. , the set of the ethical.
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 309
And he said lines above: "The ethical world, the State. " (Rph ix) The same definition is found later in the main part of the book: "The State is by itself and for itself the set of the ethical. " (Rph no. 258 Z)
We have seen what the ethical is for Hegel: the intersubjective rights and duties free of, and contrasted with, a narcissist morality and a positive Right that would make them depend on legislations. The set of the true duties and rights is the State. By the time Hegel gave his legal lectures to the Gymnasium students at Nu? remberg he already held that: "The State is the association of men under legal relationships. " (NH 246) Afterwards, in his Philosophy of History, he held exactly the same: "We call State the spiritual individual, name- ly, the people as structured and transformed in an organic whole. " (VG 114)
The significance of both the government and the monarch are so diminished that the monarchist K. E. Schubarth attacked Hegel's doc- trine in 1839 with the following words:
The prince is not the substance of the State, which is really constituted by the set of the different particular organic spheres such as family and civil society according to its structuring in diverse social estates, corporations and chambers. All this makes the prince's importance completely acciden- tal. (In Riedel ed. I 1975, 254)
Both those that accuse Hegel of statism and those who with huge ease label him the ideologist of the Prussian monarchy should know that Schubarth's work is entitled: On the Irreconcilability of the Hegelian Doctrine of State with the Supreme Principle of Life and Development of the Prussian State.
Schubarth's fears were not groundless. Hegel expressly says:
For being a monarch it is just required a man who says 'yes' and who dots the i's and crosses the t's; since the tip should be such that the particu- larities of character are of no importance. Beyond this last decision, any other property the monarch possesses ought to be reduced to peculiarities anything could properly rely on. It is true that there might be stages in the development in which those peculiarities might stand out, but in that case we would be dealing with a State not fully developed yet, which is not well built. Within a well-ordered monarchy only law is concerned with the objective; what the monarch adds is just the subjective 'I want' (Rph no. 280 Z) (my emphasis).
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 310 Hegel was right
It should not surprise us this kind of marginality of the monarch (and of the government itself, as I will say immediately) if we recall that since the preface we were warned that the State is the set of the ethical: "the rich structuring of the ethical in itself, which is the State. " (Rph xii) In Science of Logic is explicitly asserted that "State's reality is self-conscious individuals. " (WL II 410)
Regarding the State itself, I cannot see how we could doubt it is the set of duties and right that entwine individuals. Especially when it is obvious that a State remains existing even when a monarch van- ishes and another rises up, or even when a government vanishes and another rises up. Hegel just offers a definition of State that corresponds with the facts.
Previously, on the third part, we saw that it is not strength or posi- tive Right's sanctions what maintains a State in existence. There would not be strength or police enough if, as it were, 'some fine morning' the whole people decided to disobey. As Napoleon said, bayonets are good for many purposes but for sitting on them. In the transcribed paragraph (Rph no. 280 Z) is obvious that the word law does not refer to posi- tive Right as such; the objective part of State, in contrast with the mon- arch's subjectivity, is the true Right with the consequent articulation and structuring. As Hegel remarks in the corresponding section of the Encyclopedia: "Right should not be taken in the narrow sense of a legalist Right, but as covering every content of freedom" (EPW 486).
In his legal philosophy Hegel held the following perfect formula: "the commandment of Right is: be a person and respect others as per- sons. " (Rph no. 36) This is clearly not positive Right. Given that the aforementioned is the true content of Right, Hegel held this decisive thesis for science: "the State lies upon thought, its existence depends on men's mentality; it is a spiritual realm, not a physical realm; spirit is essential. " (GP I 507)
Government is a natural person or a group of natural persons. In their materiality, the sanctions applicable by the government are physi- cal deeds: imprisonment, death penalty, fine, etc. On the contrary, the fact that certain set of human beings constitutes a State is not a physical datum; there is no way in which the State could be empirically verifi- able. Physical presence at certain territory evidently is not the same that belonging to the State, since an individual does not stop being part of his State if he travels abroad. On the other hand, people that do not form part of a State can be physically present in its territory. It is not
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 311
empirical either that the government's physicalities and its sanctions constitute Right and have to do with the State; empirically they cannot be distinguished from the violence executed by a shear of criminals sufficiently strong and organized. The conformity of such physicalities with the constitution does not make them empirically Right and State, since the fact itself that the constitution is Right is not a physical or empirical datum. Both State and Right are ideas.
"The spirit is just the State in consciousness, just so far as it considers itself as object. " (Rph no 258 Z)
"The idea touches ground on the State the moment it acquires exis- tence and reality in knowing and willing" (Rph no. 270 Z) (Italics added). Rousseau had already said it: "Deep down, the political body, being
only a legal person, is nothing but a reason entity. " (1964, 608)
Since rulers are physical objects while the State is a group of ideas, the distinction between State and government is obvious. But Hegel goes further: he attributes governments of well structured States so little importance as he did to the monarch (head of State). The government is an instrument of the State, but in a well articulated State the important decisions are already made by the time they reach the governmen- tal level, so that the instrument is in charge just of executing them. "Governmental affairs are of an objective nature, already substantially decided, and it is duty of some individuals to carry out and realize them" (Rph no. 291). Hegel would concede, as he concedes regarding the monarch, that there are underdeveloped stages in which the govern- ment plays a preponderant role, "but then we deal with a non-fully de-
veloped State, which is not well built".
States' robustness properly resides in the communities. Government comes across with legitimate interests that it ought to respect; in so far the adminis- tration can only favor them but also custody them, the individual finds protection for the exercise of his rights and this is how his particular inter- est of conserving the whole arises. Recently the main efforts have been for organizing from above, but the lower parts, the massive about the whole remains somewhat inorganic; nevertheless, it is of supreme importance that it becomes organic, since only then it turns into strength and power. Other- wise it is just a heap, a multitude of atoms. There is legitimate strength only at the organized condition of particular spheres. (Rph no. 290 Z)
Only this is decisive. Hegel, it is true, adds there that power so characterized is monarchical. But I don't know how someone can be
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 312 Hegel was right
scandalized when, as we have seen, Hegel explicitly states the little im- portance of the monarch and the little importance of the government. He even adds right there that it should be distinguished between the antique monarchies and modern monarchies which are characterized by the autonomy that the particular spheres have from it. "A first mon- archy must be distinguished from a second one. " (VG 147)
The modern one is not juxtaposed on equality with democracy and oligarchy as a third form of government; that antique division was based upon quantitative criteria: it asked if it were one or few who governed. On the contrary, modern monarchy includes democracy: Rph no. 273 A. This is one of the most substantive theories that can be posed in philosophy of history.
It actually includes it, making that for the first time in history it is true democracy. Political thought cannot ignore this fact any longer: the Greeks invented the word 'democracy', but democracy is a modern Euro- pean invention, it is a quite recent discovery in human history. Among the Greeks, four fifths of the population were slave, and that cannot be called democracy. Besides, the strong decisions were made by the oracle, not the people: "That democracy did not have yet the strength and energy of self-consciousness, which consists in the fact that it is the people themselves who decide. " (PR II, II 189) (my emphasis) Whoever reads this expression cannot doubt about Hegel's democratic sincerity. It is related with what we were reading just a moment ago: "There is legitimate strength only at the organized condition of particular spheres (Rph no. 290 Z).
Whether we agree or not with monarchic form, I cannot see how one can doubt that Hegel is right when he says that modern Europe- an monarchy includes democracy: England, Sweden, Spain, Belgium, the Netherlands, Norway and Denmark are monarchies and they cer- tainly are among the ten or twelve most democratic countries in the world. Hegel's critics would have to demonstrate that here are more democratic nations than these. Even an opponent as dumb as Findlay is forced to recognize:
Despite Hegel's strange belief in hereditary Monarchy as the crowning truth of the State Idea, his view of the Monarch's functions are far from feu- dal, and are, in fact, in accord with modern British constitutional practice. The Monarch is merely the necessary apex of the State-structure, and as such he is merely someone who dots the i's, and whose individual character is not of great importance. (1958, 325)
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 313
Regarding this latter claim it might be suitable to recover the testi- mony of a mere historian, David Harris: "In England it came to be of relatively little importance who wore the crown. " (EB 18, 745, 1)
Hegel insists in the little importance of what his critics, turning a deaf ear, consider central of his doctrine: "When there are firm laws and the organization of the State is well determined, the only thing that is left to decide to the monarch is, in comparison of substantial issues, rather unimportant. " (WG 937).
What is central within the Hegelian conception is people's organi- zation, the organic structuring of the communities and spheres of ac- tivity, which allows "to decide the people themselves", as Hegel tells us in contrast with the Greeks. This is why Hegel attributes so much relevance to the parliament:
This opportunity of knowledge has the universal quality that only through it public opinion is capable of reaching real thoughts, of understanding the situation and concept of State and its affairs; and along with it, the capacity to judge it in a more rational fashion (Rph no. 315).
And, with regard to public opinion:
Public opinion had great strength in all times and foremost in our time when the principle of the subject's freedom has so much importance and signifi- cance. Whatever is in vigor today is not in virtue of violence and much less in virtue of custom and habit, but in virtue of intellection and reasons (Rph no. 316 Z).
We have seen that the State really distinguishes from government and hence, those who accuse Hegel of propitiating authoritarianism have understood nothing. And we have seen that, despite the consistent appearances in the monarchic form, the decisive part of the democratic principle is present not only in the Hegelian system but it lucidly con- cretes in what we call today self-management. And it is, as sooner or later both left and right wings would have to face, the only way in which the democratic principle could be thoroughly realized.
All the misconceptions of the Hegelian political thought have just been useful impediments for the reception of a message of enormous importance precisely about democracy. A message capable of revolu- tionizing today's whole political thought. In order to deliver this mes- sage let us ask a crucial question.
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 314 Hegel was right
If 80% of the population voted for the other 20% to become slaves, would all the supporters of democracy reject such decision? Why? Will it be congruous?
Evidently the way out claiming that the constitution prohibits it would be useless. Every constitution is modifiable by a supermajority and 80% is a supermajority. It would be enough voting first for a con- stitution modification.
This possibility is not unreal: remember that African-Americans in the United States are not even the 20% of the whole population. Other countries might think of persons having certain physical traits known to be possessed by less of the 20%: size, eyes color, blood type, birth weight, skin color, etc.
I repeat the question: If democracy consists on voting, with what logic could democrats deny the majority the faculty of deciding that certain minority should become slave?
This question shows that Hegel is right when he holds that the essence of democracy need not identify with the republican form, which is voting. Let it be clear that this book ? s author prefers, against Hegel, the republi- can form, but here we are analyzing this issue under strict logic. And at this level Hegel's following paragraph touches the heart of the matter:
From the viewpoint of the superior principle it becomes a subordinate and indifferent discrepancy what is usually considered as essential to a constitution, namely, if the individuals give their subjective acquiescence or not. It should first be determined if individuals are conceived as persons, if substantiality as spirit is present or not, i. e. , as an essence known by them. (VG 145) (my emphasis).
This is why Hegel told us, as we saw above, that in a real State really important decisions are already made.
If every individual is conceived as a person, neither the majority nor anyone can treat someone as a thing. The first thing we should say, regarding our crucial question, is that in a real democracy not everything is subject of vote. There are a lot of things, precisely the most important ones, which we cannot leave to majorities, neither regarding a minority neither a single individual or in relation to anything. Deep down, this is the truth: none of the important things are subject to voting.
It is absurd to forget universal history when speaking about the State. Those who believe that man is man by nature and not by history
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 315
forget that democracy did not exist from the beginning, neither did the Greeks who invented it. It was born in a time and in a civilization where all the people, including intellectuals and rulers, were iusnatu- ralists, i. e. , it knew that the criteria for good and bad does not depend on any ruler or legislation or voting. Hence, democracy was born con- vinced of the fact that nothing really important is subject to vote. The democratic principle survives only within the framework of iusnatu- ralism due to both history and strict logic, as we shall see.
In order to avoid slavery it must be known that man as such is free. But for that is required that man can be thought as a universal, without the particu- larity of being citizen from this or that State. The conception that man in general, as universal, is free, was not achieved by Socrates, Plato or Aristo- tle (WG 611).
"The situation is different at the European States; there the concep- tion is general. " (VG 145)
"Nowadays there cannot be legislators; legal institutions and judicia- ry relations are always present in our time. There is so little to add; just ulterior determinations of quite insignificant details can be provided by a legislator or a legislative assembly" (GP I 182).
If the aforementioned historical facts are forgotten, it is impossible to answer our question of reference. It is absolutely vital to realize this: every man is free, human beings are equal, and obviously none of this is empirical data. Therefore, this knowledge or conviction were not em- bedded in humanity from the beginning, they are not a natural endow- ment of the mind, and experience, for however bright we may suppose it to be, they cannot be acquired by the mind.
That such equality exists, that is man and not just some men like in Greece and Rome, etc. , who is recognized as a person with legal validity, is so far from being just by nature that, on the contrary, it is only a product and an outcome of the consciousness of the deepest principle of the Spirit and of the universality and development of consciousness (EPW no. 539 A).
That every man has infinite dignity, even though it is an absolute truth, by no means is an idea that humanity possessed from the be- ginning or that it could have acquired by nature. This is so because I would say, that is the most anti-empirical, affected and gothic idea that has ever been.
? ? ? ? ? ? ? ? ?
And not only are the duties related to language the ones which constitute the complex that we call society and state. Let us think in the duty of not aggressing each other; in the duty of not making fires; in the duty of producing the goods and services of what I am responsible; in the duty of behaving in a way that I do not hurt anybody; in the duty of prudence and moderation of movements so that my neighbor can live calmly and in peace, etcetera.
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 305
This series of innumerable ethical duties is the condition of possibility to every act of authority, whether it is legislative, executive or judicial. To think that some governor or legislator creates out of nowhere human co- existence is pure lack of reflection. This series of rights and duties is prior to everything: it is the condition of the possibility even of speaking. Such a hypothetical 'founder' cannot be said to adopt and assume legisla- tively all these duties by transforming them into positive right, because they are innumerable: sociologists and anthropologists even nowadays would not be able to make a complete list. In what serious way can one say that the legislator or the judge make positive a series of duties that do not even know of? Evidently, there is no conscious act on the part of the legislator, the judge, or the politician in relation to these duties. The 'implicit' assumption that the positivist theorist would attribute them would be an act of such theorist and not of them, and therefore it would not be positive right but the imaginative lucubration of the theorist.
International law expert Clive Perry, who has defended the juridical character of international law despite its apparent lack of coerciveness, has rightly remarked:
No juridical system depends completely, either for its effectiveness, or for the definition and development of the norm it contains, on the application of imposition by means of a superior power. If men decided not to obey the law within these State, there could never be enough policemen that could force them not to behave like that. Exactly the same kind of recourse with which one counts for the preservation of the apparently high degree of order that prevails within the States of the world, are available to pre- serve the international order as well. Theoretically speaking, they can be employed with no lesser degree of effectiveness in both of these realms (Sorensen ed. , 1978, 55s).
As a whole, the displays of social disapproval are a sanction much more efficient than those foreseen by the law and the application of au- thority. And the same goes for the spontaneous action of the passers-by who try to prevent a homicide or an act of cruelty. The duties attached to the 'verbal actions' have as their sanction the systematic exclusion from the community for those who do not behave well. Hegel says correctly that positive right can only exist as a parasite in another right that is not written and which is called ethicity. No one can deny the character of right to ethicity, because its sanction, taken integrally, is more efficient than that of positive right.
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 306 Hegel was right
Let us only insist in the non-written precept that says 'you shall not deceive'. As it is a constitutive element of speech, it is evidently the condition of possibility of any positive precept; and evidently, society also punishes whoever does not respect this by boycotting him once his felony is discovered. Plato energetically rejects (Laws VII 793 BC) the opinion of those who think that these 'not written laws' are in fact laws, for they are, as Plato says, the fundament of the written laws and the bond that ties ones with the others together.
It would be completely paradoxical to believe that the precept 'you shall not deceive' does not exist if some legislator does not establish it. Positivism would have no other way out than saying that the entire community was legislator before some individual or group assumed such functions. In that case, there would be no difference between positivism and no-positivism, for there would be no difference be- tween legislating and not legislating, The antipositivism holds that one does not need legislators or authority in order that right exists. Positivism affirms the contrary, but in order to be a legislator one only needs to be considered by the theory as such. Reality does not need to be different than the way anti positivism describes it; for the correctness of the positivist thesis one needs only the whim of the positivist theorist. In fact, we deal there only with mental toys and nothing more.
4. State
Rousseau's disastrous mistake was to consider man good by nature. But that man is man by nature has been and still is the absolute mistake within vulgar thought, Sociology, Psychology, Politics, Pedagogy, Theology and Philosophy, despite that Plato and Aristotle demonstrated the contrary twenty five centuries ago and in spite of the fact that Hegel deepened that precise demonstration almost two centuries ago.
When Aristotle (Pol I 1253a25) and Hegel (JS 505 et passim) stridently proclaimed that by essence the State anteceded man, several thinkers tore their clothes believing than that priority of the State attempted to tell us what man ought to be. It did not even cross their minds that what man is, is what it is all about, it is a confirmation. In spite of the fact that Hegel takes heed of it since the preface itself: "To understand what man is, such is Philosophy's task. " (Rph xxi fine)
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 307
I already remarked (I, 1) that modern anthropology agrees that Hegel is right: by nature man is not man but animal; the so-called 'human nature', which according to the biased and pedant tyro is 'the same ev- erywhere', is not human but primate.
If only the anthropologists of our century had read Hegel, they would have synthesized their own research in the following phrase: "The fundamental principle is that man as such is not a natural being, he is not an animal. " (PR II, I 27)
This is everything those who scream blue murder must know when they read: "Everything man is, he owes it to the State; only there he has his essence. " (VG 111)
It does not surprise me that such a good scholar like Mure states that Karl Popper's invectives against Hegel are "blatantly ill-informed" (1965 viii), neither what Ripalda claims about them that "it is hard to read something more idiotic. " (FR xiv)
But Karl Marx, an author Ripalda does not take to be idiotic, turns out to be just as incapable as Karl Popper to understand that the State makes the man and not vice versa, even though there is no clearer issue than the fact that by nature man is an animal but not man. It is enough with the next 'critique' (? ) from Marx's pen against Hegel to make clear that the former simply never got what the point was: "I am man be- cause I was engendered without society's arrangement; this particular creature that I am can be transformed into a lord or a king just due to social arrangements. " (MEW 1 310s) What is claimed here is that man becomes man without society's intervention.
We do not find in Marx or in Popper the slightest suspicion that zoo^n politiko? n (Pol I 1253a3) is the definition of man. Both still believe, as every coffee shop philosopher, that in the beginning there was a time in which there was no State or Right, the strictly speaking contradictory time that they called the situation of nature, as if the expression 'natu- ral man' wasn't a contradictio in terminis. Notice that I am not claiming that they believe in a myth, even though such time is indeed a myth; I am saying that they have not understood the difference between man and animal. The same happens to Kelsen by the way; since only posi- tive Right is Right, supposedly before legislating and governing was invented there was a 'natural situation' in which man was not man and there was no Right.
The refutation of this superficiality was formulated in the third chap- ter (III, 7 and III, 9). There, I showed that without self-consciousness
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 308 Hegel was right
man is not man and that the rise of self-consciousness is impossible without the social appeal that demands duties and rights. I beg to confer. Whatever Marx says, no one is man by birth without the inter- vention of society.
Besides this fundamental error, Marx makes the mistake of be- lieving that civil society can exist without a State, the mistake of not understanding the Hegelian thesis according to which "civil society [. . . ] supposes the State. " (Rph no. 182 Z) A thesis Aristotle insisted on relentlessly. The Marxian text I quoted offers the advantage of making apparent that Marx's is a core mistake; that Marx denies the interven- tion of society itself in the constitution of man as man. This fundamental mistake discredits the whole Marxian critique of Hegel's State and Le- gal philosophy. And it is important to remark that according to Engels (MEW 16 362s) this critique is the origin of Marxism.
Putting Marx aside, if we are to reject the accusations of statism, it is not to calm down its accusers telling them that there has been a misunderstanding and that in the end Hegel claims the same as them. It is not about an issue of terminology, as if after clarifying that Hegel does not understand by State the same that them, everything would be settled. It is not true that anyone can define State as it pleases him. Studying an author neither consists of verifying if he holds what I already knew.
The priority of State seems to them unbearable because they identify State with government. They overlook that the identity means Legal positivism because they make the existence of individual rights de- pend on the ruler. Only who defends human rights that do not depend on any authority can logically reprove statism.
In every single European country there is a real distinction between the head of State and the head of government, which logically implies a real distinction between State and government. A theory conscious of its duties has to define State in a way that government does not get included in the definition.
No doubt the definition proposed by Hegel was crystal clear since the beginning. For example, in his 1830 review, F. J. Stahl summarizes Hegel's ideas as follows: "According to his ideas, with the concept of Right the concept of State is already given; it is enough to scrutinize the former in order to find the latter. " (In Riedel ed. I 1975, 223)
In Philosophy of Right Hegel defines State since the preface: "the ethical universe" (das sittliche Universum) (Rph xxii), i. e. , the set of the ethical.
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 309
And he said lines above: "The ethical world, the State. " (Rph ix) The same definition is found later in the main part of the book: "The State is by itself and for itself the set of the ethical. " (Rph no. 258 Z)
We have seen what the ethical is for Hegel: the intersubjective rights and duties free of, and contrasted with, a narcissist morality and a positive Right that would make them depend on legislations. The set of the true duties and rights is the State. By the time Hegel gave his legal lectures to the Gymnasium students at Nu? remberg he already held that: "The State is the association of men under legal relationships. " (NH 246) Afterwards, in his Philosophy of History, he held exactly the same: "We call State the spiritual individual, name- ly, the people as structured and transformed in an organic whole. " (VG 114)
The significance of both the government and the monarch are so diminished that the monarchist K. E. Schubarth attacked Hegel's doc- trine in 1839 with the following words:
The prince is not the substance of the State, which is really constituted by the set of the different particular organic spheres such as family and civil society according to its structuring in diverse social estates, corporations and chambers. All this makes the prince's importance completely acciden- tal. (In Riedel ed. I 1975, 254)
Both those that accuse Hegel of statism and those who with huge ease label him the ideologist of the Prussian monarchy should know that Schubarth's work is entitled: On the Irreconcilability of the Hegelian Doctrine of State with the Supreme Principle of Life and Development of the Prussian State.
Schubarth's fears were not groundless. Hegel expressly says:
For being a monarch it is just required a man who says 'yes' and who dots the i's and crosses the t's; since the tip should be such that the particu- larities of character are of no importance. Beyond this last decision, any other property the monarch possesses ought to be reduced to peculiarities anything could properly rely on. It is true that there might be stages in the development in which those peculiarities might stand out, but in that case we would be dealing with a State not fully developed yet, which is not well built. Within a well-ordered monarchy only law is concerned with the objective; what the monarch adds is just the subjective 'I want' (Rph no. 280 Z) (my emphasis).
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 310 Hegel was right
It should not surprise us this kind of marginality of the monarch (and of the government itself, as I will say immediately) if we recall that since the preface we were warned that the State is the set of the ethical: "the rich structuring of the ethical in itself, which is the State. " (Rph xii) In Science of Logic is explicitly asserted that "State's reality is self-conscious individuals. " (WL II 410)
Regarding the State itself, I cannot see how we could doubt it is the set of duties and right that entwine individuals. Especially when it is obvious that a State remains existing even when a monarch van- ishes and another rises up, or even when a government vanishes and another rises up. Hegel just offers a definition of State that corresponds with the facts.
Previously, on the third part, we saw that it is not strength or posi- tive Right's sanctions what maintains a State in existence. There would not be strength or police enough if, as it were, 'some fine morning' the whole people decided to disobey. As Napoleon said, bayonets are good for many purposes but for sitting on them. In the transcribed paragraph (Rph no. 280 Z) is obvious that the word law does not refer to posi- tive Right as such; the objective part of State, in contrast with the mon- arch's subjectivity, is the true Right with the consequent articulation and structuring. As Hegel remarks in the corresponding section of the Encyclopedia: "Right should not be taken in the narrow sense of a legalist Right, but as covering every content of freedom" (EPW 486).
In his legal philosophy Hegel held the following perfect formula: "the commandment of Right is: be a person and respect others as per- sons. " (Rph no. 36) This is clearly not positive Right. Given that the aforementioned is the true content of Right, Hegel held this decisive thesis for science: "the State lies upon thought, its existence depends on men's mentality; it is a spiritual realm, not a physical realm; spirit is essential. " (GP I 507)
Government is a natural person or a group of natural persons. In their materiality, the sanctions applicable by the government are physi- cal deeds: imprisonment, death penalty, fine, etc. On the contrary, the fact that certain set of human beings constitutes a State is not a physical datum; there is no way in which the State could be empirically verifi- able. Physical presence at certain territory evidently is not the same that belonging to the State, since an individual does not stop being part of his State if he travels abroad. On the other hand, people that do not form part of a State can be physically present in its territory. It is not
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 311
empirical either that the government's physicalities and its sanctions constitute Right and have to do with the State; empirically they cannot be distinguished from the violence executed by a shear of criminals sufficiently strong and organized. The conformity of such physicalities with the constitution does not make them empirically Right and State, since the fact itself that the constitution is Right is not a physical or empirical datum. Both State and Right are ideas.
"The spirit is just the State in consciousness, just so far as it considers itself as object. " (Rph no 258 Z)
"The idea touches ground on the State the moment it acquires exis- tence and reality in knowing and willing" (Rph no. 270 Z) (Italics added). Rousseau had already said it: "Deep down, the political body, being
only a legal person, is nothing but a reason entity. " (1964, 608)
Since rulers are physical objects while the State is a group of ideas, the distinction between State and government is obvious. But Hegel goes further: he attributes governments of well structured States so little importance as he did to the monarch (head of State). The government is an instrument of the State, but in a well articulated State the important decisions are already made by the time they reach the governmen- tal level, so that the instrument is in charge just of executing them. "Governmental affairs are of an objective nature, already substantially decided, and it is duty of some individuals to carry out and realize them" (Rph no. 291). Hegel would concede, as he concedes regarding the monarch, that there are underdeveloped stages in which the govern- ment plays a preponderant role, "but then we deal with a non-fully de-
veloped State, which is not well built".
States' robustness properly resides in the communities. Government comes across with legitimate interests that it ought to respect; in so far the adminis- tration can only favor them but also custody them, the individual finds protection for the exercise of his rights and this is how his particular inter- est of conserving the whole arises. Recently the main efforts have been for organizing from above, but the lower parts, the massive about the whole remains somewhat inorganic; nevertheless, it is of supreme importance that it becomes organic, since only then it turns into strength and power. Other- wise it is just a heap, a multitude of atoms. There is legitimate strength only at the organized condition of particular spheres. (Rph no. 290 Z)
Only this is decisive. Hegel, it is true, adds there that power so characterized is monarchical. But I don't know how someone can be
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 312 Hegel was right
scandalized when, as we have seen, Hegel explicitly states the little im- portance of the monarch and the little importance of the government. He even adds right there that it should be distinguished between the antique monarchies and modern monarchies which are characterized by the autonomy that the particular spheres have from it. "A first mon- archy must be distinguished from a second one. " (VG 147)
The modern one is not juxtaposed on equality with democracy and oligarchy as a third form of government; that antique division was based upon quantitative criteria: it asked if it were one or few who governed. On the contrary, modern monarchy includes democracy: Rph no. 273 A. This is one of the most substantive theories that can be posed in philosophy of history.
It actually includes it, making that for the first time in history it is true democracy. Political thought cannot ignore this fact any longer: the Greeks invented the word 'democracy', but democracy is a modern Euro- pean invention, it is a quite recent discovery in human history. Among the Greeks, four fifths of the population were slave, and that cannot be called democracy. Besides, the strong decisions were made by the oracle, not the people: "That democracy did not have yet the strength and energy of self-consciousness, which consists in the fact that it is the people themselves who decide. " (PR II, II 189) (my emphasis) Whoever reads this expression cannot doubt about Hegel's democratic sincerity. It is related with what we were reading just a moment ago: "There is legitimate strength only at the organized condition of particular spheres (Rph no. 290 Z).
Whether we agree or not with monarchic form, I cannot see how one can doubt that Hegel is right when he says that modern Europe- an monarchy includes democracy: England, Sweden, Spain, Belgium, the Netherlands, Norway and Denmark are monarchies and they cer- tainly are among the ten or twelve most democratic countries in the world. Hegel's critics would have to demonstrate that here are more democratic nations than these. Even an opponent as dumb as Findlay is forced to recognize:
Despite Hegel's strange belief in hereditary Monarchy as the crowning truth of the State Idea, his view of the Monarch's functions are far from feu- dal, and are, in fact, in accord with modern British constitutional practice. The Monarch is merely the necessary apex of the State-structure, and as such he is merely someone who dots the i's, and whose individual character is not of great importance. (1958, 325)
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 313
Regarding this latter claim it might be suitable to recover the testi- mony of a mere historian, David Harris: "In England it came to be of relatively little importance who wore the crown. " (EB 18, 745, 1)
Hegel insists in the little importance of what his critics, turning a deaf ear, consider central of his doctrine: "When there are firm laws and the organization of the State is well determined, the only thing that is left to decide to the monarch is, in comparison of substantial issues, rather unimportant. " (WG 937).
What is central within the Hegelian conception is people's organi- zation, the organic structuring of the communities and spheres of ac- tivity, which allows "to decide the people themselves", as Hegel tells us in contrast with the Greeks. This is why Hegel attributes so much relevance to the parliament:
This opportunity of knowledge has the universal quality that only through it public opinion is capable of reaching real thoughts, of understanding the situation and concept of State and its affairs; and along with it, the capacity to judge it in a more rational fashion (Rph no. 315).
And, with regard to public opinion:
Public opinion had great strength in all times and foremost in our time when the principle of the subject's freedom has so much importance and signifi- cance. Whatever is in vigor today is not in virtue of violence and much less in virtue of custom and habit, but in virtue of intellection and reasons (Rph no. 316 Z).
We have seen that the State really distinguishes from government and hence, those who accuse Hegel of propitiating authoritarianism have understood nothing. And we have seen that, despite the consistent appearances in the monarchic form, the decisive part of the democratic principle is present not only in the Hegelian system but it lucidly con- cretes in what we call today self-management. And it is, as sooner or later both left and right wings would have to face, the only way in which the democratic principle could be thoroughly realized.
All the misconceptions of the Hegelian political thought have just been useful impediments for the reception of a message of enormous importance precisely about democracy. A message capable of revolu- tionizing today's whole political thought. In order to deliver this mes- sage let us ask a crucial question.
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 314 Hegel was right
If 80% of the population voted for the other 20% to become slaves, would all the supporters of democracy reject such decision? Why? Will it be congruous?
Evidently the way out claiming that the constitution prohibits it would be useless. Every constitution is modifiable by a supermajority and 80% is a supermajority. It would be enough voting first for a con- stitution modification.
This possibility is not unreal: remember that African-Americans in the United States are not even the 20% of the whole population. Other countries might think of persons having certain physical traits known to be possessed by less of the 20%: size, eyes color, blood type, birth weight, skin color, etc.
I repeat the question: If democracy consists on voting, with what logic could democrats deny the majority the faculty of deciding that certain minority should become slave?
This question shows that Hegel is right when he holds that the essence of democracy need not identify with the republican form, which is voting. Let it be clear that this book ? s author prefers, against Hegel, the republi- can form, but here we are analyzing this issue under strict logic. And at this level Hegel's following paragraph touches the heart of the matter:
From the viewpoint of the superior principle it becomes a subordinate and indifferent discrepancy what is usually considered as essential to a constitution, namely, if the individuals give their subjective acquiescence or not. It should first be determined if individuals are conceived as persons, if substantiality as spirit is present or not, i. e. , as an essence known by them. (VG 145) (my emphasis).
This is why Hegel told us, as we saw above, that in a real State really important decisions are already made.
If every individual is conceived as a person, neither the majority nor anyone can treat someone as a thing. The first thing we should say, regarding our crucial question, is that in a real democracy not everything is subject of vote. There are a lot of things, precisely the most important ones, which we cannot leave to majorities, neither regarding a minority neither a single individual or in relation to anything. Deep down, this is the truth: none of the important things are subject to voting.
It is absurd to forget universal history when speaking about the State. Those who believe that man is man by nature and not by history
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? Science and Literature 315
forget that democracy did not exist from the beginning, neither did the Greeks who invented it. It was born in a time and in a civilization where all the people, including intellectuals and rulers, were iusnatu- ralists, i. e. , it knew that the criteria for good and bad does not depend on any ruler or legislation or voting. Hence, democracy was born con- vinced of the fact that nothing really important is subject to vote. The democratic principle survives only within the framework of iusnatu- ralism due to both history and strict logic, as we shall see.
In order to avoid slavery it must be known that man as such is free. But for that is required that man can be thought as a universal, without the particu- larity of being citizen from this or that State. The conception that man in general, as universal, is free, was not achieved by Socrates, Plato or Aristo- tle (WG 611).
"The situation is different at the European States; there the concep- tion is general. " (VG 145)
"Nowadays there cannot be legislators; legal institutions and judicia- ry relations are always present in our time. There is so little to add; just ulterior determinations of quite insignificant details can be provided by a legislator or a legislative assembly" (GP I 182).
If the aforementioned historical facts are forgotten, it is impossible to answer our question of reference. It is absolutely vital to realize this: every man is free, human beings are equal, and obviously none of this is empirical data. Therefore, this knowledge or conviction were not em- bedded in humanity from the beginning, they are not a natural endow- ment of the mind, and experience, for however bright we may suppose it to be, they cannot be acquired by the mind.
That such equality exists, that is man and not just some men like in Greece and Rome, etc. , who is recognized as a person with legal validity, is so far from being just by nature that, on the contrary, it is only a product and an outcome of the consciousness of the deepest principle of the Spirit and of the universality and development of consciousness (EPW no. 539 A).
That every man has infinite dignity, even though it is an absolute truth, by no means is an idea that humanity possessed from the be- ginning or that it could have acquired by nature. This is so because I would say, that is the most anti-empirical, affected and gothic idea that has ever been.
? ? ? ? ? ? ? ? ?
