HEGEL'S THEORY OF RIGHT

Significance of Contract for Hegel's Theory of Right



Significance of Contract for Hegel's Theory of Right

Introduction

What is the worth of contract? When the typical Anglo-American legal theorist takes up the question, she usually begins with the premise that personality already exists, and the contract is either useful to or the right of an already self-identical person. In such theories, the person is "pre-legal." Yet, if we define law as the total of all human relations, how could personality antedate personal relation? We know from our own childhood that only the demands placed upon us by fully developed adults drew us out of our animal stupidity.

This weakness in the usual explanations of contract has inspired a small number of intrepid philosophers of contract to turn to Hegel's account in the Philosophy of Right. In Hegel's account personality is not pre-legal. Contract law is not merely useful to persons. It is the foundation of personality itself. Consent binds, because personality is consent to human interrelation.

One commentator who looks toward Hegelian theory to describe the function of the contract is Chad McCracken, who, in the pages of this law review, has recently interpreted Hegel as follows: The purpose of contract, conceived as a part of Abstract Right, is to protect the ability of one free personality to engage in exchange transactions with another free personality. In other words, free personalities exist, and contract law facilitates exchanges that these personalities may wish to make. This, McCracken observes, makes Hegel a "consequentialist" with regard to contract law. That is contract is a tool that a person might use to maximize his freedom or whatever private ends might exist. In this account persons fully pre-exist contract law, and they may take contract law or leave it as they find useful to various ends.

Discussion and Analysis

I. The First Steps in the Philosophy of Right

What I would like to do is to rehearse the first few steps of the Philosophy of Right. The payoff in doing this is threefold. First, I hope to show that the emergence of the contract is strictly "necessary," in logical terms. It is not a mere tool, which might be used or not as the person finds expedient. Second, I hope to show that the contract is constitutional, and to this extent to call Hegel a "consequentialist," as Dr. McCracken does, is problematic. Third, I hope to show why, in logical terms, the Hegelian subject exists only if recognized as such in the eyes of another.

The first task is to imagine complete, utter negative freedom. Such a freedom is taken to its most radical extreme. Typically, Anglo-American philosophers, when asked to do this, imagine a concrete individual who can do what he wants and indulge what appetites he pleases. We must be far more radical than this. We must imagine the person free of such things as thirst or hunger or personal inclination of any kind. In short, we have before us the Kantian autonomous ...