Natural Law And The Ethical Community

Hegel’s investigation of natural law or the philosophy of law ran through morethan half of his life, from the period of Jena (1801-1816) to the Berlin periods(1818-1831), including the period of Heidelberg. What’s Hegel’s attitude to naturallaw? How did his attitude change then? What’s the relation between the term “naturallaw” and the term “the philosophy of law” which was used later? These questionshave not been resolved well hitherto. To lay the foundation of this huge subject, myessay is to examine Hegel’s first essay on philosophy of law On the Scientific Ways ofTreating Natural Law, on its Place in Practical Philosophy, and its Relation to thePositive Sciences of Right (henceforce On Natural Law), to investigated Hegel’sthought about natural law critically, through perusing the typical text. Compared withits importance in Hegel’s thought, the investigation to it all over the world isinsufficient relatively, especially in China. And the literature about the text can bedivided into three routes roughly, that is, the perspective of pure philosophy, that ofthe strict jurisprudence and that of the history of political thought. These above are thecontents of the introduction of my essay.When On Natural Law was written and published, the war between German andFrance had being lasting for a few years, the Holy Rome Empire had being starting todisintegrate, getting in trouble inside and outside, being on the edge of death.Remembering this background is helpful to understand the text. What’s more, at thatmoment, Hegel was trying to construct his own philosophy system by criticizing theClassical Philosophy of German (i.e. the philosophy of Kant, Fichte and Schellingmostly), which can be found in On Natural Law. Virtually, the substantial thought ofexists in Hegel’s texts of pre-Jena periods. The actual settings, the theory backgrounds,the development of young Hegel’s thoughts and the overall structure of On NaturalLaw are clarified in Chapter1. In the first two parts of On Natural Law, Hegel criticized two modern ways oftreating natural law, namely, the empiricist way (e.g. Hobbes’s natural law) and theformalist one(i.e. the moral theory of Kant and the natural law of Fichte). In the thirdsection, Hegel reconstructed the natural law theory by the way of speculation. Insection4, the relationship between the science of natural law and the positive sciencesof law was discussed. Because Hegel’s natural law theory was clarified intensively insection3, so this section is to be interpreted in the following three chapters, accordingto the logic of this section.The second chapter of my essay is to treat section3, subsection1of On NaturalLaw, that is,“the ethical totality and its systems”. Hegel pointed out that,“theabsolute ethical totality is nothing other than a people”, and “war preserves the ethicalhealth of peoples”. According to “the absolute is the unity of indifference andrelations”, a principle of the of Philosophy of Identity, Hegel built the systems ofabsolute ethical life, namely, the system of reality (i.e. the realm of the real and thepractical), the system of law (i.e. the realm of formal unity or that right) and thesystem of ethical life (i.e. the realm of the absolute or the ethical), and the first twosystems was superseded[aufgeben] and synthesized in the last one at last.The third chapter is to discuss section3, subsection2of On Natural Law, that is,“the distinction of classes and the tragedy of the ethical life”. Two classes wereformed in accordance with the absolute necessity of the ethical, namely, the class ofthe free and the class of the unfree. With the mixture of the two classes in RomeEmpire, under the law of formal unity, the first class was in fact completelyannulled[aufgehoben], and the second alone becomes the people, the estate ofbourgeois appeared and the ethical totality was damaged. Facing to this historicaldevelopment, Hegel believed that, ethical life must give up and sacrifice part of it toits own inorganic nature, i.e. the realm of the practical and legal, keeping the latterliving, but at the same time it overcame the economic necessity by its own death,avoiding the mixture with the realms of the practical and the legal and being free,which was called “the enactment of the tragedy in the ethical realm”. From the idea of the nature of absolute ethical life, the relation of the individual’sethical life to the absolute ethical life and the relationship between morality [Moral]and natural law were discussed in section3, subsection3of On Natural Law, which isinvolved in the fourth chapter. The relation of the individual’s ethical life to theabsolute ethical life is the dialectic relation between the negative and the positive, thelatter is the essence of the former. What’s more, the latter is ethical life of all, andcannot be divided in essence. The latter is by nature prior to the former, as the state[Volk] is more in accord with nature than is the individual. Then, the previous scienceof natural law is nothing other than the science of morality, investigating individual’smorality, being natural wrong [Naturunrecht] and belonging to the negative realm. Butthe real science of natural law investigates the absolute ethical life, belonging to thepositive realm.In the last chapter, this essay reviews the overall structure and the section3of OnNatural Law, summarizing briefly the characteristics of Hegel’s thought about naturallaw. In my view, Hegel had reconstructed a system of natural law in the speculativeway, a synthesis of the empiricist way and formalist way of treating natural law. It isalso a synthesis of the moral theory of Kant and the natural law of Fichte, a unity ofthe ancient natural law and modern natural law (rights).