I wish to thank Ann Benson whose extensive comments on the draft of this paper were especially helpful.

1. For both Kant and Hegel, the first conception of the normative (whatever its content) is heteronomous, whereas the second alone is expressive of autonomy. I have adopted the term “constructivism” from the work of John Rawls. See especially his “Kantian Constructivism in Moral Theory” (1980) 77 J. Phil. 515 at 554–72.Google Scholar and “Themes in Kant’s Moral Philosophy” in Forster, E. ed., Kant’s Transcendental Deductions (Stanford: Stanford University Press, 1989) 81.Google Scholar Drawing on Rawls’ account of Kant’s moral constructivism, I have tried in this paper to suggest why Hegel’s philosophy of law is also constructivist in character and how the significance of the first part of that philosophy, namely, the section on abstract right, may be more fully brought out when it is viewed in this light.

2. Following Rawls, I shall take “lexical” ordering to mean an “…order which requires us to satisfy the first principle in the ordering before we can move on to the second, the second before we consider the third, and so on. A principle does not come into play until those previous to it are either fully met or do not apply.” Rawls, J., A Theory of Justice (Cambridge: Harvard University Press, 1971) at 43.Google Scholar Rawls notes that the priority of right as found in Kant is a case of lexical ordering.

3. Hegel discusses what I call the form and content of the general concept of free will at, Hegel, G.W.F., Philosophy of Right, trans. Knox, T. (London: Oxford University Press, 1952) at paras. 4–7 and 29 respectively.CrossRefGoogle Scholar My conceptualization of Hegel’s discussion draws on distinctions suggested by Rawls in his “Themes in Kant’s Moral Philosophy,” supra, note 1 at 95–102.

4. Hegel refers to the “specific forms” that embody freedom. Philosophy of Right, supra, note 3 at para. 30.

5. To prevent confusion, it should be noted here at the outset that, following Hegel, I will use “personality” to denote a specific form of free will. “Personality” is thus to be distinguished from “free and equal persons,” “moral persons,” and “conception of the person,” all of which, as I use them, belong to the general concept of free will and are accordingly instantiated in the different specific forms, including personality. Finally, again following Hegel, I refer to individuals, viewed exclusively under the aspect of personality, simply as “persons”.

6. I have discussed Kant’s conception of responsible agency in Benson, P., “External Freedom According to Kant” (1987) 87 Columbia L. Rev. 559.Google Scholar

7. See, for example, Hegel, G.W.F., Logic: Part One of The Encyclopaedia of The Philosophical Sciences (1830), trans. Wallace, W. 3d ed. (Oxford: Clarendon Press, 1975) at para. 53.Google Scholar

8. Hegel discusses the distinction between theoretical and practical thinking in several works. See, for example. Philosophy of Right, supra, note 3 at paras. 4,4R, 4A; Hegel, G.W.F., Philosophy of Mind, trans. Wallace, W. & Miller, A.(Oxford: Clarendon Press, 1971) at paras. 443 469;Google Scholar Hegel, G.W.F., The Philosophical Propaedeutic, trans. Miller, A. (Oxford: Basil Blackwell, 1986) at paras. 1–3. and 10.Google Scholar

9. Hegel, , Philosophy of Right, ibid. at paras. 5–7.Google Scholar It should be noted that, although Hegel thinks that there can be a systematic rational account of the conception of the person as free and equal or of what I have called “the form of the general concept of free will” (which he seeks to provide in the Logic and Philosophy of Mind), he states that for the purposes of the Philosophy of Right he shall not attempt any such demonstration but will assume that the reader can, on reflection, discover that its essential features are latent in and presupposed by his or her everyday experience as a thinking, responsible agent. See Philosophy of Right, ibid, at para. 4R.

10. It should be emphasized that the independence spoken of here (which is a necessary aspect of the general concept of free will and which is therefore presupposed by its various specific forms) is only independence from the given as such. Each stage in the account of right has its specific way of expressing the will’s independence from the given. Moreover, such independence does not imply that the self is to be characterized in abstraction from, or as indifferent to, normatively valid ethical ties of family or community, for example. Indeed, at the stage of free will that Hegel calls “ethical life,” individuals are related to the ethical order (which comprises the family, civil society and the state) as accidents to substance. (Philosophy of Right, ibid, at para. 145). This relation is possible, however, only if the ethical order can be represented, not as something given or extrinsic to free agency, but rather as its immanent realization. If attachment to family and community or to religious and philosophical views is to have normative validity and worth, it must not have its determining ground in a purely given or natural necessity.

11. Kant’s discussion of these conditions of free agency can be found in the Critique of Practical Reason, trans. Beck, L. (Indianapolis: The Bobbs-Merrill Company, Inc., 1956) especially at ch. I, 2–4 and ch. II. bk. I of pt. I.Google Scholar Definitions of negative and positive freedom are presented in summary form in his The Philosophy of Law, trans. Hastie, W. (Edinburgh: T.& T. Clark, 1887) at 13–14.Google Scholar A contemporary account of agency in these terms is Oakeshott, M. On Human Conduct (Oxford: Oxford University Press, 1975) Part One, especially at 35–40.Google Scholar

12. Philosophy of Right, supra, note 3 at para. 4.

13. I discuss these matters briefly in Part Three of this essay.

14. Philosophy of Right, supra, note 3 at para. 35.

15. Ibid, at paras. 35–36.1 note in passing that Hegel’s use of the term “personality” seems to differ from that of Kant. For Kant, moral personality is “the freedom of a rational being under moral laws.” The Philosophy of Law, supra, note 11 at 31–32. In Kant’s usage then, personality seems to represent the form of the general concept, and not a specific form, of free will.

16. This is the case in the second stage of right, “morality.” See, Philosophy of Right, supra, note 3 at paras. 105–07. In the present essay, the discussion of why individuals, as persons, need not subjectively regulate or view their ends in the light of this conception of themselves begins at infra, note 18 and accompanying text and culminates with the characterization of the relevant normative standpoint as “external,” at infra, note 28 and accompanying text.

17. See, Philosophy of Right, ibid, at para. 49.

18. It is important to keep in mind that the self’s merely negative relation of independence to its determinate features (native endowments, particular purposes, ties of relationship, and so forth) is characteristic of only one specific form of free will, namely personality, and it reflects the fact that at the start those features must be established as not given to the choosing self. With the other forms in which free and equal personhood is expressed, these determinate features can be progressively integrated, insofar as they are no longer merely given. The distinction between being a person and having the realization of personality for one’s determinate aim is Hegel’s (Philosophy of Right, ibid, at para. 104) and it underlies the categorial difference between abstract right and what Hegel calls “morality” or what Kant calls “virtue.”

19. Philosophy of Right, supra, note 3 at paras. 42–43. The division into personality and things is normatively exhaustive and regulative. It is sometimes objected that Hegel has not shown why on his own view the determinate expression (or embodiment) of free will cannot be through an aspect of agency that is not a thing and in which a person need not have a proprietary interest. See, for example, Piper, A., “Property and the Limits of the Self” (1980) 8 Pol. Theory 39.Google Scholar In reply, Hegel’s fundamental point is that whatever determinate feature one wishes to select, its normative significance can, at this stage, only consist in its being different from personality and therefore in its being a thing that persons are entitled to use. In this regard, it is important to keep in mind that, as we shall see. persons are under no obligation to use things and that the characterization of freedom in terms of persons and things is categorially independent of—and so need not constitute— the conceptions of value or particular interests that individuals may wish to realize.

20. This argument draws on paragraphs 44 and 45 of the Philosophy of Right, supra, note 3 as well as on Kant’s elucidation of the “juridical postulate of practical reason” in his Philosophy of Law, supra, note 11 at 62–64.

21. Philosophy of Right, ibid, at para. 3, par. 46. At this point, ownership that is in common must be the result of a contract among individuals, each with a capacity for exclusive ownership, and it is therefore inherently dissoluble in character.

22. Ibid, at paras. 37, 38, 45, 49, and 104. See text accompanying note 18, supra. Kant makes this point explicitly: “As Right in general has for its object only what is external in actions, Strict Right, as that with which nothing ethical is intermingled, requires no other motives of action than those that are merely external; for it is then pure Right, and is unmixed with any prescriptions of Virtue … Now such Right is founded, no doubt, upon the consciousness of the Obligation of every individual according to the Law; but if it is to be pure as such, it neither may or should refer to this consciousness as a motive by which to determine the free act of the will.” Philosophy of Law, supra, note 11 at 47–48

23. Philosophy of Right, ibid, at para. 3. par. 38. Kant characterizes the juridical postulate of practical reason, which grounds his deduction of the right to have an external object as one’s own, as a “permissive law of practical reason.” Philosophy of Law, ibid, at 62–63.

With this mention of permissibility, it might be thought that the elementary mode of positive freedom (abstract right) articulates a doctrine of permissible, even if not obligatory, ends and that therefore, contrary to what I have suggested, it does after all refer to ends as part of the account of freedom. But this view is mistaken. To avoid misunderstanding, one should keep in mind the main idea: while the relevant criterion of evaluation, namely, respect for formal equality, applies to action, it is wholly indifferent to the standpoint that informs, and to the interests that are realized in, the pursuit of ends, whether permissible or obligatory. At this point, the pursuit of ends counts merely as a contingent factual happening that is, as such, devoid of inherent normative significance. Here positive freedom resides solely in the maintenance of the abstract standpoint of personality (and of its entailment, respect for formal equality), not in the pursuit of ends as such. To be sure, actions that are inconsistent with this requirement of respect are prohibited. This is entailed by the application of the criterion. So, we may say, positive freedom (abstract right) articulates a criterion in the light of which actions are intelligible as permitted or prohibited. However, in doing so, it merely sets the stage for the next step in Hegel’s analysis of right, namely morality, where positive freedom now consists in, and is realized through, the pursuit of permissible ends and the satisfaction of the agent’s interests contained therein. This gives rise to a qualitatively distinct complex of rights and duties that directly integrates such factors as the agent’s particular intentions, purposes, insight, and needs—factors which were hitherto categorially irrelevant. For further discussion, see supra, note 18 and accompanying text.

24. Jeremy Waldron interprets Hegel to be saying die contrary: “If one never actually gains control of any object then one never gets the benefits of the exercise of one’s will on objects: one’s will, then, never develops in the way that Hegel thinks it is important for it to develop.” Waldron, J., The Right to Private Property (Oxford: Oxford University Press, 1988) at 383.Google Scholar In order to reach this conclusion, however, Waldron must introduce (for example, at 371–74 and 385–89) formal and substantive ethical considerations, in connection with the question of the justification of private property, that are not entailed by the moral power(s) of personality (as set forth by Hegel in the crucial opening paragraphs of Abstract Right, Philosophy of Right, ibid, at paras. 34–39). Consequently, the bare abstractness of personality is not preserved in Waldron’s account of the “embodiment of personality.” But, as I have tried to make clear, the embodiment of personality is nothing more than the determinate mode in which the freedom specific to abstract personality is expressed. As textual support for his conclusion, Waldron refers ( for example, at 350, 382, 384) to Philosophy of Right, para. 49, Addition (based on student notes) where Hegel says: “Of course men are equal, but only qua persons… the inference from this is that everyone must have property.” Interpreted in context, however, this passage does not, I think, support Waldron’s contention. Negatively, Hegel is trying to explain here that the equality of individuals, which at this point consists just in their being persons, does not justify equal property holdings. Positively, and in the light of what Hegel has attempted to establish in the preceding paragraphs, the Addition can only mean that, as a person, every individual has equally “the right of putting his will into any and every thing and thereby making it his.” (para. 44). But this right, as Hegel emphasizes, is to be conceived only as a permission and as correlative to a negative duty not to injure what is already a person’s property. The phrase “everyone must have property” is the equivalent of “personality must be embodied in property” (Add., para. 50): in both instances, the “must” expresses the kind of normative necessity compatible with the abstractness of personality. 25. The common law principle that there is no liability for mere nonfeasance

25. The common law principle that there is no liability for mere nonfeasance can be justified on this basis.

26. In this essay, I do not discuss the possible ways in which persons may appropriate things consistently with formal equality. According to Kant and Hegel, these are essentially twofold: original acquisition in accordance with first occupancy and contractual acquisition in accordance with what they call the parties’ “common will.” In P. Benson, “The Basis of Corrective Justice, its Priority, and Autonomy” [unpublished], I try to show how these modes of acquisition reflect, and are required by, the negative, interactional, and external imperative of abstract right. The account of this imperative and of these modes of acquisition can provide a systematic understanding of the normative basis of corrective justice. Or so I argue.

27. Philosophy of Right, supra, note 3 at para. 155 where Hegel writes: “In the sphere of abstract right, I have the right and another has the corresponding duty.” See also Hegel, , Philosophy of Mind, supra, note 8 at para. 486.Google Scholar

28. I borrow this term from Kant. See, Philosophy of Law, supra, note 11 at 47–48.

29. For both Hegel and Kant, (abstract) right necessarily entails—and is conceived as—a right to coerce. For Hegel, see Philosophy of Right, supra, note 3 at para. 94 and for Kant, see Philosophy of Law, ibid, at 47–48. Here I have identified only one necessary condition of the moral possibility of coercion, namely the external character of the requirement of respect. A more complete discussion of this matter would require a systematic treatment of Hegel’s account of wrong and its rectification at paras. 90–101.

30. I believe this account of positive freedom as negative, interactional, and external in character accords with Kant’s presentation of the concept of right in the Introduction to the Philosophy of Law, ibid, at 44–45. In a recent essay, I have tried to discuss systematically the relation between this conception of autonomy and contemporary contract scholarship, in particular, the theories of Charles Fried, Anthony Kronman, and Michael Sandel. See, Benson, P. “Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory” (in Hegel and Legal Theory Symposium) (1989) 10 Cardozo L. Rev. 1077 at 1077–147.Google Scholar

31. Philosophy of Right, supra, note 3 at para. 36.

32. In Hegel’s doctrine, the capacity to form, to revise and rationally to pursue a conception of the good is first accounted for as a moral power, that is, as a capacity that belongs to individuals as free and equal persons, only in the second stage of right, “morality.” See especially paras. 106–111 of Philosophy of Right, ibid. Although this capacity is not postulated as a moral power in abstract right, it nevertheless presupposes abstract personality in at least the following respect: it is part of this capacity that individuals’ preferences are not to be viewed as propensities beyond their control, that simply happen; individuals are regarded as responsible for their ends. See Rawls, J. “Social Unity and the Primary Goods” in Sen, A. Williams, B. eds, Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982) 159 at 169.Google Scholar The negative independence that characterizes personality and that is embodied in abstract right expresses a necessary condition of this requirement.

33. Philosophy of Right, supra, note 3 at para. 37.

34. See supra, note 29.

35. I have in mind Rawls’ account of the primary goods. According to Rawls, the primary goods are introduced so that rationally autonomous parties in the original position can make a rational agreement on behalf of the persons they represent: given the restrictions of the veil of ignorance, they are to do the best they can to advance the determinate good of those persons. See, for example, Rawls, “The Basic Liberties and their Priority” in McMurrin, S., ed., Tanner Lectures on Human Values, vol. 3 (Salt Lake City: University Utah Press, 1982) 3 at 18–22.Google Scholar The primary goods are necessary, then, on the supposition that an interest in realizing a determinate conception of the good can be attributed to free and equal persons. But this, I have tried to show, is not yet the case in abstract right. Abstract right does not postulate even a thin theory of the good. This seems to confirm, from within a constructivist approach, Rawls’ view that “primary goods are not to be used in making comparisons in all situations but only in questions of justice which arise in regard to the basic structure.” “Social Unity and Primary Goods,” supra, note 32 at 163.

36. In this regard, Hegel’s argument for the lexical priority of abstract right should be contrasted with libertarian approaches. Put in Hegel’s terms, the latter view abstract right as being the sole category of right and as establishing an essentially final and normatively adequate determination of entitlements. Hegel’s account of the distinctive nature and limits of abstract right may be understood as a systematic effort to show why this view is in fact mistaken.

It is beyond the scope of this essay to consider the relation between Hegel’s constructivism and what, in my view, is the most systematic and carefully elaborated contemporary example of this approach, namely Rawls’ theory of justice. Nevertheless, I wish to mention one point in this regard, although I cannot provide here the needed discussion. From the standpoint of Hegel’s constructivist approach, justice as fairness unites in one conception certain normative notions that both presuppose and develop the more elementary meaning of abstract right. On the one hand, abstract right, or, more exactly, bare interaction between persons viewed exclusively in terms of formal equality, is the lexically first subject of right: with respect to the elucidation of the sequence of shapes of right, the priority of right entails the priority of abstract right relative to the other shapes, including therefore the conception of right (justice) appropriate for the basic structure. On the one other hand, the fundamental intuitive ideas in justice as fairness (such as its conception of the person with the two moral powers, the idea of fair social cooperation for mutual advantage, and so on) can be fully and systematically accounted for on a constructivist approach only through their being built up, step by step, over the several stages of right that follow abstract right and that culminate in the standpoint of what Hegel calls “the state”: justice as fairness is elaborated from a standpoint whose fundamental intuitive ideas are normatively complex relative to abstract right. In my view, this does not deny but, on the contrary, is fully consistent with and indeed substantiates the relative autonomy or free-standing character of the distinctive conception of justice for the basic structure. On the priority of abstract right, it should be noted, Hegel and Kant agree: for Kant, “private right” as he calls it (which is essentially the same as abstract right and which, like it, does not seem to depend even implicitly on any account of the primary goods) is the first part of a metaphysics of morals. For further discussion, see P. Benson, “External Freedom According to Kant”, supra, note 6 and Gregor, M., “Kant’s Theory of Property” (1988) 41 Rev. Metaphysics 757.Google Scholar

37. That abstract right is both a distinct and a limited normative whole is necessary if it is to be part of a lexical ordering. See Rawls, A Theory of Justice, supra, note 2 at 43.Google Scholar

38. Philosophy of Right, supra, note 3 at paras. 102–03. See also, Hegel, , Philosophy of Mind, supra, note 8 at para. 502.Google Scholar Here again, Kant agrees. He explains the categorical imperative to leave the state of nature and to enter a juridical state under distributive justice in the light of the (arbitrary) subjectivity of individual judgment that characterizes the state of nature and that makes it a condition of wrong in the highest degree. Philosophy of Law, supra, note 11 at 156–58.

39. Ibid, at para. 103.

40. Ibid, at para. 145.

41. For a helpful discussion of the term “collective rights” and of the kinds of issues that are stake, see Kymlicka, W., Liberalism, Community and Culture (Oxford: Clarendon Press, 1989) at 138–40, 150–52.Google Scholar

42. Kant puts it this way: “Determination to an end is the only determination of choice which in its very concept excludes the possibility of compulsion through natural means by another’s act of choice. Another can indeed compel me to do something that is not my end (but only a means to his end), but he cannot compel me to make it my end. To have an end that I have not myself made an end would be a self-contradiction—an act of freedom which is still not free.” Kant, I., The Doctrine of Virtue, trans. Gregor, M. (Philadelphia: University of Pennsylvania Press, 1964) at 39.Google Scholar Since agency involves directedness-toward-ends, a constructivist account of free agency must be able to elucidate this aspect in terms that exhibit the agent’s unconditional self-determination: the end must be represented as an end that is freely chosen (or else, the account of agency is incomplete), and this excludes the possibility of coercion.

43. The following paragraph draws on Hegel, , Philosophy of Right, supra, note 3 at paras. 65–67.Google Scholar

44. Ibid, at para. 66.

45. Ibid, at para. 5.

46. I believe that the points made in this and the following paragraphs about the basis of the priority of basic liberties is consistent with Rawls’ own account and must be, conceptually, its first or ultimate ground. See Rawls, J. “The Basic Liberties and Their Priority” supra, note 35 at 24–29.Google Scholar

47. Ibid, at para. 66. See also Hegel, , The Philosophical Propaedeutic, supra, note 8 at 27.Google Scholar

48. Strictly speaking, we are now supposing that persons have the realization of their personality, that is, of their capacity for abstraction, for their end and goal. In Hegel’s account, this highest-order interest belongs to the stage that follows abstract right, namely, “morality.” As Hegel puts it: “Its personality—and in abstract right the will is personality and no more—it [the will] now has for its object....” Philosophy of Right, supra, note 3 at para. 104. Personality is now viewed by the subject as something to be expressed in whatever relates to him or her as an accountable agent.

49. Ibid. at para. 270 R.

50. As discussed in Rawls, , “The Basic Liberties and their Priority”, supra, note 35 at 13.Google Scholar say “in the first instance” because it is certainly arguable (as Rawls contends) that among the basic rights or freedoms will be political liberties of participation and other “liberties of the ancients.” The central point is that a constructivist account of basic liberties begins with those liberties (or aspects thereof) that can be justified on the basis of the abstract standpoint of personality as such, without further qualifications or presuppositions.

51. In my view, Rawls’ account of the basic liberties and their priority is by far the most important contribution to this task.

52. My characterization of the communitarian justification draws on Michael McDonald’s work, among others, as presented in Kymlicka, supra, note 41 at 237–41.

53. Hegel, G.W.F., The Phenomenology of Spirit, trans. Miller, A. (London: Oxford University Press, 1979) at 43.Google Scholar

54. The discussion is based on Kymlicka, supra, note 41 at 135–205.

55. Ibid, at 163, 179. In this connection, I note that in dealing with the question of whether it would be right to restrict the religious liberty of members of a cultural community if the absence of restrictions would result in its disintegration, Kymlicka thinks that “[i]t seems unlikely in this case that any claim or set of claims has absolute priority over others, since the conflicting values really are interdependent…” and he concludes that it raises a “complex [issue] in which our intuitions are pulled in different directions....” Ibid, at 199. Kymlicka characterizes the case as coming under ‘partial compliance’ theory (in Rawls’ sense), presumably because it involves an intolerant sect which must have its way or the cultural community will disintegrate. We see here how far apart is Kymlicka’s analysis, which views the basic liberties as important, from one that takes them to be prior. On the latter view, even if this case is treated as falling under non-ideal theory, the question is not whether the continued existence of the cultural community is endangered but whether the existence of an institutional framework protecting the basic liberties is threatened. Any restriction on religious liberty would have to be justified by showing that it is rationally necessary for the preservation of that framework itself. Otherwise, the priority of the basic liberties requires that the liberty be respected even if that culture cannot withstand the challenge. On this point see Rawls, J., “The Priority of Right and Ideas of the Good” (1988) 17 Philosophy and Public Affairs 251 at 264.Google Scholar

56. I note that while Kymlicka characterizes a cultural context in terms of a language and history (ibid, at 165–67), he says elsewhere that “…language is not just a neutral medium for identifying the content of certain activities, but [is itself] a ‘marker of the societal goals, the large-scale valueladen arenas of interaction that typify every speech community’.” Ibid, at 175.

57. Ibid, at 164. The relevant passages from A Theory of Justice are supra, note 2 at 523–29, 563–67.

58. In order to assess the fairness of this conclusion it is important to keep in mind that the principle guaranteeing the basic liberties will be supplemented by one that assures the fair value of those liberties. In Rawls’ theory, the disappearance of a way of life (assuming full compliance with the two principles of justice) is viewed as raising no issue of justice vis-à-vis the persons who espoused it. It reflects the regrettable fact that “no society can include within itself all forms of life.” Rawls, supra, note 55 at 265. The matter of limited social space is always relative to a given conception of justice and indeed is not intelligible apart from it. In justice as fairness, the resulting social space is sufficient if it allows for the possibility of an overlapping consensus, a question that goes to the stability of the conception of justice, not its reasonableness. Ibid, at 266.