Academic journal article Texas Law Review

How to Do Things with Hegel

Academic journal article Texas Law Review

How to Do Things with Hegel

Article excerpt

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 contract is either useful to or the right of an already self-identical person.1 In such theories, the person is "pre-legal."2 Yet, if we define law as the sum total of all human relations,3 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. From this humble example, it should be apparent that personality is not prior to language and law. How then can utilitarianism and libertarianism maintain (or at least proceed on the unexamined assumption) that personality is pre-legal?

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.4 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.5

One commentator who looks toward Hegelian theory to describe the function of 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.6 In other words, free personalities exist, and contract law facilitates exchanges that these personalities may wish to make.7 This, McCracken observes, makes Hegel a "consequentialist" with regard to contract law.8 That is, contract is a tool that a person might use to maximize his freedom9 or whatever private ends might exist.10 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.11

What I intend to do here is to show exactly how contract is necessary to personality-not just convenient. If I succeed, contract would be vindicated in a more thorough way than the mere pointing out of certain of its hypothetical advantages.

I am also aiming at another task. It is a commonplace that, in Hegel's theory, the person demands recognition of his worth from another.12 He cannot do it alone. It is for this reason that Hegel is identified as a "communitarian."13 He is often thought to be opposed to libertarianism, for which the individual is the ethical "simple"-the moral atom that cannot be subdivided.14

But precisely why cannot a person establish his own self-worth, independent of others? That this is so certainly comports with our experience. We dearly seek the esteem of others and scarcely care about anything else.15 But appeal to experience hardly constitutes proof of philosophical necessity. Why is it logically true that the self needs vindication in the eyes of another self? In this Essay, I attempt to show why with some precision. The reasons why the self cannot go it alone are intimately tied to the reasons why contract is no mere convenience but logically necessary to the very existence of personality. Only if we understand the logical predicates of our "being-for-other"16 can we understand contract's "constitutional" significance.

This demonstration would not be possible without substantial help from the Science of Logic, which is indeed the key to the Hegelian kingdom. In this sense, I disagree with Dr. McCracken, who assures us that mastery of this admittedly formidable work is not necessary.17 "Necessary" is, of course, a strong word. It is possible to read Philosophy of Right without a grounding in the Science of Logic (though Hegel warns against it).18 It is similarly possible to perform only the right hand portions of the Beethoven sonatas. Suffice it to say that an appreciation of Hegel's theory of contract is vastly enhanced by a grounding in the Science of Logic,19 in about the same sense as adding the left hand to the Beethoven sonatas. …

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