Readers of this journal are most likely to know Alan Brudner as the author of a great trilogy of jurisprudential studies: The Unity of the Common Law, Constitutional Goods and Punishment and Freedom (all now published by Oxford University Press). In these books, Brudner offers bold and imaginative reconstructions of private law, constitutional law and criminal law from the viewpoint of a Hegelian philosophy that Brudner takes to centre upon ideas of freedom and “dialogic community”. His readers now have the opportunity to study in detail the interpretation of Hegel that lies behind the more narrowly jurisprudential works. They will discover the mature fruits of a lifetime of scholarly reflection, establishing Brudner as a courageous and unique voice in the very large modern literature on Hegel's political philosophy. Even by the severe standards of Hegel scholarship the book is complex and densely written. It makes considerable demands upon the reader, but it rewards careful study, as it develops a sweeping and unusual reading of perhaps the most enigmatic philosopher of modern times. Since Brudner's interpretation defies brief summary, and is evidently grounded in a deep and extensive knowledge, I will, in this review, offer only some contextualising remarks.
Although in the last half century there has been a resurgence of interest in Hegel, leading to a veritable flood of books and essays, many of those recent studies dismiss large swathes of Hegel's work as too mired in an outlandish metaphysics to be at all credible (or even intelligible) for a present-day reader. Many authors have approached Hegel's Philosophy of Right very selectively, treating the book as (in Axel Honneth's words) “a quarry for brilliant individual ideas” rather than “an integral whole”. Others, such as Honneth himself, have claimed that “the basic intention and structure of the text as a whole” can be understood independently of Hegel's metaphysical commitments. By contrast with such approaches, Brudner aims to present “the real Hegel as a thinker relevant to our age” (p. xi). Nor does he flinch from an engagement with, and even perhaps endorsement of, what might at first appear to be Hegel's least plausible and palatable views, such as his notorious ascription of divinity to the state (a thesis upon which Brudner places particular and unusual emphasis).
Given this approach, Brudner is wise to anticipate that his readers will react by saying “Hegel was a madman and you are the madman's apprentice” (p. 357). No doubt some will react in precisely this way. But even the most puzzling and seemingly bizarre features of Hegel's thought are not an ungrounded expression of imaginative caprice but uncompromising attempts to address philosophy's most intractable problems.
One such problem is the seemingly unavoidable embeddedness of all thought within the contingencies of history, combined with reason's deep aspiration to escape from the conditionality of understanding which that location within history seems to entail. Reason stands in judgment upon practice but, in Hegel's view, must itself be articulated within practice. It provides the stance from which history can be understood, yet it must also find embodiment within the traditions and languages of particular historical communities. Hegel endeavours fully to grapple with such problems, and his account of reason consequently resonates with some deep but familiar strands of human culture.
For example, throughout Hegel's philosophy runs a narrative motif that finds numerous iterations within philosophical and religious thought, myth and art. It is a story of original unreflective and undifferentiated unity which is then disrupted by division and alienation, eventually (after many travails) to be replaced by a fully self-aware unity-in-difference. In its Hegelian version the narrative hinges upon humanity's gradually emerging awareness of its own freedom. The slow growth of such awareness at first distinguishes the human realm from unreflective nature, giving rise (in Ancient Greece) to the possibility of moral and historical understanding as something distinct from both myth, on the one hand, and the cosmological theories of the pre-Socratics, on the other. But the birth of this partially self-aware freedom also comes to disrupt the unity and harmony that Hegel's generation believed to have been represented by Greece, and which found expression in the wonders of Greek art. A series of developments is thereby set in train which lead to the fractured dualities of the modern moral, epistemic and political situation explored by philosophers (particularly from Descartes to Kant): such as the apparent rifts that separate subject from object, knowledge from the thing-in-itself, moral right from virtuous inclination and freedom from community. But those same developments are ultimately to culminate in a restored, but more complex and fully articulated, unity of spirit and transparency of reason. The beautiful moral and aesthetic wholeness of Greece is in this way recovered, but in a rich and differentiated form that is compatible with reflective awareness and what Hegel calls “subjective freedom”. Our expulsion from the Eden of original unreflective immersion and monotonic unity is therefore not pure loss, for it forms an essential precondition of the ultimate realisation of a fully human existence within modernity.
Central to Hegel's entire philosophy is the idea of freedom. It is an elusive idea which proves to have numerous facets. We can discover the true character of freedom only by our experience of the practices whereby we have historically sought to attain freedom: values cannot be understood independently of the forms in which they are (albeit perhaps imperfectly) instantiated. A conception of freedom arrived at in abstraction may at first seem satisfactory, but its pathologies will be revealed by experience of those forms of life that seek to realise it. Thus we discover that truly free action is not the simple absence of constraint, but action the content of which is shaped by collective structures embodying the mutual recognition of free agents. Such structures come to be articulated within the modern state. According to Brudner, the mutual recognition of free agents is a general form instantiated, in different ways, by both public and private law.
The motif of unreflective unity, followed by division and travail, eventually followed by self-aware and differentiated unity, has a further implication. Whereas for Kant the knowing subject possesses no uniquely human characteristics that could not in principle be shared with other rational creatures (intelligent aliens, should they exist), for Hegel the knowing and fully self-aware subject is essentially and necessarily the result of human history. The final attainment of reflective unity is possible only to those who are heirs to the completed narrative: the deep resonances informing the character of the world are available only to those who manifest an appropriate depth and complexity of spirit, and such spiritual depth is possible only as the fruit of a quite specific history. The narrative of philosophical inquiry set forth in Hegel's Lectures on the History of Philosophy and the narrative of cultural and political transformation set forth in his Lectures on the Philosophy of History therefore together represent the transfiguring route whereby the human spirit attains the standpoint from which those very histories can be understood, and those narratives written.
This helps to explain Hegel's observation, in the preface to The Philosophy of Right, that philosophy cannot issue instructions on how the world ought to be, for it always comes upon the scene too late: Minerva's owl flies only at the falling of the dusk, when a form of life has grown old. The seemingly retrospective character of philosophical understanding stems directly from the fact that sound philosophical understanding is (according to Hegel) available only when the historical trajectory which grounds the possibility of such understanding is itself complete. Consequently there is, as Brudner aptly puts it, an issue of the “ripeness of the time for philosophy's intervention” (p. 9). But in Brudner's view this is not at all to say that a timely philosophy is without effect, merely acknowledging an attainment that is fully achieved quite independently. Rather, such a philosophy is transformative, for it is by the attainment of reflective understanding that the apparent antinomies of our morality and politics become merely limited aspects within a greater unity. The reconciliation thereby achieved is not simply a feature of the philosophical imagination (an illusory heaven concealing a conflicted reality) but must be embodied within the actual practices of social and political life. The revelation of differentiated unity is in itself a transformation which establishes a new world. Hence, according to Brudner, the owl of Minerva is also a rooster announcing a new dawn.
In this way, Brudner resists all attempts to reduce Hegel's philosophy to a resigned and dispiriting acceptance of the political structures of modernity, while also rejecting all attempts to treat that philosophy as a body of reform-oriented prescriptions of a kind that might be in principle available to any rational agent regardless of the agent's historical or social location. Rather, the philosophy is intended, not as a set of prescriptions, but as itself a decisive moment in history that leaves nothing as it was. And herein lies a puzzle. For, while philosophy's claim to knowledge depends upon the existence of appropriate political conditions (the time must be ripe), the relevant conditions, in encompassing full reflective awareness, in turn require the work of philosophy. Consequently, by insisting upon the crepuscular flight of Minerva's owl, Hegel does not entirely escape the puzzle of circularity in the relationship between philosophical understanding and historical circumstances. Much of Brudner's book is concerned with Hegel's attempt to resolve this puzzle. He suggests that Hegel's envisaged reconciliation of antinomies depends upon historical conditions that have failed to materialise. It is this failure, rather than the fundamental intent of his project, that led Hegel into a posture of passive contemplation and resignation. Brudner proposes that we now need to address the implications of the failure.
While deferring without reserve to Brudner's deep and insightful scholarship, I remain (from my much more amateur perspective) somewhat sceptical concerning some of his claims, such as the centrality he gives to Hegel's ascription of divinity to the state. Is that curious ascription not, perhaps, primarily intended simply to highlight the capacity of the state to ensure the congruence of the right and the good? For, it is the possible divergence between moral rectitude and individual well-being (when combined with the “fact” of moral reason) that, in Kant's view, gives us grounds for practical faith in a benevolent God. The role taken by God, within Kant's “postulates of practical reason”, is therefore ascribed by Hegel to the state. In this way, Hegel's view seems to me to remain interestingly ambiguous as between transcendence and immanence, and between theism and secularism.
Such possible areas of disagreement are amongst the pleasures and rewards of studying this rich and interesting book. Those who are more narrowly concerned with the philosophy of law may be tempted to focus their attention primarily upon the last third of the book, which addresses Hegel's philosophy of constitutionalism and of law. But brave spirits should not neglect to study the book as a whole. With courage and perseverance, they may return to Brudner's trilogy of jurisprudential works with a greatly enhanced understanding of the outlook that underpins them, and of the broad philosophical landscape within which jurisprudence can and should properly be pursued.
