What are Rights? A Hegelian Perspective


The question "What are rights?" is a difficult one, and I do not claim to have the absolute answer.  Nor do I claim that Hegel had the one true path.  Still, it might be interesting to try to understand things from a Hegelian perspective, as a jumping-off point for further thinking.

So, how would a Hegelian think about rights?  We can put it this way: rights are the negative foundation of law.

Hegel's most important insight was that the present and the past are built upon the future.  A pre-Hegelian might assume that present institutions are built on the foundations of the past.  Hegel's great innovation was to reverse this assumption.  For Hegel, history is in the process of constructing its own foundations, and indeed history is nothing other than the construction of its own foundations.  That which is most fundamental to the system will come in the future.  

(Marx understood this, too.  For Marx, it is the present which explains the past, rather than vice versa.  From the Grundrisse: "Bourgeois society is the most developed and the most complex historic organization of production. The categories which express its relations, the comprehension of its structure, thereby also allows insights into the structure and the relations of production of all the vanished social formations out of whose ruins and elements it built itself up, whose partly still unconquered remnants are carried along within it, whose mere nuances have developed explicit significance within it, etc. Human anatomy contains a key to the anatomy of the ape. The intimations of higher development among the subordinate animal species, however, can be understood only after the higher development is already known. The bourgeois economy thus supplies the key to the ancient, etc.")

This puts us in a paradoxical relationship to history: we cannot understand it unless we understand that which is fundamental to it, yet that which is fundamental to it is yet-to-come.  We cannot even understand the past until after we fully know the future.  Hegel was constantly cautioning his readership that the beginning of his system could not be understood until the entire system was understood.  How can we resolve this?  Note that there are seemingly two, parallel puzzles here - an ontological puzzle and an epistemological puzzle.  How does history operate, and how can we understand its operation?

This only becomes more difficult when we reflect that this foundation-to-come for the system may not come in our lifetimes, and indeed may never come.  The end of history, or the "annihilation of time" is not clear to us, who are embedded in history, and whose understanding must be radically historical.  Notice that this is not a relativistic doctrine - there is an absolute, a "right answer," but it is an absolute-to-come, (always?) out of our grasp.  Moreover, and this is the most important point, this foundation-to-come is not something that will arrive from on high, a fate or a destiny that gives meaning to our experience, to which we are mere passive observers - no!  The foundation-to-come is something that we must build ourselves, and which we are building, freely and creatively.

The answer to both puzzles is that they are in fact the same puzzle: the progression of history is the progression of our understanding of history - and this understanding can proceed only negatively.  History is nothing other than the playing out of different conceptions of the absolute, which each fail from their own internal contradictions.  The absolute is whatever is left over after all of these failures - remnant, ruins.  The absolute has no positive content - it is merely the negation, the emptying out, of the process that led to its development.

This applies to rights.  Rights are the negative foundation of law.  That is to say: law is in the process of forming its own foundations.  Indeed, law is the process of forming its own foundations.  We call these foundations "rights".  The history of law is the history of this process.  Over the course of the history of law, we can see different conceptions of the absolute - different conceptions of the foundation of law, different conceptions of right - arise, come up against their own internal contradictions, annihilate themselves and collapse.  Through the upholding of precedent and the overturning of precedent, as these precedents play themselves out in the messy reality of the material world, we are gradually coming into consciousness of our rights.  But through a glass, darkly.  So far, at least, we have not fully comprehended our rights - they are still a foundation-to-come.

(And, again, we can use this to understand Marx's complex attitude towards rights.  He is often presented as rejecting the very concept of rights.  But the reverse is true.  It's not hard to find many examples of Marx defending rights.  But, precisely for this reason, he also suggested, or hinted at, the beginning of a critique of rights - critique in the fullest sense of the word, in the great tradition of German critique - not outright rejection, but a radical (to the root) investigation into the material foundations of right, for the purpose of more fully understanding and realizing rights - far from denying rights, he is bringing rights more fully into explicit existence, articulating them and clarifying them - again, the foundation of the process is made manifest at the end of the process itself.)

In a sense, then, rights are nothing.  Yet they are still of paramount importance.  They are a particular shape of nothing.  They are negative space, the negation of a negation.  The history of law has put forward one after another conceptions of its absolute foundation, and each of these has, in its own way, failed - and rights are the negative space left over after these failures.  It is as if we were drawing a picture by firing bullets through a piece of paper, and the drawing was the blank white part that was left - the part that was not a hole - the absence of an absence.

When I say that rights are a particular shape of nothing, I mean that they are a particular shape of consciousness ("Gestalt des Bewusstseins" as Hegel says).  "Freedom's just another word for nothin' left to lose."  Yet they are real.  Real nothing.  Again and again, we come to the same conclusions of the same or similar conceptions of right because when we deviate from these conceptions, when law posits itself on a different foundation, it fails and collapses - again and again.

See also: An Alternate Schema of Historical Idealism


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