Hegel and Philosophy of Law and interpretation

Hegel ’s philosophy starts with the criticism of Savigny and his philosophy of volksgeist. Savigny and his followers did not think about how the volksgeist, or the spirit of the people, is formed. Hence this theory of Savigny appeared to be incomplete and paved the way for a naturalist theory.

Variations in the course of historical development materialize with the realisation of an ideal. If there is an unchanging ideal in the root of all, then all systems disregarding evolutionary variations ought to have certain common features and it is found that they, in fact, do.

Hegel was one such philosopher who had an interpretation of law with such an ideal in mind. He used the method of dialectic interpretation so as to achieve this ideal which, we later find out, is the state.

The Philosophy

Hegel distinguished between nature and positive law. He proceeds to distinguish between philosophy of law concerning rationality of law and the study of law itself. Legal philosophy being rational, should conceive law in a rational way. Philosophy is concerned with reality only as long as it is rational. Hegel hence states that “That which is rational is real and that which is real is rational”.

Hegel sought to explain history on an abstract evolutionary plane ((For a critique of the inevitability of historical development, see Popper The Open Society and its Enemies, especially vol II. See also The poverty of Historicism)). Hegel saw it unfolding as a process of action and reaction between opposites, i.e.; dialectics.

The Dialectic Interpretation

The dialectic interpretation method is what Hegel uses to explain his philosophy. The dialectic interpretation involves thesis, antithesis and synthesis.

An idea or a proposition is a thesis. Any concept against this idea or thesis is the antithesis. The unification of the thesis and the antithesis under one idea or concept is the synthesis of the both.

For example;

Consider a half open door. “The door is half open”, is a statement which can considered thesis. “The door is half closed”, is a statement which can be considered as the antithesis of the given statement. The synthesis of the both can be the statement “The door is 45° from the closed position.

This interpretation is what Hegel uses to attain his ideal. He starts off with a concept, synthesises it with its antithesis. This obtained synthesis becomes the next thesis and this process goes on till it reaches its objective.

Hegel considers an idea to be the thesis. Idea outside itself, that is, nature, is its antithesis. The synthesis is the spirit, which can be considered to be the volksgeist of Savigny. Spirit is of two types, subjective spirit, which deals with thought and consciousness and objective spirit, which deals with legal and social institutions. The synthesis of these both is the absolute spirit.

Law comes into the category of objective spirit. Legal and social institutions exist to realize freedom. They exist so as to give freedom to the society. Freedom and will are complementary. The idea of freedom has a three-fold tier of operation.

First is the freedom of the individual in relation to himself, which brings about the concept of property. If a person imposes his will on a thing and the thing becomes his property, it is his will what to do or what not to do with that thing. No one else can interfere in this matter.

Second is the perception of freedom with others, in conformity with common will of all, which brings about the idea of contract. When two or more people have their will imposed on a thing, such a thing belongs to all of them. No one person can use the thing according to his individual will with impunity.

The third is the concept of wrong doing. When the individual freedom opposes the common will, this causes wrong doing.

This brings about the concept of morality. Morality hence restricts freedom and hence is its antithesis. The synthesis between the two is social ethics. Social ethics starts at the level of family. When a member of a family becomes independent from the said family, he is the part of the society. So with family as the thesis and society as the antithesis, the synthesis turns out as the state.

In the state, Hegel found the highest achievement of human endeavour. To be a member of the state was, to him, the supreme objective. The individual is the product of his culture and age, which are realised only through the state.

Law and state are thus concrete manifestations of the national spirit, which together with others are in turn a manifestation of a world spirit.

Flowchart

Flow Chart

Conclusion                

Hegel’s philosophy starts with an objective in mind and he succeeds in reaching that objective through the method of dialectic interpretation.

Roscoe Pound and philosophy of law

Akanksha Ravi, Student of Law, VIT Law School

Nathan Roscoe Pound was born on October 27th, 1870. He was one of the Founders of the American Sociological Jurisprudence. Roscoe Pound, while serving as the director of the State Botanical Survey, discovered rare lichen which he subsequently named Roscopoundia ((Available at www.britanica.com/Roscoe_Pound, last accessed on 5th Nov, 8:30 pm)). His theory of Sociological Jurisprudence required that inherited legal codes and traditions be adjusted to reflect cotemporary Social Conditions.

PHILOSOPHY

To start off with Roscoe Pound’s philosophy, we can first interpret that he was strongly influenced by William James’s philosophy which was more useful in practice rather than just in theory. Pound dealt with causes, reasons and effects rather than just with details and circumstances.

There were philosophers like Kant and Spencer, who viewed law in such a way that it could be used only to promote oneself, one’s desires and their views. But Pound criticized their views and viewed law in a completely different manner. He thought that law should be used as a medium to satisfy one’s wants. He thus viewed law in a much more realistic manner. To support this view, he agreed to the statement made by William James in his philosophy that said, “All demands are prima facie respectable, and that the best imaginary world would be one in which every demand was gratified as soon as made ((James, p. 205)).”

Further he was determined to rewrite the history that only recognised individual rights to promote one’s own desires. He said that there should be an effort made to promote human wants, human desires and recognise social wants. He mainly stressed on the fact that Sociological Jurisprudence should ensure the fact that execution, interpretation and application of laws should consider the social facts as well.

He said that Common law still bears to impress the individual rights. Therefore in order to achieve the purpose of legal order, there has to be a recognition of certain interests; individual, public and social ((Cf Ihering, p. 424)).

He has brought in the concept of Sociological Jurisprudence and has linked his philosophy with it. He said that, “the aim of social engineering is to build as efficient a structure of society as possible, which requires the satisfaction of the maximum of wants with the minimum friction ad waste ((Pound Interpretations of Legal History, p. 156)).” It is for this purpose that he has defined his classification of interests as the expectations of the humans to satisfy their claims, wants and desires.

He has further elaborately classified his interests:

INDIVIDUAL INTERESTS:  They are mainly claims or demands or desires that are viewed from the point of an individual life. It is a subjective concept relating to the title of that individual life and his interests. Further classifying this:

  • PERSONALITY: This includes individual opinion relating to honour, privacy, reputation, promotion of one’s own beliefs and opinions.
  • DOMESTIC RELATIONS: This mainly includes interests that are personally involved in relation with parents, wife, husband, children etc.
  • INTEREST OF SUBSISTANCE: This deals with the material interests. It may be related to property, relation with others, contracts, freedom to form associations etc.

PUBLIC INTERESTS:  They are mainly claims or demands or desires that are related to an individual in view of his interests in relation to the political life of the society. Pound has said that, “the claims asserted in title of a politically organised society; as one might say for convenience, the claims of the state, the political organisation of society ((Pound Jurisprudence III, P. 235-236)).” He has further classified these interests as :

  • INTERESTS OF THE STATE AS A JURISTIC PERSON: According to this, Pound has said that this category of political interests would include the integrity, freedom of action and honour of the state’s personality, and claims of the politically organised society as a corporation to property.
  • INTERESTS OF THE STATE AS A GUARDIAN OF SOCIAL INTERESTS: This category of his interests would merge or in other words would collide with the next set of interests. i.e., Social interests.

SOCIAL INTERESTS: It is one of the most important category of interests. The mainly include claims or demands or desires of a social life that are involved in a civilised society, promoting their own interests. Further classifying these interests:

  • SOCIAL INTEREST IN THE GENERAL SECURITY: “ The claim or want or demand, asserted in title of social life in a civilised society and through the social group, to be secure against those forms of action ad courses of conduct which threaten its existence ((Pound Jurisprudence III, p. 291)).” These interests are mainly related to the general safety and health of the individuals, maintenance of peace and order, security etc.
  • SOCIAL INTEREST IN GENERAL MORALS: “The claims or want or demand involved in social life in a civilised society to be secured against acts or courses of conduct offensive to the moral sentiments of the general body of individuals therein for the time being ((Pound Jurisprudence, III, P. 303)). This category involves all those elements involved in maintaining the morality in a society. This deals with aspects like prostitution, gambling, racing, homosexuality etc.
  • SOCIAL INTEREST IN INDIVIDUAL LIFE:“The claim or want or demand involved in social life in a civilised society that each individual be able to live a human life there in according to the standards of the society ((Pound Jurisprudence, III, P 311)).” This category involves those social interests that are required to promote the individual interests of the humans. They include aspects like various opportunities to the individuals, self -assertion and various other conditions of life.

Having classified these interests, Roscoe Pound, did not want a process of strict evaluation of these interests. Instead he was of the view that different interests will have an importance at different periods of time, and so they should be given preferential treatment accordingly.

HIS VIEW ON JUSTICE

Roscoe Pound has said that Justice can be administered with or without law. Justice with law means that the administration of Justice would follow a particular set of guidelines or rules and in this case, the individuals are all treated equally and are assured of getting a fair treatment in the eyes of law.

Justice without law means that the administration of Justice is according to the will of an individual, who uses his discretionary power in the decision-making. He does not have to follow any strict rules or guidelines of law for the administration of Justice. He also stated that the first form of Justice is of a Judicial character and the second form of Justice is of an Administrative character.

He further gave his view about a legal system and said that it should include both these elements in the administration of justice. He also points out that the problem with the legal system in the future, would be maintaining a proper balance between the above two elements of Justice which is very much required.