文献一覧: 永尾孝雄 (著者)

2 0 0 0 若きヘーゲルの近代自然法批判

著者: 永尾孝雄
出版者: 九州大学
巻号頁・発行日: 1996

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2016-05-11 23:19:51
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1 0 0 0 OA ヘーゲル法思想と近代

著者: 永尾孝雄
出版者: 日本法哲学会
雑誌: 法哲学年報 (ISSN:03872890)
巻号頁・発行日: vol.2007, pp.91-103, 2008 (Released:2021-03-31)

Hegel’s Philosophy of Right is neither a theory of jurisprudence nor a theory of modern natural law. The subject of the Philosophy of Right is the actuality of right and this lies in the Idea of Freedom. According to Hegel the philosophical science of right does not derive a system of ahistorical norms of right from the concept of freedom, but representing a new methodological beginning takes the path to the idea as the dialectically contradictory progress of the historical formation of institutions and recognizes this indirect method of reconstruction as a necessary condition for knowledge of the dialectic of the logical concept itself. The Philosophy of Right’s dialectical founding in the self-development of the concept leads him (Hegel) to make a trichotomy of practical domain into ‘Abstract right’, ‘Morality’, ‘The Ethical Life’. Whereas a clear parallel can be drawn between abstract right and morality, and the modern categories of natural law and subjective morality, applying the comparison to the third part of the Philosophy of Right creates some difficulties. They arise not only from the way in which it is structured into family, civil society and state, but from the title ‘Ethical Life’ itself. Ethical life means for Hegel the same connection between morality and politics which was essential for the traditional doctrine of the ethical-legal constitution of the state and its unity with civil society. Even in this division of the third part of the Philosophy of Right Hegel is taking up a long tradition in order to dissolve it by means of dialectics. One of the most important reasons for the dialectical dissolution of traditional categories lies in the introduction of civil society which is epoch-making in the history of social-political philosophy. Just as the Hegelian concept of civil society points to the changed structure of the family, so it relates also to the altered position of the state. The state and civil society, which had traditionally been linked by the relational concept of societas civilis, must first position themselves in a relationship which is one of division or difference. Marx puts an end to the mediation between civil society and state by reversing Hegel’s speculative nterpretation of their relationship. It is the state that is a form of appearance of civil society, and the latter, which Hegel could relegate to the position of the world of ethical appearance, is actually the reality of political economy. In this connection, see Marcuse: “Hegel’s demand for a strong and independent state derives from his insight into the irreconcilable contradictions of modern society.” Thus Habermas writes: “Hegel was the first philosopher to develop a clear concept of modernity. We have to go back to him if we want to understand the internal relationship between modernity and rationality, which, until Max Weber, remained self-evident and which today is being called into question.” It is not fortuitous that the discussion (Horkheimer, Adorno, Marcuse, Habermas) of the relationship between freedom, right and the state e on the basis of a society emancipated from political rule has once again begun with Hegel.