Law, Right, and Forgiveness

Abstract

In Hegel's Phenomenology of Spirit, the identification of the singular individual with the universal is initially expressed by means of the concepts of law and right. Developed by Hegel in ethical life and state of right,' law and right enable a particular kind of being, self-knowledge, and interaction for their respective consciousnesses. These legal categories, however, virtually disappear in the remainder of the text, and whereas Hegel's critique of law in these sections is important in its own right, attempts to bring it to bear on contemporary legal theory risk anachronism. What I will argue in this essay, however, is that the problem of law re-enters the text in Hegel's discussion of forgiveness, and that we can look there for a modern resolution to the problematic dependence on law exhibited by the very different legal frameworks of ethical life and state of right. The ascendancy of forgiveness as a fundamental organizational principle results in a radical circumscription of the role of law. It also represents the enduring force of Antigone's political legacy, or so I will argue-both for Hegel and for us modern readers still grappling with her role in the Phenomenology. In addition to developing the import of these legal insights for interpretation of the Phenomenology, I will also suggest that forgiveness's resolution of the failed legal frameworks is helpful in the context of the contemporary skepticism (exhibited by feminist, race-theorist, queer, communitarian, and democratic perspectives, among others) regarding the purported critical efficacy and neutrality of legalism and the connection of legal advocacy with the "natural" aspects of human identity. Hegel's theory of forgiveness provides a strategy for exposing the inequalities in access to power that the liberal protection of freedom and equality has been accused of concealing. His view of its priority over law can be used to transform law into an expression of a relationship between universal and individual that is neither composed prior to the production of that relationship, nor constituted by an assertion of power by defenders of the status quo, who deny the impact of difference on the law's operation. I will argue that Hegel's theory of forgiveness is productive in this context because it construes individual action as central to the universels that regulate our interaction and provides a critical way of thinking and representing the social "we" holistically. In order to construct the ground upon which to show the relevance of Hegel's theory of forgiveness to his theory of law, I will discuss: a) the forms of social life in the Phenomenology that are organized according to law and right; b) forgiveness' resolution of the difficulties they confront; and c) the critical transformation of law that Hegel's account of forgiveness suggests. For the present I will limit myself to the internal logic of the Phenomenology and to the importance of forgiveness as a social-structural principle therein, and thus not address the more immediately practical resonance of forgiveness's as an alternative to contemporary legal thinking. The Law-Based Societies of the Phenomenology. Ethical life and state of right are the only social forms of consciousness in the Phenomenology that are based specifically on law and right, and both are for Hegel inadequate expressions of spirit. The characters of ethical life identify immediately with their respective laws (Creon with human and Antigone with divine law); the positive aspect of this identification is their implication and agency in the laws and forms of social interaction that structure their political life, in whose production they are thus immediately engaged. The immediacy of this identification, however, precludes any recognition and expression of their particularity. Ethical characters are submerged in the universal ethical substance, such that the role of their particularity in it is concealed until the "unsuppressable" assertion of the singular self renders ethical substance unsustainable. …