Hegel and property, grounds and limitations:

freedom as becoming
1 Introduction:
In this essay on the Philosophy of Right Hegel I will emphasize the formation of
certain topics of current law and abstract concepts that have been decanted
along the development of the laws and its Philosophy that are displayed when
analyzing Hegels discourse Hegel and main elements in dealing with the
property as the first dialectical moment of Law and reedom elements! It will
also be a substantial issue when ris"s involved if we start from the concept of
individual free will as the foundation of law and the need to fill the void in the
legal definition of person with his first determination, the Property!
2 Abstract preface and law, freedom and Will:
#he study of Hegels Philosophy of Right Hegel is to become a spectator of the
development of the concept of law, its implementation, from concept to the
idea that underlies and is shown from each other, as their internal reason and
its telos! Here the difficulty is opa$ue sample for trying to pigeonhole Hegel
within the Realism or Idealism, consistent with the %ristotelian influence on
Hegel, we could say that dominates a particular teleological conception of non&
materialistic Realism, because as for %ristotle, 'eing the development of starts
with the internal telos of the thing itself! #he difference is that for Hegel, the
Idea is the end itself, the process itself, which is necessary but not a priori, but
necessary in its immanent development through to its result! (hat has to be
beyond any dispute or doubt is sense and intrinsic goodness of this immanence
to the e)tent that everything real is rational and everything real rational! #he
Idea is matched in an absolute manner with history, ,being all that happens the
Idea in its realization! *o ta"ing the idea as a concept and as a blind&a)is
point, Hegel develops a mar"edly realist philosophy especially in political terms
in which we could classify it within the political realism! 'ut if Hegel has often
fallen into the category of idealist philosopher, is probably because of his way
of e)pression and his "ey concepts! or Hegel, scientific "nowledge of
philosophy shows that philosophy entails the logic of development of the
concept as necessary, in the development of this idea, the territory of the *pirit
and not understanding, it would be purely cognitive, reflective and non&cultural
! #his logic is intended to demonstrate and deduce from the content provided
on the concept, what corresponds in the representations and language! It is
very important in the study of the philosophy of law of Hegel that his
philosophy of Right the sources of law are the natural law ,being free will and
the need for its realization its center, but we are in need of overcome this
phase by means of the contract since the wea"ness and arbitrary morality
re$uires the the passing to ethicity! #his step to +thicity to may be seen in
some of his moments as an acceptance by Hegel, of the legal positivist
character of the law, actually, although Hegel considers morality as insufficient
specificity to ensure freedom, given the possibility that the individual would act
arbitrarily! In the action of the *tate and the scope of the +thicity remains
founded the Hegelian metaphysics around 'eing, and the need for
development and determination of the concept as a center from which this
warranty is e)pressed, this means: the separation of the moral Right would be
because of a internal need but would not be opposed but would be different
levels in the Hegelian system, being the general will of civil society the
necessary mediator before the appearance of the ultimate guarantor entity of
reedom, the sovereign state, where it would be completed the development of
*pirit! In this sense, the source of law could still be considered natural law but
in a peculiar way that would lin" natural necessity of freedom of the will with
the need of the Idea of freedom in its final determination in regard to +thicity
and legal scheme of Right! (e can not confuse this with the fact that the right
is positive, technical term to define the effective status that Right has in its
concreteness, due to the historical moment and both natural influences such as
social and characterisc of the character of the ,ation, as by the specificity of
the laws that have to be defined and refined around the abstract concept of
law, all these determinations are e)ternal determinations!
#hus for Hegel all depends on the totality and so in that way the natural law or
philosophical right is not something opposed to positive law but they are
different points in the development of the Idea! 'ut for Hegel the right not to
be studied according to the specifics of a particular law in its historical or
depending on their social conte)t sense, ie, should not be studied based on
their concretions comparatively but since its essence is not to e)plain their
concrete appearance but its internal logic is shown not only in resolution but in
the principles of the concept and its evolutionary connection applicable to all
cases! -f particular importance here is that Hegel does not hesitate when
considering .hristianity as a moment of the *pirit that enabled the emergence
of individual liberty and freedom of the person, ie, ma"es certain moments in
world history, metaphysical moments in understanding of development of the
%bsolute *pirit would come to close the loop in the state law and will ,being
Right more than a tool , a re$uired intermediary for the emergence and
definition of ethicity and reconciling personal freedom with general will of the
*pirit! or Hegel the science of law is not a theory or a thoughtful proposal on
/ought to be/ but a perception of motion of the Idea of what it is, ie an
ontology of the state in *tate of Law in its constitution! It is characteristic of
the nineteenth century as noted in an accurate way by Heidegger that the
basic metaphysical assumption of ontology was the (ill in any of its
manifestations! Hegel is no different in this and of the theorizing about the
source of law and before entering the property as first thing in the same law in
the rational order, is forced to base the need of the property as a need for the
deployment of free will as long as we are finite will! Is noteworthy as bringing
ontotheology to its clima), e$uating will with truth itself, given the
unconditional operation of the will, and its regressive identitarian operation!
#he concept of free will has certain "antian resonances at first, but away from
the "antian formality, Hegel discusses the impossibility of thin"ing about free
will as empty content, then that will be purely abstract, infinite in its power but
not determined, however is from this immediate free will without content
where we need to start, it is a pure potentia! Hegels review and subse$uent
philosophical advance over 0ant is the e)hibition and enlargement on the
concept of will! 0antian will would be, for Hegel consideration, merely formal
and it will go no further than mere possibility, being free itself, but not for
himself, that is where the will have to advance in its determination! #he will
returns to itself when it has self&possession of itself, this could be e)plained
simply saying, when we "now why we what we want, then we become fully
self&conscious of our will and therefore we are really free beyond any e)ternal
influence or whim!
Hegel defines e)haustively the will in its operation: is first given reedom in
the selection of e)ternal materials and content and is called discretion, also
states that the first contents of the will are the instincts! It is not set out
clearly the internal cause why will is universal before manifesting in their
individual finite form, it is e)pected that this dar" assumption of Hegel was
logically necessary for him to close the cycle of +thicity reconciled in the *tate
as general will satisfied! %lthough it seems to have been a no&brainer until
recently in the history of thought, is not at all definitive why the desire and will
have to be primary and primarily sub1ective and ob1ective only when fulfilled
and satisfied with the ob1ect for desire! #his truism is actually the basic
principle of Hegel part to substantiate the need for property as a first ob1ect of
the law! In an elegant reasoning, Hegel argues that the law is freedom as Idea
as the will is the primary space where conflict is reconciled between the
sub1ective part and the ob1ective one, mediated by desire and its realization as
the will ta"es part and resolves the contradiction between the sub1ective and
the ob1ective and therefore assumes the movement of the Idea! #he
recognition of the .hristian foundation as the first stage in the development of
the idea of freedom is shown in the %bstract where immediate will free itself, is
merely formal, without content and is defined by the concept of a person,
concept incorporated into law and -b1ective *pirit during the Roman +mpire
when it included in legislation is the foundation of civil liberties! #hen we move
from the idea of particular individual, limited by the e)ternality of their
circumstances to the understanding of personality concept, that despite being
abstract, is the foundation of and respect for each other as e$uals, not under
the law but ontologically spea"ing!
#hus the for Hegel begins with a "ind of guarantor formality in which the
specificity and private interests can not have appearance yet! Here we resolve
the first contradiction in the Hegelian system: this warranty is purely formal
and is based on the prohibition of protecting the personality and in particular
with regard to suffer from disability or damage, but we should as", what is it
that guarantees even at an abstract level, if no determination is possible yet2
Hegel answers this concisely and full of strength in what could be called the
first great Right concession to the individual: immediate reedom as this only
grants an abstract will in general and in relation to the individual himself,
freedom in society, which is freedom of the ratio between a personality with
another, it is only possible to understand it as possession! In other words, the
law grants we have freedom and individuality as long as we are owners of such
given freedom in the abstract will that the law assume, the mere possibility of
freedom to be determined in this or that way! Hegel could have guided the
study of the self&possession, while body and as an individual as the foundation
of possession but does it in the bac"ground as we shall see, in a roundabout in
favor of property in general! #his selection is not at all arbitrary and possibly
Hegel was thin"ing about how to avoid the old conceptions of property as a
result of the wor" 3Loc"e4 and social convention 35rotius4 or as a mere means
of satisfying needs or as adue6amiento! %ll these theories ma"e the property a
mere historical contingency and deny its metaphysical necessity as an end in
itself and as the basis of law and as a necessary part of the primal idea of
freedom! (hile avoiding this, also see"s to remove the old arbitrary
subdivisions of law as of persons and things! %s part of a recall Hegel
philosophical divide of /what is/ about the as Idea of freedom in its abstract
moment, moral and ethical in its immanent development! Here is how the
property is the first time determined, positive freedom, which ma"es the
person, understood as mere dialectical tension between infinite immediate will
and the particularity of individual finitude and concrete desire is e)ternalized,
in holder and sub1ect to law by recognizing their legal capacity of possession
and ownership as an ontological necessity!
3 Property as the sphere of freedom externality
It is indeed in this Right area where Hegel wor"s hard and cares to define
where it is relevant or not the discussion of the limits of the Right face a
number of authors and ideas of his times! %lso very evident is the avoidance of
the author when addressing the issue of freedom of use of the physical body,
but is positioned against slavery and discuss this post a posteriori, and also he
barely do not see limitations to the use of property, highly consistent with the
liberal ethics of the moment! It seems at least suspicious that Hegel is well
aware that free will is also abstract, concrete and the human body and its
capabilities are $uite attached to this will, to the e)tent of becoming his first
determination and first negation of it, limiting and defining its possibilities, so
says, against dualism! 'ut the discussion does not ta"e much further and
prefer to lay a simple foundation under which the individual may be considered
free! #hese are the opposition or dialectical negation of the first moment of the
will, which is infinite and unlimited in and for itself and can not be of reedom
precisely because of its lac" of boundaries! #hus we see as the primary
freedom is primarily a limitation, a necessary specification which will lose its
abstractly infinite character to suit its own finite world where the possibilities
are merely formal and not real possibilities! #hese limited possibilities
constitutes the e)ternal sphere of freedom, which are the factual e)istence and
all its possibilities! ollowing up and culminating Romantic period metaphysics ,
Hegel provides humans with absolute legitimate power towards nature to the
e)tent that first of reedom needs to be determined in the possession of any
thing that is part of the outside itself, ie of nature!
The property and its possession:
(e could say with Hegel, possession ma"es us free, we are baptized into
freedom as freedom to own any part of nature! 'ut Hegel is introduced into
slippery ground when endows s"ill, "nowledge and s"ills and arts a /thing/
status! %lthough he ac"nowledges how poor the analysis is, which would be
based on the rigidity of the thing 7 no&thing duality ends up recognizing that
they are not things in themselves, at the beginning inner *pirit but end in the
statute thing when they are e)ternalized, calling this process alienation! In this
dis$uisition, Hegel commits what I thin" is the worst intellectual slip around
the property, but easily understood within the parameters of the twisting
8ialectic! Instead of recognizing, as it would be natural to the thing itself, the
inauguration of the body, their intellectual abilities and self&control, the first
moment of the property, as in some sense e)ternal and immediate aftermath
the infinite will the one hand, Hegel re1ects treating it in his writing because it
is inappropriate because it is /internal property of the spirit/ 1ust its transit to
the e)ternality or alienation can be discussed! It is $uestionable whether this
bypass may be right considering that self&mastery and self&possession is the
condition of possibility for any rational act, while on the other hand Hegel
e)haustively specified this relationship, choosing to s"ip from infinite %bstract
(ill to immediate desire as embodied in the e)ternality li"e if it was entirely
arbitrary and not socially mediated! #he fact, rather than psychological, that in
the realization of human desires is the *pirit himself with its cultural influence,
is a fact that Hegel does not deny but underestimates its ontological
significance! It seems pretty obvious that the empty notion of person of
.hristianity is clearly insufficient at the level of dispositional properties and
subse$uently this scourge will feed the gigantification of the Idea of (ill and
even possession, as the reverse effect of emptying the individual of any
intrinsic property prior to 'ildung! or this reason this essential gap is abruptly
resolved by Hegel, implying itself the need for the property as an intermediary
between the empty and vague freedom of the person and its first determined
domain, being the essential purpose of this concept of person, a mere
conceptual alibi for the possibility of law as Idea of freedom in implementation!
(ith this we enter the more blurry part of property, ownership! It is
conceptually shown that the property is an end in itself and a must for the
person to reach the level of free individual, with a certain freedom of action
because of a outer space! (hat always result a problem in the philosophy of
law is ,how is the thing established as mine2 How can become from mere thing
to property2 Hegel9s answer is: "The fact that I have something on my
external power, possession constitutes" #his simplicity hides however
complications and ambiguities that will be what is discussed in the following
pages! It seems that Hegel himself intermittently doubt about how base the
inauguration in a infallible and realistic way without falling into arbitrariness of
other authors, but we must also recognize that it does ta"e into account this as
a principle: "But the thing by which I, as free will, objectively I possess myself,
and thus, positively with real desire, is here, the true and legal determination
Property. "
#his possession is possession of body and life, for being my under my (ill
control and this is precisely the ontological priority of the individual against the
individual because the individual is what (ill and poseedera a universal and
infinite content in power! It is precisely the radical possibility of suicide and
self&mutilation conscious what ma"es radically different human and animal,
since animals have body but not the soul, do not possess their body on
theirselves, they do not have a personal will! this personal mediation is
however necessary for the body to be a suitable organ volitional *pirit!
Interestingly, there is no way to tell a priori and immediately if my behavior or
not according to the *pirit, if it has possessed the body correct, ethically say,
and therefore this implies another concession on coe)istence, we are free for
each other a priori, in the way my body my (ill controls only control the fact!
+)ceptions will be no disruptions to this concession, but ethical determinations
about :n1ust, surpassing the realm of morality and directly into +thicity
determinations and state! 'y saying /this is my body/ in Hegel we are saying
something literal, this body is my personal property! #he belonging of the of
libel and slander and damage to *elf is 1ustified by Hegel arguing that it is
fallacious to consider mind and body as separate because the soul can not live
apart from the body and so damaging the body the soul results also damaged
and damaging the soul or the body is damaging the *elf!
About the Property as priate, public, limited or unlimited:
Hegel is not much e)pounds upon the possibilities of ownership of the
Property and its causes and conse$uences ontological but a number of
indications suggests that at least show us what was the idea of Hegel with
regard to the limitations of the property! #he property is usually the product of
individual will and the desire to be owned, possession of any individual ta"ing
things for themselves and therefore ma"es it private! #he use of the thing may
be sub1ect of other conditions as we will see! Hegel does not consider the
common property as we consider nowadays environment, natural resources
li"e nature conservationists do but 1ust seen what the common property is in
the legal sense as a property of a s$uare or a par" in which individual will is
diluted and depends on our discretion enterand participate in the common
thing! 'ut Hegel sees the appropriation of the so called elementary ob1ects a
problem and believes that farmland and other basic resources can not be
reduced simply to private property and could be handled, with respect to their
communitary need, by higher spheres of law as may be the *tate! Proceeds
with this idea, although only vaguely specified and poorly targeted, and
suggests, at least, that the moral desire to egalitarianism and basic needs met
for all citizens is insufficient as criteria for redistribution and does not depend
on the ;orality domain that possession is wrong or right per se or that
ine$uality is un1ust, but it is in the area of .ivil *ociety, the *tate and general
ethicity, where this should be specified! %lthough Hegel does not despise the
usefulness of common property in the sense previously discussed, of the
elementary ob1ects, has a partial understanding and a somewhat simplistic
sense of communal property as it shows a constant ob1ection to that
e)ceptions to private property are the result private arbitrariness would be the
fruit of ;orality illegitimately imposed! -n the other hand this is not
ob1ectionable under Hegelian parameters because as we "now the associations
are always within the framewor" of Law as this is the guarantor of the passage
of ;orality to +thicity implying that ethics out from Right are indeterminate
because of a their lac" of formality and ;orality can not be common by any
means 3for being potentially arbitrary4 and therefore would be insufficient to
support the coe)istence and freedom! It should also be understood here that
the criticism of private property alluded to an un1ust nature, being nature non&
moral and non&ethical! -n the other hand Hegels strong approach is that
e$uality as such, is a mediocre concept that fails to properly synthesize the
unity in diversity, producing an impossible flattening among the enormous
diversity in all areas both physical and spiritual, being for Hegel e$uality only a
start point from the pre&moral point of view of the person as a legal sub1ect!
'ut Hegel 1umps too easily from the concept of e$uality in abstract terms to
e$uality as redistribution, ma"ing this topic solution abrupt and unphilosophical
although a few lines later he forward his cautious proposal!
The ta!eoer:
#he (ill when determined in the e)ternal ob1ect can not simply wish the
ob1ect to 1ust endorse it but it needs to be recognized by others through the
ta"eover! In this part of the study Hegel divides the moment of the ta"eover,
trying to 1ustify the ta"eover as de facto founds property originally as a
/gesture/ outward bodily appropriation Hegel considered as the most perfect
form of possession sensible level to be physically present and be immediate
contact with the ob1ect, this is the intuitive perception of the people until the
arrival of the contract as a legal entity! #he elaboration is to some e)tent the
use of the thing, but not as contingent and temporary activity but as a
concept, ob1ect transformation or assimilation! #his is easily seen in the
e)ample of real estate contracts in which the lessee usually is not allowed to
do wor"s on the house in a way to change it e)cept for the contingent, failing
to carry out wor"s that would define the property! *hould be noted here is that
that Hegel includes a small thesis about the ta"eover of oneself in terms of
mastering the body and soul as ob1ect and improvement possibilities, powers,
etc! Immediately spea" of antinomy about human freedom, which can not
itself be free, while being natural, but that, based on the idea that the human
being is free only as a person, freedom itself needs the *tate to be recognized!
#hat is, it is not legitimate or illegitimate in itself be a slave, but only when
there is a *tate to protect the Idea of reedom that is displayed by the Right!
%ccording to the author, the use of the thing is what the common opinion
thin"s as the basis of the property in some sense since an ob1ect without use
seems unowned in its effective state! #o protect property against such
interpretation Hegel intended use is only the appearance of the property and
casualty! #his issue is due to that since Hegel can not thin" ethics out from the
Right to the e)tent that action regarding the use of the property will always be
moral, a matter of mere discretion propped in personal free will, and defended
by the contract! #he $uestion is not unimportant since Hegel recognizes that
the use /is the thing in all its fullness/ and the possibility of effective use is
e$uated with the property itself, e)cept as an assignment or partial use, or
temporary, the ob1ect, being rapport the relationship between the individual
will and the use degree of the thing! In that sense it is frustrating to see as
1ustified under this conception of use, use of vitality as embodied in wage
labor, there is no way to 1ustify philosophically a priori limitations on the use of
life, labor force and overall time if we start with the Idea of an empty freedom,
merely potential and not substantive! Indeed, for Hegel e)pand the category of
free will will of the person would give absolutely to the preeminence of +thicity
on ;orality and also would re1ect the Idea of reedom! or this reason, Hegel
would have re1ected any "ind of human rights from the point of view of natural
law e)cept one, the right to e)ercise free will, against e)ternal alienation! #his
part ends with the determination of the essence of the property as possession:
the value of the thing and the will on thing! #he value of the thing is the fact
the the thing is specie, "ind and comparable and therefore universal because
of a, so what we possess at greater e)tent is the universality of the ob1ect as
value and the right to use any so the ob1ect!
The sale of the property and its transit to contract:
%bout the sale of the property is not much to say as the author himself does
not say much! #he essential point here is that Hegel precedes ;ar)9s idea of
alienation, and alienation for Hegel but being inalienable $ualities merely
potential and empty $ualities, powers really are not inalienable because they
can not, if not by choice! #hus Hegel is "ept steadfastly in 'eing and never in
the must&be! It is interesting to see how Hegel theorized intellectual property,
considering it as an emulsion of the *pirit that is ob1ective, that is e)ternalized
and therefore can be for others, but only at the level of common property
when this content is after a long, intellectual property of the *pirit, as in the
case of boo"s! .opying and plagiarism issues are not fully determinable a priori
to be the "nowledge and its transmission based only on repetition of content,
appearing similarities and small differences in every step, so that plagiarism
can not be regulated by the morality 3e)cept in egregious cases4 but rather a
/matter of honesty and restrained by it!/ #he philosopher shows himself much
more caustic about death issue to the point that he does not consider us to be
fully free to choose suicide as decision but a waiver since life is the condition
of possibility of freedom and therefore the suicide we would be giving up our
reedom! 'ut what we do have is an +thical Idea about life and we may should
give up for this idea and sacrifice ourselves for it! It is here where Hegel
possibly shows the commitment of his theory with liberalism, with the Idea of
reedom being superior than life itself in life no more than 1ust a means of
e)pression of *pirit reedom and therefore lower to it as a category and
e)istence! %lso, the will is e)pressed really only connection to the will of
others, the general will and the common will only be manifested ethically in
their relationship mediated and intervened by the contract!
"onclusion:
#here are many connections between concepts and realities that are accepted
as natural and when its foundation is studied we can realize easily that they do
not necessarily correlate! -ne of the biggest blind spots was forge definitely in
Romanticism which Hegel helped to settle, is the idea that (ill is corresponding
to Liberty, namely that Liberty is constituted mainly by the action of (ill, and
the (ill assumes and defines the form of the reedom! %nd beyond this, where
it is assumed mainly in the use of the -b1ect, the ta"eover of the outside world
and personal property in particular! In this mur"y way, (ill, reedom and
Property are <ine)tricably= lin"ed and mediated and bind through domination
and contract! #his is the principle of liberalism and can not say that the Idea of
reedom and has changed so much nowadays in collective imaginary!
:tilitarians, collectivists and others have been trying to criticize Hegels ethical
system and it tend to be insufficient for a basic reason, they do not brea"
completely the chain that binds conceptual freedom with the (ill and the (ill
with -b1ect domination!
#ibilio$raphy:
Hegel, G.W.F:. Filosofa del derecho. De: Claridad. Buenos Aires.(1968) Original title: (Grundlinien der
Philosophie des Rechts, 181)