The Philosophical (Ethical) School of Jurisprudence

Think of a shared hostel kitchen. Nobody tells the students what to cook, but there are rules about burners and shelves so that one student's freedom does not destroy everyone else's; the warden who removes a student hogging all four burners is restoring freedom, not attacking it. That is Kant's picture of law: boundaries that let free persons live side by side. Now follow one student over ten years: he owns things, develops a conscience, lives in a family, earns a living and finally takes part in public life as a citizen. His freedom grows richer at each stage. That is Hegel's picture: law as freedom rising through stages until it is realised in the institutions of the State.

Figure: Kant's law draws boundaries so that the free choices of persons A, B and C can coexist under a universal law; Hegel's Philosophy of Right traces freedom rising through abstract right, morality and ethical life (family, civil society and the State)

1. Meaning and Place of the School

The philosophical school asks why there is law at all. Its answer: law is rooted in reason and exists to secure freedom. It is called ethical because it studies law in relation to the ideal it ought to serve, much as Salmond's ethical jurisprudence studies law as it ought to be (Note 1), and metaphysical because its German idealist founders derived law from a philosophy of mind and freedom rather than from legal practice.

Indian textbooks (Paranjape, Tripathi) place it between the natural law school and the historical school (Note 3). From natural law it inherits the conviction that law must answer to reason. But it abandons the claim that reason yields a fixed code valid for all times: Kant gives reason only a form (the universal principle of right), and Hegel treats reason as working itself out in history through real institutions. That second move points toward the historical school of Savigny, Hegel's colleague and rival at Berlin (Note 13). The school is thus the bridge between eighteenth-century faith in timeless reason and the nineteenth-century discovery of history.

2. Immanuel Kant: Law as the Coexistence of Freedoms

Immanuel Kant (1724 to 1804) built his moral philosophy in the Groundwork of the Metaphysics of Morals (1785) and applied it to law in The Metaphysics of Morals (1797), whose first part is the Doctrine of Right (Rechtslehre). His essay Perpetual Peace (1795) applied the same ideas to relations between States (Note 118).

The categorical imperative and persons as ends

Kant distinguished hypothetical imperatives (if you want X, do Y) from the categorical imperative, which binds unconditionally. The formula of universal law: act only on that maxim which you can at the same time will to become a universal law. A false promise to repay a loan fails the test, since if everyone made false promises, promising itself would collapse. The formula of humanity: treat humanity, in your own person or in another, always as an end and never merely as a means. Hence human dignity: things have a price, persons have dignity, a worth beyond price. This is the school's most lasting legacy to constitutional law.

The universal principle of right

Kant then asked what part of morality may be enforced. His answer is right (Recht), which concerns only the external relations of persons. Right is the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom. Hence the universal principle of right: an action is right if it can coexist with everyone's freedom under a universal law. Law does not tell me what goals to pursue; it marks the boundaries within which my pursuit leaves room for yours. There is only one innate right, freedom (independence from constraint by another's choice) so far as it can coexist with the freedom of all; equality is contained in it.

Coercion: a hindrance of a hindrance to freedom

How can a theory of freedom justify force? If a use of freedom is itself a hindrance to freedom under universal laws (a wrong), then coercion opposed to it, as a hindering of a hindrance to freedom, is consistent with freedom and therefore right. The State that stops a thief removes an obstacle the thief placed in another's way. So right carries an authorisation to use coercion, which is why law, unlike virtue, may be enforced from outside.

Legality and morality

An action has legality when it merely conforms to the law, whatever the motive: the shopkeeper who gives correct change because cheating is bad for business acts legally. It has morality only when done from duty. Juridical law is satisfied by outward conformity and may use external incentives such as punishment; ethics demands the inner motive of duty and cannot be enforced, since no one can be forced to have a good will. This anticipates the view that law governs external conduct (Notes 20 and 52).

The State, the social contract and punishment

In a state of nature rights are insecure, so reason requires persons to enter a civil condition. The original contract is not a historical event but an idea of reason: the legislator must frame only laws the whole people could have agreed to. Kant denied any legal right of rebellion, and he was a strict retributivist: punishment may be inflicted only because the offender has committed a crime, never merely as a means to another good. Even an island society about to disband, he said, must first execute the last murderer in its prison (Note 27).

3. Fichte: Right as Mutual Recognition

Johann Gottlieb Fichte (1762 to 1814), in his Foundations of Natural Right (1796 to 1797), introduced the concept Hegel would develop: recognition. A person becomes conscious of his freedom only when summoned to it by another free being, and each is free only if each recognises the other as free and limits his own freedom accordingly. The legal relation is this mutual recognition. Fichte separated right from morality even more sharply than Kant. Remember him as the link between Kant's freedom and Hegel's recognition.

4. Hegel: Freedom Realised in the State

G.W.F. Hegel (1770 to 1831) held the chair of philosophy at Berlin from 1818 and set out his legal philosophy in the Elements of the Philosophy of Right (1821). Where Kant began with the isolated rational will, Hegel insisted that freedom is real only when embodied in institutions: property, family, economy, courts and the State.

The dialectic

Hegel's method is dialectical: every concept, pushed to its limit, reveals a contradiction that is overcome in a higher concept which both cancels and preserves what came before (aufheben). Textbooks teach this as thesis, antithesis, synthesis, but Hegel himself did not use those terms; the triad comes from Fichte and later expositors. Examiners accept it, but write 'the dialectic, commonly summarised as thesis, antithesis and synthesis'.

The structure of the Philosophy of Right

Hegel defines right very broadly as any existence which is the existence of the free will. The book traces three stages, each correcting the one-sidedness of the last.

Two further ideas are examined. Punishment is the negation of the negation: crime negates right, punishment negates the crime and restores right, honouring the criminal as a rational being. And Hegel favoured codification: in a passage aimed at Savigny, he said that denying a civilised nation or its lawyers the capacity to make a code would be one of the greatest insults to them.

'What is rational is actual'

The Preface contains Hegel's most quoted sentence: 'What is rational is actual; and what is actual is rational.' Conservatives read it as blessing whatever exists, including the Prussian monarchy. Defenders reply that actual (wirklich) means what is fully developed and true to its concept, not whatever happens to exist. The same Preface says that the owl of Minerva spreads its wings only with the falling of the dusk: philosophy understands an age only when it is complete.

Caution: the phrase that the State is the march of God in the world comes from an addition compiled from students' lecture notes, not from Hegel's own paragraphs, and many scholars regard the English rendering as a mistranslation (closer: it is the way of God in the world that there should be a State). Use it only with this qualification.

5. Kant and Hegel Compared

6. The Neo-Kantians and the Neo-Hegelians

Late in the nineteenth century, against dominant positivism, the philosophical approach revived in two streams.

Rudolf Stammler: natural law with a variable content

Rudolf Stammler (1856 to 1938), a German neo-Kantian, wrote Wirtschaft und Recht (Economy and Law, 1896) and The Theory of Just Law (1902). He separated the concept of law, a purely formal idea found in every legal order good or bad, from the idea of law, which is justice. His answer to the historical school is natural law with a variable content: the form of just law is constant, but its content changes with the conditions of each time and place.

The social ideal is a community of free-willing men, from which Stammler derived the principles of respect (no one's will may be subjected to another's arbitrary desire) and the principles of participation (no one may be arbitrarily excluded from the legal community). Critics found the formula too abstract to decide cases, but it let natural law live with historical change (Note 9).

Josef Kohler: law as a cultural phenomenon

Josef Kohler (1849 to 1919), a German neo-Hegelian and pioneer of comparative law, treated law as a cultural phenomenon: each civilisation has its own law, which must maintain the values it has achieved and further its development. Law must be measured against the jural postulates of the civilisation of the time and place, an idea Pound borrowed (Note 14).

Giorgio Del Vecchio

Giorgio Del Vecchio (1878 to 1970), the Italian neo-Kantian, founded the ideal of law on the autonomy and dignity of the person, entitled to be treated as a subject, not an object. Kelsen also came from the neo-Kantian milieu, though he used Kant's division of is and ought to purify law of ethics (Note 12).

7. Criticism and Evaluation

The strongest attack came from Karl Popper in The Open Society and Its Enemies (1945), which treated Hegel, with Plato and Marx, as an enemy of the open society: a prophet of historicism, an apologist for the Prussian State and a forerunner of totalitarianism. Walter Kaufmann and others replied that Popper misread Hegel, who defended the rule of law, property and constitutional monarchy. The fair verdict: Hegel's language was open to abuse, even if he did not intend it. Marx took Hegel's dialectic and turned it right side up, replacing Spirit with material conditions (Note 16).

Evaluation. Kant gave legal theory its best account of why law may coerce free persons, a clear line between legal and moral duty, and the principle that every person is an end. Hegel showed that rights are realised through institutions and that law has a history. The dignity clause of the German Basic Law (1949) and Rawls's Kantian theory of justice carry the school forward.

8. Relevance in India

Indian courts rarely cite Kant or Hegel, and a candidate should not claim that a judgment rests on them. But the school's central ideas, dignity, autonomy and freedom as the purpose of law, run through the reading of Art. 21.

The same themes run through Navtej Singh Johar (2018) (autonomy and dignity of consenting adults) and Joseph Shine (2018), which rejected treating a wife as her husband's property, an application of the principle that no person may be treated merely as a means (Note 48).

9. Frequently Asked Questions

Q. Why is the philosophical school also called the ethical school?
A. Because it studies law in relation to the ideal it ought to serve, namely freedom and justice, rather than describing law as it is (analytical) or tracing its origins (historical). It corresponds to what Salmond called ethical jurisprudence.

Q. What does Kant mean by coercion as a hindrance of a hindrance to freedom?
A. A wrongful act obstructs someone else's freedom. Coercion that stops that act removes the obstruction, so it is consistent with freedom under universal laws. This is why right, unlike virtue, carries an authorisation to use coercion.

Q. How did Stammler reconcile natural law with the historical school?
A. He kept the form of just law constant while allowing its content to vary with time and place. Each society must frame rules that serve the ideal of a community of free-willing men, but the rules themselves change as conditions change.

See also: Note 3 (kinds and schools), Note 9 (natural law school), Note 12 (Kelsen), Note 13 (historical school), Note 16 (Marxist jurisprudence), Note 20 (law and morality), Note 27 (punishment), Note 39 (State and law), Note 48 (liberty and equality), Note 52 (law versus ethics), Note 118 (is international law true law).