Mark Tunick

Hegel claims democracy is inappropriate for a modern state and offers two justifications: an empirical one focusing on the failure of existing democracies; and a metaphysical one focusing on the inappropriateness for the modern state of the ideal of individual sovereignty that Hegel associates with democracy. This paper shows how Hegel’s discussion of democracy is relevant to the broader interpretive questions of whether Hegel’s understanding of history and of the development of political institutions is truly empirical and whether Hegel accepts the relativist implications of an empirical approach.

Unlike other treatments of legal punishment, this book takes both an external approach, asking why we punish at all, and an internal approach, considering issues faced by those 'inside' the practice: For what actions should we punish? Should we allow plea-bargaining? the insanity defense? How should sentencing be determined? The two approaches are connected: To decide whether to punish someone who is 'insane', or who cops a plea, we need to ask whether doing so is consistent with our theory of why we punish at all. In connecting theory and practice, I draw on a broad range of thought: radical criticisms of punishment (Nietzsche, Foucault, Marxists), sociological theories (Durkheim, Girard), various philosophical traditions (utilitarian, German Idealism, modern liberalism), and the 'law and economics' movement. Against radical critics who argue we shouldn't punish at all, but who then leave us without an alternative for dealing with crime, I defend the practice, offering a version of retribution (which I distinguish from revenge and non-consequential theories) that holds we punish not to deter, reform, or otherwise augment social utility, but to mete out just deserts, vindicate right, and express society's condemnation of actions it deems blameworthy. I argue that this theory best accounts for how we do punish, and then use this theory to provide immanent criticism of certain features of our actual practice that don't accord with the retributive principle.

This paper points to some limitations of law and economics as both an explanative and a normative theory. In explaining law as the result of efficiency promoting decisions, law and economics theorists often dismiss the reasons actors in the legal system give for their behavior. Recognizing that sometimes actors may be unaware of why institutions evolve as they do, I argue that the case for dismissing reasons for action is weaker when those reasons make reference to rules of practices that constitute the meaning of actions within those practices, or when they have otherwise been given well-considered defenses. In criticizing law and economics as a normative theory, I acknowledge that economic considerations are often important in deciding how to act in the personal sphere and how government should allocate its scarce resources. I argue that while the use of institutions to promote our ideals forces us to take their costs into account, it is a mistake to infer from this that the question of determining social policy is a purely economic problem, and that we should acknowledge the non-utilitarian moral ideals our law and practices promote. This is the basis of both an internal criticism--law and economics theorists have not sufficiently evaluated and weighed the value of fairness and other ideals in their utility calculations--and an external criticism-- these ideals are important in ways that can not be measured in utiles.

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict.

The Philosophy of Right is an enormously complex work, and any short treatment of it has to set limits for itself. Harry Brod, in this highly readable and useful new book, chooses to focus only on the last third of the Philosophy of Right, in which Hegel discusses civil society and the state, and also limits his scope by avoiding engagement with much of the relevant secondary literature. This is not to say Brod avoids larger interpretive questions; on the contrary, he focusses on the concrete political institutions in the last third of the Philosophy of Right in order to advance his general thesis that Hegel’s analysis of history, as the development of human beings’ consciousness of their freedom, shapes the philosophic enterprise and structure of the Philosophy of Right. In Brod’s view, Hegel intends to show how the practices and institutions discussed in the Philosophy of Right “engender in the citizens of the Hegelian state an ever-more-conscious awareness of their roles as political agents”. In Hegel’s view, “people and institutions in succeeding historical periods display increasingly greater consciousness of their freedom”. This is due to appropriate political institutions that have developed in history - “for Hegel, subjective freedom follows the institutionalization of objective freedom, not the reverse”. Brod suggests that for Hegel we can judge and criticize our political institutions according to whether they fulfill the principles toward the realization of which history is aiming. These principles - “subjective freedom,” “universality,” and “rationality” - are reflected in the modern consciousness of Hegel’s day, as a result largely of the French Revolution but also of Protestantism. Part of Brod’s thesis is that Hegel insists on drawing on these principles precisely because they contribute to the modern consciousness of Hegel’s own time. There is one other “primary principle of the modern world,” though, one shunned by the Revolutionaries and their liberal theorists of abstract individualism, namely, “being part of the world in which one feels at home”, and Brod repeatedly shows how Hegel invokes this additional “principle” to criticize modern liberal thought. I shall have more to say about these principles later.

Hegel criticizes Kant's categorical imperative and what he takes to be Kant's social contract theory of political obligation, but these criticisms miss the mark, for Kant is not really a consent theorist, nor is his categorical imperative empty. The most distinct break Hegel makes with Kant's philosophy of right is rather his rejection of a theory of natural rights, a theory central to Kant's Metaphysics of Morals. While Hegel offers a theory of natural right in some sense, he does not think individuals have natural rights.

Mill's harm principle declares that one's liberty of action may be interfered with by the state only if one has caused harm to others. Cases of culture clash involve unassimilated subjects, be they citizens, aliens, immigrants or national minorities, who violate the law while engaging in a practice that is a prevalent and legitimate part of their native culture or religion and which they do not regard as harmful. A Millian approach to the punishment of unassimilated subjects is explored by examining Mill's views on whether there is an objective standard of harm and Mill's discussions of free will, moral responsibility and the respect due to native cultures.

Hegel criticizes Kant's categorical imperative and what he takes to be Kant's social contract theory of political obligation, but these criticisms miss the mark, for Kant is not really a consent theorist, nor is his categorical imperative empty. The most distinct break Hegel makes with Kant's philosophy of right is rather his rejection of a theory of natural rights, a theory central to Kant's Metaphysics of Morals. While Hegel offers a theory of natural right in some sense, he does not think individuals have natural rights.

New technologies of surveillance such as Global Positioning Systems (GPS) are increasingly used as convenient substitutes for conventional means of observation. Recent court decisions hold that the government may, without a warrant, use a GPS to track a vehicle’s movements in public places without violating the 4th Amendment, as the vehicle is in plain view and no reasonable expectation of privacy is violated. This emerging consensus of opinions fails to distinguish the unreasonable expectation that we not be seen in public, from the reasonable expectation that we not be followed. Drawing on a critical discussion of the plain view doctrine, analysis of privacy interests in public places, and distinguishing privacy from property interests, the article contends that government use of GPS to track our movements should require a warrant.

In the Phenomenology Hegel insists there are no presupposed standards of truth: standards are internal. "Consciousness provides its own criterion from within itself, so that the investigation becomes a comparison of consciousness with itself"(PhdG 84). We need only contemplate "the matter in hand as it is in and for itself"(PhdG 84). The Phenomenology is a characterisation of consciousness taking on increasingly adequate forms, testing its own internal standards against experience. The Philosophy of Right is a search for right, not, as in the Phenomenology, for the reality of cognition; but one of the methods Hegel adopts and which helps make sense of the structure of Philosophy of Right is the method he uses in the Phenomenology. This paper offers an alternative, though not necessarily conflicting, interpretation to that given in recent accounts of Philosophy of Right that emphasize its "logical spirit." While the phenomenological account is not necessarily incompatible with these others, it will point to a nonfoundational interpretation of Hegel's phenomenological method that is.

Some critics of Mill understand him to advocate the forced assimilation of people he regards as uncivilized, and to defend toleration and the principle of liberty only for civilized people of the West. Examination of Mill’s social and political writings and practice while serving the British East India Company shows, instead, that Mill is a ‘tolerant imperialist’: Mill defends interference in India to promote the protection of legal rights, respect and toleration for conflicting viewpoints, and a commercial society that can cope with natural threats. He does not think the principle of liberty is waived for the uncivilized, or that the West should forcibly reshape them in its own monistic image. Mill’s tolerant imperialism reflects a tension between liberty and moral development that surfaces also when Mill thinks about the scope of government in civilized societies.

Edmund Burke characterizes the state as consecrated, or sacred. There is a sense in which Hegel, too, consecrates the state: Hegel says the state is based on religion and that to preserve the state, religion “must be carried into it, in buckets and bushels.” This paper discusses the sense in which Hegel’s state is consecrated by juxtaposing his views with Burke’s. Both Burke and Hegel reject the theory of the divine right of kings, while recognizing religion’s ability to connect people to a totality transcending their particular lives. But the similarities nearly end there. Burke sees religion as a tie that binds people and helps create an ethical community, at least in England; for Hegel religion does not have that function in a modern state. Where Burke thinks commitment to religion is a stabilizing influence, Hegel worries that religion can lead to fanaticism and destroy a state. Consequently, where Burke supports an establishment of religion, Hegel thinks church and state must remain separate. Both Burke and Hegel think the state must tolerate the free exercise of different religions, but Burke is unwilling for the state to tolerate atheists, who he regards as outlaws of the human race. But as Hegel sees the function of religion in a modern state as providing an answer to the existential question of how one’s existence has meaning given that it is inevitably extinguished, and if philosophy can also provide an answer to that question, Hegel’s consecrated state could be a home for atheists. The paper draws on, among other works, Hegel’s Rechtsphilosophie, Philosophy of Religion, Philosophy of History, early theological writings, and for Hegel’s views on state-sponsored religious education, the Nürnberg School Addresses and letters to Niethammer.

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict.

Retributivists are often thought to give 'deontological' theories of punishment, arguing that we should punish not for the beneficial consequences of doing so such as deterrence or incapacitation, but purely because justice demands it. Kant is often regarded as the paradigmatic retributivist. In some passages Kant does appear to give a deontological theory of punishment. For example, Kant insists that on an island where all the people were to leave the next day, forever dissolving and dispersing the community, the last murderer in jail would have to have his execution carried out before the diaspora--justice demands it. In other passages, however, Kant defends punishment by appealing to its beneficial consequences. For example, after supposing that one man on a life raft pushes the other off to save his own life, Kant says that the former man should not be legally punished "because that punishment would have to be death, and it would be an absurd law that threatened death to one who refuses to die voluntarily in a dangerous situation." In this passage Kant's reasoning is that state laws, by threatening us with sanctions, are intended to prevent us from violating rights--the point of these laws is to deter. A law that imposes a punishment that could not deter is an absurd law. I argue that while Kant rejects consequentialism in thinking about moral actions, he distinguishes law and morality, and in the sphere of law, an action we take is to be justified by appealing to the good it yields. The point of legal punishment is to deter violations of rights and protect us from a state of nature in which no one's freedom is assured. Kant's theory of legal (as opposed to moral) punishment is not deontological. Nevertheless we can characterize his consequentialist theory of legal punishment as retributive in some sense. The paper then considers how the passages about punishment in which Kant invokes consequentialist thinking can be reconciled with other passages where he insists on punishment regardless of the consequences.

In light of technology that may reveal the content of a person’s innermost thoughts, I address the question of whether there is a right to ‘brain privacy’—a right not to have one’s inner thoughts revealed to others–even if exposing these thoughts might be beneficial to society. I draw on a conception of privacy as the ability to control who has access to information about oneself and to an account that connects one’s interest in privacy to one’s interests in autonomy and associated reputational interests, and preserving one’s dignity. Focusing on the controversial case of Gilberto Valle, known as the ‘cannibal cop’, who faced legal punishment and moral reproach for deeply disturbing thoughts of doing violence to women, thoughts he claimed were mere fantasies, I argue that Valle has a right to brain privacy if he has a legitimate privacy interest that is not outweighed by competing societal interests in avoiding harm. Our weighing of competing privacy and societal interests will depend on the magnitude of the privacy interests in autonomy and dignity, and on how reliable the technology used to expose inner thoughts is in predicting future harmful behavior and identifying true threats.

Are there universally valid moral principles that dictate what's right regardless of what the consensus is within a particular society? Or are moral judgments culturally relative, ultimately dictated by conventions and practices which vary among societies? Practices and Principles takes up the debate between cultural relativists and universalists, and the related debate in political philosophy between communitarians and liberals, each of which has roots in an earlier debate between Kant and Hegel. Rejecting uncritical deference to social practice, I acknowledge the need for standards for judging existing practices; but, I argue, the fact that there are principles we can use to criticize practices does not mean we can ignore social practice when making ethical and legal judgments. While defending principled criticism,I show the important role social practices have both in selecting and applying principles. I show precisely how both principles and practices interact through three case studies: promises, contract law, and the fourth amendment issue of whether an expectation of privacy is reasonable. When we turn to particular instances of ethical and legal judging we find that it is appropriate sometimes to appeal to principles that seem foreign to a culture to criticize aspects of that culture, sometimes to appeal to principles immanent in a culture and its practices, sometimes to defer to expectations arising from practices without subjecting the practices to critical scrutiny. I reject simplifying dichotomies that force us to choose between either practices or principles, universalism or relativism, and liberalism or communitarianism.

The inability thesis holds that one’s culture determines behavior and can make one unable to comply with the law and therefore less deserving of punishment. Opponents of the thesis reject the view that humans are made physically unable to act certain ways by their cultural upbringing. The article seeks to help evaluate the inability thesis by pointing to a literature in cultural psychology and anthropology presenting empirical evidence of the influence of culture on behavior, and offering conceptual analysis of the concept of determinism and its connection to moral culpability. Without conceding that culture never determines behavior, I argue that opponents of the inability thesis err in drawing a moral implication from this premise. What matters in formulating moral judgments about punishment are not the possibility but the reasonability of complying with the law. Cultural influences may make an action reasonable that without similar cultural influences would be unreasonable.

This article addresses the question of whether an expectation of privacy is reasonable in the face of new technologies of surveillance, by developing a principle that best fits our intuitions. A "no sense enhancement" principle which would rule out searches using technologically sophisticated devices is rejected. The paper instead argues for the "mischance principle," which proscribes uses of technology that reveal what could not plausibly be discovered accidentally without the technology, subject to the proviso that searches that serve a great public good that clearly outweighs minimal intrusions upon privacy are permissible. Justifications of the principle are discussed, including reasons why we should use the principle and not rely solely on a utilitarian balancing test. The principle is applied to uses of aerial photography and heat-detection devices.

Hegel for the most part insists we support existing practices: they have endured, have socialized us, are our home. At times Hegel seems to demand conformity, to leave no room for dissent or disobedience. Hegel gives great weight to the authority of the state and of custom. But Hegel does not leave the individual confronted with an unjust state powerless. To Hegel, we are obligated to obey the law if we are at home in the state, if its practices, institutions and laws are rational, if the free will "comes into existence" in it. But on Hegel's view, if the practices, institutions and laws of the state are not rational, we are not obligated to comply with their demands. Few recognize that Hegel even allows for justified disobedience, let alone that he can tell us anything about the conditions under which disobedience is justified. This is partly attributable to the fact that important texts concerning Hegel's views have only recently been discovered and published. For example, in a passage from one of these texts, a set of notes of Hegel's lectures on political philosophy, Hegel declares that if my free will does not come into existence in the state, I have no corresponding duty to the state. My purpose is to articulate a distinctive Hegelian theory of justified disobedience, show how it differs both from the traditional understandings of Hegel's views and from contemporary approaches to the problem of justified disobedience, and briefly to point to some difficulties with Hegel's position that need to be worked out if it is to be a satisfactory alternative.

The Dispossessed has been described by political thinker Andre Gorz as 'The most striking description I know of the seductions—and snares—of self-managed communist or, in other words, anarchist society.' To date, however, the radical social, cultural, and political ramifications of Le Guin's multiple award-winning novel remain woefully under explored. Editors Laurence Davis and Peter Stillman right this state of affairs in the first ever collection of original essays devoted to Le Guin's novel. Among the topics covered in this wide-ranging, international and interdisciplinary collection are the anarchist, ecological, post-consumerist, temporal, revolutionary, and open-ended utopian politics of The Dispossessed. The book concludes with an essay by Le Guin written specially for this volume, in which she reassesses the novel in light of the development of her own thinking over the past 30 years.