Commentary on the Philosophy of Right, Chapter 14
From Natural to Free Will
The concept of purpose is abstract; it applies to any directed activity, even to animals stalking prey. What the philosophy of right needs is the specific bearer of purpose that can set itself as its own purpose and relate back to its own act of positing purpose — the free will. Hegel develops this not as a presupposition but as the result of a movement.
First stage: the natural will. What I want at first are the impulses and desires that determine me by nature. I am hungry and want to eat; I am tired and want to sleep; I am curious and want to explore. At this level I am not free in any strong sense — the impulses have me, I do not have them. But I am also not unfree; every being capable of purposive action has its precondition here. Without natural will, free will would be empty.
Second stage: arbitrariness (Willkür). As soon as I have several impulses at once and must choose among them, a second determination emerges: choice. I want to eat and sleep; I decide for one or the other. Here I am no longer blindly subject to the impulses — I can order them, set one aside, prefer another. This is the everyday meaning of “free will”: I can choose.
But this freedom has a deficiency. Arbitrariness selects among given options; it does not itself posit the options. Someone choosing between vanilla and chocolate ice cream is free in a trivial sense; but they did not choose that ice cream exists, that they like ice cream, or that there are only these two flavors. Arbitrariness depends on what it has not made itself. Hegel therefore characterizes arbitrariness as the will that, instead of being the will in its truth, is rather the will as contradiction (Philosophy of Right §15; cf. §17): it believes itself free because it can choose, but what it can choose is given to it in advance. It is the freedom of a slave who is left the choice between different kinds of labor.
Third stage: the free will that wills itself. The next step is not a further choice among more options, but a self-relation: I can relate back to my own activity of willing and will it as mine. What this means can be clarified through an everyday experience. Someone who wants to break a habit — smoking, procrastinating, letting oneself be rushed — knows that the habit has him, not the other way around. Someone who succeeds in changing the habit has related back to their own act of willing: they have recognized the one who used to smoke as themselves, and made something else out of him. This is not trivial. It presupposes that I want not merely a determinate content, but myself in my willing.
The free will understood in this way is not free from determinations — it has impulses, desires, habits, a history, a character. It is free within its determinations, because it can recognize them as its own self-determination. It has itself as its content: what it wills is not merely this or that, but that it become actual as free will.
This stage is the precondition of right. Whoever is not a free will cannot own property (in the strong sense of the realization of personality), cannot conclude a contract (in the strong sense of mutual recognition), cannot be a subject of morality. Animals cannot own property; they can be owned. Machines cannot be parties to a contract; they can be sold. What the philosophy of right presupposes as a person is the free will as the result of this movement.
At this point a conceptual distinction is helpful — one that, in substance, goes back to Kant’s distinction between external purposiveness and immanent telos, and that has been worked out in the reception of Hegel above all by Stekeler[1], and that becomes decisive for legal subjectivity: the distinction between directedness toward an end (telos) and conscious positing of purpose (intentio). Directedness toward an end refers to the simplest form of being directed, as it occurs in living things: a plant grows toward the light (phototropism), an animal pursues its prey (instinct). In both cases there is directedness, but no conscious positing of the purpose. Conscious positing of purpose, by contrast, presupposes that the subject represents its purpose to itself as a purpose, chooses it as its own, can justify it, and can check its execution. What animals, plants, machines, and AI systems lack is not directedness toward an end (which can very well be present — and in AI systems in highly complex form), but conscious positing. This conceptual distinction carries legal subjectivity: to be a subject of right means to be the bearer of a conscious positing of purpose that can relate back to itself — the free will in the developed sense.
A consequence follows from this that will become important later. Not everything involved in an activity is a subject of right in the strict sense. In classical modern private law — that is, under the presuppositions with which Hegel and his immediate successors work — nature, animals, machines, and AI systems are not subjects of right. Nature contributes to the activity (sunlight, water, soil fertility), but according to this classical determination it cannot raise claims. Animals contribute (horses, cows, dogs), but they too are not subjects of right under classical law. Machines and AI systems contribute — they too are not. What is not a subject of right can raise no claims; what it contributes falls, legally, to those who dispose of it. This stratification of legal subjectivity becomes a load-bearing determination in the later analysis — above all in the system of needs.
A qualification is needed, however. The strict determination holds for classical modern private law. In contemporary legal development there are movements attempting to break through this strictness — animal welfare laws that no longer treat the animal merely as a thing; foundations with their own legal status; juridical persons of all kinds; in some jurisdictions even rivers or mountains with their own status as subjects of right. This does not refute the conceptual determination developed here: in most of these cases, legal protection is not exercised through the non-human entity’s own conscious positing of purpose, but through human or institutional representation. The following analysis works with the classical determination because it makes the conceptual deep structure visible; the extensions mentioned appear, from this perspective, as cases in which legal protection is decoupled from the preconditions of full legal subjectivity and redistributed institutionally, without thereby abandoning the determination of the subject of right as such.
Stekeler, Hegels Wissenschaft der Logik. Ein dialogischer Kommentar, vol. 3, Hamburg 2022, pp. 739 f.: a merely objective telos of the behavior of plants and animals is not yet a subjectively grasped purpose, not an intention or aim, but still only impulse and striving desire. On the origin of the distinction in Kant, ibid., p. 756. ↩︎