William E Conklin, “Hegel and a Third Theory of Law” (2016-17) 48 Owl of Minerva 57 (DOI: 10.5840/owl2017111621).
Abstract: Kenneth Westphal, in his ‘Hegel, Natural Law & Moral Constructivism’, offers an argument to the effect that Hegel elaborated a theory of natural law. Westphal contrasts such a natural law with positivism. Such a contrast holds out an either-or prospect: either Hegel is a legal positivist or he is a natural law thinker. I ask whether it is possible that Hegel elaborated a third theory of law other than that of positivism or of natural law. In addressing this possibility, I first raise a problem in Westphal’s adoption of Hegel’s regressive argument. The ultimate justification, according to Westphal, is an a priori concept: namely, the equal rational will. I then exemplify the importance of the problem when a constitutional lawyer identifies intermediate principles justifiable with reference to such a final referent of justification. The problem raises the prospect that Hegel’s theory of law has elements of both natural law and positivist law. Section 3 highlights the need to situate any natural law claim in the particular ethos of the movement of legal consciousness through the experience of time.
Available Online: https://www.pdcnet.org/owl/content/owl_2016_0048_43102_0057_0074