Culture, Environment, and Institutions

As promised, in this post I will discuss the way that cultural and environmental factors should affect the justification of institutions. Hegel will provide our starting point, rather than our end point today:

With regard to the historical element in positive right (first referred to in §3 above), Montesquieu stated the true historical view, the genuinely philosophical viewpoint, that legislation in general and its particular determinations should not be considered in isolation and in the abstract, but rather as a dependent moment within one totality, in the context of all the other determinations which constitute the character of a nation and age; within this context they gain their genuine significance, and hence also their justification.

 ... This distinction, which is very important and should be firmly borne in mind, is at the same time a very obvious one; a determination of right may be shown to be entirely grounded in and consistent with the prevailing circumstances and existing legal institutions, yet it may be contrary to right [unrechtlich] and irrational in and for itself, like numerous determinations of Roman civil law [Privatrecht] which followed quite consistently from such institutions as Roman paternal authority and Roman matrimony. (Elements of The Philosophy of Right, same copy as last time, p.29, all italics and brackets in original--henceforth in the near future I shall abbreviate the unchanging part of this citation as "PR")

The distinction is between development historically and from the concept. There are two things in the above quoted which may seem in tension: Hegel's endorsement of Montesquieu's view and Hegel's apparent aversion to the historical view.

The aversion is to seeing the historical genesis as justification, and to seeing the totality in which a law exists as that law's (vindicating) justification. He may be using "justification" in the first paragraph in the sense of our proposed justification, in which case the point is simply that the law has a sense only in the context of an environment and culture, and thus can only be evaluated as a legal determination as applied in its particular context.

Right, as Hegel is trying to explicate it, is not a contingent concept, subject to the vicissitudes of history, but it does appear in history as developing. It develops in history without being developed by history. We can thus see the development of the concept in history, but must distinguish between what was subject to vicissitudes of history, and hence is not part of the concept of Right, and what was an internal development of the concept, required by the nature of Right.

Having sorted this out, we can say that Right appears in history and, insofar as the historical appearance of Right is full, the laws of a nation are justified. The point from Montesquieu is that the same Right will appear differently in different cultures, and the current stage in the development of Right can only be understood by examining the totality in which it appears. We can generalize this to say that the legal situation in a nation can only be understood along with the cultural and environmental situation in the nation.

This becomes clear when we recognize the way that cultural values, economic factors, and political life impinge upon one another. Alexis de Tocqueville spends a great deal of Democracy in America examining how these three elements interact, mutually supporting, and occasionally threatening, each other. If today we have a culture less well-suited to democracy, we can legislate ourselves out of the problem by finding a form of government which does suit us. On the other hand, we might prefer to alter our culture or modes of production to better support a democracy. Along with this more contentious example, there are examples which are easier to swallow. Legislation regarding carbon emissions presumes a relation to the environment. Legislation regarding what to do on hills presumes the existence of hills. Legislation regarding how individuals may claim unclaimed land are otiose when there is no land to be claimed, but necessary when the west is wide open to be claimed.

Present puzzles regarding work and automation or the role of the household and community are of this form. Our mode of economic life has changed, and has brought our culture with it. We are now faced with the puzzle of how to adjust institutions and laws, as well as economic activity and cultural products, to maintain cultural homeostasis. This is the puzzle which came to the fore, in part, a couple years ago when we noticed the massive effect of social media helping create echo chambers. The manner in which social media makes money is corrosive to current political and cultural practices, and thus something--although we do not know what--must change. The left gives its recommendations, and the right gives its recommendations, but the very problem they seek to solve hinders them from reaching a viable solution which can be agreed upon.