Robert Brandom (Tales of the Mighty Dead, 13-14) observes a continuity between Hegel and Kant: Both take concepts as “norms for judgment. They determine proprieties of application to particulars of terms that, because of the normative role they play in such judgments, express universals.”
But then Hegel adds this complication: “the only thing available to settle which universal a word expresses is the way that word-and others linked to it inferentially-has actually been applied in prior judgments.”
That forces the question: “What is it about their use that makes these terms express one determinate universal rather than a somewhat different one? How do the applications of universals to particulars that have actually been made at any point in time-both noninferentially by observation, and inferentially as a consequence of applications of other, inferentially linked, universals to particulars-manage to settle whether it would be correct to apply that term to some particular that has not yet been assessed? How does what we have actually done with the terms, the judgments we have actually made, settle what we ought to do with them in novel cases?”
Brandom defends the rationality of this procedure by appealing to the example of a judge in a common law tradition: “Common law differs from statutory law in that all there is to settle the boundaries of applicability of the concepts it employs is the record of actually decided cases that can serve as precedents. There is no explicit initial statement of principle governing the application of legal universals to particular sets of facts-only a practice of applylng them in always novel circumstances. So whatever content those concepts have, they get from the history of their actual applications. A judge justifies her decision in a particular case by rationalizing it in the light of a reading of that tradition, by so selecting and emphasizing particular prior decisions as precedential that a norm emerges as an implicit lesson. And it is that norm that is then appealed to in deciding the present case, and is implicitly taken to be binding in future ones. In order to find such a norm, the judge must make the tradition cohere, must exhibit the decisions that have actually been made as rational and correct, given that the norm she finds is what has implicitly governed the process all along. Thus each of the prior decisions selected as precedential emerges as making explicit some aspect of that implicit norm, as revealing a bit of the boundary of the concept.”
On this model, “The rationality of the current decision, its justifiability as a correct application of a concept, is secured by rationally reconstructing the tradition of its applications according to a certain model-by offering a selective, cumulative, expressively progressive genealogy of it.” As one takes the tradition to be rational, “one makes the tradition be and have been rational” (emphasis added).
For Hegel, this kind of procedure means that “contingency is given the form of necessity. That is, judgments that show up first as adventitious products of accidental circumstances (‘what the judge had for breakfast,’ or, less frivolously, contemporary confluences of intellectual, social, and political currents) are exhibited as correct applications of a conceptual norm retrospectively discerned as already implicit in previous judgments.” Thus, “Telling a story of this sort-finding a norm by making a tradition, giving it a genealogy-is a form of rationality as systematic history.”