The Politics of German Idealism 0197667309, 9780197667309

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The Politics of German Idealism

The Politics of German Idealism Law and Social Change at the Turn of the 19th Century C H R I S T O P H E R Y E OM A N S

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2023 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Control Number: 2022060575 ISBN 978–​0–​19–​766730–​9 DOI: 10.1093/​oso/​9780197667309.001.0001 Printed by Integrated Books International, United States of America

For my wife Simone.

Contents Acknowledgments  Abbreviations 

ix xi

1. Introduction  1.1 German Idealism in and of the Sattelzeit  1.2 The Shape of the Work to Come 

1 1 13

PA RT I :   L E G A L S TA N D I N G H I S T O R IC I Z E D 2. Kant and the Provisionality of Right  2.1 The Problem of Provisionality  2.2 Full Dominion vs. Diverse Ownership Interests  2.3 State of Nature vs. Civil Condition  2.4 Kant on Private Jurisdiction  2.5 Kantian Provisionality and Kant’s Philosophy of History 

23 24 28 37 44 52

3. Hegel and the Plurality of Legal Standing  3.1 The ALR Project in the Context of Sattelzeit Reforms  3.2 Plurality of Forms of Action as a Plurality of Forms of Responsibility  3.3 Forms of Responsibility and the ALR 

59 60 63 80

PA RT I I :   P R I VAT E L AW 4. Family  4.1 Families and Households  4.2 Fichte: The Marriage  4.3 Hegel: The Nuclear Family  4.4 Kant: The Household  4.5 The System of Perspectives 

93 94 98 104 110 115

5. Property  5.1 Constructivism  5.2 Kant and the Universal Principle of Right  5.3 Fichte and Efficacy  5.4 Hegel and Personhood  5.5 Historical Constructivism 

117 118 122 124 127 131

viii Contents

6. Inheritance  6.1 Hegel: Private Property and Family Resources  6.2 Fichte: Relative and Absolute Property  6.3 Kant: Inheritance as a Purely Economic Question 

138 138 152 155

PA RT I I I :   P U B L IC L AW 7. Fichte’s Three Political Philosophies  7.1 Kantian and Social-​Historical Background  7.2 The Antinomy of Punishment  7.3 The Closed Commercial State  7.4 The Historical Works  7.5 Horizon of Expectation, Space of Experience, and Action 

161 162 166 172 177 182

8. Hegel’s State  8.1 Estates and the State  8.2 The Stereoscopic Historical Perspective 

184 184 204

9. Conclusion  9.1 Provisionality  9.2 Pluralism  9.3 Historicism 

216 216 218 220

Bibliography  Index 

223 229

Acknowledgments This work originates in a historical turn in my work on German philosophy that began with a simple question: what are the estates (die Stände)? I had envisioned a brief stroll through a garden of historical description but quickly fell down the rabbit hole of German historiography and philosophy of history. My first attempts to right myself were supported by the Provost’s Office at Purdue University through the Faculty Fellowship for Study in a Second Discipline (History). I used that time to work through background material with help from Whitney Walton and Charles Ingrao of Purdue’s Department of History. The most intensive period of research came during a year’s sabbatical in 2016–​2017 from Purdue University as an Alexander von Humboldt Fellow at LMU-​München where Günter Zöller kindly agreed to be my host. Finally, Purdue’s College of Liberal Arts supported a book scrub on the full manuscript and I benefited greatly from comments and discussions with Terry Pinkard, Lydia Moland, Keven Harrelson, Clinton Tolley, and Günter Zöller. The Department of Philosophy at Purdue has been a wonderful place to do this work, and I am grateful to my colleagues and students for their contributions to its stimulating atmosphere. I have been presenting material from this work since 2015 at various conferences, talks, and workshops. I am grateful to organizers and audiences at Purdue, UC San Diego, Northwestern, University of Chicago, LMU-​München, Münster, the New York German Idealism Workshop, Humboldt-​Universität zu Berlin, Padova, Valencia, Heidelberg, and TU Dresden. Earlier versions of material that made it into the book have been published by the Hegel Bulletin, Journal of the History of Philosophy, and in collections from Routledge and Palgrave Macmillan. I am grateful to these publishers for their support; specific prior publications are indicated at the beginning of each of the relevant chapters. This is now my third book with Oxford University Press, and I am greatly appreciative of that continuing relationship. I couldn’t hope for a better editor than Peter Ohlin, and I got tremendously useful and timely feedback from three anonymous referees. Paloma Escovedo and Imogene Haslam shepherded the manuscript through the production process and helped with the design. Finally, my family has now also seen me through three books! This book is dedicated to my wife Simone, and I thank my children Miranda, Gemma, and Noelia for keeping me grounded in my own historical present.

Abbreviations Works of J. G. Fichte Addresses to the German Nation. Edited and translated by Gregory Moore. Cambridge: Cambridge University Press, 2008. Citations are first to the English translations and then to volume 1/​10 of GA. CCS The Closed Commercial State. Edited and translated by Anthony Curtis Adler. Albany: State University of New York Press, 2012. Citations are first to the English translation and then to volume III of SW. FNR Foundations of Natural Right. Edited by F. Neuhouser. Cambridge: Cambridge University Press, 2000. Citations are first to the English translation and then to volume III of SW. GA Johann Gottlieb Fichte. Gesamtausgabe der Bayerischen Akademie der Wissenschaften. Edited by Reinhard Lauth, Hans Gliwitzky, and Eric Fuchs. Stuttgart: Frommann-​Holboog, 1964–​. SE The System of Ethics. Edited by D. Brezeale and G. Zöller. Cambridge: Cambridge University Press, 2005. Citations are first to the English translation and then to volume IV of SW. SW Johann Gottlieb Fichtes sämmtliche Werke. Edited by I. H. Fichte. Berlin: Veit und Co., 1845–​1846. Cited by volume and page number. A

Works of G. W. F. Hegel Part I of the Enzyklopädie der philosophischen Wissenschaften im Grundrisse. Edited by U. Rameil, W. Bonsiepen, and H. C. Lucas. Vol. 20 in GW. Hamburg: Meriner Verlag, 1992. References are by section number, with ‘R’ indicating the remark following the section, and ‘Z’ the addition from Hegel’s lectures. English quotations are from The Encyclopedia Logic. Translated by T. F. Geraets, W. A. Suchting, and H. S. Harris. Indianapolis: Hackett Publishing, 1991. GW Gesammelte Werke. Hamburg: Meriner Verlag, 1992. PR Grundlinien der Philosophie des Rechts. Edited by J. Hoffmeister. Hamburg: Meiner Verlag, 1995. English quotations are from Elements of the Philosophy of Right. Translated by H. B. Nisbet. New York: Cambridge University Press, 1991. Citations are by section number. ‘R’ refers to the Remark or Anmerkung, ‘Z’ to the Addition or Zusatz. VPR Vorlesungen über Rechtsphilosophie. Edited by K.-​H. Ilting. Stuttgart: Fromman Verlag, 1974. Cited by volume and page number. EL

xii Abbreviations

Works of Immanuel Kant All citations to Kant are by volume and page number to Kant’s Gesammelte Schriften. Berlin: Königlich-​Preussischen Akademie der Wissenschaften, 1910–​. English quotations are modified versions of those found in Practical Philosophy. Edited by M. J. Gregor. New York: Cambridge University Press, 1996; and Political Writings. 2nd ed. Edited by H. S. Reiss. Translated by H. B. Nisbet. Cambridge University Press, 1991. CF Conflict of the Faculties. IUH Idea for a Universal History with a Cosmopolitan Purpose. Translations from Kant’s Politics. MM Metaphysik der Sitten (Metaphysics of Morals). TP On the Common Saying: That May Be Correct in Theory, but It Is of No Use in Practice. TPP Towards Perpetual Peace. WIE What Is Enlightenment?

1

Introduction 1.1  German Idealism in and of the Sattelzeit The simple guiding thought of this study is to understand German Idealist political philosophy as political, that is, as a set of policy options and institutional designs aimed at a broadly but distinctively German set of social problems.1 ‘Political’ here refers to use of the state’s power to enforce law, and ‘social’ to the norms and groups that are regulated by that enforcement but which also antedate or exceed that enforcement.2 Because the power to enforce law is very much still being actualized by state-​building in the period at issue, ‘political’ refers quite narrowly to a certain kind of practical legal project rather than to a perennial set of problems from the history of philosophy. By way of method, I claim that to reveal the political nature of German Idealist political philosophy requires understanding German Idealism as both taking place in and conceptualizing its own historical present—​this is the sense in which it is not only political, but political philosophy. Throughout I make use of the tight connection between concepts, institutions and history noted by Reinhart Koselleck: “Without social formations, including their concepts, by means of which they determine (whether reflexively or self-​reflexively) their challenges and seek to meet them, there is no history, it cannot be experienced nor interpreted, not presented nor told.”3 1 I should note at the outset that I won’t be using the term ‘German Idealism’ as anything more than a shorthand for ‘Kant, Fichte & Hegel,’ and I use ‘classical German philosophy’ interchangeably. The former term is controversial, and both my inclusion of Kant and my exclusion of Schelling could certainly be challenged. More radically, the whole notion of German Idealism as a constrained episode could be challenged (see Beiser, “Hegel and the History of Idealism”). Again, I don’t take much to turn on this terminological point, and except for Fichte, the topic of idealism as such won’t make much of an appearance in this work. I am particularly interested in political philosophy—​or philosophy of law, broadly construed—​which is why Schelling doesn’t make an appearance. I do feel a bit guilty about the exclusion of figures such as Wilhelm von Humboldt and Georg Forster, who were important contributors to this kind of political philosophy. But my aim in this work has been to induce contemporary philosophers to see with new eyes figures whom they have already taken to be important political philosophers, rather than to encourage them to see new figures as important. For the latter program, Beiser’s work remains central (see Beiser, Enlightenment, Revolution, and Romanticism). 2 Both of these terms are to be contrasted with ‘inter-​subjective.’ I mean by ‘social’ and ‘political’ to describe historically specific forms of relations among persons, rather than any a priori form of inter-​ personal recognition. On the various levels between abstract inter-​subjectivity and concrete sociality, see Yeomans, “Hegel’s Pluralism as a Comedy of Action.” 3 Begriffsgeschichten, 12. Unless otherwise noted, all translations from Koselleck in this monograph are my own. The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/​oso/​9780197667309.003.0001

2  The Politics of German Idealism The most important general feature of the historical present of the German Idealists is the way in which the period from 1770 to 1830 was one of transition between early and late modernity, a so-​called saddle period (Sattelzeit) in which the metaphor is of a Bergsattel or shallow valley between two mountain peaks. This is a strange sort of historical present, of course, since it is a present that is conscious of both its difference from the past and its anticipation of the future. The notion of such a Sattelzeit comes originally from the German historian Reinhart Koselleck, and is worked out in great detail in the Geschichtliche Grundbegriffe (Foundational Historical Concepts), a collaborative project in mid-​20th-​century Germany that produced an eight-​volume encyclopedia tracking the changes in political concepts over the period. The Geschichtliche Grundbegriffe and Koselleck’s own landmark study, Prussia between Reform and Revolution, will be frequent sources throughout the study, but I will explore this historical context in a way that is not narrowly restricted to Koselleck and his collaborators. The Sattelzeit theme is still current among German historians who do not share the details of Koselleck’s approach. For example, Jürgen Osterhammel has recently made the case for a global Sattelzeit from 1770 to 1830, with the true or truncated 19th century coming between 1830 and 1890, overlapping another transitional period starting in the 1880s.4 I tell a historical story of the German Idealists that draws on conceptual resources which they developed, yet which differs in fundamental respects from the historical story told by any of the Idealists themselves, as well as from some commonly told stories about the origins of modern philosophy generally.5 The key to the difference between the account offered here and that told by the German Idealists themselves is my attribution to them of a form of historicism that only came to be explicitly distinguished a century later—​namely a historicism that describes the synchronic experience of historicity at a time (in the present), whereas their own philosophies of history tended to emphasize a historicism that described diachronic change over time (indeed, progress over time). The terms ‘synchronic’ and ‘diachronic’ originate in linguistics, but I do not here mean to use them in a way that refers exclusively to language. I simply mean to indicate the difference between looking at a phenomenon primarily as it as at a given time as opposed to how it has changed over time. Here, the phenomenon is political relations, and the German Idealists have separate works in 4 Osterhammel, Transformation of the World, 58–​63. 5 In this way, I try to present a history of the German Idealists that is neither assimilative nor reception-​historical, in Harrelson’s use of those terms. It is not assimilative because it attempts precisely to understand them in their own context, even when that seems archaic to modern ears (e.g., my emphasis on patrimonial courts and corporate society more generally). But it is not reception-​ critical, since I have precious little to say about the way in which these figures have been handed down to us. See Harrelson, “Hegel in the Americas: Interpretive Assimilation and the Anticolonial Argument.”

Introduction  3 which they try to describe the change in such relations over time. In Hegel’s version (his Lectures on the Philosophy of World History), for example, that story begins in China and ends in 19th-​century Europe. But there is also an important sense in which the possibility and even necessity of change is embedded in the German Idealist’s non-​developmental accounts of political relations in their philosophies of right (Recht)—​it is this synchronic historicity whose presence I attempt to make visible here. This attribution to the German Idealists of a form of what later (in the 20th century) became known as Historik in addition to their own Geschichtsphilosophie is a key hermeneutic device of this study, and I contend that it allows us to see aspects of contemporary relevance in their work that are obscured by the single-​ strand interpretations that see only their progressive, diachronic philosophies of history. The synchronic historicism (Historik) is to be found in fascinating but obscure aspects of their political philosophy, such as Kant’s claim that our rights prior to the final institution of an ideal state are provisional, that is, both valid and revisable, defensible and yet inconclusive. One set of hermeneutic tasks of this study, then, is to raise these synchronically historical doctrines to visibility and to reveal their historicity. But in another way, the story here begins from a historical development that was more apparent to the German Idealists than it is to us. In this way, the story told here is closer to that told by the German Idealists themselves than it is to most of our own contemporary ways of telling the history of modernity. The specific question at issue is, What fundamental change induces modernity? Whereas common contemporary stories—​particularly in philosophy—​emphasize the rise of science or the European religious wars, or even the much later explosion of industrial capitalism, this study starts from a more immediately relevant social change, namely the separation between state and society. This separation was thematized by Kant in his distinction between private and public law, by Fichte in his understanding of the discontinuity between economic and political relations, and by Hegel in his theorization of a new social sphere, civil society (bürgerliche Gesellschaft). Among historians, the separation between state and society is recognized to be a central development of the modern era. In fact, this separation can serve as a criterion for the transition into modernity, which then begins in England in the 17th century, in France in the early 18th century, but in Germany first toward the end of the 18th century.6 An interpretation of modern European history along these lines then takes the following general shape: originally the state counted as the highest and most general estate (Stand), and thus was characterized by the 6 See, e.g., Conze, “Das Spannungsfeld von Staat und Gesellschaft im Vormärz,” 207–​269; and Skinner, “The State.”

4  The Politics of German Idealism same form and kind of unity as the other estates, that is, as society (or, better, as the various overlapping societies clustered together in a geographical region). In the corporate society or Ständegesellschaft, the state counted as one estate among others, first among equals (or second to the church).7 Law-​making was occasional at best, and most social and political relations were simply determined by local customs and traditional privileges. But in Germany there is a break in the late 18th century. Increasingly, traditional practices were supplanted by abstractly rational criteria developed for the planning and evaluation of state action, and then different rational criteria were developed within and for society. As Jerrold Seigel puts it: The general notion of civil society as an organized form of social life governed by laws made it seem natural to consider political authority as part of it; but rulers and administrators in Germany sowed the seeds of their separation by taking bürgerliche Gesellschaft as an object of state action and policy, focusing on social relations and private behavior as targets of their efforts to improve and develop their territories.8

The state built a professional administrative corps and promulgated both general laws and particular regulations, whereas in civil society new forms of association and modes of production outside the church, guilds, manorial farms, and other traditional estates were deployed. And this difference was only magnified by the way in which that professional administrative corps took that society as an object of intervention. Out of this break grew a tension: the goals of the state and of the new civil society partially corresponded to each other but were not entirely congruent. Furthermore, the remaining corporate society did not recognize itself as goal-​oriented at all, and thus found itself in fundamental tension with both state and civil society. So on the one hand we have a dualistic phenomenon—​a split between state and society. But the nature of that split introduces a second split within society itself, which comes to have two different variants—​a more traditional corporate society (Ständegesellschaft) and a more voluntary and contractual civil society (bürgerliche Gesellschaft). Prior to this split, economic discourse in Germany consisted of treatises primarily about householding—​that is, about the maintenance and proper management of household enterprises such as farms, rather than descriptions of laws of profit or prices. This is an economics in the classical 7 This had a linguistic representation as well: “Up to the mid-​17th century, the Latin status was generally translated into German not as Stat, but as Stand—​denoting thereby not a condition, relation, or institution associated with a ruler, but the hierarchical estate groupings which controlled and limited his power” (Tribe, Governing Economy, 28). 8 Seigel, Modernity and Bourgeois Life, 115.

Introduction  5 Aristotelian sense, an economics for corporate society. Only once the state splits from society and generates the new civil society do we have the economics we know today, oriented toward ensuring returns on investment and economic growth.9 The two dualistic splits together thus produce a triangular split between civil society, state, and corporate society.10 Though using slightly different language, Fernand Braudel has an evocative presentation of this split between two forms of society: In drawing up this inventory of the possible, we shall often meet what I have called . . . ‘material civilization.’ For the possible does not only have an upper limit; it also has a lower limit set by the mass of that ‘other half ’ of production which refuses to enter fully into the movement of exchange. Ever-​present, all-​pervasive, repetitive, material life is run according to routine: people go on sowing wheat as they always have done, planting maize as they always have done, terracing the paddy-​fields as they always have done, sailing in the Red Sea as they always have done. The obstinate presence of the past greedily and steadily swallows up the fragile lifetime of men. And this layer of stagnant history is enormous: all rural life, that is 80 to 90% of the world’s population, belongs to it for the most part. . . . And material civilization has to be portrayed, as I intend to portray it, alongside that economic civilization, if I may so call it, which co-​exists with it, disturbs it and explains it a contrario.11

In this work, I try to interpret classical German philosophy within the space of what Braudel here calls “this inventory of the possible.” Classical German philosophy from Kant to Hegel is situated in the historical field of tension defined by that triangle, and the political concepts developed by those philosophers take up much of their content from it. This history of the emergence of this field of tension shows that it has three corners: an older corporate society that was composed of the innumerable particularities of each estate and region; a new civil society that was stamped by universal conceptions of personal freedom; and a state that served as the increasingly powerful individual in 9 Tribe, Governing Economy, 24. 10 In some respects my approach is similar to the recent work of Christoph Asmuth. Asmuth is himself keen to interpret the German Idealists in terms of their reflecting their historical context, and to emphasize the constellation of different positions with German Idealism rather than arguing for or against any particular position, much less presenting one figure as the completion of a development. Furthermore, the German Idealists as he reconstructs their (primarily theoretical) philosophy are pluralists, or philosophers of difference. But the thoughts pursued in this paragraph indicate some of the differences as well, and to my mind he tends to emphasize exclusively the progressive elements to the neglect of more traditional and inertial elements (though he does seem to see the importance of their connection for contemporary philosophy). In a slogan, if Asmuth sees German Idealism as Wissen im Aufbruch, I see it as Wissen im Spannungsfeld. See Asmuth, Wissen im Aufbruch. 11 Braudel, The Structures of Everyday Life, 28.

6  The Politics of German Idealism the social field as a whole. This field of tension is not only to be understood as the field of contest on which the German Idealists meet each other in disputation, but also as a subject area that is itself conceptualized by the German Idealists. Importantly, corporate society, civil society, and the state must themselves be understood not so much as institutions which are objects of contemporary observation and philosophical perception, but rather as perspectives from which different dimensions of such institutional objects as the family, law, and property can be observed. In this way, the political philosophies of the German Idealists should be understood as ways of conceptualizing social reality that are philosophical expressions of the way society conceptualizes itself (i.e., from these three basic and different social perspectives).12 Though the way society conceptualizes itself is often put in an objective register of functions and causes, the philosophical conceptualization brings out the way these same relations can be put in a subjective register of judgments and values. It thus brings out the way that these relations are justificatory and normative in addition to being explanatory and functional. Furthermore, these social perspectives have a temporal form: the true corporate society always lies in the past, the true civil society in the (far) future, and the true state in the (near) future. They are never present in the present, as it were, and thus cannot be directly perceived.13 In Koselleck’s terms, the present is the temporal field of tensions of these “futures past,” and the actual social objects are institutions in that present which are illuminated from these different temporal perspectives simultaneously. Though Koselleck is perhaps best known for taking up these perspectives, recognition of their importance for understanding the history of Sattelzeit Germany extends beyond Koselleck and beyond Prussia to other German states as well. (In fact, in many respects the paradigmatic examples of these splits are in Baden and Bavaria.14) Let’s look briefly at two phenomena that exemplify this breadth before moving on to some contrasts with other approaches to the historicity of political philosophy. The first example is from Isabel Hull, who describes the pattern of sexual behavior and the changes in this pattern in relation to the more general changes of the state and society in the 18th century. Though Hull uses other terms, this network can be conceived using the triangular field of tension described above. 12 I use ‘society’ and ‘society itself ’ here as placeholders for describing corporate society, civil society, and the state collectively. It is actually an entailment of the methodological perspective taken up in this work that there is no truly neutral conception of all three combined to be had; there are only three different substantive conceptions, that is, the collection of the three viewed sequentially from the perspective of each of the three. Though a crucial result for the overall project of which this book is a part, it introduces expository difficulties that are best left to the side here. 13 For a contrasting view of the meaning of ‘civil society’ in this period, see Dipper, “Übergangsgesellschaft: Die ländliche Sozialordnung in Mitteleuropa um 1800,” 68. 14 Conze, “Das Spannungsfeld von Staat und Gesellschaft im Vormärz,” 215–​17.

Introduction  7 The following passage from Hull contains both a specific example as well as the general form of this network: In the course of the eighteenth and into the nineteenth century, Sittlichkeit became more and more identified with matters exclusively sexual. . . . The Grimms’ examples of this shift in usage toward the narrowly sexual are literary sources from the late eighteenth century (Wieland, Schiller, Goethe). Had the Grimms included more legal sources, they would have seen that the ‘older examples’ of the more sexual usage are typical of legal discourse and that this usage was then, in the late eighteenth century, taken over by the literary shapers of civil society, who developed the sexual accent even further and, by the nineteenth century, had surpassed official usage, which still continued to retain some of the diffuseness characteristic of earlier times. In the following pages we will see this pattern again, whereby the state shaped and accentuated a way of interpreting or using sexual behavior, passed this along to nascent civil society, which in its turn developed this interpretation or usage independently of the state. This incomplete dialectic describes the formation of our modern conception of ‘sexuality.’15

Here the term ‘Sittlichkeit’ and its change in meaning from a general concept of social uprightness to a narrower conception of sexual mores is the specific topic. Naturally this thesis has interesting consequences for our understanding of Hegel’s doctrine of Sittlichkeit (‘ethical life’), but here I want to focus on the conceptual form of the dialectic Hull describes. In order to see this form more clearly we must first ask: from what source is this form of interpretation of sexual behavior taken over by the state and “shaped and accentuated”? Clearly this way of regarding sexual behavior cannot originate in the same society—​civil society—​that later takes this form of interpretation over from the state and generalizes it. Rather the state took over this form of interpretation from corporate society (Ständegesellschaft), here understood as the customs and traditions (Sitten und Gebräuche) of the majority of the population. The process of taking over these meanings ran primarily through the attempted regulation of sexual behavior, since the attempt to manage and direct the sexual activity of the population by means of laws required sufficient contact between the laws and the activity to be regulated by them, and thus the state was forced to familiarize itself at least with these customs and traditions of the population.16 Thus we have a circuit, which leads from corporate society through the state to civil society.

15 Hull, Sexuality, State, and Civil Society in Germany, 1700–​1815, 95. 16

Ibid., 92.

8  The Politics of German Idealism Each position is something like an electronic component in an electrical circuit: it influences the circulating meaning (here, that of ‘Sittlichkeit’) in regular ways, similar to the way the electronic components influence the circulating current. This regular influence of the social stations in our circuit could certainly be described in a variety of registers, but here I want to remain at the logical level: the corporate customs normally push toward particularity (“the diffuseness characteristic of earlier times”), the governmental intervention toward individuality (“shaping and accentuating” through a legal system), and the civil-​ social17 opinions toward universality (the same sexual system for all citizens). But a misunderstanding suggested by the analogy should be avoided, which would be to think that the cycle runs from one institution to another to another. When we understand by ‘institution’ a goal-​oriented and integrated set of norms, then Sittlichkeit is the institution in this example, and the societies and the state are perspectives from which this institution is observed and regulated. The different authors writing on sexuality had the norms of Sittlichkeit in common and these norms reflected governmental, corporate, and civil-​social interests, but the perspectives defined by those interests were complicated. For example, Hull points out that the unique social position of the supporters of the civil-​social interests played a role in their observations, since many if not most of these writers and advocates were, in fact, government officials of one sort or another. Due to his corporate status as a civil servant, such an official could have a kind of family that would have been unimaginable for an innkeeper or farmer or guild master, and it was precisely this very particular and unusual kind of family that formed the universal image of the nuclear family that he then advocated for all.18 Partially in order to dispel a second misunderstanding—​that the meanings here are exclusively linguistic—​our second example deals with the changes in the political representation of social interests in Bavaria. In the so-​called Vormärz period (i.e., the period leading up to the March 1848 revolutions), the primary goal of the Bavarian state was to build a unified individual state out of the many lands that were first brought together in 1806/​1815. This process of state-​building was pursued in the face of resistance by the corporate estates, who wanted to protect their previous prerogatives and privileges. But it was also simultaneously subject to the civil-​social criticism that the proposed constitution didn’t push fast enough toward this future unity.

17 I have adopted the somewhat cumbersome neologism ‘civil-​social’ to describe this perspective, rather than the usual ‘bourgeois.’ In my view, ‘bourgeois’ has come to mean so many things that it is now unsuitable as a term of art to describe a particular social position. For similar reasons, I will use ‘governmental’ to describe the perspective of the state, though in many respects ‘administrative’ might have served just as well. 18 Hull, Sexuality, State, and Civil Society, 183–​84.

Introduction  9 In Vormärz Bavaria, the corporate perspective is easiest to recognize in the nobility and clergy. Both groups opposed the growing power of the state and in particular the power of the bureaucracy. In addition, a civil-​social opposition set itself against the state, in particular against the estates-​system of the new constitution. Following the promise of the Vienna Congress, in 1818 Bavaria had promulgated a constitution with a bicameral legislature (a chamber of councilors (Reichsräte) and a chamber of deputies (Abgeordneten)). The members of the chambers were corporately determined: roughly speaking, members of the high nobility and clergy belonged to the chamber of councilors, whereas representatives of the universities, towns, markets, and other corporations to the deputies. Though in principle the second chamber was to represent the interests of civil society, its membership was constituted in a way that corresponded to no contemporary social actuality, since that membership was derived instead from precisely the traditional prerogatives that were anathema to the new civil society. In the chamber of councilors, the nobility and clergy remained even more tightly tied to their traditional, pre-​political order, and thus also had no relation to the newly arising liberal, civil-​social opposition. In the estates assembly, then, the civil-​social perspective was primarily represented by deputies who were civil servants (either as professors at the university or bureaucrats in the towns), and who were therefore also servants of the state. In this context, the civil-​social critique of the constitution was that it concerned only artificial or state-​estates, whereas in reality there were only two estates: those with traditional privileges and prerogatives taken together on the one side, and the general estate on the other side (which was therefore entirely without representation in the assembly). Even though this form of privilege was soon to be abolished, Wolfgang Zorn’s view is that these artificial states nonetheless played an important role precisely in that abolition: These state-​estates may be understood as an element of corporate stabilization in the middle of modern constitutionalism. Their institution built, as it were, a bridge between the political freedom which was further-​advanced in Bavaria since 1818 in comparison with Prussia and the even stronger social bond as compared with Prussia.19

This bridge then made it possible for Bavaria in 1848 to move into modernity with political equality whereas at that time Prussia regressed to the so-​called Dreiklassenwahlrecht (three-​ class voting franchise), in which voting rights were apportioned by income (tax status). Here I just want to point out the temporal dimension: the corporate recourse to traditional (i.e., past) particularities

19

Zorn, “Gesellschaft und Staat im Bayern des Vormärz,” 141.

10  The Politics of German Idealism stabilized the near future because it enabled an equilibrium, and in that equilibrium the development into the further future could take place. The circuit described here also does not run from one institution to another: as noted, the legislative advocates of the civil-​social critique of the state-​estates were primarily servants of the state, that is, civil servants (as were roughly half of the chamber of deputies). In this debate over the proper structure of the legislature, the institution ‘representation’ is exchanged and shared between these different temporal perspectives. Three points ought to be made here before going on, all of which go to distinguish my own historiographical approach from some prominent others. First of all, it is essential to my way of viewing the material that the relevant historical context is primarily social. This separates my view from prominent historians of philosophy such as Beiser, Pinkard, Pocock, and Skinner, for whom the relevant historical context is primarily intellectual.20 It draws my work closer to that of scholars such as Comay, Buck-​Morss, Maliks, and even Dickey. But here it may also be helpful to point out that the relevant context for Comay, Buck-​ Morss, and Maliks is political and takes the form of an event (the French and Haitian Revolutions), whereas I am primarily interested in structural context.21 Even when it comes to structural context, however, I am more interested in medium-​term changes than in the longue durée to which eventual history is usually contrasted. Dickey’s account is extraordinarily rich, making use of both a general intellectual context of religious debates and a very specific political and religious context of Württemberg.22 I make no claim to the inherent superiority of my method, but I do think that it is both original and that it reveals a depth and interconnectedness of German Idealist political philosophy that shows it to be itself an understanding of the Idealists’ own historical experience. It also brings into relief the significance of certain aspects of their doctrines that might have seemed hopelessly archaic (such as Hegel’s estates structure and Kant’s “thing-​ like right to a person [auf dingliche Art persönliches Recht]”). In the conclusion, I will argue that it is precisely through revealing the historicity of German Idealist political philosophy in this way that we can see what might be of value to contemporary debates. Once we get down to the historical specifics—​the social-​ historical specifics—​we find surprising ways in which some of the contexts that are relevant for the German Idealists have reappeared in different form in our

20 Beiser, Enlightenment, Revolution, and Romanticism; Pinkard, German Philosophy; Pocock, Politics, Language, and Time; Skinner, “The State.” Similarly, I have nothing to say about the role of these figures in the development of the modern canon of philosophy along the lines argued in Harrelson, “Hegel and the Modern Canon”; and Park, Africa, Asia, and the History of Philosophy. 21 Comay, Mourning Sickness; Buck-​Morss, Hegel, Haiti, and Universal History; Maliks, Kant’s Politics in Context. 22 Dickey, Hegel.

Introduction  11 own time. More than anything else, we will see our contemporaries in their attempt to formulate philosophies of legal, political, and social institutions that were new and yet nonetheless already undergoing fundamental change. Second, and despite the difference noted above between my approach and the Cambridge school of Pocock and Skinner, one feature of their work is deeply important to my own and is shared with Koselleck. That feature is their attention to the plurality of political languages and their interaction within a historical period. As Pocock nicely puts it: A complex plural society will speak a complex plural language; or rather, a plurality of specialized languages, each carrying its own biases as to the definition and distribution of authority, will be seen converging to form a highly complex language, in which many paradigmatic structures exist simultaneously, debate goes on as between them, individual terms and concepts migrate from one structure to another, altering some of their implications and retaining others, and the process of change within language considered as a social instrument can be imagined as beginning.23

In this work, I have taken Kant, Fichte, and Hegel to be speaking such different languages, and I have tried to trace their interconnections as a way of illuminating the way that conversation reconstructs the political reality of their historical present. As Pocock notes, we are always tempted to overgeneralize or otherwise extend the meaning of historical texts beyond the meanings they can bear when they are considered to be historically significant, in part because the authors themselves are so rarely in full control of their own vocabulary and see their own time through a glass darkly. We need a kind of historical key that reveals the linguistic paradigm of the period in question, or as, I would put it, a lens to bring the complexity of the plural society into focus.24 Burke provides that key for much of Pocock’s analysis, and Hegel for my own. I thus hold that the lens that brings the German Idealist debate into focus was provided by a contributor to that debate. Put another way, I hold that one of the positions in the debate has an advantage in bringing the others into relief. I thus take on a particular burden of proof to show that this key is not tendentious and does not make Hegel into the inevitable outcome of a teleological process of philosophical development. This is not my view, but a natural suspicion on the part of the reader is certainly justified and can only be allayed in the course of the work. In advance, I will merely point to the crucial



23 Pocock, Politics, Language, and Time, 22. 24

Ibid., 32–​33.

12  The Politics of German Idealism importance which I attach to Kant’s doctrine of provisionality as announcing the theme of synchronic historicism in German Idealism. Third, the social background that I bring to bear in interpreting these figures is more narrowly focused on Germany itself than many other current approaches, for example, that of Buck-​Morss. To use a contemporary term, one might be tempted to say that this background comprises domestic affairs rather than international ones. For similar reasons one might take my understanding of the political philosophies at issue to make them out to be philosophies of law rather than political philosophies per se. There is something right about both suggestions. On the former point, I will have almost nothing to say about cosmopolitanism, race, or colonialism. In trying to interpret the semantics of the terms, claims, and principles used by the German writers to articulate their views on political matters, I look to an “inventory of the possible” that is structured by the tectonic shifts in social structure in the ground right under their feet, rather than to more spatially or temporally distant relations.25 On the latter point, the central problem that animates these philosophies on my account is a very practical version of the ‘What is law?’ question, but in German: ‘Was ist Recht?’ ‘Recht’ is, of course, a very difficult term to translate into modern philosophical English, and ‘right’ is more a transliteration than a translation. But many earlier translations rendered it as ‘law,’ and one can read my study as inclining in that direction. In my view, the focus on law—​on norms enforced by sanctions through adjudication by authoritative processes—​reveals the distinctive set of social problems to which the formulations of Kant, Fichte and Hegel respond. But in another sense the notion that the subject matter is domestic and legal can easily lead the reader astray. The latter formulation can do so because ‘law’ easily brings to mind the sorts of 21st-​century legal systems we all inhabit, with perhaps some federalism but otherwise a clear hierarchy of authority and narrow scope of what counts as law. This, however, is not at all the situation in late 18th-​century Germany, where many different forms of legal authorities and norms coexisted. The former formulation can mislead because prior to effective state-​building, the clear line between the domestic and the international was not to be found, particularly in economic matters. In fact, precisely this problem animates Fichte’s most practical political work, The Closed Commercial State. But bearing those caveats in mind, the emphasis on the local and the legal is a distinctive feature that the reader will see played out in this study.

25 In this respect it is worth noting the different position of the various German states with respect to colonialism as opposed to England, France, or the Netherlands. Though there are scattered colonial claims prior to German unification in 1871, they are unsuccessful and marginal to economic and political life in the German states. The situation changes quite dramatically with the Berlin Conference of 1884.

Introduction  13

1.2  The Shape of the Work to Come 1.2.1  Part I: Legal Standing Historicized One of the crucial but hidden themes of German Idealist political philosophies is the way that legal standing—​specifically the modern notion of equal standing before the law—​is a work in progress. The legal individual and their rights claims, combined with their access and subjection to legal proceedings for securing those claims and adjudicating disputes with others about them, is a social persona that is just as much being created as presupposed by the new forms of governmental and civil-​social institutions. In Part I, we start with the two most basic thematizations of this process in German Idealism: Kant’s doctrine of the provisionality of private law, and Hegel’s theory of the plurality of forms of legal responsibility. Chapter 2 concerns a specific feature of Kant’s political philosophy that is of fundamental significance, namely the notion of provisional right. In this idea, Kant has formulated an essential aspect of the historicity of German Idealism and it deserves sustained discussion on its own. I connect this notion with two important features of ownership relations in the Sattelzeit. First, the practical problem of ownership rights is not that of determining the boundaries of exclusive titles, but rather of disentangling and reweaving a complex set of ownership relations. Second, the relevant contrast to which the state of nature vs. civil condition distinction refers is not a contrast between a situation of no political authority and one with political authority. It is, rather, a contrast between a society that had many different political authorities and one in which only the state had political authority. Then, I show how understanding Kant against this background puts the scholarly debate on the issue in a new light. Kant’s doctrine of provisionality is not a theory of a precursor stage to the final civil condition, but rather a theory of practical judgment under interminable conditions of uncertainty. It is a response to the historicity of politics that resonates throughout German Idealism and is one of its signature achievements. Furthermore, this is one of the cases in which we are not forced to choose between antiquarianism and anachronism, because these two features of the Sattelzeit that are crucial to interpreting Kant on provisionality are also features of our own world. In our time, political authority is much more widely distributed than is usually recognized (see, e.g., McMahon 2012 and Anderson 2017), and any unified conception of property relations has long since been unraveled by the actual practice of law in the context of capitalism. With this doctrine, Kant in his own way articulates the co-​presence of the particular investments of the past, the universal demands of the future, and the individual plans of the present. I end this chapter with a specific example of Kant’s provisional theory that has gone largely unrecognized, namely Kant’s

14  The Politics of German Idealism notion of a thing-​like right to a person (auf dingliche Art persönliches Recht). This is the kind of right held by spouses and children against each other, and masters against servants. On my view, Kant’s inclusion of such a right within the domain of private law, which must be taken up into the civil condition and enforced by the state, is ipso facto a claim that private legal jurisdiction must coexist with the jurisdiction of state courts in the just republic. There is, if you like, a kind of meta-​provisionality built into Kant’s conception of law, according to which the tension between private and public legal jurisdiction is not a relic of the past to be got beyond but rather a continuing problem to be managed even in republics. If this is right, then the political and the social cannot be as cleanly split as contemporary political philosophy has assumed, since there are forms of enforcement authority within the social realm as well. In Chapter 2, we have our first key to the synchronic historicism of the German Idealists in Kant’s doctrine of the provisionality of private law. In Chapter 3, we explore a second key, which is found in Hegel’s account of the coexistence of different forms of legal responsibility in the Sattelzeit. This key is historicist in two senses. First, the different forms of responsibility and their characteristic successes and failures are related to epochal shifts in the evaluation of action. And second, this account of the coexistence of different forms of responsibility is related to the great German legal reforms of the late 18th and early 19th centuries, including the paradigmatic Prussian Allgemeines Landrecht (ALR). This chapter takes up Hegel’s theories of legal responsibility against the background of the ALR and other German legal reforms. The ALR was one of the great Enlightenment reform efforts, and had as one of its primary goals the systematization of the different regimes of law extant in the Prussian states. Philosophical theories of moral responsibility have always traded heavily in legal analogies, and the German Idealists are no exception. This chapter shows Hegel’s multiple accounts of agency to be attempts to manage a distinctive tension of the ALR, which is that it grasped the members of the various estates (Stände) on the one hand as equal agents before the law, but on the other hand assigned them to different legal venues with different rules and thus different ways of holding them responsible. One way to see these different ways is to consider the different forms of exculpation that attach to them. Most fundamentally, these different forms of exculpation are grounded in difficulties in figuring out which conception of the socially objective world is the right framework for determining the moral valence of the action, or even if the action is subject to moral evaluation at all. Here we have a feature that is apparently archaic—​and is certainly pursued by Hegel in terms of social conditions that are now quite distant from us—​and yet continues to appear in new guises in our own time. For example, should what we eat be understood morally in terms of its climate impacts, its source in ethnic traditions, or simply as a biological process without any great moral import?

Introduction  15 The answer to this question depends on the proper conception of the objective world in which the agent acts. This chapter first reconstructs the form of such difficulties for Hegel’s three “rights” of agency: the right of knowledge, the right of intention, and the right of insight into the good. These three rights correspond to three different normative competences that the ALR and reform movements attempted both to demand of and develop in agents: competence in determining whether a specific action is a proper object of normative evaluation, competence in evaluating the social impact of an action, and competence in making all-​things-​considered judgments about actions. The distinction between these forms of normative competence is then interpreted as a philosophical reflection of the historical shift induced by the ALR and continued into the reform period that first turned noble privileges into negative property rights, and then within a generation turned those same negative property rights into positive, fungible economic rights. In this process, the social landscape of those rights transformed sequentially from something physical into something a priori and universal, and then again into something social and thus value-​laden, but also contingent and enormously complicated. The transitional, non-​ideal nature of Hegel’s political theory is most revealed in the fact that the normative competences he identifies are essentially abilities to cope with these shifts in meaning.

1.2.2  Part II: Private Law With these foundations in hand, we turn to the study of the particular social institutions that were described and justified by the German Idealists. Chapter 4 focuses on the institution of the family as it was understood by the German Idealists. I reconstruct the debate between the Idealists as a debate between representatives of the different social perspectives first laid out in Section 1.1 and then given more conceptual and action-​theoretical structure in Chapters 2 and 3. I begin with another brief historical introduction of both intellectual and social context. The intellectual context is primarily the development of Cameralist thinking in the 18th century in opposition to Aristotelian understandings, which then interacts in complex ways with the social changes brought on by war and modernization in the Sattelzeit. This involves reconstructing the historical context a bit more specifically than already done in Chapter 1, and in general I try to introduce historical context sequentially (i.e., as it illuminates particular features of the Idealists’ doctrines and shows them to be representatives of a particular social perspective). This is a tactic that I use quite a lot in the book, so it might be worth saying a bit about this methodological choice. It is a bit like just-​in-​time lectures in the classroom, where the thought is that rather than providing all of the background and setup at the beginning,

16  The Politics of German Idealism potentially weeks before the class tackles an issue that makes use of some particular piece of that background, it is best to provide the background information right when it is needed. Outside of the general sketch of the Sattelzeit and its field of tension in Section 1.1, I have adopted a similar strategy for the historical context. In part, that is because the features of historical context to which I appeal are features of social context and thus likely unknown to the philosophers who are the primary target audience of the book. But in part this is because the particularity and specificity of that context matters, and so an exhaustive background treatment would be too long. Then I offer an interpretation according to which Kant presents the family from the corporate perspective, Fichte from the civil-​ social perspective, and Hegel from the governmental perspective. But in order immediately to distinguish my approach from Marxist historiography of philosophy, I also argue that all of the three social perspectives are present in each of the philosophers. By doing so, I hope both to push back against any reductionism that would portray the Idealists as merely mouthpieces for social interests, and also to show that the Hegelian framework that is employed here to reconstruct the Idealists is neither tendentious nor anachronistic. To my mind, the best way to fight the reductionism is to show that the great value of the Idealists as philosophers lies in the way that they each present all three perspectives, even though one must be prioritized—​and Hegel is no exception here. The choice between the Idealists is, in an important sense, like the choice between forms of agency themselves—​it must be a matter of Willkür rather than Wille because we are forced to choose a prioritization that is, contrastively speaking, arbitrary. In particular, I try to get at the way in which the unity of the perspectives produced by each prioritization is contrastive—​that is, the way in which there are really three unities involved, one from each of the three perspectives. Chapter 5 takes on German Idealist theories of property. In particular, it takes up the issue of the relation between reason and politics. Of course, the proximate source of concern about this relation for the German Idealists is the French Revolution and the Theory-​Practice debate that it sparked.26 In Chapter 5, I connect the issue to a contemporary metaethical debate with historical roots in the German Idealists, namely the debate over the nature of and prospects for constructivism. All of the German Idealists are constructivists in some sense—​ that is, all of them see free self-​consciousness as the source of norms—​and comparing the different advantages and disadvantages of each of their forms of constructivism helps us make a start at seeing what is promising and what is dangerous about each of their perspectives. More specifically, the dilemma for constructivists as set out by Arto Laitinen is a nice way to frame the historical

26

See Maliks, Kant’s Politics in Context, chap. 2.

Introduction  17 options philosophically, and to locate the German Idealists in our triangular field of tension. In addition, Chapter 5 extends the perspectival analysis thus far developed by characterizing views of property by reference to the function of property that comes to the fore in their analyses: the personal, the economic, or the political. These terms will help us add another connection between the projects of agency and the social perspectives, as well as profiling the Idealists against the background of the broader modern debate over property rights. Perhaps most important, this chapter helps to fill out the way in which each of the philosophers take up multiple perspectives by showing that each has a different perspective on property than they had on the family. Whereas Kant took a corporate-​social perspective on the family, he takes a civil-​social perspective on property that focuses on its economic role. Whereas Fichte took a civil-​social perspective on the family, he has an essentially governmental perspective on property that focuses on its political role. And whereas Hegel took a predominately governmental perspective on the family, he takes a surprisingly corporate-​social perspective on property that focuses on its personal role. Again, I want to distinguish my historiographical approach from any sort of social reductionism—​whether Marxist or of any other sort. These figures are not mere mouthpieces of any one social class, but construct social reality from multiple perspectives.27 They contrast, however, because of the different perspectives they take on different institutions and the predominant perspectives from which the perspectives are unified into a systematic political philosophy. The debate between them can be reconstructed as philosophical precisely because they present different ways of unifying these perspectives. In Chapter 6, I take up an issue in which both of the institutions we have seen so far—​property and the family—​are related to each other: inheritance. The issue of the legitimacy of inheritance is one of the crucial social questions of the late 18th and 19th centuries.28 In contrast with our own contemporary reflections on inheritance, which is spurred by the enormous inequality of capital wealth produced by multi-​generational inheritance, the distinctiveness of the issue in the Sattelzeit comes from its reaction to feudal inheritance structures before the advent of capitalist industrialization.29 This chapter focuses on Hegel, since he most explicitly grasped different social forces and values involved. Indeed, it is partially under the pressure of the tension between those forces that Hegel distinguishes between two different forms of property, and puts that distinction to use in striking a balance between those forces. But it should be remembered 27 For a good review of modern historiographical research that has put paid to the notion of the bourgeoisie as a historical agent, see Seigel, Modernity and Bourgeois Life, chap. 1. 28 See Beckert, Inherited Wealth. 29 On the contemporary context, see Piketty, Capital in the Twenty-​First Century; and Halliday, Inheritance of Wealth.

18  The Politics of German Idealism that the nature of the inheritance right is an important piece of Kant’s doctrine of private right—​and is the subject of an important criticism in Bouterwek’s influential review of the Doctrine of Right. Furthermore, Fichte’s doctrine of inheritance also relies on his distinction between relative and absolute property, which we saw already in Chapter 5. In this chapter we see a marked difference between Fichte and Hegel, on the one hand, and Kant, on the other. Despite Hegel’s rather cursory and uncharitable engagement with Fichte on this question, their views are actually quite close, and both are motivated to attempt to balance the principle of a modern economy with the principle of the family. The great difference, of course, is in their conceptions of what the modern economy will look like. For Fichte, the modern economy is essentially a planned economy, and the economic rights to be vindicated are the rights of each to earn their own living and of the state to maintain a stable and productive population according to its plan for production and consumption. For Hegel, the modern economy is essentially a market economy in which industries form according to economic laws rather than government decrees. The economic right to be validated is thus the right to the free ownership and use of property.

1.2.3  Part III: Public Law In Chapter 7, Fichte takes center stage. Fichte’s great contribution to the historicity of political philosophy lies in his simultaneous development of three different political philosophies that are only tenuously connected to each other: an ideal theory in his Foundations of Natural Right, a very nonideal theory in his Closed Commercial State, and an educational theory of progress in his Characteristics of the Present Age and Addresses to the German Nation. Working from a rather high altitude, I try to show that these three political philosophies can be characterized in terms that Koselleck has given us: the Foundations as a horizon of expectation (the future made present), the Closed Commercial State as a space of experience (the past made present), and the Characteristics and Addresses as the relation of agency that connects the horizon and the space, the future and the past. Though these three political philosophies are, theoretically speaking, only tenuously connected to each other, this can easily obscure the way in which they are historically very tightly joined—​and they are joined in a distinctive tension that illuminates the historicity of the period in which they were written. In Chapter 8, I reconstruct Hegel’s theory of the state. Of crucial importance to the structure of Hegel’s state is understanding the way that its pattern is essentially that of the estates—​and thus the way Hegel’s institutional design of the state is a self-​conscious attempt to bridge the gap between state and society. Because

Introduction  19 the very notion of the estates sounds as archaic and idiosyncratic to us now as does Kant’s thing-​like right to persons, the first section of this chapter goes into some detail regarding the context and function of Hegel’s theory of the estates. I argue that for Hegel, the estates are social preconditions for legal and political practices, forms of political participation in their own right, and conditions of possibility of moderate government (three functions also attributed to the estates by Montesquieu). Then, in the second section I connect this feature of the Hegelian state with the analysis of Fichte’s political philosophy in the previous chapter. I show that Hegel’s state is the result of the kaleidoscopic task of including within a single institution all three of the elements that Fichte distributes to different texts and projects. The different institutional elements of the Hegelian state embody the temporal perspectives of the social groups that Hegel envisions populating its members. In the estates-​assembly, for example, the lower house populated by the agricultural estate is inertial, pulling the state backward toward the standards of past practices in the space of experience. By contrast, the upper house populated by the estate of trade and industry is accelerationist, pressing forward toward the horizon of expectation. But then I go on to show how each of these Hegelian groups contains the whole package of historical dimensions—​ the space of experience, the horizon of expectation, and their relation. The historicity of Hegel’s state takes the form of an interlocking mechanism of social groups, each with its own historicity. In the concluding Chapter 9, I briefly summarize the three main features of German Idealist political philosophy that remain most relevant for us today: provisionality, pluralism, and historicism.

PART I

L E GA L STA NDI NG HISTOR IC I Z E D

2

Kant and the Provisionality of Right Here I want to take up one of the key historicist moments in German Idealist political philosophy: Kant’s conception of the provisionality of private law.1 Kant is among the first in the German tradition to clearly distinguish between private and public law. As that distinction has come to be understood today, private law regulates largely voluntary relationships between individuals, whereas public law regulates largely involuntary relationships between groups, or between individuals and the state. To say that private law is provisional under certain conditions is to say that it has a real but incomplete sort of validity. This claim is an enduring philosophical and interpretive puzzle. In calling our rights to property, contract, and family relations provisional (provisorisch), Kant claims both that those ownership interests are actual rights even in a state of nature and that such rights are only grounded in the civil condition—​then they become conclusive. Put in other language, our merely social rights claims are valid prior to the institution of a state (which guarantees a civil condition), even though that validity depends on their anticipating that state (which would conclusively determine their scope and content). Here we see a theoretical reflection of precisely the split between state and society that we discussed in the previous chapter. Kant’s doctrine of provisionality gives us a snapshot of their initial pulling apart, a picture in which the further split within society between corporate and civil society is not yet explicitly registered. It gives us a synchronic presentation of the historical present in which the diachronic change (the splitting of state and society) is taking place, and an attempt to understand the significance of that progressive splitting for the nature of law at the time. Provisionality is a general feature of private law, which in Kant consists of our right to objects (property), choices (contract), and statuses (spouses, children, and servants); but we can start to get at the issues by focusing on ownership interests in objects (Sachenrecht). Two features of property in the Sattelzeit period are crucial to understanding Kant’s account of its provisionality. First, the practical problem of ownership rights was not that of determining the boundaries of exclusive titles, but rather of disentangling and reweaving a complex set of varied ownership relations. Second, the relevant contrast to which the 1 An earlier version of some material in this chapter appeared in Yeomans, “Kant and the Provisionality of Property.” The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/​oso/​9780197667309.003.0002

24  The Politics of German Idealism Kantian distinction between the state of nature and the civil condition refers is not a contrast between a situation of no political authority and one with political authority. It is, rather, a contrast between a corporate society that had many different political authorities and a social order in which only the state had political authority. In Section 2.1 I briefly lay out the interpretive problem of provisionality—​ the texts at issue and some extant interpretations. In each of the following two sections I try to bring historical resources to bear on problems that arise for consideration of the theory of property in the context of its provisional status. In the first subsection of each of these two sections I review some current work and point to difficulties that open the way to consideration of historical context; in the second subsection I briefly rehearse some relevant point of that context; and in the third subsection I draw some conclusions.2 Then, in Section 2.4 I take up a particularly interesting feature of Kant’s doctrine of law from the perspective of his provisionality, namely his endorsement of a thing-​like right to a person (auf dingliche Art persönlichen Recht). This is the kind of right held by spouses and children against each other, and by masters against servants. It is a kind of private legal jurisdiction that, on Kant’s account, must not be abolished but rather enforced by the public law of the state. Finally, in Section 2.5, I relate this synchronic characteristic—​provisionality—​to the diachronic and progressive story Kant tells in his works on the philosophy of history.

2.1  The Problem of Provisionality The Kantian texts here are diffuse and sometimes comparative. Furthermore, different writers on the issue emphasize different formulations, even though all of the formulations are somewhat oblique. It is perhaps easiest to see in the contrast between the titles to Sections 8 & 9 of Kant’s Doctrine of Right on owning something external to you: §8: “It is possible to have something external as one’s own only in a rightful condition, under an authority giving laws publicly, that is, in a civil condition [Etwas Äußeres als das Seine zu haben, ist nur in einem rechtlichen Zustande, unter einer öffentlich=​gesetzgebenden Gewalt, d.i. im bürgerlichen Zustande, möglich].” (MM 6:255)

And: 2 An argument for similar conclusions to my own, but drawn rather more from traditional rational reconstruction of Kant’s text, can be found in Messina, “Kant’s Provisionality Thesis.”

Kant and the Provisionality of Right  25 §9: “In a state of nature something external can actually be mine or yours but only provisionally [Im Naturzustande kann doch ein wirkliches, aber nur provisorisches äußeres Mein und Dein statt haben.]” (MM 6:256)3

The relation between the two is then explained by Kant as follows: “Possession in anticipation [Erwartung] of and preparation [Vorbereitung] for the civil condition, which can be based only on a law of a common will, possession which therefore accords with the possibility of such a condition, is provisionally [provisorisch] rightful possession, whereas possession found in an actual civil condition would be conclusive [peremtorische] possession” (MM 6:25–​67). There seems to be rightful or just possession within the state of nature, but of a kind that essentially makes reference to a more complete or more just possession within the civil condition. There is thus a distinction between two forms of the rightfulness of possession of external things that is correlated with the distinction between two forms of human collective life—​a form of society prior to or independent of the state, and a form of society that is produced by the state. But the concept of provisionality is implicitly invoked also in other contexts, for example, the conduct of war: “Right during a war would, then, have to be the waging of war in accordance with principles that always leave open the possibility of leaving the state of nature among states (in external relation to one another) and entering a rightful condition” (MM 6:347). So whereas the problem of provisionality is particularly pressing with respect to private law, it is of wide application to Kantian doctrines spelled out in other terms and with respect to other norms of political philosophy. In essence, the problem is one of the status of norms that are provisional, and the relation between that provisional status and their full or completely binding status. Scholars have taken different approaches to understanding the distinction here. Rafeeq Hasan puts the problem as follows: Kant appears to hold the following two theses: Thesis 1: There is a natural right to property that is not itself generated by public authority. Thesis 2: Entry into the civil condition does not simply render natural property rights more secure. Rather, there is no way for property rights to be fully rightful outside of an institutional and legal specification.4

3 See also MM 6:264: “Something can be acquired conclusively [peremtorisch] only in a civil constitution; in a state of nature it can also be acquired, but only provisionally [provisorisch].” 4 Hasan, “The Provisionality of Property Rights in Kant’s Doctrine of Right,” 854.

26  The Politics of German Idealism Hasan then distinguishes between interpretations that hold Thesis 1 but abandon Thesis 2 as weakly provisional and interpretations that hold Thesis 2 but abandon Thesis 1 as strongly provisional. As Hasan rightly sees it, the problem is that weakly provisional interpretations turn Kant into Locke and thus make it hard to see what is provisional about the rights at all, whereas strongly provisional interpretations turn Kant into Hobbes and thus make it hard to see why they are rights at all. Put in terms of the validity of norms, weakly provisional interpretations seem to make the norms fully valid even at the provisional stage (and thus to undermine the distinction between provisional and conclusive status for norms), and strongly provisional interpretations seem to deny any validity to the norm at the provisional stage (and thus to undermine the sense in which it is a norm at all). For example, Arthur Ripstein counts as a strong provisionality theorist in Hasan’s reckoning, because on Ripstein’s account in the state of nature we have a right to an object, and rights are internally connected to the entitlement to enforce them coercively, and yet in the state of nature we have only the limited right to enforce those rights in only those cases in which our innate freedom is imperiled.5 As a result, it doesn’t look as though we have the right at all in the state of nature (i.e., in the society which is independent of the state). In contrast, Hasan offers a middle way, anticipatory provisionality: According to anticipatory provisionality, state of nature property claims do not wrong other agents, but nor are they full-​fledged rights claims that simply await institutional specification. Rather, they anticipate a condition in which the authority to make such claims can no longer be unilaterally determined. The meaning of ‘anticipate’ here is two-​fold. State of nature property claims create the necessary background conditions for public authority. At the same time, they draw on a public authority they lack. Although they are defective as instances of right . . ., they are still rights because they are opposed to the clear wrong of remaining in the state of nature.6

On this line of thought, the concept of provisionality is a thought experiment meant to show that the validity of ownership claims depends on the commitment of owners to move from the state of nature to a civil or public condition, in the sense that claiming something as your own ipso facto commits you to bring about that condition.7



5 Ripstein, Force and Freedom, 165. 6 7

Hasan, “The Provisionality of Property Rights in Kant’s Doctrine of Right,” 856. Ibid., 876.

Kant and the Provisionality of Right  27 Helga Varden also counts as a strong provisionality theorist on Hasan’s account, and understands the difference between the state of nature and the civil condition as one in which the former set out the circumstances of justice (though in a matter quite different from Hume and Locke) but the latter is constitutive for justice (i.e., rightful relations).8 But Varden goes further in arguing that the civil condition identified by Kant is not just any political authority but only a state organized along very specific lines.9 More radically, Elisabeth Ellis appeals primarily to the passage quoted above concerning international law and the conduct of war, and puts the point in terms of the normative distance between ideal principles and non-​ideal conditions: “The concept of provisional right applies to institutions that imperfectly mirror their own normative principles; since all existing political institutions do this, pragmatic politics must follow a rule of provisional rather than conclusive right.”10 On this construal, provisionality is neither a thought experiment regarding the underlying normative commitments of ownership claims nor an analysis of the normative consequences of a past transition to a political state, but rather a description of the situation we are necessarily in even within the political state. Ellis’s view thus escapes Hasan’s division, which assumes that at some point we get out of the state of nature and into the civil condition in some sort of conclusive way. Here I just want to identify two common assumptions behind these otherwise very different approaches to the problem of provisionality, assumptions that are shared by the vast majority of the literature on Kant’s theory of ownership. First, they either explicitly argue for or implicitly assume a comprehensive and unified conception of ownership as the content of Kant’s doctrine of rightful possession, which is then assimilated to contemporary understandings of property rights. Second, they either explicitly argue for or implicitly assume a conception of the state of nature that is nonpolitical and even nonsocial. In each of the following sections I try to first diagnose this assumption and its problems in a representative of the current literature, then provide some historical context to motivate the thought that Kant might have had something different in mind, and then return to Kant to offer the outlines of an alternative interpretation. Because the first assumption is perhaps the most significant barrier for understanding property relations today, I devote the most space to its discussion.



8

Varden, “Kant’s Non-​Voluntarist Conception.” Varden, “Kant’s Non-​Absolutist Conception of Political Legitimacy.” 10 Ellis, Kant’s Politics, 112. 9

28  The Politics of German Idealism

2.2  Full Dominion vs. Diverse Ownership Interests 2.2.1  Ripstein Here in this section I want to do justice to Ripstein’s reconstruction of Kant’s view of property, in part because it is the current interpretation that seems to draw Kant farthest away from his historical context and the problem of provisionality. Difficulties diagnosed with Ripstein’s view will serve to motivate the more complicated but less definitive reflections that follow. Ripstein’s Force and Freedom has the tremendous virtue of rendering visible the systematic interconnections between different features of Kant’s political philosophy, and its connection to other aspects of Kant’s thinking (such as the doctrine of intuition). Much of its power therefore lies beyond the scope of this short section. Nonetheless, the specific doctrine in which I am interested seems to me a paradigmatic example of this virtue. That doctrine asserts that the property right protects the exclusive use and possession of a spatial region by a single individual, and does so on the basis of an exclusively formal conception of purposiveness. These features are derived from Kant’s Postulate of Practical Reason with Regard to Rights, and, because of their specifically spatial dimension, introduce a distinctive role for intuition in the technical Kantian sense. In what follows I try to unpack the connection between these features by tracing Ripstein’s argument for them. Here is Kant’s Juridical Postulate of Practical Reason (JPPR): It is possible for me to have any external object of my choice as mine, that is, a maxim by which, if it were to become a law, an object of choice would in itself (objectively) have to belong to no one (res nullius) is contrary to rights. (MM 6:246)

In his reconstruction, Ripstein emphasizes the formality of the postulate, in at least two dimensions. First, the tie between the object and the possessing subject is formal. Kant says that “any external object of my choice” can be made mine, not just those on which I have worked, or for which I have a particular use. Second, the sense of “choice” is entirely formal. It does not depend on any particular purpose with respect to which the object is to serve as means, but only to the formal means-​end relation itself. So long as I really can make the object a means to some end, it is an object of my choice in the relevant sense. In both cases, formality has the sense of arbitrariness or contingency because neither the specific content of the purpose nor that of the object secures the rightful relation to the object. This arbitrariness of the connection between the object and subject of property relations is, of course, an essential element of

Kant and the Provisionality of Right  29 the modern doctrine of property relations, and accounts for its extraordinary generality. Here is how Ripstein ties these thoughts together in interpreting Kant’s argument for the Postulate of Practical Reason with Regard to Rights: Kant’s argument shows, first, that the only way that a person could have an entitlement to an external object of choice is if that person had the entitlement formally, because having means subject to your choice is prior to using them for any particular purpose. Second, Kant argues that the exercise of acquired rights is consistent with the freedom of others, because it never deprives another person of something that person already has. So anything less than fully private rights of property, contract and status would create a restriction on freedom that was illegitimate because based on something other than freedom.11

Key to Ripstein’s reconstruction is the notion of incompatibility, and the formal level at which it operates. Let me explain. On Ripstein’s account, the innate right to control over our bodies is different from the acquired right to property, but they both provide a normative framework required by the incompatibility of my possession of an object with your possession of an object. In the case of innate right that object is a human body (whether mine or yours), and in the case of acquired property rights that object is something external to our bodies. Now, in principle, such incompatibilities could operate on a variety of levels. My possession of a thing now might be incompatible with your possession of the thing now but compatible with your possession of it later. Or, my possession of the thing for the purpose of storing value in it might be compatible with your possession of the thing for its use but incompatible with your possession of the thing for the purpose of exchanging it for another thing. In contrast to these options, it is crucial to Ripstein’s interpretation of Kant that this incompatibility operates entirely at the formal level of choice as such. It is crucial because it seems that only that level of incompatibility will generate the exclusiveness of individual use. That level of analysis is justified by the need to construct a truly private law, that is, a law without domination or personal dependence of any kind (cf. Hasan 2018). Anything less than a purely formal criterion for determining the distribution of personal freedoms would require that the scope of my freedom be determined, in part, by the specific content of your ends and would therefore constitute an objectionable dependence on your choices.12 11 Ripstein, Force and Freedom, 62. See also Ripstein, 88. (Ripstein 2009, 88): “Having things subject to your choice must be understood in terms of their being subject to your purposiveness, and so to your exclusive use of them.” 12 Ripstein, Force and Freedom, 91.

30  The Politics of German Idealism Of course, this formal level of analysis immediately generates the problem of applicability. Kant himself signals this problem in characterizing the three forms of private law (property, contract, and status) as “objects of my choice in terms of the categories of substance, causality, and community between myself and external objects in accordance with laws of freedom” (MM 6:247). To draw this analogy is immediately to invite the quid juris question for the categories of private law parallel to that question for the theoretical categories of relation (substance, causality, and community) from Kant’s Critique of Pure Reason. But whereas the answer to the quid juris question in the case of the categories of relation appeals to time as a form of intuition, the answer to the quid juris question in the case of the categories of private law appeals to space as a form of intuition (on Ripstein’s account). Here I just want to note two problems with the argument. First, the exclusivity of the property right cannot be derived from the purely formal conception of agency. Nothing in the purely formal conception of agency makes agency either individual (at any level) or necessarily exclusive of influence or even interference from the agency of others.13 It is plausible to regard agency as intrinsically goal-​directed in the way that Kant and Ripstein do, but nothing in the structure of goal-​directedness is going to give us the required exclusivity either, and Ripstein never attempts to show how it would do so.14 Second, nothing in the intuition of space is going to give you that exclusivity either, especially given the way that Kant distinguishes between self-​ownership and ownership of property. Perhaps if one argued for property as an extension of the self (as Hegel does), one could combine that with spatial intuition to make the same claims for exclusiveness (no two things in the same place at the same time). But, perhaps to his credit, Kant doesn’t conceive of property as such an extension of the self, and so there is not even potential applicability of an only-​ one-​thing-​in-​one-​place principle. I don’t mean these problems just to indicate the trivial point that we are dealing with the practical extension of a concept for which there can be no theoretical license (i.e., the point that there can be no strict equivalence between the answers to the two quid juris questions). Even granting Kant the legitimacy of that practical extension, there is nothing in either the concept so extended or the sphere to which it is extended that contains the exclusivity that justifies property rights as full dominion. Of course, this leaves the practical purpose for which it is extended as a potential justification, but that is neither the way Ripstein’s interpretation goes nor itself a promising avenue for development. 13 In fact, it is not clear what resources for individuation there are at the purely formal level, a fact that Schopenhauer places at the center of his own Kantianism. 14 Here my view is different from that of Katrin Flikschuh, who sees purposiveness itself as the culprit. Flikschuh, “Innate Right and Acquired Right in Arthur Ripstein’s Force and Freedom,” 304. See also Ripstein’s reply to Flikschuh (Ripstein, “Reply to Flikschuh and Pavlakos”).

Kant and the Provisionality of Right  31 Nor do I mean simply to advocate for the view that Kant’s conception of rightful ownership is only a conception of usufruct (i.e., rights to use rather than exclusive possession) and not private property.15 Though I have much sympathy for the usufruct interpretation, the point here is slightly different. Ripstein’s Kant’s argument might give us a tie between use and the right to exclude others from using the property in such a way that would undermine the rightful possessor’s rightful use, without it following that the rightful possessor could exclude others from any use of the property. And that is true regardless of whether the possession was considered rightful under the description of usufruct or property. The right to non-​interference that derives from the connection of rightful possession with formal agency is formal in the sense that its scope is indeterminate. The exclusion need not be exclusive.16 The qualifications on property rights introduced by public law in Kant’s theory are then not constraints but rather specifications of the formal right to exclude. Another way to put this is as follows: in more everyday reflections on ends and means, the content of the end is essential to determining what can actually count as a means for that end (i.e., what I can actually make a means to my end and thus what can actually be an object of choice and not mere wish). But on Ripstein’s interpretation, we must treat the choice purely formally, and thus can make no reference to the content of ends for determining means. We then replace the specific contents of ends with a more general postulate of our need for spatio-​temporal means in order to understand the nature of the means-​end relation at issue. This is fine as far as it goes, but there is simply nothing in the bare thought of being a spatio-​temporal means to an end that entails complete and exclusive use. Again, as far as I can tell, Ripstein never attempts to establish this central point. There is no reason to think that “having means subject to your choice is prior to using them for any particular purpose,” since only our particular purposes make them into means in the first place. Ripstein foregrounds Kant’s claim that the postulate of external rights is driven by a priori intuitions, which then allow us to construct (with geometrical precision) exact boundaries between different citizens’ property, contract, and status rights (see Ripstein 2009 Appendix A and Kant MM 6:232–​33). For Ripstein the spatiality of the intuitions is the crucial factor, introducing kinds of incompatibilities to which right must respond by drawing the proper boundaries. But in fact, Kant refers primarily to the dynamical problem of the equality of action and reaction and thus to the systematic balancing of forces:

15 For this view, see Westphal 2002. 16 This topic deserves more discussion than I can give it here. For a useful analysis—​though one that comes to opposed conclusions from my own—​see Weinrib, “Ownership, Use, and Exclusivity.”

32  The Politics of German Idealism The law of a reciprocal coercion necessarily in accord with the freedom of everyone under the principle of universal freedom is, as it were, the construction of that concept, that is, the presentation of it in pure intuition a priori, by analogy with presenting the possibility of bodies moving freely under the law of the equality of action and reaction . . . it is not so much the concept of right as rather a fully reciprocal and equal coercion brought under a universal law and consistent with it, that makes the presentation of that concept possible. (MM 6:323–​3)

Now, it is hard to parse the analogy in any great detail, but the important point is that there is no reason to think that there is a unique solution to this equation of the balance of forces. Primarily this is because the forces themselves—​that is, the ownership claims to specific uses of specific objects—​are not fixed but are only provisional. The very definition of what is mine makes reference to the final solution to the equation: “the object is mine because my will to use it as I please does not conflict with the law of outer freedom” (MM 6:253). To change the analogy slightly, the task is not to find the parallelogram of given forces, but to determine the nature of the forces themselves such that a parallelogram results. But many parallelograms are possible and thus many specifications of forces are possible. It isn’t clear what best geometrical shape would be the best analogy for “a fully reciprocal and equal coercion,” but whatever it is, there is no reason to think that there is a single version of it that thus picks out a unique specification of the forces. The better interpretation is to see the postulate pointing not primarily to intuition but rather to an idea in the distinctively Kantian sense of that term. More specifically, it points to the idea of a complete society whose members’ individual wills are distinctively balanced in an omnilateral (allseitig) will. This shift in interpretation makes visible two crucial features of Kant’s theory of property. The first is its historical character. The second is its problematic character, that is, it presents a problem to be solved rather than a formal doctrine whose true outlines we have failed to grasp. It is, of course, tempting to think that one could accomplish such geometrical constructions in a priori intuition and then simply fill in the outlines with the relevant features of the world; certainly, Kant himself indulged in this thought at points in the Rechtslehre, and indeed precisely in the continuation of the passage just quoted: A right line (rectum), one that is straight, is opposed to one that is curved on the one hand and to one that is oblique on the other hand. As opposed to one that is curved, straightness is that inner property of a line such that there is only one line between two given points. As opposed to one that is oblique, straightness is that position of a line toward another intersecting or touching it such that

Kant and the Provisionality of Right  33 there can be only one line (the perpendicular) which does not incline more to one side than to the other and which divides the space on both sides equally. (MM 6:233)

But it is far from clear how the straightness of a perpendicular line would provide the solution to the dynamical problem given above, and a perpendicular line divides the space measured by a shorter line just as equally as it does the space measured by a longer line.

2.2.2  The Actual State of Ownership As Dieter Schwab brings out in the Geschichtliche Grundbegriffe, the actual state of ownership relations in the German-​speaking lands in the Sattelzeit was very far from that pictured by these thought experiments. The idea of property as full and exclusive use was a philosophical concept derived from distant admiration for Roman law rather than a term of late medieval or early modern German law that was sharpened by philosophical analysis. In fact, there wasn’t even a general term in late medieval German law that collected together all forms of ownership. Full and exclusive ownership was extraordinarily rare, and even where there was such ownership it was considered one form of ownership among many rather than its paradigm. Fichte, in fact, complains about such a notion of ownership that “In actual life I am not familiar with any example of such an unlimited right to property” (CCS 130/​SW III, 441). Only later in the 19th century do general models of property come to have any grip on German law and social reality, in part because public and private law start to be more clearly distinguished. It is in the midst of this transition from late feudalism to capitalism that Kant’s justificatory model intervenes. The most important features of this transition are well-​represented in Kant’s view, namely the great expansion of possible objects of property to everything of personal value and the great restriction of property ownership to individual human subjects.17 On Schwab’s account, Kant’s view here is a transitional one, in that it holds that the state has an overarching property (Obereigentum) but as the idea of a civil association of all private property. Ripstein’s Kant’s attempt to make property a postulate by reference to intuition can be read as an attempt to eliminate the gap between the high-​level and highly unified Roman conception of property and the myriad of particular property relations found in German society. But both the subsequent history of the notion and the interpretive debate show that attempt to be a failure. 17 This slightly overstated, leaving out for the moment Kant’s emphasis on land as the fundamentally ownable thing (MM 6:261–​62).

34  The Politics of German Idealism There was, however, another (roughly) contemporaneous historical context that did provide an example of the sort of procedure Ripsteinian applications of intuition represent, but it is not one that we should take to justify this line of thinking. It is the actual procedure of colonial governments in making the kinds of land grants that were to be paradigmatic of a new form of property—​ complete dominion over a geographical location (considered unowned in the relevant sense by the indigenous population). And the historical record of such grants is not one to encourage optimism regarding the procedure’s feasibility, to say nothing of its justice. Sometimes the boundaries specified in the construction were simply nonsensical when applied to the actual geography (a point Kant recognizes), and sometimes they were simply fictitious. A good example of the latter is the Mason-​Dixon line, which separates the US states Pennsylvania, Maryland, and Delaware.18 The boundary was described with geometrical precision: it begins where the 40th parallel intersects a circle of 12 miles’ radius centered on New Castle, Delaware. There was one primary difficulty: those two lines don’t intersect. The end result was not so much an application of the description to a variegated geography as a fudging of the construction through many years of negotiation by powerful political players whose purposiveness required not dominion over space but access to specific resources. When combined with the Kantian claim that coercion can be legitimately used to force people who do not yet have secure property rights in a proper state to enter such a state, one gets a familiar, paternalistic justification for colonialism. I will bracket this issue in order to stay closer to the German domestic context, but I want to emphasize that Kant’s contemporaries’ understanding of the existing state of ownership relations in that context was quite different from their understandings of the (absence of) ownership relations in land appropriated for colonies. Kant has a perceptive theory of property rights for the domestic context that theoretically articulates a pressing practical problem of governance.

2.2.3  Consequences for Understanding Kant The crucial consequence for understanding Kant is the following: figuring out which object was whose property in Sattelzeit Germany was not primarily a matter of marking consistent boundaries; that was rather the colonial problem. Instead, the problem of property in Germany was primarily a matter of figuring out what kinds of uses and claims were paradigmatic and thus indicative of the kind of possession presumed to be valid. It was, in fact, less a matter of figuring 18 For an amusing and clear recital of many of these difficulties, see Hubbard, American Boundaries, chap. 1.

Kant and the Provisionality of Right  35 out which object was whose property than which uses of which objects required which ownership structures to secure the specific purposiveness of the owners with respect to it. As a matter of etymology, the German term for property—​ Eigentum—​simply refers to the subject-​object structure, that is, to an object that is one’s own (eigen)—​and thus almost any purposive relation to an object can make sense as a form of the property relation (see Schwab III, 65). The difficulty, then, is figuring out which relations constituted valid property rights. This, I suggest, is the historical content of Kant’s notion of “original possession in common” (MM 6:262 & 267). Of course, for Kant this primarily concerns land, which was certainly the object of most value and the locus of most ownership relations at the turn of the 19th century. For this reason Bernd Ludwig is right to push back against the notion that Kant’s reference to land is an appeal to feudal relations, but also wrong to think that Kant’s doctrine is thus free from extra-​ theoretical content.19 Ownership interests in land had precisely the varied character suggested in the previous paragraph, since land itself had a variety of uses and interests associated with it. But then the point is not to move from insecure individual possession to individual possession secured by the omnilateral will, but from a less just individual right to part of a common possession to a more just right of the same form. As Ludwig puts it, “A right to things [Sachenrecht] can only be thought as a relationship between persons, which is situated in the common possession of things.”20 But this common possession must be understood less as a unitary, collective property right of the modern (exclusive) form, and more as a fabric woven from overlapping and varied ownership interests held by the different members of the collective. Rather than thinking of a group having a single relation to the object parallel to an individual’s relation to their property, we must think of each individual in the group having different relations to different aspects of the same object. It is also true that Kant treats this condition of possession in common as prior to choice (MM 6:262), but this should be understood by analogy with the Enlightenment essay’s call to move from childhood to maturity (Enl 8:35): possession in common is a historical form that must be subject to critique. The dense network of ownership relations in which Kant’s contemporaries found themselves was a found, rights-​related condition. The commitment to move to a civil condition in which rightful relations are founded is a commitment to improve this dense network of relations in the sense of making it more just. This is the way to understand Kant’s comment that a state of nature need not be “a state of injustice,” that is, of merely power relations, but would nonetheless be “a state 19 Ludwig’s analytical reconstruction of this aspect of original communal ownership in Kant is quite helpful. See Ludwig, Kants Rechtslehre. Mit einer Untersuchung zur Drucklegung Kantischer Schriften, 130–​32. 20 Ludwig, 132; my translation.

36  The Politics of German Idealism devoid of justice,” in which there is no authority for adjudicating rights disputes (MM 6:312). The move to a civil condition is a move to a social order with such authority, via the clear distinction between private and public law. As lawyers now typically understand that distinction, private law governs relations between individuals (primarily via rules for property, contract, and torts [non-​contractual civil wrongs]); public law governs the relation between individuals and the state (paradigmatically through rules for free expression, political participation, etc.). Kant is an important figure in clarifying the conceptual distinction between the two, and his doctrine of provisionality is his account of their relation. But as we will see in the next section, that very distinction between private and public law encouraged the development of private powers that only heightened the problems of adjudicating rights claims. So while it is right to insist that Kant anticipates this 19th-​century clarification of the distinction between private and public law, it is wrong to think that this takes the place of solving a problem to which Kant’s political philosophy responds as a circumstance of justice. On the contrary, the purported solution was one of the main sources of the problem itself. As noted above, Kant also anticipates the 19th century’s great expansion of possible objects of property to everything of value and its great restriction of property ownership to individual human subjects. But neither of these movements—​neither of expansion nor of restriction—​is necessarily connected with full and exclusive use of a thing. They are tied neither to particular incidents in the modern property rights bundle nor to any purported intrinsic connections between these incidents. And the economic course of the 19th century displays just as much variety in ownership relations as one would expect from an (industrial) revolution in which legal codification lagged substantially behind economic reality. This speaks to the feature of provisionality highlighted by Hasan, namely its anticipatory character. But as Koselleck and other historians have made clear, the Prussian Allgemeines Landrecht and other German legal reforms presupposed the society that only such reforms could first create. This was the actual anticipation to which provisionality corresponds. Historically, that circle didn’t close, because the rights that would have had one extension in the society to be created had another extension in the transitional society, which led social and economic development in a different direction. More specifically, generalized property rights made impossible the very fiduciary role of the state Ripstein rightly sees Kant as requiring to secure their legitimacy (we will take this up in the following section).21 Ripstein is right to focus on incompatibilities, but wrong to think 21 See Koselleck, Preußen zwischen Reform und Revolution, 168; and Wienfort, Patrimonialgerichte in Preußen, 21–​23.

Kant and the Provisionality of Right  37 that these could be understood in spatial form. The spatial form can be nothing better than a metaphor for different incompatibilities, which were too varied to be reduced to any common formula.22 The point here is not to disagree with Ripstein’s account of the importance of incompatibilities, but rather to point out that the multiple axes along which ownership claims are incompatible with each other means that there is not a single solution that jointly maximizes all of the relevant values (even the extent of external freedom). Here I think the conclusion we should draw with respect to Kant is that Ellis is basically right about the interminably provisional character of modern politics, even within the state. The actual state of ownership relations makes ownership of external objects less a postulate in Kant’s sense than a problem, in Kant’s way of understanding the distinction: “A postulate is a practical, immediately certain proposition . . . in the case of which it is presupposed that the way of executing it is immediately certain. Problems (problemata) are demonstrable propositions that require a directive, or ones that express an action, the manner of whose execution is not immediately certain” (9:112). What both strong provisionality and anticipatory provisionality theorists have right is that legitimately protected ownership interests cannot be established absent a public authority, but I think Ellis is closer to providing the key to why this is so. Namely, what is required to establish these interests is an extensive and protracted negotiation that must be conducted under fair circumstances. The notion of finally conclusive or peremptory rights functions as a regulative ideal, even within well-​constituted polities, rather than as a threshold that is crossed upon entry to them.

2.3  State of Nature vs. Civil Condition 2.3.1  Circumstances of Justice Helga Varden presents a paradigmatic understanding of this distinction in her presentation of a strong provisionality view: In short, private property, contract, and status relations among individuals cannot be both rightful, or respectful of each individual’s innate right to freedom, and at the same time determined and assured by a private authority. And private authority is the only authority there is in the state of nature. Indeed, even mutual agreement cannot make relations among individuals rightful in

22 Here Schwab 89–​93 has a good summary of the difficulties, and the different ways in which property rights could be incompatible; also Koselleck Preußen.

38  The Politics of German Idealism the state of nature, since in this situation everyone’s external freedom is still subject to one another’s arbitrary choice.23

In contrast, “Civil society is an enforceable precondition of justice and not merely a remedy for the inconveniences characterizing the state of nature, understood as a condition without a public authority.”24 There is much that is importantly right here—​marking the distinction between the natural condition (natürliche Zustand) and the civil condition (bürgerliche Zustand or bürgerliche Verein) in terms of the difference between private and public authority is initially helpful, as is Varden’s later insistence that the political state requisite for such public authority and thus for the civil condition is a very specific kind of state, and not just politically organized society in general. But three difficulties need to be noted that will help to orient us further toward the historical material. The first is again the complicated role of the identification of public authority with a very specific kind of state in the justification of colonialism. The more specific the state, the less likely that anything in an indigenous population was likely to qualify for that status, and thus the less any pre-​existing rights would appear worthy of respect and protection. Of course, the colonial state itself was also not likely to qualify for that status, but such a status easily becomes a regulative ideal whose achievement is both expected and endlessly deferred, which is a picture we get if we look at provisional rights claims as merely a deficient version of the conclusive version in the true state. This is a case in which an excessively universal interpretation leads to rather particularistic consequences, and consequences Kant himself was at least sometimes willing to draw. The less we take provisional rights seriously as valid rights claims, the less constraint there is on the scale of transformation upon the imposition of public authority. And yet closer to home, Kant recoiled at the similarly motivated dramatic transformation of patterns of rights by later developments in the French Revolution, and there is no reason to think that he sought such a radical transformation in the German-​ speaking lands. Second, ‘civil society’ is the wrong term to use to describe the requisite situation. It is not the term that Kant uses, and in fact Kant seems precisely to distinguish between civil condition (the political state) and civil society: The civil union [bürgerliche Verein] (unio civilis) cannot itself be called a society [Gesellschaft], for between the commander (imperans) and the subject

23 Varden, “Kant’s Non-​Absolutist Conception of Political Legitimacy,” 334. See also Varden, “Kant’s Non-​Voluntarist Conception.” 24 Varden, “Kant’s Non-​Absolutist Conception of Political Legitimacy,” 333.

Kant and the Provisionality of Right  39 (subditus) there is no partnership. They are not fellow-​members: one is subordinated to, not coordinated with the other; and those who are coordinated with one another must for this very reason consider themselves equals since they are subject to common laws. The civil union is not so much a society but rather makes one. (MM 6:306–​7)25

This passage is difficult to interpret, and of course one might do so in a way sympathetic to Varden’s use of the term ‘civil society.’ That is, one might think that the important thing about entering the state (the civil union) is that it makes of those of us who enter it a civil society. Even if the state is doing the work, the value is to be found in the civil society in which equality obtains by virtue of subjection to the same laws. This corresponds to the way that state and society split, in which the new (civil) society that is in fact created by the state is distinguished not only from the state itself but also from the earlier (corporate) society that predates and was not created by the state. But here is where the third difficulty comes in. As Varden reconstructs the importance of the political state, it lies in the public nature of its authority. The problem with the state of nature is that all authority is private (even if it is social), and thus cannot be universal in the requisite sense. Here is how Varden explains this problem with respect to one of the issues with property rights in the state of nature, namely the assurance of the right: The problem with private provisions of assurance is twofold. First, the restrictions enforced will be those of the private company, and thus contingent. Second, the private company cannot provide assurance that it will be regulated by these restrictions, which is to say that it cannot provide assurance for the (private) relation between itself and its customers. Since the powerful private provider of assurance is the coercive authority and since it is not subject to its own restrictions, it does not have equal standing with all other private persons with regard to its coercive power.26

All of this might be true enough about the private company, but the difficulty is that the political state is in entirely the same position. The mere distinction between private and public is insufficient to do the requisite justificatory work. But when this is spelled out in more detail, the purely ideal nature of the requirement of the publicity of authority becomes even more obvious: the publicity of authority “is achieved through the requirement that the sovereign’s exercise of its authority is detached from private interests and arbitrary choices, and instead

25 Kant speaks of ‘civil society [bürgerliche Gesellschaft]’ only later in the discussion of punishment (MM 6:331 & 333), in a context that is ambiguous as to its referent between society and state. 26 Varden, “Kant’s Non-​Voluntarist Conception,” 10.

40  The Politics of German Idealism is constituted by the rule of public law.”27 Of course, we hold this detachment from private interests as something like a regulative ideal for legitimate political authority, but it is an ideal that is more honored in the breach than in the observance.28 It is a polemic that we launch against political opponents rather than a virtue straightforwardly manifested by political systems. I don’t mean this as the criticism of the ideal as such, or even of the value of approximating it. But such an ideal serves rather poorly as a requirement defining a threshold that marks the passage from a state of nature to a civil condition. The distinction between the private and the public is a distinction with a complicated history, and we now turn to this aspect.

2.3.2  Historical Circumstances of Justice in the Sattelzeit Two aspects of Kant’s historical situation are relevant here. First, one of the most important pre-​ existing ownership interests in the Sattelzeit was the noble claim to private legal jurisdiction over those living on their lands (the Privatgerichtsbarkeit of Patrimonialgerichte). This claim to the common practice was a claim to juridical and thus political authority that could also be understood as an ownership claim. The claim was problematic for many reasons that relate to the problem noted above, namely that the very means required to achieve the anticipated society tended to steer society in another direction. In this case, (a) the incipient state required the collection of taxes in order to fund the administrative state whose judicial system was to replace these private courts, and yet (b) that state depended on the authority of precisely those manorial lords with private jurisdiction (and other heads of household) to collect those taxes, and thus (c) the state was led to reinforce their authority in the process of attempting to supersede it. But it is also important to understand that these patrimonial courts were far from the kind of domination of arbitrarily private judgments assumed by the state of nature comparisons in the Kantian secondary literature. In fact, such courts were more lax than state courts in their attitude toward prosecution, and the nobility was very happy to offload the time and expense of criminal proceedings to the state courts in the Vormärz process of reform (Wienfort Patrimonialgerichte, 16 & 137). And though the patrimonial lord retained the right to sue in his or her own court, that is itself parallel to the situation within modern nation-​states. The kind of asymmetry (non-​reciprocity) that Varden diagnoses in arrangements within the state of nature is not to be found here, or 27 Varden, “Kant’s Non-​Absolutist Conception of Political Legitimacy,” 339. Also Varden, “Kant’s Non-​Voluntarist Conception,” 11. 28 See also Messina, “Kant’s Provisionality Thesis,” 449–​54, for an argument along these lines and texts from Kant to suggest that he had the same doubts.

Kant and the Provisionality of Right  41 at any rate is not to be found to an extent that distinguishes it sharply from the political state.29 There is, of course, a sense of contingency (patrimonial courts were certainly less centralized and staffed with judges of uneven educational background). But patrimonial courts were less contingent than state courts in at least two ways: in such courts the dominant expectation was that the court would pronounce what the law was (i.e., it represented an independent authority on the content of the law), and access to the courts by women was generally good. In contrast, the development toward modern, centralized state courts over the course of the 19th century largely denied women the opportunity to appear in court, and encouraged parties to see court proceedings as a process of negotiation between private interests.30 Second, in the political disagreements surrounding models of property, rival views were essentially connected with more general social models.31 This is partially a consequence of the point noted above, namely that the problem of property was not that of modifying the boundaries of each person’s full and exclusive ownership claims, but rather that of disentangling one pattern of diverse ownership relations in order to replace it by another such pattern. The actual problem was that almost every object was subject to multiple ownership interests that were tied together in the early modern, post-​feudal social order. This main point was made above, but the consequence that is relevant here is that the interests that were to be taken away from current owners were partially determined by what was understood to be wrong with that older order, and the things to be given to new owners by what was understood to be right about the order to be created. So, for example, the retention by manorial lords of the right to transfer property was deemed to be part of the problem of an older order that encouraged subservience and discouraged entrepreneurial uses of land, and the reallocation of that right of transfer to the farmers who worked the land was part of a plan to develop a nation of small but independent farmers. This led, among other things, to interesting debates about whether that right to transfer required an unconstrained right to bequeath, or whether the latter could be qualified by rules such as primogeniture. (Some of these issues are taken up in Chapter 6.) This attempt to disentangle and then reweave ownership interests on the basis of specific perceived defects in the status quo was even further complicated by the first point made in this subsection, namely the fact that all of the noble privileges of the old system could easily be redescribed as property rights under the guiding framework of the new system, thus adding to the number and complexity of ownership interests and muddying the distinction between public and



29

For a longer argument for her contrary view, see Varden, “Nozick’s Reply to the Anarchist.”

31

In addition to Schwab, see Koselleck, Preußen zwischen Reform und Revolution, 23–​25.

30 Wienfort, Patrimonialgerichte in Preußen, 19.

42  The Politics of German Idealism private law.32 This means that decisions about the proper balance of authorities in the new society necessarily played a role in determining what would count as a valid right of ownership. At a certain level of generality, this tracks the relation between public and private law in Kant quite well. But understanding this as the shift from private to public interests, or from private interest to public authority, understates the complexity of the problem and misleads us as to the form of the solution. The property rights of manorial lords included rights that are straightforwardly political in Kant’s sense, including rights that are explicitly juridical and executive (e.g., the collection of taxes). And these rights were not limited to the class of manorial lords but were more widely (if weakly) distributed to heads of households generally. The very distinction between private and public law hinges on the specific character of the social model that animates each specific theory of property, and that social model referred to a future state that was just as much anticipated as prescribed. The contrast between the anticipated state and the existing state of affairs is between one and many political authorities, rather than between one situation in which there is a unitary (omnilateral) political authority and another situation in which there is no political authority but only asymmetrical power and contingent negotiation (the state of nature).

2.3.3  Consequences for Understanding Kant These complexities of social historical context match up in interesting ways with the intellectual historical context excavated by Sharon Byrd and Joachim Hruschka. As Byrd and Hruschka reconstruct Kant’s criticism and appropriation of Achenwald, there are two distinctions within Kant’s resulting view that are relevant here.33 The first is the distinction between the original and the adventitious state. The second is the distinction between the adventitious state broadly, and the specifically juridical state within it. Briefly, the first distinction between the original and adventitious states is the distinction between a condition prior to any legally relevant act and the conditions composed or produced by such acts. This original state of nature describes the circumstances in which we have original rights independent of any particular claim or commitment that we might make. In contrast, the rights in adventitious states depend on particular actions, from claiming an ownership interest in an object to founding a juridical

32 Koselleck is particularly good on the ramifications of this point. See, e.g., Koselleck Preußen zwischen Reform und Revolution, 32–​37. 33 Byrd and Hruschka, Kant’s Doctrine of Right, chap. 2. To be clear, I endorse only this aspect of their view. They are also weak provisionality theorists in Hasan’s sense, but that part of their view does not follow directly from the placement of the juridical state within the adventitious state. Cf. Messina, “Kant’s Provisionality Thesis,” 456.

Kant and the Provisionality of Right  43 state. This leads us to the second contrast, which is that between the adventitious state broadly and the specific juridical state that is established and maintained by a very specific set of ongoing actions (institutions) of the kind Byrd and Hruschka34 and Varden35 both detail. Here all I want to say is that this distinction between an original state of nature in which an extraordinarily limited conception of right is operative, and an adventitious state in which the remaining rights are conditioned by specific claims and actions, is a theoretical view essentially open to historical context in the sense of historical specificity. Furthermore, the inclusion of the juridical state within the adventitious state decisively breaks the direct connection between state form and original or purely natural rights. This helps to reveal that the primary problem of distinguishing valid rights does not lie on the border between original rights and adventitious rights, but rather lies on a border within adventitious and thus special rights. Both corporate and civil society are aspects of the adventitious state. The problem is thus not one of distinguishing between general and special rights, but of distinguishing within special rights between those that have merely social authority (the rights of corporate society), and those that have political authority (the rights of civil society). This is exactly the political problem of the Sattelzeit. To return to our theme of the splitting of state and society, this happens already within the adventitious state. The corporate society that is reflected in Kant’s state of nature is already a rights-​related state, and civil society is the form of society created by the imposition of the juridical state. This puts Kant solidly within the Cameralist tradition of political science, which presupposed precisely a conception of human nature that was already both social and political.36 For the purposes of interpreting Kant as providing a contribution to this debate, it would be helpful to get a sense of what he thought the paradigmatic normative defect of the old (corporate) system was, and which paradigmatic virtues were to be manifested by the juridical state and civil society to be developed. But on this point the Kantian texts have proved almost radically indeterminate. Interpretations of the defect include constraint by nonvoluntary agreements (libertarian readings), personal domination (Ripstein), structural domination (Hasan), and contingency and asymmetry of power (Varden). Virtues of the anticipated system vary accordingly. But perhaps the variation is intrafamilial, and all of these can be read as basically liberal diagnoses (including Ripstein’s civic republicanism under a broad conception of ‘liberal’), where the defects are just variations on the theme that individual freedom was unduly limited. This puts them in contact with Kant’s milieu among the Prussian reformers. But there



34

Byrd and Hruschka, Kant’s Doctrine of Right, sec. 1.2 & 1.3. Varden, “Kant’s Non-​Absolutist Conception of Political Legitimacy.” 36 Tribe, Governing Economy, 28. 35

44  The Politics of German Idealism is also the problem that the reformers’ basically liberal view of property was built not for capitalism but for a society that never came into being. A key to the envisioned society, and the basic justification for the individualism of its conception of ownership, was the picture of a society in which the vast majority of the adult male population would be owners in a robust sense (and furthermore owners of land in that sense). There is just no plausible reading of 19th-​century German (or world) history on which that happened.

2.4  Kant on Private Jurisdiction In addition to what we have seen so far, the distinction between patrimonial and state courts has another non-​obvious presence in Kant, in a section of the Doctrine of Right that Anglo-​American interpreters tend to read simply as a doctrine of family law but that has wider application. This section has the intermediate title “Von dem auf dingliche Art persönlichen Rechts,” which translates to something like ‘a thing-​like right to persons.’ The title is intermediate between “Sachenrecht” and “persönliche Recht,” that is, between property and contract law, between rights to a thing and rights to (the choice of) a person. This section is a conscious intervention into the debate over the Prussian Allgemeines Landrecht (ALR), which divided rights into the latter two categories.37 It was explicitly recognized as a new concept at the time, for example, in the influential review by Bouterwek: Now follows (6:259f) the division of right into rights in things, personal rights and—​yet a third? Our jurists and philosophers will be puzzled about this, but Herr Kant contends there is actually a third, namely a personal thingly right. What this is, or is supposed to be, will puzzle many even more than the new idea itself. . . . This then is the new phenomenon in the juridical heavens. (AA 20:448–​49, translation by Westphal)

And yet after a bit of wordplay (is the new star a rare event like a supernova or a common event like a shooting star?), Kant responds by claiming that he is providing a philosophical account for an already extant practice: “So much for the clarification and defense of a strange type of right which has recently been added

37 The first two titles of the ALR are “Von Personen und deren Rechten überhaupt” and “Von Sachen und deren Rechten überhaupt,” or “Of persons and rights pertaining to them in general” and “Of objects and rights pertaining to them in general.” A Sache is the technical term for an “object of rights or obligation [Gegenstand eines Rechts oder einer Verbindlichkeit]” (§1 I 2 ALR). It is for this reason that here and in the rest of the manuscript I choose the rather off-​putting ‘thingly’ to translate ‘dinglich.’

Kant and the Provisionality of Right  45 to the doctrine of natural law, although it has always been tacitly in use” (MM 6:361). An interpretation of Kant’s theory of law in its social context cannot make do without a specific interpretation of this intervention. For our purposes, the most important rights within this category are not the relation between spouses (which has attracted the most attention), or even between parents and children, but those between the Hausherr and the Gesinde, between the lord of the house and his servants. This is not a small issue, since at the time of Kant’s writing, roughly one-​seventh of the Prussian population were Gesinde. The kinds of relations he describes were widespread, and Kant was himself a Hausherr in the relevant sense and thus a bearer of the right he attempts to justify. Two additional features of this right are relevant for our purposes: its relation to more formal legal proceedings, and the ground of the right in the distinctive nature of the kind of work done by the servant. Both of these features generalize beyond the limited case of household servants to patrimonial jurisdiction more generally, and thus connect Kant’s account here with that wider social phenomenon. Kant’s account is best read as a justification of the validity of Privatgerichtsbarkeit, which dramatically restricts its range of application. But first, the two features, in reverse order. Nature of the work: Particularly in his response to Bouterwek, Kant emphasizes the way in which servants are employed not for piecework or a specific task, but rather in more general terms: Such a contract [for a servant] is not just a contract to let and hire (locatio conductio operae), but a giving up of their persons into the possession of the head of the household [Hausherr], a lease (locatio conductio personae). What distinguishes such a contract from letting and hiring is that the servant agrees to do whatever is permissible for the welfare of the household, instead of being commissioned for a specifically determined job, whereas someone who is hired for a specific job (an artisan or day laborer) does not give himself up as a part of the other’s belongings and so is not a member of the household. (MM 6:630–​31)

In contrast to someone hired to cater a meal or shoe the horses, a kitchen maid (Kuchenmagd) or stable boy (Stallknecht) is responsible for doing whatever is required for the serving of food to the household or the care of the horses, respectively. This is naturally an echo of Aristotle’s distinction that a slave is an instrument of action, not production (Pol. 1254a). On the one hand, Kant seems to limit the status of ‘servant’ to a member of the household, but he does not simply identify the condition of having leased oneself to a master with living in the master’s house—​in fact, he adds that the master is not in possession of the artisan or day laborer, “even if he lives in [the master’s] house” (MM 6:361).

46  The Politics of German Idealism At first it might look as if Kant thinks of living in the house as being a necessary but not sufficient condition for having leased oneself to the master. This is particularly suggested by the way that Kant initially presents servants as being grown-​up children, that is, children who have reached their maturity but have decided to remain in the household. They thus maintain their earlier economic relation to the household, but now on a contractual basis (MM 6:282–​83). But on closer inspection it is clear that domicile is not what is doing the relevant work, but rather the kind of society that is created. Kant’s own servant, Martin Lampe, did not live under the same roof with Kant but nonetheless shared a domestic society with him (including the unenviable task of awaking him at 5 a.m.).38 In the original discussion in the Rechtslehre (as opposed to the reply to Bouterwek from which the passages above come), Kant importantly uses Haus and its derivatives, rather than Gebäude (building) or another term referring unambiguously to domicile. Kant’s use of Haus, Hauswesen, häusliche Gesellschaft, and the like all refer back to an understanding of the family as an economic as much as romantic or personal arrangement. More specifically, it is an economic arrangement that is not merely an exchange of services but rather a cooperative enterprise in which each pledges to do what needs to be done for the whole rather than to perform a limited task. The rather loose tie between residence and servant status is relevant because the servant’s general being at the disposal of the master not only characterized those living under the same roof as the master, but also those working in the same tight-​knit economic organizations, whether those be guild workshops or manorial farms. This status of being at the disposal of the master was independent of the hereditary character of serfdom (Leibeigenschaft or Erbuntertänigkeit), and extended long beyond the official abolition of serfdom in Prussia on October 9, 1807.39 And if we expand the category of ‘servants’ to include peasant farmers and other residents of manorial properties, and the category of ‘Hausherr’ to include such residents and also the owners of such properties, then the vast majority of the German population would be bound up with these sorts of private-​legal arrangements. And this is not just a Prussian phenomenon. Certainly these arrangements were more extensive and visible under the Gutsherrschaft system east of the Elbe. But they remained a powerful force in the Grundherrschaft system in western Germany and just as much a target of reform efforts in the Vormärz period. And they are furthermore normatively similar to the French system of venal offices, in which positions as judges in the parlements were bought and sold as private possessions. 38 Kuehn, Kant, 223. 39 As a side note, the Oktoberedikt was drafted by Stein’s primary assistant for legal reform Theodor von Schön, who was a family friend of Kant’s and for whom Kant wrote out his course plan when he matriculated to the university in Königsberg.

Kant and the Provisionality of Right  47 Even if we read Kant as offering an argument, based on domicile, to restrict the validity of such arrangements to a narrower scale, we still see Kant offering a principled justification for an essentially private form of law where the privacy has to do with the jurisdiction rather than the content of the right—​the kind of authority the right-​holder has over the object of the right, rather than the kind of object that the right can have (a thing or [a choice of] a person). Relation to legal proceedings: On Kant’s view, this general state of being at the disposal of the master is what gives the master the right to take physical possession of the servant in the case of flight or, more generally, failure to fulfill one’s duties. Because the servant is not contracted for a specific job, a legal proceeding for breach of contract is not the right route to compel performance (MM 6:361). Furthermore, Kant emphasizes the authority relation as a social one of the power to command: What they maintain is the same domestic society but it is now a society under the head of household [eben diese häusliche Gesellschaft, aber jetzt als hausherrliche] (societas herelis), formed by a contract through which the head of the household establishes a domestic society [häusliche Gesellschaft] with the children who have now attained their majority or, if the family has no children, with other free persons (members of the household [der Hausgenossenschaft]). This would be a society of unequals (one party being in command or being its master, the other obeying, i.e., serving [des Gebietenden oder der Herrschaft und der Gehorchenden, i.e., der Dienerschaft] (imperantis et subiecti domestici). (MM 6:283)

The matter of these commands is constrained—​ the master of the house cannot treat the servants like things (slaves)—​but the form of the command is unilateral: Servants are included in what belongs to the master of a house [Hausherr] and, as far as the form (the way of his being in possession) is concerned, they are his by a right that is like a right to a thing; for if they run away from him he can bring them back in his control by his unilateral choice [durch einseitige Willkür in seine Gewalt bringen] . . . for he can fetch servants back and demand them from anyone in possession of them, as what is externally his, even before the reasons that may have led them to run away and their rights have been investigated. (MM 6:283–​84)

This represents a powerful form of private jurisdiction, and is marked out as private in many of the ways that Kant uses to distinguish public from private law: it is unilateral, a matter of personal authority, and direct.

48  The Politics of German Idealism Importantly, this sort of private jurisdiction—​Privatgerichtsbarkeit—​is then taken up into the civil society that is guaranteed by the state in the same way that property and contract law are; this is the force of §41, in which Kant claims that the content of public law is just that of private law (which is the law of the state of nature and social condition, that is, of corporate society): For in the state of nature too, there can be societies compatible with rights (e.g., conjugal, paternal, domestic societies in general, as well as many others [z.B. eheliche, väterliche, häusliche überhaupt und andere beliebige mehr]); but no law, “You ought to enter this condition,” holds a priori for these societies, whereas it can be said of a rightful condition that all men who could (even involuntarily) come into relations of rights with one another ought to enter this condition. The first and second of these conditions can be called the condition of private Right, whereas the third and last can be called the condition of public Right. The latter contains no further or other duties of men among themselves than can be conceived in the former state; the matter of private Right is the same in both. The laws of the condition of public Right, accordingly, have to do only with the rightful form of men’s association (constitution), in view of which these laws must necessarily be conceived as public. (MM 6:306)

Public law then sets limits on how the specific boundaries of private legal rights can be modified—​that is, in such a way as is compatible with an omnilateral will—​or that will simply put them into effect in the civil condition (MM 6:312–​ 13). The clear implication of subsuming private legal jurisdiction within those private legal rights is that such modification can never be an abolition of such private legal jurisdiction. But this apparently bizarre consequence for our own ears was nothing less than the order of the day for the Prussian reformers, and Kant’s implicit position is simply the explicit fallback position eventually adopted in the 19th century by Hardenberg and others after Stein’s short-​lived push toward the complete abolition of private jurisdiction failed. In terms of Kant’s own 18th century, this ratification of private jurisdiction by the force of public law was precisely the effect of the ALR’s recognition of the right to private jurisdiction among a host of other rights, and in this respect Kant is quite right to say that he is providing a concept for a legal norm that has long been tacitly in practice. This doubles down on the notion of provisionality, since we see now that it includes not just particular claims to specific objects, but even particular claims to specific legal jurisdictions over such claims to such objects. These claims don’t go away in the civil condition (i.e., in the civil society that is secured by the state), but are rather harmonized and enforced. For all these reasons, Kant’s perspective on law can be clearly recognized as governmental. His conception of law is neither nostalgic nor futuristic, but presents precisely the regularized and reordered version

Kant and the Provisionality of Right  49 of the currently existing jurisdictional arrangements of German society at which the reform movement of the early 19th century would direct their efforts. And those arrangements include the plurality of jurisdictions and their tension that we will see in more detail in the following chapter. This was registered in the ALR to the extent that it grasped the members of the various social groups (Stände) on the one hand as equal agents before the law, but on the other hand assigned them to different legal venues with different rules and thus different ways of holding them responsible. Of course, in some respects Kant’s view about private jurisdiction is connected to another of Kant’s embarrassments to 21st-​century readers, namely the distinction between passive and active citizens (in addition to the MM passages cited below, see TP 8:295). Briefly, passive citizens are “mere comrades of the state [bloß Staatsgenosse]” who have the right to demand treatment according to natural (i.e., private) right, but not to cooperate in the legislative activity. The legislative activity is restricted to active citizens, that is, to men meeting certain property qualifications that register their economic independence. Passive citizens are Staatsgenosse in much the same way that servants are Hausgenosse. A fairly natural reading of his confirmation of private legal jurisdiction is that it constitutes a right of active citizens to have legal jurisdiction over passive citizens: not over passive citizens as such, but rather over any passive citizen who depends on that particular active citizen for “their preservation in existence (his being fed and protected)” (MM 6:314). This economic basis that Kant proposes for the division between passive and active citizens is different from the ‘being-​ at-​one’s-​disposal’ criterion for servitude, and yet fairly closely maps onto precisely those groups who are subject to a thing-​like right to persons (women, children, and servant members of the guild workshop, household, and farm) (MM 6:314–​15). But again, in a social context in which economic factors were everywhere relevant to questions of jurisdiction—​even in the state courts—​and in which patrimonial courts were both judicial and, as we might say, disciplinary in the context of a cooperative productive enterprise, the confirmation of this aspect of the social structure is not especially surprising. The only limitation Kant adds here is the rejection of the hereditary nature of such passivity (i.e., the rejection of serfdom and similar arrangements). Kant has similarly narrow concerns about the nobility and their manorial estates: he objects not to the kind of authority the nobility had over others, but to its lack of correlation to utility and merit given a hereditary nobility; he objects not to the existence of intermediate rulers (Befehlshaber) but to the existence of born rulers (MM 6:324 and 6:329; see also his defense of the meritocracy in TP 8:292–​94). So long as the being-​at-​the-​disposal of the master is not reduced to serfdom (i.e., to an interminable duration and hereditary basis) or to slavery (complete ownership of the person qua thing, not just a thing-​like right to a person [MM 6:330]), it is clear

50  The Politics of German Idealism that Kant doesn’t see anything in this relation of private judicial authority that is incompatible with a just constitution. In fact, this thing-​like right to a person is the complementary mirror image of the sovereign’s person-​like right to a thing, that is, the sovereign’s proprietorship of the nation’s land in the form of the right to command the persons on it (MM 6:323–​24). Let me conclude this section with a brief indication of some of the broader consequences of this understanding of provisionality for Kant’s understanding of normativity. First, it helps us understand the primary contribution Kant is making to our understanding of the normativity of private law to lie precisely in his account of provisionality. As just noted, to the extent that Kant’s provisionality thesis is anticipatory, it anticipates a state that was never created. Provisional rights are to be clarified into conclusive or peremptory rights in the civil condition to be established, but that was never, in fact, established. Of course, one could simply extend the period of expectation, but I think the last two centuries have given us fairly definitive proof that the kingdom of just property is not at hand. And, as recent authors such as Christopher McMahon and Elizabeth Anderson have pointed out, we live in a society in which political authority is much more widely distributed than we normally think, and so the distance between our own political reality and Vormärz Germany is also not as great as it might seem.40 Neither of these points is reasons to reject Kant’s conception of private law, but they are reasons to take the interminable nature of its provisionality quite seriously.41 This recognition would motivate us to see Kant’s great value as a legal theorist precisely in his development of the concept of provisionality and in his attempts to grapple with it. With this doctrine, Kant articulates the co-​presence of the particular investments of the past, the universal demands of the future, and the individual plans of the present. This doctrine is far more important for our current political purposes than any specific justification or conception of property or contract rights, or even the structure of the state. Second, taking provisionality seriously has consequences beyond private right for understanding political normativity more generally in Kant. As we have already seen, part of taking provisionality seriously is taking the problematic nature of the Juridical Postulate of Practical Reason (JPPR) seriously. And once one sees the JPPR as a problem to be solved, one might extend this revisionary analysis to the Universal Principle of Right (UPR) itself, which is the highest-​order principle in Kant’s Doctrine of Right. Why think that there is a single solution to the equation that is the UPR? Why think that there are not different possible

40 McMahon, Public Capitalism; and Anderson, Private Government. 41 For more extensive statements of such interminability, see Ellis 2005, 122, and Messina, “Kant’s Provisionality Thesis,” 440–​41.

Kant and the Provisionality of Right  51 ways of presenting reciprocal and equal coercion (MM 6:233)? One might think that the usual debate that animates discussions of Kant’s theory of property presupposes that there is only one conception of property that could satisfy UPR. Kant gives the analogy of finding a right angle, but this is just an analogy. As a market can have multiple equilibria and an equation can have multiple solutions, it might be the case that multiple political regimes could satisfy UPR. On the one hand, this admittedly makes it difficult to make out in what sense the choices of each are consistent with each other according to universal law, and makes it look as if the UPR is unsatisfiable. But the universal law according to which the UPR is structured is a placeholder for a yet-​to-​be-​found law of external right. It is possible that there are multiple laws for such coercion that can be made universal, but none of them is necessary in the sense of being the only way such coercion is consistent with everyone else’s freedom. Crucially, this universal law itself is never specified by Kant (and is sometime put as ‘under universal laws’ or ‘a universal law’). This makes his political philosophy not a political theory but rather a meta-​theory. One should then see the secondary literature quite differently and view scholars such as Ripstein, Hasan, Varden, and the libertarians as providing less readings of Kant’s own political theory and rather more different political theories that each take the general form Kant set out. Third, this conception of provisionality as our permanent condition rather than a brief transitional phase to be traversed and exited has the effect of drawing Kantian political normativity and moral normativity much closer together. There is still so much work to be done to make good on the commitment to move toward the civil condition, that is, to make our actual condition more civil. As Kant puts it in Perpetual Peace: A moral politician will make it his principle that, once defects that could not have been prevented are found within the constitution of a state or in the relation of states, it is a duty . . . to be concerned about how they can be improved as soon as possible and brought into conformity with natural right, which stands before us as a model in the idea of reason. . . . [I]‌t would indeed be absurd to require that those defects be altered at once and violently; but it can be required of the one in power that he at least take to heart the maxim that such an alternation is necessary, in order to keep constantly approaching the end (of the best constitution in accordance with laws of right). (TPP 8:372)

Kant was very much alive to questions regarding the pace and extent of change toward the civil condition, and these points of guidance with respect to judgment thus become lasting contributions of Kant’s theory of political normativity.

52  The Politics of German Idealism

2.5  Kantian Provisionality and Kant’s Philosophy of History In this final section, I want to connect Kant’s account of provisionality with his better-​known works in the philosophy of history. Conceptually, this involves connecting his synchronic grasp of historicity in the provisionality doctrine with this diachronic grasp of historicity as a progressive development toward cosmopolitanism. The basic theme was announced already in the introduction to this chapter: Kant’s doctrine of provisionality gives us a snapshot of the initial pulling apart of state and society, a picture in which the further split within society between corporate and civil society is not yet explicitly registered. It gives us a synchronic presentation of the historical present in which the diachronic change (the splitting of state and society) is taking place, and an attempt to understand the significance of that progressive splitting for the nature of law at the time. As we then saw in our further exploration of Kant’s provisionality doctrine, there is even a sort of incipient recognition of the way that civil and corporate society were going to diverge, at least in the recognition that civil society would be the sort of society created by the new state, whereas corporate society owed both its origin and the content of its norms to particular historical factors independent of the state. In this section I aim to fill out and substantiate this basic claim that the provisionality of private law (including private jurisdiction) provides a synchronic snapshot of a historical present in the midst of precisely the sort of diachronic change Kant traced in his works on the philosophy of history. Because Kant’s works in the philosophy of history are largely sketches and even “conjectures,” we have from him neither the sort of description of historical periods that Hegel provided in great detail nor the theoretical account of the stages of decay and flourishing provided most clearly by Fichte. But Kant does provide a concise account of the necessary, purposive, and progressive development of history in his Idea for a Universal History with a Cosmopolitan Purpose (IUH). Thus, the best way to bring out the relation between the synchronic and the diachronic in Kant will be to trace the connection between the synchronic picture painted thus far in this chapter and Kant’s theses about diachronic progress in the IUH. Kant begins the IUH with two different complaints that are meant to motivate the need for the theoretical approach that he offers, and both are essentially connected to the corporate society from which the state and civil society are separating. The first complaint is about the apparently unprincipled inconsistency of human actions, and the second is about their pettiness: “We can scarcely help feeling a certain distaste on observing their activities as enacted in the great world-​drama, for we find that, despite the apparent of wisdom of individual actions here and there, everything as a whole is made up of folly and

Kant and the Provisionality of Right  53 childish vanity, and often of childish malice and destructiveness. The result is that we do not know what sort of opinion we should form of our species, which is so proud of its supposed superiority” (IUH 8:17–​18). The repetition of ‘childish [kindisch]’ naturally reminds us of Kant’s claim from the same year (1784) that Enlightenment is to be defined as “man’s emergence from his self-​incurred immaturity [Unmündigkeit],” which immaturity is due to the “laziness and cowardice” of the bulk of the population (WIE 8:35). In these complaints he offers us a picture of society that tracks the relations of private jurisdiction we saw in the previous chapter. The vast majority of the population is condemned by their own weaknesses to a kind of perpetual childhood, in the way that adult servants are assimilated to the same status as children who never develop the self-​sufficiency to leave the home. This population’s inability to rise to the level of general principles and firm plans motivates Kant to conceive of history instead as the history of the species rather than of individuals in the IUH, just as it motivates him to place all of his hopes in the public reason of scholars rather than the private reason of officeholders in WIE (8:37). But just as private jurisdiction and private law are taken up into public jurisdiction and public law in Kant’s Doctrine of Right, public reason can never supplant private reason but rather has the latter as its content, if only indirectly. (This is also the point of the relation of philosophy to law, medicine, and theology in Kant’s Conflict of the Faculties.) This historical story is a story of the long-​term, but positive influence of the public on the private, which is registered synchronically by the ambivalent normative connection between provisional and conclusive right. The same effect that is diachronically presented as an improvement of the private is presented synchronically as the anticipation of the public. The same influence that is diachronically presented as the indirectness of that improvement is presented synchronically as the imperative not to make any claims as a matter of provisional law that are incompatible with or would prevent the coming about of the civil condition in which right will be made conclusive. These complaints about inconsistency and pettiness then motivate Kant’s first two theses on how to write a diachronic history: that all human natural capacities are destined for full and appropriate development—​but only in the species, not the individual. In strict analogy to Kant’s doctrine of the provisionality of private right, he holds that all intermediate stages of development of our capacities only have their significance in anticipation of the stage of full development: “[T]‌he point of time at which this [full and final] degree of development is reached must be the goal of man’s aspirations (at least as an idea in his mind), or else his natural capacities would necessarily appear by and large to be purposeless and wasted. In the latter case, all practical principles would have to be abandoned” (IUH 8:19). Without orientation to that full development, we wouldn’t even have norms for judging the exercises of our capacities at the intermediate stages; but when we are

54  The Politics of German Idealism so oriented, those intermediate exercises do have such norms, even though they are norms that would really govern a different stage of development. The third thesis then begins to shed light on what sorts of norms we mean here, and Kant is clear that these are norms relating to our own activity, rather than to the way that we respond to the natural world: Nature has willed that man should produce entirely by his own initiative everything which goes beyond the mechanical ordering of his animal existence, and that he should not partake of any other happiness or perfection than that which he has procured for himself and without instinct and by his own reason (IUH 8:19).

The point of historical development is the full exercise of human capacities rather than an increasing ability to meet basic human needs. The exercise of those capacities is not aimed at those needs, but rather at social recognition and respect: It seems as if nature had intended that man, once he had finally worked his way up from the uttermost barbarism to the highest degree of skill, to inner perfection in his matter of thought and thence (as far as is possible on earth) to happiness, should be able to take for himself the entire credit for doing so and have only himself to thank for it. It seems that nature has worked more with a view to man’s rational self-​esteem [Selbstschätzung] than to his mere well-​being (IUH 8:20).

We will see more on this point in the following chapter, but Kant’s view here is very much the view of the new civil society, which aimed at recognition of skills, knowledge, and abilities rather than at the satisfaction of the need for food or shelter. At the time of Kant’s writing, the meaning of the term Bürgher still retained its sense of good standing in a community, and had not yet shifted to the predominantly economic sense that we now associate with terms like the German ‘bürgerlich’ or the French bourgeois. Kant has associated with historical development a transition out of a mode of life primarily aimed at the satisfaction of natural needs to one that is aimed at a recognition of one’s status as a free chooser. This recognition of the novelty of civil (as opposed to corporate) society has its limits, however. Specifically, none of the economic institutions that came throughout the 19th century to structure such recognition plays any role in Kant’s account. He has no institutional grasp of what we now know as civil society—​bürgerliche Gesellschaft—​even though he has started to see how its relational structure is different from that of corporate society. He does see, however, that historical progress involves shifting from evaluating actions in terms of the

Kant and the Provisionality of Right  55 satisfaction of needs to evaluating actions in terms of the bürgerliche virtues of developing one’s talents and providing for oneself. The fourth thesis is the one most obviously related to the changing nature of society: The means which nature employs to bring about the development of innate capacities is that of antagonism within society, in so far as this antagonism becomes in the long run the cause of a law-​governed social order. By antagonism, I mean in this context the unsocial sociability of men, that is, their tendency to come together in society, coupled, however, with a continual resistance which constantly threatens to break this society up. (IUH 8:20)

It perhaps goes without saying that no one in the late feudal world of corporate society would have held that antagonism was what produced the desirable social order. This view that such antagonism is necessary derives, of course, from Rousseau. But the thought that this antagonism is ultimately a positive force, and produces a law-​governed social order independently of the specific motivations of the competitive agents, naturally reminds us more of Adam Smith and the other prophets of the new civil society. Of crucial importance for our theme is again the indirect and even unpredictable relation between the specific forms of that antagonism and the state-​governed civil society that it produces. Our actual competition proceeds in a context that is not yet the conclusively demarcated civil society to be created, but also no longer the fixed context of the traditional privileges of corporate society. It proceeds in an essentially provisional context, and our action within that context is justified by our anticipation of conclusively determined civil society. But what we do now does not take that civil society as a goal—​that future society and the state that will produce it as a response to our competition in the provisional present are to arise behind the back of our specific actions. That production is a matter of the hidden natural purpose of history, not the content of an intention of any individual agent. The synchronic version of this is the provisionality doctrine’s attribution of a medium-​grade normative validity to rights claims that anticipate the civil condition without being modeled on them. Kant nowhere says that private right in the state of nature is provisional only insofar as it patterns itself on the conclusive form of private right in civil society. Provisional claims cannot do that, since they cannot yet know the solution to the problem of producing that conclusive form. Provisional claims need only be indirectly compatible with it, that is, not outright inconsistent with a reasonable range of such solutions. We see echoes of this point also in the Enlightenment essay, in Kant’s insistence that no current state of knowledge may be frozen and made immune from criticism, simply because that is incompatible with our destiny to progress (8:38–​40). We are not yet in a position in which people can be

56  The Politics of German Idealism trusted to think for themselves “without outside guidance,” so that tutelage must continue in the same way that private jurisdiction over passive citizens must continue. In both cases, these not fully rightful or mature relationships are permanent, and yet have validity only as stages in anticipation of the future ideal; never a conclusively enlightened age, but always a provisional age of (the process of) enlightenment. (In the Conflict, Kant refers to this rightful state as a “Platonic ideal” [CF 7:91].) Kant specifically invokes ‘civil society [bürgerliche Gesellschaft]’ in the fifth thesis, where its attainment is ranked as the greatest problem for the species. But what is most important for our purposes is the way that this civil society is related to the state that specifies its limit and structure: This purpose [of the full development of our capacities] can be fulfilled only in a society which has not only the greatest freedom, and therefore a continual antagonism among its members, but also the most precise specification and preservation of the limits of this freedom in order that it can co-​exist with the freedom of others (IUH 8:22).

The state both specifies those limits through published laws and enforces them through coercion. Sometimes Kant writes as if only in this established civil society will competition have the result that our capacities are developed; but his fuller view is that such competition brings about the civil society in which the beneficial effects of that competition are magnified. The mechanism for this is easy to see in the case of simple private legal claims, for example, to objects. Both our attempts to definitively acquire objects and to protect them against theft naturally lead us to formulate clearer and more public principles of property right, and even to support legal fora for the adjudication of disputes; this is just Locke’s story. But as we have seen in the previous sections of this chapter, Kant has a deeper story to tell, and along two dimensions. On one dimension, his claim is that we are always already exceeding the strict validity of our property rights claims when we assert them in the social state of nature—​those claims have what validity they do have by appeal to a state-​created civil society that is yet to come. On another dimension, his claim is that we already have a variety of legal fora for the adjudication of these disputes, and that some of those fora (private jurisdictions) are local in a way that a single system of state courts will never replace. These additional synchronic dimensions of provisionality bridge some of the gap between the two diachronic stories—​the one in which only competition in civil society develops our capacities, and the other in which our competition with each other produces the state that creates that society in the first place. For even in the social state of nature—​that is, in corporate society—​we are always evaluating actions by reference to types of legal authority that will be codified

Kant and the Provisionality of Right  57 in the state, so that even our competition in the state of nature is already loaded normatively by the weight of the state coercion that will first make the claims that we advance in our competition conclusive. The sixth thesis is the one most obviously related to the theme of provisionality, since it is there that he argues that the conclusive determination of the boundaries of right is a threshold that we will never cross. In his famous phrasing, civil society is “the most difficult of all tasks, and a perfect solution is impossible. Nothing straight can be constructed from such warped wood as that which man is made of. Nature only requires of us that we should approximate to this idea” (IUH 8:23). It is impossible to solve conclusively because every public authority is also a private authority, or, as Kant puts it in the IUH, every master of man is himself a man in need of a master. There is no person or group of persons who can meet the conditions for public authority that Kant himself has laid out as the prerequisite of conclusive right—​we are therefore condemned to perpetual provisionality. This consequence of the diachronic account in IUH is only strengthened by the seventh thesis, which argues that the domestic problem of a civil society must itself await the solution to the international problem of establishing a law-​governed perpetual peace. A further thing to note here concerns the notion of approximation. It is easy to think of this as progressively getting closer, and no doubt this is primary in Kant’s mind. But 1.1 is approximately 1 to precisely the same degree that 0.9 is, and that is only to use an example with one dimension. There is no reason to think that there cannot be multiple approximations of the ideal that are, as it were, equally approximate. This might be true diachronically, but it is particularly evident synchronically. Kant has already defended a quite different approximation to this ideal in the notion of private jurisdiction; in the following chapter we will see Hegel’s exploration of different approximations, and Fichte’s version in Chapter . It is beyond the scope of Kant’s sociological imagination to grasp how the synchronic variety of approximation might be related to a diachronic progression, but we will see versions of this in both Hegel and Fichte. That will also allow us to take up the three figures together and to see how their own synchronic variety of approximation to a shared ideal is related to the diachronic progression of history. The eighth and ninth theses are largely abstract and programmatic. Together they assert that there is such a “hidden plan of nature” to produce the civil condition, and that writing a history of the world that reveals the future goal can itself further the purposes of that plan. This is a paradigmatic example of the Enlightenment conception of history—​a history whose writing serves the purpose of history, and a history determined by the future rather than the past. Kant puts the same point even more baldly in the Conflict of the Faculties; “We can obtain a prophetic historical narrative of things to come by depicting those events whose a priori possibility suggests that they will in fact happen” (CF

58  The Politics of German Idealism 7:79). Of the present pieces of evidence for this plan, the most important that Kant adduces is the fact that “civil freedom can no longer be so easily infringed without disadvantage to all trades and industries, and especially to commerce, in the event of which the state’s power in its external relations will also decline” (IUH 8:27–​28). That is, the newly developing civil society is one in which the external power of the state that regulates it is itself improved by a regime of regulation that maximizes freedom. But as we saw earlier in this chapter, there is no single answer to the maximization problem, just as there is no single dimension of approximation to the ideal. In this respect Kant’s progressive diachronic philosophy of history is a direct extrapolation of the historical present that he grasped synchronically by means of his provisionality doctrine. The provisionality doctrine is the essential connection between Kant’s theory of law and his philosophy of history. Its effects are profound in Kant, but that is only the start. His successors Fichte and Hegel take up the same basic ideas and connections and develop them. In the following chapter, we will see Hegel’s deep dive into the varieties of legal standing that are implied by the plurality of legal jurisdictions that the ALR and Kant endorse.

3

Hegel and the Plurality of Legal Standing Aus dem Hauptgrundsatze, daß die natürliche Freiheit nicht weiter beschränkt werden müsse, als es die Notwendigkeit erfordert, folgt schon die möglichste Herstellung des freien Gebrauchs der Kräfte der Staatsbürger aller Klassen. From the overriding principle that natural freedom must not be constrained more than necessity requires, immediately follows the greatest possible production of the free use of the powers of citizens of all classes. —​Karl August, Fürst von Hardenberg, 1807

In the previous chapter, we saw our first key to the synchronic historicism of the German Idealists in Kant’s doctrine of the provisionality of private law.1 In this chapter, we explore a second key, which is found in Hegel’s account of the coexistence of different forms of legal responsibility in the Sattelzeit. This key is historicist in two senses. First, the different forms of responsibility and their characteristic successes and failures are related to epochal shifts in the evaluation of action. And second, this account of the coexistence of different forms of responsibility is related to the great German legal reforms of the late 18th and early 19th centuries, including the paradigmatic Prussian Allgemeines Landrecht (ALR) (to which we have already seen Kant responding). In the first section I begin with some background on the legal reforms before turning to Hegel’s theory of accountability in the following section (in which I explore the first sense in which Hegel’s account is historicist). Then, in the third section, I put the two together to show how Hegel’s theory responds to features of the ALR and its continuing reform efforts (and thus explore the second sense in which Hegel’s account is historicist).

1 An earlier version of some material in this chapter appeared in Yeomans, “Hegel’s Pluralism as a Comedy of Action,” and Yeomans, “Hegels Handlungslehre und das Preußische Allgemeine Landrecht.” The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/​oso/​9780197667309.003.0003

60  The Politics of German Idealism

3.1  The ALR Project in the Context of Sattelzeit Reforms The ALR project, including the promulgation of the ALR itself in 1794, was one of the great Enlightenment reforms in the German states. Promoted by Frederick the Great of Prussia, and led by Carl Gottlieb Svarez, it included both an earlier period of public comment on a draft called the Allgemeines Gesetzbuch (AGB) and efforts subsequent to the ALR’s promulgation to implement the social model implied in it under the circumstances of the defeat of Prussia by France. Well-​known comparable reforms in other parts of Germany included the Bavarian codification of civil and criminal law, and the Austrian Allgemeines bürgerliches Gesetzbuch, as well as administrative reforms in the Rheinbund.2 These efforts were underway already in the 18th century but were then accelerated and modulated due to the differential impact of the French invasions and occupations of various parts of Germany. More generally, these legal reforms are both cause and reaction to the double split between state, civil society, and corporate society; they thus tried in various ways and to various degrees both to secure that split and to mitigate its tendency to tear the social fabric entirely apart. These reforms, and the ALR in particular, dealt with the provisionality of law in the way we saw in the previous chapter: they took up different kinds of law—​from customary rights and observances to provincial ordinances and central decrees—​and attempted to regularize and systematize those kinds under common principles. Such systemization was intended to clarify which laws were binding on whom and when, and to which authorities one might appeal for enforcement or adjudication of which kind of law. The ALR is paradigmatic in this regard since it is quite clearly not an attempt to generate a set of legal rights ex nihilo, but rather an attempt to order and secure a haphazard patchwork of existent rights. In fact, this was the source of a standard criticism of the law since its initial promulgation, according to which it did something like pour old wine into new wineskins by giving the modern form of law to a content of premodern laws suffused with corporate privilege and particularism. But whatever the force of that criticism—​and that force depends primarily on what one thinks the real historical options were at the time—​we have already seen the conceptual form of the problem in Kant’s notion that the state exists primarily to make provisional laws conclusive. In this chapter we address one of the most peculiar and difficult issues in the process of making provisional rights more conclusive—​one distinctive of the Sattelzeit and essential to understanding German Idealist theories of law, and yet with a familiar ring to it for us today. The issue is that these legal reforms connect 2 For an extended comparison of Prussian and Rheinbund reform efforts, see Botzenhart, Reform, Restauration, Krise, 46–​75.

Hegel and the Plurality of Legal Standing  61 rights with general social structures in a particular way: those reforms are governmental efforts to make merely negative modern freedoms (such as property) into positive freedoms that could actually be enjoyed by the majority of the population (such as the real ability to own sufficient resources to support oneself and one’s family). Already Kant had explicitly thematized this connection, most clearly in the Ideas for a Universal History but also in the Rechtslehre. There we find the linked claims that in the rightful condition the free choice (Willkür) of each with the other “can exist together [zusammen bestehen kann]” and “can be united together [zusammen vereinigt werden kann]” (6:230; my emphasis). It is one thing to demonstrate coexistence, that is, the way that negative rights can be understood not to interfere with each other. But creating a structure in which they can be united is another matter, which requires a particular vision of how they can come to support each other in the right way. In promoting the “free use of the powers of citizens of all classes,” the ALR project pursued a long-​standing goal of the Cameralist school of public administration in Germany, and attempts to realize it only accelerated in the time between Kant’s Rechtslehre (1797) and Hegel’s Grundlinien (1821). But the attempt to manage such promotion by the seemingly simple project of legal codification bequeathed a dilemma that Reinhart Koselleck presents starkly: Behind the bold thesis, to want to build up the free use of the powers of all citizens, there lay a difficult task which grew into the dilemma of the Vormärz period. This was the dilemma of how much freedom of persons could be presupposed, when one wanted to educate them to freedom [wieviel Freiheit der Menschen vorausgesetzt werden könne, wenn man sie zur Freiheit erziehen will]. . . . Both tasks—​the education toward the freedom of citizens, and the compensation with which this liberation had to be paid, stood in a partially reciprocal exclusive relationship.3

Here’s the rub: in order to turn negative into positive freedom as Hardenberg suggests, rights had to be treated in a way that made the legal foundation of action less secure. In particular, exceptionless negative rights had to be treated as fungible positive rights, which were thus situated in a negotiable realm of advantages and disadvantages: that negotiable realm as measured differently by governmental planning goals, expectations of the new civil society, and prerogatives of the old corporate society. And yet the legal context of negotiation seemed to presuppose the independence of agents, which independence precisely those negative rights were supposed to secure. We have already seen the general notion of this uncertainty expressed in Kant’s doctrine of the provisionality of private right,

3 Koselleck, Preußen zwischen Reform und Revolution, 159.

62  The Politics of German Idealism where the provisional objects are essentially norms and claims. In this chapter we will see this provisional approach extended to forms of legal responsibility itself. We will see the way in which Hegel’s distinction between three forms of responsibility and his attempt to tie those three forms of responsibility together are attempts to lay the groundwork for the solution to this practical problem of government. That is, they are attempts to describe in greater sociological detail the characteristic disagreements over provisional rights and the most promising modifications of those provisional rights to minimize such disagreement. Put another way, they are ways of cashing out socially Kant’s own dynamic metaphor of the omnilateral will as a balance of forces. Admittedly, Hegel himself did not write much that directly concerns the ALR, at least that was published or otherwise survived. In his biography, Rosenkranz reproduces a few relevant handwritten remarks and reports that Hegel was “very interested” in the ALR.4 In the PR, Hegel writes that Those rulers who have given their peoples a collection of laws—​if only a formless collection like that of Justinian, or better still, a law of the land [Landrecht] embodied in an orderly and specific legal code—​were not only the greatest benefactors of their peoples, who duly praised and thanked them; what they did was at the same time a great act of justice. (PR §215R)

Such enactment of law via promulgation is an act of justice because it articulates the concrete legal status of citizens, that is, because it is itself an act of recognition, by which the human being is confirmed as a self-​determining agent. But Hegel emphasizes in the very next section that there is a tension between the general (allgemeine) law of the land and its particular content; the attempt to manage this tension was a central goal of the reform of the ALR during the Sattelzeit period. In Part III of this work we will take up this tension more generally in the distinction between universal law (Gesetz) and particular regulations (Verordnungen), but in this chapter I want to suggest that this tension goes much deeper, and that Hegel used his theory of action to work through and reflect on this tension. I certainly do not mean by this that the details of Hegel’s theory of action map onto structural details of the ALR.5 But the action-​theoretical background of this tension is the emergence of the responsible person as agent in the Sattelzeit, which is as much a governmental project as a philosophical problem. The ALR was a part of this project but thus also a part of its tension. One can see the project most clearly in Title 3 of Part I of the ALR, which has the title “Of actions and

4 Rosenkranz, Georg Wilhelm Friedrich Hegels Leben, 85–​86. 5 For an attempt at such a mapping, see Hočevar, “Hegel und das Allgemeine Landrecht für die Preussischen Staaten von 1794.”

Hegel and the Plurality of Legal Standing  63 the rights that arise out of them [Von Handlungen und den daraus entsehenden Rechten].” The initial sections of Title 3 then claim first that the actions that give rise to rights must be free (§1) and that thus there is no obligation with respect to the law where there is no ability to act freely (§3). One way that tension between the general and the particular comes out in the ALR is that it grasped the members of the various estates (Stände) on the one hand as equal agents before the law, but on the other hand assigned them to different legal venues with different rules and thus different ways of holding them responsible. I want to suggest that the seemingly unnecessary pluralism of Hegel’s theory of action is an abstract reflection of this tension. In particular, Hegel sees that this tension corresponds to the need both to require and to promote three different kinds of normative competence at once. (By ‘normative competence’ I simply mean the capacity to be responsive to normative demands in the widest sense of those terms.) In the next section, I present the pluralism of Hegel’s theory of action in a way that helps to orient it toward these legal questions. Then, in Section 3.3 I take up each of Hegel’s forms of responsibility and connect it with the relevant piece of background from the ALR.

3.2  Plurality of Forms of Action as a Plurality of Forms of Responsibility Buried in the middle of the Introduction to Hegel’s Philosophy of Right are correlated lists of three different kinds of subjectivity and three different kinds of objectivity that Hegel takes to be relevant for understanding the basic project of willing. That latter project is the attempt to make subjectivity objective in such a way that the former can remain at home and recognizable in the latter, that is, in such a way that the will can be free (PR §§25–​27). Each of these three correlations then characterizes a different aspect of that attempt, or defines a different constituent project of self-​determination. Free action qua successful self-​determination in general requires (at least partial) success at each of these constituent projects in particular. The first correlation is between subjectivity as self-​awareness and objectivity as the vocation and concept of the will. As a constituent project of self-​ determination this is self-​appropriation—​we belong to ourselves in virtue of knowing our actions to be fitting for a being of a certain type and that means by doing those types of things. Self-​appropriation involves taking ownership of ourselves, affirming ourselves, and overcoming alienation. In Hegel’s conceptual terms, this is the universal drive of the will: our self-​knowledge is mediated by general types and we thus take possession of ourselves as someone of a certain

64  The Politics of German Idealism type. These types range from the very general (e.g., rational planner) to the very specific (e.g., social roles: mother, debtor, renter, opera lover, hockey fan). But whatever its level of generality, a type sets out a certain space of possibilities that is brought into the process of self-​appropriation. That is, we take ownership of ourselves against a background of contrasts that enable and constrain the ways in which we can evaluate, justify, and explain our own actions as actions of such a type of person. The second correlation is between free choice (Willkür) and desire as forms of subjectivity, and objectivity as immersion in the particular features of one’s experience. As a constituent project of self-​determination this is specification of content—​we need to distinguish the signal from the noise of our lives. The most basic way that we do this is by pursuing and enjoying the objects of our desires in the face of obstacles to such satisfaction. In life this must be done at a relatively fine-​grained level, and so it is not surprising that in Hegel’s conceptual terms this is the particular drive of the will and is thus associated with a continuum of often minute or idiosyncratic differences in taste, habits, resources, etc. Because of the need for such varying resources and the deep and often unconscious formation of such desires and habits, the objective target of such particular choices are actualities, modally speaking. The third correlation is between subjective, unaccomplished ends and objective, accomplished ends. As a constituent project of self-​determination this is effectiveness—​the need to see oneself as an agent rather than a patient, to see the world as embodying one of my purposes precisely because I have made it so. In Hegel’s conceptual terms this is the individual drive of the will, and is associated with strategies for taking the measure of that continuum of particular desires and histories by reference to the general or universal character of willing beings. That is, effectiveness requires planning and planning requires a grip on the essential features of situations. It is the individual project both in the intuitive sense that here the agent makes her mark on the world and stands out in contrast to other agents, and in the technical Hegelian logical sense that it involves the relation of universality and particularity. The connection between means and ends and all of the causal processes involved generate both real forces and real constraints—​ this is necessity.6 In sum, the basic picture arising from these sections in the Philosophy of Right is that in willing we are trying simultaneously to take possession of ourselves, to

6 This picture is an Idea (in Hegel’s technical sense of that term) because it connects a tripartite conception of subjectivity (the universal, particular and individual projects) with a tripartite conception of objectivity (the possibilities, actualities, and necessities). The modalities give you the objective structure, and the logical axes give you both subjectivity and the relation between subjectivity and objectivity (that is what makes it an idealist theory of agency, in Hegel’s sense of that term).

Hegel and the Plurality of Legal Standing  65 distinguish between what is central and what is peripheral in the events of our lives, and to make happen what we want to happen in those events. All action is an attempt to do these three things at once, but doing almost any three things at once is very difficult for most human beings. In many areas of our life in which we try to do multiple things at once (e.g., musical performance), there are explicit training strategies designed to separate the requisite skills and train them individually before combining them. But no one has ever been taught first to take possession of themselves, then to distinguish the central from the peripheral, third to translate those central ideas to the world, and finally to put them all together in a complete performance of agency. It takes Hegel until the 1820s even to get clear on a theoretical description of the three skills of agency, and one shudders to think of the sort of practical training plan he might have devised for us. That said, at the same time that he is getting clear on these three skills he seems to discover in the world of lived experience three general strategies for solving this problem implicit in the active lives of his contemporaries. He calls these three different forms of accountability (Zurechnungsfähigkeit), each of which represents a conceptual distillation of common ways of life that are themselves attempts to manage this complexity on the ground, as it were.7 These three forms of Zurechnungsfähigkeit or accountability are forms of agency that respectively emphasize specification, self-​appropriation, and effectiveness. And it will turn out that one of them is an (admittedly heterodox) version of the belief-​desire accounts common in the Anglophone philosophy of action literature, and another a version of a teleological account. We can also note that these three projects also correspond to the three grounds usually offered for caring about free will, namely its status as a prerequisite for moral responsibility (which is the paradigmatic form of self-​appropriation); our desire to be the authors of our own lives (which involves writing ourselves as the specific characters that we are); and our desire to be somebody in the world (who ‘shows up’ as an agent rather than a patient). But rather considering these merely to be three different grounds for caring about the same capacity, Hegel also thinks of these concerns as delineating distinguishable projects within the capacity itself. In the Philosophy of Right, Hegel labels each of the forms of accountability by a different right of subjectivity: the rights of knowledge, intention, and insight into the good. These rights are each semi-​autonomous conditions for the possibility of recognition of individual agents, that is, they are different models for such recognition and thus organize different ways of life. So, for example, an agent 7 Michael Quante translates ‘Zurechnungsfähigkeit’ as ‘sanity’ in the sense of liability to criminal judgment.

66  The Politics of German Idealism exercises the first form of accountability (defined by the right of knowledge) when they legitimately expect to be held responsible for “those aspects of its deed which it knew to be presupposed within its end, and which were present in its purpose” (PR §117). But there is also an aspect of the forms of accountability that is more difficult to grasp: each of the forms is equally a bait-​and-​switch routine in which the agent achieves something slightly different from what they mean to achieve. This bait-​and-​switch is not a contingent feature of some particular interpersonal interactions (like being conned by a salesman) but something essential to agency: we only act at all insofar as we mistake our goal for something that it isn’t quite. Hegel seems to take this to be a conceptual fact about the project of finite willing as such. To take just a mundane example, some of the most experienced do-​it-​yourselfers motivate themselves for a new project on the basis of time and cost projections that they would not beforehand admit to be as unrealistic as they obviously are, and yet afterward would never actually judge their performance on the basis of those initial projections. Hegel’s terminology for this second aspect of action is “the ought [Sollen],” since the standards for what we mean to do and the standards for what we actually do are not precisely the same and thus the latter have the form of an external requirement on the former. It is not just that we miss a given target; rather, we shoot at the target in one guise but hit it in another. It is not that we inevitably fall short of a high moral standard because of our human weakness; rather, we are bound to misunderstand or misperceive the standard we apply to ourselves. In this sense, the subjective rights are equally the conditions of possibility of misrecognition. Understanding Hegel’s philosophy of action thus requires seeing how and in what respect each of the forms of accountability is a relative success and a relative failure at the general project of making subjectivity at home in objectivity. That is, understanding Hegel’s philosophy of action requires understanding it as a philosophy of finitude. The way that such finitude manifests itself that is most directly relevant to the philosophy of law is as a theory of exculpation—​of relieving us of responsibility for certain kinds of mistakes and wrongdoing. Since we are primarily interested in the political valence of action, it is worth noting that Koselleck sees the ought as a distinctive historical phenomenon: The interplay between revolution and reaction, which is supposed to summon a paradisiac final state, is to be understood as a futureless future, since the reproduction and always again necessary supersession of the opposition fixes a bad infinity. In pursuit of this bad infinity, as Hegel said, the consciousness of the agent is stuck to a finite ‘not-​yet,’ which possesses the formal structure of a perennial ought. Since that time it has become possible, to translate fictions such as the thousand-​year Reich or the classless society into historical reality.

Hegel and the Plurality of Legal Standing  67 The fixation of agents on a final state proves to be pretext of a historical process which evades access by its participants.8

We aim at a future that represents itself to us as a goal-​state to be achieved (paradigmatically democracy). But what we actually do is move forward a historical process that we can’t ever quite bring into view. This is most visible in the big historical actions such as laws and revolutions, but Hegel argues that it is also characteristic of the very agency those laws and revolutions are also meant to secure. Here I just want to summarize these forms of agency under one of the most important titles that Hegel gives them, namely kinds of accountability (Zurechnungsfähigkeit). These kinds of accountability and their associated forms of exculpation are three species of one genus because they are three ways of doing the same thing (acting responsibly), which is itself doing three things together: appropriating oneself, specifying the content of one’s will, and making one’s will effective. Each of these is a way of translating subjectivity into objectivity, and all three have to be done in order for something to count as an action that can be attributed to an agent, and that means the same as: in order for the agent to count as self-​determining. Acting is like flying, in which one has to steer in three directions at once (pitch, yaw, and roll). The three kinds of accountability are ways of acting that solve this problem by focusing on one of three tasks. The problem of agency is a really hard problem for agents, and there is only so much one can reasonably expect of them—​this is why the forms of agency have associated forms of exculpation. One of the reasons it is so hard is that there are multiple forms of agency that are not always clearly distinguished, and so often there arise situations in which agents exercising one form of agency are held responsible from the perspective of another form of agency. In a pluralistic society, this is both inevitable and problematic. An agent who is primarily focusing on specifying the content of their will, for example, may be held responsible for something they have done by someone who primarily focuses on the effectiveness of their decisions. There is enough overlap in their collective projects to ensure that they are not merely talking past one another, but enough difference in those projects to make misunderstanding and unreasonable expectations a constant danger. These features of their interaction thus generate certain forms of exculpation that are relevant to legal and moral responsibility. It is worth noting before we dive into the details that the immediate context of Hegel’s most detailed discussion of action is precisely the inevitability of misunderstanding how agents are standing up for their rights in the context of disputes about them. For Hegel introduces Morality in the Philosophy of Right as a way to prevent the generation of cycles of revenge in response to

8 Koselleck, Vergangene Zukunft, 35.

68  The Politics of German Idealism conflicting claims to property rights. The problem with revenge, he thinks, is not its content but its form. That is, it is in principle appropriate for someone to stand up for their rights by retaliating against another who has infringed them, but the personal nature of that retaliation makes it almost impossible for that other agent to accept it as appropriate to what they have done. The personal nature of revenge makes it difficult for the original perpetrator to own it as a fitting experience for them to undergo as the particular free agent that they are, since it is natural to see it as another injury that treats them as a thing rather than their own original action being reflected back upon them as just punishment under principles that they should otherwise endorse as protecting their own rights as well. In terms of the constituent projects of self-​determination, revenge succeeds at specification of content, but fails at self-​appropriation (PR §102). This is important for our purposes only because it means that self-​ appropriation is the main problem of Morality and thus dominates and even deforms specification of content and effectiveness. And this deformation has consequences that are just as much objective as subjective, thus generating the contrast in standards that makes morality a “mere” requirement. It is this deformation and its consequences that ensure the continual renewal of the opposition between subjectivity and objectivity at the same time that it makes possible the renewal of their satisfactory identity. This is the tale Hegel tries to tell in the prefatory sections of Morality (esp. PR §§108–​113), though it must be said that his narrative technique leaves much to be desired. What is crucial though not at all obvious is that these sections represent a modification of the three forms of subjectivity and objectivity from the Introduction. This modification is pursued in order to put those forms into a social register, that is, to describe them in such a way that their interaction is revealed. In following the trace of this interaction, we will focus on the difficulties they impose on agents and thus the way in which they are exculpatory. For each case, I will try to show the distinctive sort of difficulty that arises, and thus the form of exculpation that may appropriately be invoked. In each case, Hegel focuses the discussion by invoking a certain right to be held responsible in a certain way.9 One important potential misunderstanding to avoid: by locating his discussion of responsibility in a section called ‘Morality,’ Hegel does not mean to suggest a fundamental distinction between moral and legal responsibility or to endorse a kind of liberalism that would distinguish sharply between moral and political norms—​that is emphatically not Hegel’s view.

9 For a more general discussion of the transformations of the meaning of responsibility, see Britta Caspers, “Schuld” im Kontext der Handlungslehre Hegels, chap. 2.

Hegel and the Plurality of Legal Standing  69

3.2.1  The Right of Knowledge The “right of knowledge [das Recht des Wissens]” is my right only to acknowledge as mine those characteristics of my external action which correspond to the “representation of the circumstances [der Vorstellung der Umstände]” of my purpose (PR §117). Though we can see all three of the projects in this characterization, specification plays the main role, particularly insofar as it is influenced by effectiveness: “The self-​acting will has, in the ends directed towards the existence before it, a representation of the circumstances of that existence. But because this presupposition makes it finite, the objective appearance is contingent for the will and can contain something else in itself as in the will’s representation” (PR §117). The right of knowledge is the right to see as truly my action only those actual features of its public shape that give form to what I wanted to do (i.e., to my purpose [Vorsatz]). Because this is the form of action dominated by specification of content, it is unsurprisingly also Hegel’s version of a quite common position in modern philosophy that defines accountable action by reference to the (causal) effectiveness of the agent’s beliefs and desires. Hegel attributes to this form of agency a capacity for wholeheartedness that has its affective shape in true enjoyment. In a revealing early manuscript when discussing the way of life of someone embodying this first form of agency (here, a farmer), he claims that it is characteristic of this figure that he “relishes the enjoyment of pleasure [den Genuß des Vergnügens genießt]” in contrast to the craftsman who primarily appreciates the fact that he has made himself what he is and the merchant who is beyond any capacity for enjoyment (Jenaer Realphilosophie [GW VIII, 269]). Here Hegel attempts to provide a conceptually robust defense of the value of basic desire satisfaction as a form of agency. Such satisfaction—​that is, the accurate perception of the change in the objective world in accord with subjective desire, and the belief in the goodness of the conditions in which one finds oneself immersed—​is a mode of being at home with oneself in the other and thus at least minimally solving each of the constituent projects of self-​determination.10 But Hegel emphasizes that difficulties resulting from the potential mismatch between the agent’s representation of the circumstances of action and the actual circumstances make determining responsibility for causal agents more difficult than one might expect. Because the purpose and the circumstances are reciprocally interacting, neither the agent nor others evaluating the agent’s action have a firm point of reference, and so the possibility of misidentification of one or the

10 See also ¶362 of Hegel’s Phenomenology of Spirit (GW 9: 199), where Hegel is clear that all successful action involves some kind of self-​confirmation, even when that success is measured by “the enjoyment of pleasure.”

70  The Politics of German Idealism other is always possible. But a misidentification of this form is not, in itself, a moral failing. If we do wrong because we misunderstand the circumstances of our action, this is exculpatory. For example, Hegel holds children to be innocent (unschuldig) because they don’t understand the natural course of things in the world—​not because they lack self-​control or knowledge of moral principles (PR §120R). Because they don’t understand the natural course of things, they cannot set certain ends. When an agent doesn’t know, for example, that when she puts this match to this piece of wood it will burn down the house, she is not capable of setting the end of burning down the house (see PR §132R).11 For adults, this difficulty has a historical source, which Hegel presents in PR §§111–​13: the very meaning of objectivity, in which the conditions of all actions are situated, has shifted from a perceptual to a social meaning. This shift is, however, neither universally recognized nor sufficiently understood. We will come back to this in the discussion of the historical process of reform below, but here we can just note that there is a fundamental difficulty in knowing whether a particular action is even an appropriate object of moral or legal judgment at all, and, if so, in what sense. Many of the paragraphs of the ALR’s Introduction (particularly §13) deal with this issue, because they concern the ability to respond to normative claims. As we might put it in contemporary terms, they concern the normative competence of knowing whether a particular action is an appropriate object of moral or legal judgment. But despite being a sort of meta-​competence, this distinction is context-​sensitive and the point of this shift in the nature of objectivity is that the context doesn’t remain fixed. Sometimes an agent simply aims at pleasure for a certain action, but discovers later that they have instead achieved a social status. In our own time, actions around eating have come to undergo this shift: one agent simply wants to enjoy the taste of the sausage, but in the minds of others comes to count as a murderer of animals. There is an additional phenomenon of political interest, which is the possibility of the response of the meat-​eater that turns their choice into a social status of a different valence—​whether having to do with manliness or support for one’s local ranching community or the traditional practice of hunting. This evidences a general feature of conservative politics noted by Beiser, in which the attack on something that previously was just done (without the need for justification), acquires a justification by tradition in response to a criticism that pulls it into the space of reasons. On Hegel’s view, the problem involves a confusion concerning the relevant conception of the objectivity of the action, that is, what was actually done in

11 Or, at least: not in this context in which matches and pieces of wood are the circumstances. She may know other ways to burn down the house and in those circumstances be capable of setting that as an end.

Hegel and the Plurality of Legal Standing  71 what world. In his first description of objective content in the Introduction as lacking the form of self-​consciousness, there is no specific reference to sensible externality (PR §26(β)). Indeed, this initial conception of immersion in particular conditions included ethical norms and customs. But under the influence of the importance of self-​appropriation within Morality there is a move to understand those particular conditions as lacking the form of self-​consciousness because they are sensible givens (PR §108). In Kantian terms, the initial confident immersion in the customary pattern of one’s life is now being construed as heteronomy rather than autonomy. This is a hugely important reinterpretation for political philosophy, and both Kant and Fichte tend to redescribe customary social obligations as natural features of the world that thus can have no normative force. In Hegel’s Phenomenology, the same thing happens in the struggle between faith and the Enlightenment: the latter recharacterizes the traditional content and devotional investments of faith as a merely sensible, perceptible externality (PhG ¶576). In the actual practice of agency, this creates the possibility of misrecognition because it generates a need for justification and defense of certain actions where that need was not previously felt. Any agent caught in the midst of such a profound historical shift is bound to be defensive and somewhat flat-​footed in the face of these new expectations. As Hegel understands agents embroiled in this historical mess, a common strategy is to redescribe that immersion as a tradition, and specific expectations as either commands or promises.12 Since this redescription characterizes immersion and expectations retroactively as specific kinds of laws or norms, new laws or norms can then be assimilated under the same rubrics—​they can also be understood as commands or promises. We can then complete our structural story as a conceptual analysis of these common strategies. Of course, some of Hegel’s contemporaries advocated a return to that earlier form of objectivity as immersion, that is, a return to a Romantic conception of premodern community. But Hegel is nothing if not a post-​Kantian in this respect, so rather than argue for a return to the value of immersion, a second move is made to replace those sensible givens with the viewpoints of other self-​conscious persons (PR §§112–​13). He thus moves to thinking of the objectivity corresponding to the subjectivity of the agent’s subjective will as the wills of others. On the one hand, this move suggests a new other in which I can find myself at home, namely in the opinions and attitudes of fellow members of my society. On the other hand, this external subjectivity both highlights and challenges my own subjective particularity, because the opinions and desires of others are not necessarily my own. To summarize, the basic form of misrecognition that attaches to the first form is the incompatibility of the mediation by others’ wills required for recognition

12 Yeomans, Expansion of Autonomy, chap. 5.

72  The Politics of German Idealism with the kind of enjoyment and immersion at which such purposes aim; or, at any rate, the incompatibility of mediation and immersion under the conditions of modernity, in which the forms of such mediation are neither stable nor uncontroversial. This is a theme that has been picked up particularly by French authors from René Girard to Michel Houellebecq. Houellebecq’s novels trace the continual reduction of our motivating interests to sexual desires, in combination with our increasing inability to take joy or satisfaction in sex in the absence of mimetic, mediating structures to enable such satisfaction. In Slavoj Žižek’s Lacanian reading of Hegel, this is the big Other and the way that its unreliability can render even viscerally experienced events meaningless, much the way that the villagers of Macondo in Gabriel García Márquez’s One Hundred Years of Solitude simply cease to believe that the massacre of thousands protesting the banana plantation ever took place when it is omitted from the official accounts and textbooks, despite having witnessed it themselves.13 Hegel’s framing of this misrecognition is in an essentially Rousseauian register. On this view, we are always shifting between two notions of objectivity as it relates to action: the physical, perceptible world and the public world of social evaluation. In Rousseau this has a fundamentally sexual form: as we leave the state of nature we move from occasional pleasure in the act itself (which preserves our natural freedom) to constant competition for sexual partners within the social hierarchy. But the general form is that once we join society the relevant objectivity becomes the opinions of others rather than perceptible nature. Given the basic modern philosophical project since Descartes, it seems as though we should be at home there—​what could be better than to find objectivity in subjectivity itself?—​however, we never are completely at home because it is not my subjectivity but rather a general subjectivity that asserts its pure and universal nature as grounding its right to judge me. (In Hegel’s Phenomenology, he calls this the “spiritual animal kingdom” because of the kind of vanity and hypocrisy that public judgment of others’ works invites.) Notice that this is an issue often taken up in political philosophy, but Hegel builds it into his philosophy of action—​not as an issue of the state of nature or even sexuality specifically—​but rather as an issue of the logic of action. If he does so, however, he does so under the condition that action is social action, and social action requires some way to avoid not just the spiritual animal kingdom but also the cycles of revenge that Locke saw as endemic to the state of nature. That is, it requires some way to justify the kind of self-​constraint that mutual recognition requires, and this requires the ability of the judged to see the judgment not primarily as that of a mob over against her but as expressing a truth with which she can identify. The question here is whether those pursuing

13 Žižek, Less Than Nothing.

Hegel and the Plurality of Legal Standing  73 enjoyment through the satisfaction of desires can ever be respected for this form of agency, or whether they are bound to be seen by those aiming at different kinds of goals as irredeemably strange and even primitive, and thus whether they are bound to see those judging them from the perspective of other forms of action as enemies or strangers rather than fellow citizens.

3.2.2  The Right of Intention The right of intention structures a form of action dominated by self-​ appropriation. Its key notion is goal-​directedness, such that my action consists of those features of its public shape that reflect my planning and end-​setting. Here the agent aims not so much at enjoyment as at public acknowledgment of success, that is, not so much at an object as at recognition itself. This is Hegel’s version of a teleological view of agency, and already one can see the striking pluralism of Hegel’s general theory. Instead of arguing for or against causal or teleological/​interpretive theories, he argues that some of his contemporaries lived lives of causal action and some of goal-​directed action. Historically, here we pass on from the earlier perspective of corporate society in the Right of Knowledge to the civil-​social perspective that is less rooted in particular communities. Jerrold Seigel offers a good characterization of what is centrally at stake in this shift: Simmel described one effect of living inside what he called “long chains of purposive action” as an “intellectualization of the will,” a more mediated and abstract style of conceiving of the relations between means and ends than is fostered by an orientation to immediate circumstances, relations, and satisfactions. . . . Although such people retain many important ties to persons and things physically close to them (families, neighbors, lands, towns), their lives do not unfold wholly inside the kinds of communities where all or most significant relations—​economic, social, political familial—​take place within a bounded and mutually known population.14

This is only the first step of abstraction away from the immersion in local community, in Hegel’s account, but he pauses to consider the unique difficulties that it presents to agents. If the exculpatory difficulty of the Right of Knowledge arises out of the shift in the nature of objectivity from a perceptual to a social status, the exculpatory difficulty of the Right of Intention concerns shifts within social objectivity itself.

14 Seigel, Modernity and Bourgeois Life, 17.

74  The Politics of German Idealism But as is so often the case, Hegel sees a form of the same difficulty reproduced at the next level. Precisely because the first shift from the perceptual to the social is not well understood, the very conception of social objectivity hovers between two different conceptions: objectivity as “an essential relation . . . to the will of another” (PR §113) and objectivity as “universal subjectivity” (PR §112R). The first conception is more clearly of a social nature, since it contains the multiplicity and variability of society, whereas the second is more abstract and thus its social character is more difficult to see. But both essentially involve the normative competence to evaluate the social consequences of actions. The exculpatory difficulty of this second form of responsibility is derived from the ambivalence of this social meaning of objectivity. In fact, in the introduction of this second form Hegel emphasizes both the universal meaning of social objectivity and the difficulty of identifying it: The Right of Intention is that the universal quality of the action shall have being not only in itself, but shall be known by the agent and thus have been present all along in his subjective will; and conversely, what we may call the right of the objectivity of the action is the right of the action to assert itself as known and willed by the subject as a thinking agent. (PR §120)

This new right of objectivity corresponding to the second right of subjectivity is introduced here because now we have a social conception of that objectivity, and a sort of self-​conscious thing that can be a bearer of rights. There is no right of objectivity to correspond to the Right of Knowledge since merely perceptual objectivity can have no rights. The conception of the “subject as thinking agent” shows that the guiding project here is self-​appropriation. With this form of responsibility, we have to do with two different conceptions of the subject, in terms of which the self appropriates its action. The subject is either understood as pure universal activity, or as “natural subjective being [natürliches subjektives Dasein]” (PR §123). This contrast gets turned into an exculpatory difficulty by ramifying into the two different descriptions of the moral end for this form of agency: rights and welfare. Because of the split between a formally universal conception of end-​ setting and the particular content that looks natural from this perspective, agents reflecting on their interactions with others according to the Right of Intention vacillate between two norms: an abstract conception of property right and a notion of welfare as the totality of desire satisfaction. This vacillation has not left us, of course, and also reflects the deep debates in Hegel’s time between physiocrat and ‘Hannoverist’ advocates of limited government aimed at protecting negative rights (e.g., Jacobi and, on some interpretations, Kant) and cameralist supporters of a more positive policy of promoting the economic and educational

Hegel and the Plurality of Legal Standing  75 development of the population (e.g., Christian Garve and most other German Aufklärer).15 But what does it mean to think of it as a difficulty of agency itself? The agency of this form is grounded in setting ends that are in accordance with relevant social types, but those types build in the normative reflection at issue here, and thus build in the vacillation. We aim at legitimate success, since only such success can be recognized, and such success has to be consistent with respect for others’ successes, or at least for their opportunities to succeed. But we have two unreconciled versions of that respect—​one formal and one material—​ and even though we aim for the overlap between both versions, very few of us are good at seeing both; we see rather one or the other more clearly, and that makes the overlap hard to make out. The best we can do is to aim at the part we can see clearly and hope that by doing so we hit the overlap. Hegel thinks that some of us have a moral vision in which the particular needs that constitute the content of welfare stand out in relief, and some of us have a moral vision in which the formal self-​ownership of the goal-​directed self (i.e., abstract property right) stands out in relief. Both groups try to hit the overlap between right and welfare, but the limitations of their perceptions make it the case that at least some of the time they fail to hit their target.16 The description of the moral end as the respect for rights manifests a conception of social objectivity as universal will and a conception of the self as pure activity. The description of the end as welfare manifests a conception of social objectivity as the will of others and of the self as natural being (PR §§125–​26). For the purposes of seeing the historical content of this distinction, the crucial difference is that welfare and the wills of others are fungible and thus negotiable, but rights (particularly negative property rights) and the universal will appear to be irreplaceable and non-​negotiable. Indeed, this distinction is made by Kant in an oft-​cited passage in the Groundwork in which he distinguishes between things that have a price—​and are thus in some sense replaceable by an equivalent—​and things that have a dignity—​and which are thus irreplaceable (GW 4:434). Only agents are the latter and they are thus bearers of rights. The exculpatory difficulty consists in the problem of which conception of objectivity is to be used in the determination of the purpose of the will in the moral evaluation of any particular

15 For a good description of the landscape, see Beiser, Enlightenment, Revolution, and Romanticism. 16 This disconnect has become a standing joke in modern comedies about professional killers, from Grosse Pointe Blank (in which John Cusack’s character is asked whether you need to do postgraduate work to join this growth industry) to You Kill Me (in which Ben Kingsley’s character isn’t sorry that he killed them, but that he killed them badly and is exhorted to be the best professional killer he could possibly be). The joke is an example of this pathology because our conception of abstract property rights is essentially tied to our conception of fair competition in the economy, the furthest extension of which is the willingness to kill (this is the theme of another killer-​comedy, The Matador).

76  The Politics of German Idealism action. Thus, the relative normative competence here is being able to choose the right meaning within the moral domain. Hegel makes it clear that this difficulty is exculpatory by presenting a traditional legal doctrine as a kind of mitigating structure: the right of necessity. As Hegel initially presents it, it is the right of the person who is facing the catastrophic loss of their life itself to take what they need to survive: The starving human being has the absolute right to violate the property of another. He violates the property of another only with respect to a limited content; it is inherent in the right of necessity, however, that he does not violate the right of the other as right. The interest is posited only in this little piece of bread; he does not treat the other rightlessly [er behandelt den Anderen night rechtlos]. (VPR IV, 341)17

But Hegel does not restrict this right of necessity to the immediate situation of the starving person; rather, he draws wide-​ranging consequences from it: From the right of necessity arises the benefit of competence, whereby a debtor is permitted to retain his tools, agricultural implements clothes, and in general as much of his resources—​i.e., of the property of his creditors—​as is deemed necessary to support him, even according to his estate [sogar standesgemäß]. (PR §127R)

This consequence brings the partial identity of welfare and right introduced by the extreme case of the right of necessity back to the center, back to common structures of life and the ordinary practice of moral judgment. As should be clear from this variety of responses to proposed exculpations, the difficulty Hegel diagnoses does not provide a blanket exoneration but rather a known strategy of exculpation that can be pursued with greater or less success. In this way, it is just like the variety of legal defenses known to lawyers, each with its own history and rules. It suggests, then, a third form of agency that would explicitly aim to make just these kinds of judgments about what kinds of needs are centrally related to the effectiveness of agency, and which are peripheral. The exculpatory difficulty of the Right of Knowledge arises out of the shift in the nature of objectivity from a perceptual to a social status, and the exculpatory difficulty of the Right of Intention concerns shifts within social objectivity itself. In contrast, the exculpatory difficulty of the third form (the Right of Insight into

17 This positive example is contrasted with a negative example, in which Saint Crispinus stole leather to make shoes for the poor, and his “action is moral and non-​rightful [unrechtlich] and therefore invalid” (PR §126Z).

Hegel and the Plurality of Legal Standing  77 the Good) derives from the indeterminacy that follows when one attempts to find a balance between the two conceptions of moral value, that is, between right and welfare. The third form of normative competence is the ability to make such balancing, all-​things-​considered judgments.

3.2.3  The Right of Insight into the Good The Right of Insight into the Good is dominated by the drive to be effective, to realize a conception of the good at whatever cost and despite whatever obstacles arise. Unlike the kind of planning represented by the Right of Intention, this kind of agency is willing to sacrifice public recognition of the agent’s character for other, more objective measures of success in the public world. It is also a teleological account, but one even further removed from any contemporary version. It is goal-​directed, but aims neither at public recognition of the agent nor at enjoyment of an object. Instead, it aims at the kinds of operationally defined measures of success that have become so common in modern life, from rates of return on investment to student learning outcomes and graduation rates. This third form of accountability is simpler, in a way, but only because its object has become so complex that the resources of morality as such are only barely sufficient to characterize it even in outline. The very language in which Hegel introduces this kind of responsibility shows the complexity of the task that must be discharged in order to bear the right of insight: The right of the subjective will is that whatever it is to recognize as valid should be perceived by it as good, and that it should be held responsible for an action—​ as its aim translated into external objectivity—​as right or wrong, good or evil, legal or illegal, according to its cognizance of the value which that action has in this objectivity. (PR §132)

Already, we get here a proliferation of the different norms that might be in play, though Hegel tends to summarize them under ‘the good.’ But he then goes on in the Remark to note the complexity of the good, which should thus contain “abstract right, as well as welfare and the subjectivity of knowing and the contingency of external existence.” This complexity is to be expected, given the way that the transition from the Right of Intention to the Right of Insight is accomplished by a familiar route, namely Hegel’s complaints about the one-​sidedness of both right and welfare (PR §§128 & 134). But on the other hand, we must recognize the substantial difficulties that attend any attempt to translate this task as formulated into an actual practice. The goals toward which such an agent works and which must be attributed to them on the basis of their action are, in practice,

78  The Politics of German Idealism diffuse or perhaps only operationally definable. How many people can even understand this substantial challenge, much less meet it in everyday actions and evaluations? Presumably the answer to this question is ‘not many,’ which Hegel recognizes by making this one kind of responsibility among others, which is not universally applicable to all agents or actions. In the remark to PR §132, Hegel is clear that the applicability of this kind of responsibility—​and this means also the right to bear this Right of Insight and to demand that others evaluate your actions accordingly—​is conditioned on the agent’s “particular subjective education.” In fact, the distinction between an axis of rights and an axis of welfare as axes along which government acts in its regulation of society is made by Justi in his influential Cameralist textbooks setting out the training course for students who aspired to careers in the state bureaucracy.18 It is not surprising that Justi would make this distinction, since he is also the first Cameralist to have clearly distinguished between the state and civil society.19 Again, Hegel’s treatment here follows a strange feature of the ALR. Jerrold Seigel explains: Important as we should recognize this move away from the old order to be however, it was by no means complete. The Prussian constitutional law of 1794, the Allgemeine Landrecht, designated state officials as a separate Stand, thus making them part of a society still structured as a graded hierarchy. Hegel called up this mix of qualities by naming them the ‘allgemeine [general or universal] Stand,’ an oxymoronic construction (since each Stand was by definition particular to some function) that attached modern features to an older social vision. Moreover their status as citizens was rendered uncertain in the eyes of some by the oath of loyalty they had to swear to the monarch, depriving them of the personal independence that citizenship was taken to presuppose. Assertions that such people were too dependent on authority to be genuine Bürger were voiced well into the nineteenth century.20

In this context, it is worth noting that Hegel denies to the civil servants who constitute this third estate the right of representation in the estates-​assembly—​they are too close to the government and in any event have already an extraordinary

18 Tribe, Governing Economy, 71. 19 Hull, Sexuality, State, and Civil Society in Germany, 1700–​1815, 181. See also 217, where Hull notes generally with respect to the German Enlightenment both the tension between individual rights and the common good (Gemeinwohl), and also the way that the latter shifted meaning to the extent that the conception of the society that had that good in common shifted from corporate to civil society. 20 Seigel, Modernity and Bourgeois Life, 123.

Hegel and the Plurality of Legal Standing  79 amount of political power that need not be magnified by legislative power. But closer to the point at hand is the paradoxical concept of a form of responsibility that is universal in its breadth and for precisely that reason limited in the number of its bearers. Not everyone can be expected to take responsibility for such a wide range of consequences and principles, even though they specify the most complete form of judgment of the action. Furthermore, though the texts are, admittedly, not fully clear, it seems to me that Hegel suggests that the bearers of this kind of responsibility are responsible for mitigating the morally exculpatory difficulties of the other kinds of responsibility: they must promulgate laws and generalize customs in order to minimize the number of situations in which immoral or illegal agents can make a claim to such exculpation. At the same time, this kind of responsibility has its own distinguishing and exculpatory difficulty. According to Hegel, this difficulty consists in the fact that the will is only “in a relationship [Verhältnis]” to the good and “should [soll] make the good its end and accomplish it” (PR §131). The vocabulary here is, of course, that of the empty formalism objection (PR §135). Here is Hegel’s presentation from the Hotho lectures: Duty here is thus completely without content, genus but without further determination to species [Gattung noch ohne Fortbestimmung zur Art]. But there should be action [Aber es soll gehandelt werden], and so the question arises: where does the determining principle [das Bestimmende] fall? In duty, with respect to the objective we have nothing but this abstraction of the good. This is that which is without determination, so the determining falls on the subjective side. (VPR III, 424)

We have a conception of the objective good that ought to be able to serve as the only end of a form of agency, but is inadequate to serve that function. To put it in the Kantian terms suggested by the previous comparison, we have no mediating terms between the abstract formality of the law and the particular satisfactions that compose welfare. This lack of mediating terms undermines the goal of this form of agency, which is to make the kinds of judgments suggested by the benefit of competence—​that is, to make judgments about the partial identity of right and welfare. The formalism indicates that here we have a problem with specification of content, which the predominance of the drive to effectiveness in this form of agency had obscured. A form of agency that is single-​mindedly dedicated to effectiveness will always have difficulty saying what, exactly, it wants to make effective. In such a way of acting, the means justify the ends, as it were. This is why the specter of the monetization of the good hangs over this form of agency,

80  The Politics of German Idealism since money appears to provide an interpretation of such an abstract good that is nonetheless very real. But notice something important here: once one sees that the problem of empty formalism comes to a head only in one of the three forms of agency, one can see that the resources brought in to solve that problem are essentially resources provided by the other forms of agency. This problem of specification of content is not one with which either of the first two forms of agency suffers, the first least of all. This makes the agency of those embodying this third form parasitic on that of those embodying the first two forms; the solution to the inadequacy of that form of agency is other agents embodying different forms. But this means that instead of seeing this lack (the emptiness of the formalism) as a conceptual failure pure and simple, we should see it as a practical impetus drawing together agents from the different forms. In his presentation of the empty formalism objection, Hegel emphasizes (as Fichte also does) that the Kantian argument against theft only works if one presupposes the validity of property rights. Even if this concrete presupposition appears problematic philosophically, the task of the bearers of this third kind of responsibility is to make it true. But that involves realizing a particular vision of society in which positive rights are secured, and thus reveals the way in which even this most extensive form of agency is still caught in the trap of the ought as the futureless future that obscures the actual historical process that those exercising that agency actually pushed forward.

3.3  Forms of Responsibility and the ALR Whereas in the previous section the discussion was primarily of rights in the general sense involved in the evaluation of and responsibility for action, in this section we try to connect these general rights to specifically legal rights in the context of the Sattelzeit. In particular, we must consider the shift in meaning of legal right, a dialectical transition from corporate privileges (literally Vorrechten) through property rights and finally to fungible economic rights. The ALR had taken the first step from corporate prerogatives to property rights, since it had in many cases legally confirmed traditional prerogatives as property rights (§§54–​ 56 E ALR).21 The second step toward economic rights was made primarily in the reform period after the ALR through a process of compensation by which those traditional prerogatives were modified or removed as barriers to economic progress—​a process prepared by the ALR itself (§§70–​72 E ALR). In order to free the peasantry in particular from the authority of the manorial lords and thus to 21 In general, all other kinds of rights were declared valid only through their confirmation in the ALR (§2).

Hegel and the Plurality of Legal Standing  81 set free their labor power for economic growth, those lords (primarily the nobility) had to be compensated for the loss of that authority, which had just been confirmed as their property right. That is, their privileges had to be transformed twice: first into property rights, and then into positive economic rights whose value could be measured against the goal of increasing agricultural production and thus given a monetary price. To use a familiar analogy, their privileges had to be treated in the same way we now treat a property right subject to the power known as eminent domain in the US, compulsory purchase in the UK, and Enteignungsrecht in Germany. If the state needs to build a freeway through a private property, that property can be appropriated so long as the owner is fairly compensated. The legal question is therefore transposed out of the a priori realm of negative rights and into a comprehensive but very contingent realm of planning goals, advantages and disadvantages, and even market prices. In this historical shift we find the source of the conceptual shift of the meaning of subjectivity and objectivity in Hegel’s action theory.22

3.3.1  The Right of Knowledge The confusion about the forms of objectivity is registered obliquely in the ALR’s own discussion of responsibility, specifically in its distinctions between immediate and mediate consequences (§§4–​6 I 3 ALR). Immediate consequences are those that follow “the natural and usual course of things [nach dem natürlichen und gewöhnlichen Laufe der Dinge],” whereas mediate consequences are those that only follow “from the connection of the action with a different event, or with unusual circumstances [mit einem andern von derselben verschiedenen Ereigniß, oder mit einer nicht gewöhnlichen Beschaffenheit].” But the deeper connection between Hegel’s theory and the wider reform effort of which the ALR was just one part has to do with a constitutive project of that reform effort which we just discussed: to liberate the peasantry—​that is, to set them up as independent agents—​corporate prerogatives and particularly the noble privilege of private jurisdiction (Privatgerechtsbarkeit) had to be interpreted first as property rights and then the nobility had to be compensated for the loss of those rights.23 The patrimonial courts could not be allowed to continue because in such courts, the human being was not answerable to the law or the state as a citizen, but as a peasant to their lord (Herr). Similarly, a journeyman was legally answerable not to the state but to his master, and answerable qua journeyman rather than

22 For a general discussion of the relation between shifts of legal meaning and the shift in the social order see Wienfort, Patrimonialgerichte in Preußen, 185. 23 Koselleck, Preussen zwischen Reform und Revolution, 32.

82  The Politics of German Idealism qua citizen. In order to treat peasants with equality, that is, as agents as such, it was necessary then to treat those noble rights as if they were replaceable through compensation—​that is, it was necessary to treat them as economic interests rather than as necessary preconditions of agency. But as we also saw in the previous chapter, this step was harder than it looked and not accomplished with general success until much later in the 19th century. (It is worth noting that this was not a uniquely Prussian or even uniquely German problem—​a succession of French revolutionary governments also struggled with the issue of the so-​called redemption payments that peasants were expected to make to abolish the “real,” rather than “feudal,” privileges of the nobility.24) The first step of turning these privileges into strict property rights was taken already in the ALR and lent it that appearance of a contradiction between new and old conceptions of society on which de Tocqueville and many others remarked. This step has the conceptual form that we saw above as the shift in the sense of objective content from a perceptual to a social conception of objectivity. Corporate prerogatives were, of course, not perceptible in the same sense as a color or shape; but they were essentially positive and given (vorgegeben in Hegel’s sense of that term), and this is frequently how the ALR treats them. Monika Wienfort connects this to the issue of private jurisdiction that we saw in the previous chapter: The legal perspective on the “thingly right [dingliche Recht]”25 concealed the political-​social classification of patrimonial jurisdiction as a socially exclusive privilege. A treatise which in 1790 brought together “the law of the landed nobility in Germany” described the patrimonial jurisdiction as a “thingly noble right [dingliche Adelsrecht]” which, however, was based on a universal “property right.” Judicial rights moved from a matter of different and sometimes opposing interests to a matter of possession.26

A set of corporate and particularly noble privileges that were political both in the sense of involving juridical authority and in the sense of involving conflicting interests in the same objects were rendered in quasi-​physical form as features of those objects that could be owned, which were then assimilated to the new abstract and universal forms of property right characteristic of civil society.

24 Popkin, A Short History of the French Revolution, 37 & 84. 25 As mentioned briefly in the previous chapter, I maintain the somewhat off-​putting ‘thingly’ to translate ‘dinglich’ in order to distinguish ‘Ding’ from a ‘Sache,’ which is the technical term for an “object of rights or obligation [Gegenstand eines Rechts oder einer Verbindlichkeit]” (§1 I 2 ALR). There is something more essentially physical and perceptual about a Ding than a Sache that is important to the shift in objectivity that we are here discussing. 26 Wienfort, Patrimonialgerichte in Preußen, 34; my translation.

Hegel and the Plurality of Legal Standing  83 From the corporate perspective of the nobility and peasantry (and of the guilds), their original prerogatives required no justification—​they were not to be located in the space of reasons, but in physical space—​literally as part of the landscape of the manor (or workshop) that they owned. And, of course, from the civil-​social perspective they were similarly foreign to the space of reasons and for that very reason invalid. But paradoxically, from the governmental perspective they had to first be brought into this space because that was the space of the efforts to negotiate a social compromise. That is our first step from prerogatives to property rights. But for this very reason that step looked from the civil-​social perspective to be an unjust legal confirmation of mere power (a confusion of an is for an ought), whereas from the corporate perspective it looked to be a radical and unprecedented transformation of objectivity itself. Here we find exactly the confusion that we saw in Hegel’s theory of action as the context in which the rights of accountability are introduced; those rights are coping mechanisms for reasonable attribution under these changing circumstances (particularly the first two rights—​of knowledge and intention). The change in the social constitution is most perceptible to the civil-​social perspective and the change in power relations to the corporate perspective—​but they are, essentially, the same change. The latter is the bearer of the first form of responsibility (the Right of Knowledge), and the former of the second (the Right of Intention). We must emphasize here that this shift is implied by the emergence of the responsible human being as a rational agent. Not only the prerogatives, but their possessors, had to be dragged into the space of reasons. And it is not only the nobility that were the possessors of such prerogatives, but also the peasantry, who had prerogatives to protection and support from the nobility (particularly in years of crop loss). Perhaps more obviously, similar two-​way streets of privileges could be described for the different positions of guild membership as well. But in the light of the radical novelty of this new definition of rights one can say that these possessors of privileges were displaced into a strange land by this process. Hegel picks up his understanding of what is going on here from Fichte, or at any rate assimilates this social change to a crucial moment in Fichte, namely the summons to be free and its acceptance or rejection. For Fichte, the genesis of our free and responsible agency is that others demand that we behave responsibly—​ they summon us to take responsibility for our actions, and thus to act as authors or sources of such actions (FNR 31/​SW III, 33). Of course, for Fichte the essential point is that even rejecting the summons is a kind of acceptance, since it is an action and in rejecting the summons one asks to be treated as the kind of an agent who has rejected the summons. But the summoner is in the strange position of being able to so treat the summoned on the basis of a different understanding of what the rejection amounts to, since according to Fichte whoever rejects the

84  The Politics of German Idealism summons must have understood it and made a choice not to accept it and thus have acted freely, which is precisely that to which they had been summoned. Fichte’s point here is an elegant and essentially causal solution to the emergence of the person as agent, which had seemed to Fichte undercut in a vicious circularity. Formally speaking, this is exactly the situation of the liberation of the peasantry, as Koselleck nicely points out: “The liberation of servants (Untertanen) to property and personal independence . . . presupposed what should first be achieved: the free person (den freien Menschen).”27 This social moment is also part of the content of the one true imperative of Hegel’s political philosophy, the Rechtsgebot: “be a person and respect the other as person” (PR §36). But it is not hard to see here the social trick that undergirds the clever argument. And particularly since part of the point of confirming these privileges as legal rights was then to get rid of them, it is also not hard to see why the legal transformation appeared to the nobility and other bearers of privileges as a bait-​and-​switch. Hegel sees that there is a price to be paid for the Fichtean solution, namely uncertainty as to the correct form of objectivity to use as a reference point for understanding agents and their actions. In the case of such a factually occurring transformation, the clear boundaries of accountability necessarily become fuzzy and the subject of intense disagreement between citizens of different social vantage points. This is one of the meeting points of the Sattelzeit at which the non-​contemporaneous is contemporaneous, in the form of the civil-​social and corporate estates. Viewing the same phenomenon from different perspectives, the former sees a set of natural status relations destined to be superseded by free contracts, and the other sees a way of life and thus a whole world disappearing. The important thing to emphasize is the way in which Hegel’s theory of action is a strategy designed to handle precisely these conditions of transition, rather than accepting one and rejecting another conception of objectivity. Just as for Kant, provisionality is perpetual and even the state has to have its strategies for handling it. The traditional way of life didn’t disappear—​it still hasn’t disappeared—​and status might be even more important than contract in the 21st century. To use Terry Pinkard’s phrasing, we humans are bound to be amphibians with a tie toward both the perceptible world of nature and the social world of norms.28 Or to use a metaphor from Wilfrid Sellars, evaluating actions and agents under these conditions requires a sort of stereoscopic vision, and particular a binocular vision that can try to see both sides of the tension at once.



27 Koselleck, Preussen zwischen Reform und Revolution, 140. 28 Pinkard, Hegel’s Naturalism.

Hegel and the Plurality of Legal Standing  85

3.3.2  The Right of Intention We noted above that there are two ways of approaching the same social change that manifests conceptually as this transformation of objective content. The first is to think of it as a shift from the perceptual to the social, and the second is to think of it as the shift between two different conceptions of the social. It is important to note that both Kant and Fichte are caught between these two approaches. The primary indicator of this is their continual temptation to render social relations (particularly premodern social relations) as merely natural facts, which is a feature of their views that we have seen at several points previously. But here we focus on the second approach, which reflects the civil-​social perspective on this tectonic shift in the nature of objectivity. This approach trains its binocular vision on the shift as a social shift, that is, as a shift of significance within social objectivity. If the corporate perspective of the first right essentially viewed the present shift from the standpoint of the past, this civil-​social perspective views the present shift from the standpoint of an anticipated future. This way of viewing responsibility is essentially connected with a feature of the ALR that we have already touched on, namely the number of different legal venues that were confirmed by the ALR. Hegel writes in the middle of the reform period afterward, which saw tireless and almost entirely unsuccessful attempts by the Prussian state bureaucracy to standardize these jurisdictions. To tie this closer to the previous discussion, we can focus on the distinction between governmental legal protection and patrimonial justice. Koselleck describes the difference as follows: Governmental legal protection [staatliche Rechtsschutz], which immediately benefited the nobility and top level of the bureaucracy, and which furthermore always had qualified judges, did not extend equally downwards during the Vormärz period. Practically speaking, the continuation of these forums for the exempt [exemten Foren] was bound up with patrimonial courts, whose owners were inevitably subject to a different authority than their own subjects. Even when each had equal claim to the same rights, regardless of estate and person [Stand und Person], nonetheless the jurisprudence [Rechtsprechung] in the different legal fora remained unequal on the same topics [ungleich in Gleichen Sachen].29

First, we can note that the contrast between governmental legal protection and patrimonial courts is an opposition between two different forms of responsibility: responsibility to society in the sense of its conceptual and universal

29 Koselleck, Preussen zwischen Reform und Revolution, 92–​93.

86  The Politics of German Idealism rules, and responsibility to society in the sense of an authority structure with commands and promises. This is, of course, a distinction that lingers on in the philosophy of law in the contrast between natural law and positivist theories of law. Both can be understood as a social responsibility, that is, as a responsibility to other persons, but the nature of those other persons is conceived differently in the two cases. In the second case we have the variable and negotiable concrete shape of social relations, and in the first case their general form. Of course, both of these shapes are essential to any meaningful conception of society in the modern age—​which is why the most sophisticated versions of positivism and natural law theory look so much alike—​so again we find ourselves in a situation of perpetual provisionality. And again we find a spot where precisely the consideration of apparently archaic historical context makes the views of the German Idealists paradoxically contemporary, since the phenomenon of inequitable judicial decision-​making due to the social standing of the parties remains a central feature of all modern legal systems. Philosophically, we might be better off developing resources of non-​ideal action theory to evaluate responsibility under these conditions rather than awaiting the social movement (revolutionary or otherwise) that would obviate its need. The second point to make about the difference above is a cautionary tale along just these lines, since in the reform period this discrepancy in jurisprudence only increased, due to precisely the attempts made to eliminate it. Specifically, the attempts to build out state-​run courts took the first step by extending the access to such courts for the higher classes of civil society in addition to the nobility. This simultaneously equalized that layer of civil society with the nobility and widened the chasm between those two social groups, on one side, and both the lower classes of civil society and the peasantry, on the other. The third point to make is that this tension manifests in Hegel’s more explicit theory of law, but in a much more general form than that of the difference between state-​run and patrimonial courts. In his discussion of the administration of justice, he claims that the law (Gesetz) must be universally posited (gesetzt) (PR §211). But just promulgating the law is not sufficient to make it universally known and accepted, a fortiori not in individual cases. When judgment is actually rendered our confidence as a litigant or defendant is grounded on the social position of those who make the decisions (paradigmatically, members of a jury): When judgment is pronounced . . . the right of self-​consciousness of the party is preserved in relation to the law. . . . But as far as the decision on the particular subjective and external content of the matter is concerned . . . this right is satisfied by the confidence [Zutrauen] which can be placed in the subjectivity of those who arrive at the verdict. This confidence is based primarily on their

Hegel and the Plurality of Legal Standing  87 equality with the party concerned in respect of their particularity, their estate [Stand] and the like. (PR §228)

This is, again, a tension that has not left modern legal systems in the last two centuries. One final comment, this time on the connection between legal determinations and broader social models. In this right of accountability we noted the connection between two conceptions of society—​in terms of its general laws, and in terms of its specific interpersonal relationships—​and two guiding values for the evaluation of action—​rights and welfare. And we noted in the previous chapter that all of the proposed rights of property in the Sattelzeit were formulated and took part of their significance from a more general anticipation of the state and society to be built by reform. These come together in the way that the former of each of these pairs was embodied in the social model of the Rechtstaat (or state of laws) and the latter of each of these pairs was embodied in the Sozialstaat (which we would now call the social welfare state). The conflict between these two conceptions was a fundamental antinomy of the reform period that worked itself out in practice as much as in theory.30 And again, this conflict, and the need in any significant politics to do justice to both right and welfare, has not left us; and thus neither has the need for a kind of binocular vision with respect to responsibility.

3.3.3  The Right of Insight into the Good Here we run past the limits of our Sellarsian metaphor of stereoscopic vision, but that we have done so is instructive. There are too many values and considerations involved in such all-​things-​considered judgments to summarize. Hegel’s own attempts to do so are half-​hearted, to say the least, and he finds it more valuable to talk about the kinds of institutional structures that realize the good rather than any formula or principle for balancing different factors. The challenge that is posed by trying to realize the good is thus so substantial that the difficulties should be, in principle, even more exculpatory than the two we have just seen. And yet the decision to take up this form of responsibility is more deeply optional than the others—​it is both more likely to be a considered and self-​conscious choice of its bearers and more likely to be taken up by a much smaller portion of the population. Also, because of the training programs involved, it is more likely to provide strategies for meeting the challenge. These features pull in the opposite direction to minimize the exculpatory power of its difficulties. This tension

30 Koselleck, Preussen zwischen Reform und Revolution, 148.

88  The Politics of German Idealism is embodied in some of the ALR’s most explicit discussions of responsibility, in §§20–​23 I 3: §20. A moderate negligence [mäßiges Versehen] is what could be avoided with an ordinary degree of attention. §21. Even moderate negligence must be held accountable [muß verantwortet werden]. §22. A minor negligence [geringes Versehen] is that which could only be avoided with excellent ability, or with a special knowledge of the matter, or of the business, or by an unusual exertion of attention [nur bey vorzüglichen Fähigkeiten, oder bey einer besondern Kenntniß der Sache, oder des Geschäfts, oder durch eine ungewöhnliche Anstrengung der Aufmerksamkeit]. §23. A minor negligence may only be attributed to those [darf nur derjenige vertreten] who are specifically required by the law to use excellent skills or knowledge, or more than usual attention to an action. These sections follow a long discussion of the different sorts of consequences that can be attributed to the action, and in particular unintended consequences. On the one hand, it is recognized that the great difficulties attending to some sorts of actions that naturally have longer and more varied chains of consequences require a more limited attribution of responsibility. But on the other hand, it is recognized that the law specifies certain officers who are responsible for seeing to precisely those chains of consequences. Furthermore, the potential confusions of the previous two forms of accountability are difficulties, to be sure, but also resources. The confusion within the Right of Knowledge of perceptual for social reality generates an ambivalence, but the former is also a source of images and schemas for grasping the latter. The same, perhaps more obviously, is true for the confusion of interpersonal with universal sociality in the Right of Intention. But the Right of Insight is beyond these pedagogical aids, and in such a way that marks it as belonging distinctively to the historical present of the Sattelzeit: “Earlier and more sensuous ages have before them something external and given, whether this be religion or right; but conscience knows itself as thought, and that this thought of mine is my sole source of obligation” (PR §136Z). It has so many kinds of values and rights, that no overarching shape can be ascribed to it. In the same way that in the Logic Hegel thinks that judgments of the concept are too rich to give rise to the sorts of specific inferential forms that the other three kinds of judgments generate, and thus that the patterns of relationships relevant to judgments of the concept can only be found in objectivity, here the Good is too rich to generate even the complicated patterns generated by the Rights of Knowledge and

Hegel and the Plurality of Legal Standing  89 Intention, and can only find its schema in the actuality of the institutions of ethical life. There is, of course, a massive resonance of this move with the reform period, as theoretical problems had to be worked out as practical institutional changes under the conditions of reconstruction following the Napoleonic wars. There were some advantages for reform from the absence of a general schema, of course, since its absence entailed an absence of fundamental contrasts between values, which itself implied a commensurability between such values that enabled particular compromises in given circumstances. But at the same time the distance between universal principles and particular judgments grew to an extraordinary extent, and that distance is the distinguishing and exculpatory difficulty of this kind of capacity for action. Perhaps the best practical example of this difficulty in the political life of the Sattelzeit was the failure of Stein and Hardenberg’s attempts to expand political representation in Prussia. Both Stein and Hardenberg had expected that representatives elected from the different internal groups in Prussia would act according to their conscience and at least be open to the governmental perspective to the reformers. In fact, however, the process of election ensured that the representatives were bound by instructions from the estates and corporations that elected them. This meant in practice that they often undermined precisely reforms such as the expansion of representation itself.31



31

For this story in more detail, see Koselleck, Preussen zwischen Reform und Revolution, 178–​95.

PART II

PR IVAT E L AW

4

Family We can begin our discussion of the family by acknowledging that the importance of the concept ‘family’ is relatively new for Germany in the 18th century.1 For example, in his comprehensive study of the documents of the east Prussian village Stavenow over three and a half centuries before 1840, William Hagen could only find a few uses of the term.2 Instead, the writings always referenced particular familial relationships, for example, step-​mother and step-​child, or mother-​in-​law and son-​in-​law. According to Grimm’s Wörterbuch, in the course of the 18th century the term ‘Familie’ asserted itself everywhere and replaced other German words. The only word with a similar extension which remained in force was ‘Haus.’ And, in fact, one of the most important historical developments of the Sattelzeit period is precisely the replacement of the Hausstand as a social unity by the family—​that is, the replacement of an essentially economic and extended household including servants by an essentially personal and nuclear family of parents and children.3 This development is part and parcel of the split we have been tracking between corporate society, the state, and civil society. Prior to the split, the family clearly participated in relations that we would now associate with all three of these forms of social organization: relations of juridical authority that are now assumed by the state, forms of economic productivity that are fostered by civil society, and forms of customary and personal attachment that characterize the traditions of corporate society. Thus, its placement in the new landscape characterized by this split is problematic, and its structure varies with that placement in the eyes of political theorists. In this chapter we will try to show how Kant, Fichte, and Hegel take up the topic of the family and argue for a particular structure of it based largely on the social perspective that they adopt on that institution. What the family could or should be depends in large part on how one sees it as oriented toward the economy, toward political organization, and toward customary ties of place and kin.

1 An earlier version of some material in this chapter appeared in Yeomans, “Family Structures as Fields of Historical Tension: A Case Study in the Relation of Metaphysics and Politics.” 2 Hagen, Ordinary Prussians. 3 Koselleck, “Die Auflösung des Hauses als ständischer Herrschaftseinheit,” 465–​85. The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/​oso/​9780197667309.003.0004

94  The Politics of German Idealism I will also in this chapter attempt to exemplify the following point: what distinguishes political philosophy from politics simpliciter is the fact that political philosophers include (at least implicitly) all of these social perspectives in their conceptions of political relations and institutions, rather than simply advocating for the interests apparent only to one perspective and suppressing the other perspectives. In this way, the apparently contradictory nature of political philosophy is redeemed, since those tensions express the genuine social reality at which such philosophy is aimed. At a certain level of generality this is, of course, a familiar Marxist idea. But two points of divergence must be noted: first, the point here is to be detached from any sort of historical progressivism or determinism. What is historical about the target phenomenon of political philosophy is primarily the synchronic tension between temporal layers rather than diachronic change or advance, only on the margins involves any explanatory mechanism for such advance, and only as background involves any claim to necessity. Second, the point is that each author is more than just the superstructural mouthpiece of a particular class but rather also inherently incorporates the perspectives of other classes as well (even if only implicitly). Both of these divergences from a certain kind of Marxism follow from the thought that political philosophy must conceptualize social reality and the concomitant constraints on what counts as conceptualization. The chapter is thus divided first into an introduction to the historical setting of our philosophers’ consideration of the family, then a detailed discussion of each that tries both to show how each comes to the family from a distinctive social perspective and that the other perspectives are nonetheless represented in each of their work. We are thus left with the debate as a set of interlocking perspectives, where each lays greater emphasis on some side of the structure that it is nonetheless present in each of the others as well.

4.1  Families and Households Before entering directly into Kant’s, Fichte’s, and Hegel’s theories of the family, it will be useful to clearly distinguish between the context in which the German Idealists take up this institution and a more familiar story that political philosophers have learned from Aristotle. Of course, what we often refer to as ‘the family’ in Aristotle (oikos), is almost certainly better translated as ‘household.’ Aristotle claims that it is founded on three different relations—​“master and slave, husband and wife, father and children” (Pol. 1253b)—​and that it exists because of its function of securing our daily needs. The story that Aristotle tells is that households come together to form villages, and villages come together to form the state:

Family  95 The family is the association established by nature for the supply of men’s everyday wants, and the members of it are called by Charondas ‘companions of the cupboard,’ and by Epimenides the Cretan, ‘companions of the manger.’ But when several families are united, and the association aims at something more than the supply of daily needs, the first society to be formed is the village. . . . When several villages are united in a single complete community, large enough to be nearly or quite self-​sufficing, the state comes into existence, originating in the bare needs of life, and continues in existence of the sake of a good life. (Pol. 1252b)

As Aristotle explains, the chain is one that has to do with virtue, function, and security. The justice of the state inculcates virtue in the individual, allows the individual human being qua part to function within a self-​sufficient whole, and secures the individual against violence (Pol. 1253a). Importantly, household relations have a more asymmetrical form of authority than the authority within a state: “The rule of a household is a monarchy, for every house is under one head: whereas constitutional rule is a government of freemen and equals” (Pol. 1255b [though cf. 1259a40 for qualification of the husband-​wife relation]). Thus, there is both a continuity and discontinuity in the chain from the household up to the state; the state is the end (telos) of the household rather than simply being a larger version of it. The state may originate “in the bare needs of life,” but its proper function is “for the sake of a good life.” This involves structuring family relations in such a way as to develop the virtues aimed at the state: inasmuch as every family is part of a state, and these relationships are parts of a family, and the virtue of the part must have regard to the virtue of the whole, women and children must be trained by education with an eye to the constitution, if the virtues of either of them are supposed to make a difference in the virtues of the state. (Pol. 1260b)

But though 18th-​century German writers were concerned to understand the relation between family, society, and state, and tended to agree with Aristotle on the importance of virtue, neither security nor functional role in securing necessities is the guiding thread here, nor did they understand the relation between the authority relations of the family and the state in the same way. Let us take up these differences in reverse order. Perhaps most important, the immediate social background against which 18th-​century writers were thinking was one in which the political system was monarchical in Aristotle’s sense—​they thus saw more continuity between the state and the family than on Aristotle’s view—​but for precisely Aristotelian reasons. Furthermore, the 18th-​century German monarchies were states in

96  The Politics of German Idealism which the prince directly owned and administered substantial domain lands of his own in addition to whatever sort of authority or indirect ownership relation he had over the whole territory. As a result, and well into the 18th century, the state as an institution was often identified with the expansive household of the prince and his domain lands. For this reason, it was common in the 18th century to see an identity between household structures and state structures, and harder to see how the state and its economy could be something different.4 In this important sense, the views about the relation between family, civil society, and state to which the German Idealists are responding are precisely not Aristotelian. In addition, though 18th-​century writers took virtue seriously as a connection between household and the state, the nature of that virtue was rather lazily theorized, and paradoxically the very nature of that connection as well as the size and territorial heterogeneity of the larger states conspired to highlight the merely customary nature of moral virtue.5 Virtue and security are still mentioned, but the primary functional connection between household and state was thought to be material affluence. Christian Wolff—​known to most historians of philosophy as a systematizer of Leibniz and thus as essential background for Kant—​was also one of the foremost Cameralists. Wolff put the point as follows: Because individual houses could not by themselves create all the comforts of life [alle Bequemlichkeiten des Lebens] of which they were capable, nor could they alone secure life and limb, and consequently could not attain the highest good for which they are bound to strive, so it was necessary that as many should come together and with united energy promote their best, so that they would be able to create all the comforts of life and, in conformity with natural obligation, advance unhindered from one perfection to the next and protect themselves adequately against all injury.6

In short, the German Idealists come to their thinking against a background of Cameralist thinking that reversed Aristotle’s understanding of the discontinuity of authority between household and state, and which paid lip service to security and basic needs while aiming primarily at a substantial increase in material welfare beyond the subsistence level. Moving forward a bit from the general intellectual background of the 18th century to the substantial social changes of the Sattelzeit itself beginning in the

4 Tribe, Governing Economy, 21–​23. 5 Hull, Sexuality, State, and Civil Society in Germany, 1700–​1815, 166–​67. For a discussion of Aristotle’s conception of the oikos/​polis relation that emphasizes the scale of both in ancient Greece, see Nagle, The Household as the Foundation of Aristotle’s Polis. 6 From his Vernünfftige Gedancken of 1736, par. 213. Cited in Hull, Sexuality, State, and Civil Society, 161.

Family  97 late 18th century, we see a structural transformation of the family in terms of the multiple functions that it played. Keith Tribe describes the social changes against the background of Cameralist theory as follows: The social and political dislocations brought about by the Revolutionary period not only disrupted life in the German states: it shattered once and for all the social and political world that Cameralism had sought to arrange and govern. At the very point at which the Cameralistic sciences were at last gaining acceptance as a university discipline, they were displaced by a new form of economic reasoning. Economic teaching in universities was henceforth the province of a new Nationalökonomie which emphasized the economic activity and the needs of the individual as the founding moment of economic order, and not the activity of government over the populations of territorial states.7

In our terms, precisely as this Cameralist appropriation and reversal of Aristotle was solidifying its academic influence, the integrated social structure that it sought to grasp and mold disintegrated into three related elements: corporate society, civil society, and the state. Relations remain (there are still parents and children, masters and servants, employers and employees), but the institutions in which those relations are contextualized have changed dramatically. Sometimes older terms like ‘state’ and ‘police [Polizei]’ are repurposed, and sometimes new terms like ‘family’ are introduced. But because all institutions subserve multiple functions—​this is the source of their durability as well as their conflict—​the new institutional order has to rearrange and redistribute those functions. The German Idealists come to their thinking about the family at a time in which that rearrangement and redistribution was the order of the day. Isabel Hull explains the new social structure of the family as precisely such a modification of an older set of associations: The tautology we have been examining shows that the traditional association of sexual maturity, sufficient subsistence, marriage, and citizen rights had been elaborated upon and consequently transformed. The old entry to this sequence had been “sufficient subsistence”; whoever could show economic adequacy had the privilege of legitimate sexual expression (marriage) and the subsequent social, economic, and perhaps political rights that accrued to it. Now, this entry occurred earlier at “sexual maturity.” This move reflected the underlying assumption of civil society: that the operative principle was not an economically threatened social order, but the individual, stripped of his social differences, reduced to a common body governed by universal, natural laws. When one

7 Tribe, Governing Economy, 92.

98  The Politics of German Idealism threw off the “fashion that had strictly separated” and thus, in the absence of social distinction, made “all people brothers,” as Schiller wrote, one was left with the naked body. This body’s sexual characteristics then became central to defining its essence. The putatively natural sexual characteristics were filled with content not much different for the practitioners of civil society than it had been for the absolutists and before: timely, procreative heterosexual drive. It was comforting to hang onto this older vision, because according to it, the sexual drive was naturally self-​limiting, produced a stable social form (marriage), and encouraged economic productivity. On this rock one could build civil society.8

Thus, the German Idealists enter into their discussions of the family against this dual background of a lingering but discredited theoretical understanding derived from the Cameralist literature and a dramatic change in social structure brought about by war and the pressures of modernization. For the family in particular, this created a unique opportunity to theorize and design the new institution, and of the German Idealists it was Fichte who most clearly and vigorously seized the opportunity.

4.2  Fichte: The Marriage For Fichte, the family is absolutely central as a moral institution within the political order. Neither Kant nor Hegel has reserved as important a role for the family as Fichte: how can one lead the human species from nature to virtue? I answer: only by reproducing the natural relation between the two sexes. There is no moral education of humankind, if it does not begin from this point. (FNR 273/​315)

It is thus no surprise that Fichte has a lot more to say on this topic: in the critical edition of the Foundations of Natural Right the discussion of the family extends to 54 pages, twice as long as Kant’s discussion in the Doctrine of Right and Hegel’s discussion in the Philosophy of Right put together. With reference to the splitting of corporate society, civil society, and the state, Fichte clearly represents the new standpoint of civil society. In Hull’s terms, the family is the moral rock on which the progressive order of that civil society is to be founded, now that the complex social statuses of corporate society have been revealed as normatively empty. First let us present the outlines of Fichte’s conception of the family, and then we



8 Hull, Sexuality, State, and Civil Society, 242.

Family  99 can more clearly see the sense in which it represents the institution as seen from the civil-​social perspective. Fichte’s conception of the family is the most contracted of any of the German Idealists, and in that respect represents the civil-​social nuclear family in its sharpest contrast with the corporate-​social extended household. Fichte’s conception not only eschews any relation to servants or the internal economic structure of the family; it is, in fact, almost exclusively focused on the marriage bond rather than the multigenerational nature of even the nuclear family. In fact, the discussion of relations to children is relegated to the fourth of four sections and proceeds along lines almost entirely distinct from those of the first three sections. In those first three sections, in which the concept of marriage is deduced and elaborated, everything turns on the tension between the purported natural differences between the sex drives of men and women, on the one hand, and their presumed equality in having reason, on the other. Marriage is necessarily heterosexual and monogamous. The marriage relation is deduced as that relation which will allow both sexes to express their natural sex drive in a way compatible with reason and thus with their own moral personality. The basic conflict is between the purported passivity of the female sexual drive with the activity of reason, and the resolution of this conflict is found in the voluntary subjection of the wife to the husband. It is important not to understate the extent of this subjection, nor the extent to which it is (almost) entirely limited to marriage. First, the subjection. The way that women can resolve this fundamental tension between their sexual passivity and their rational activity is by completely subordinating themselves to a husband: “By making herself into a means to satisfy man, woman gives up her personality; she regains her personality and all of her dignity, only by having surrendered herself out of love for this one man” (FNR 270/​312). This surrender must be complete: “She has ceased to live the life of an individual; her life has become part of his (this is fittingly indicated by the fact that she takes her husband’s name” (FNR 271/​313). In particular, it involves the surrender of any property rights and any activity separate and unsupervised by her husband. Through this surrender and the husband’s acceptance of responsibility, distinctive virtues are inculcated: love in the woman and magnanimity (Grossmut) in the man. It follows from this vision that the marriage must be entirely voluntary on the part of both spouses, and Fichte includes a long discussion of ways to avoid any coercion or even persuasion being exercised on the woman. In short, Fichte’s family is an essentially moral institution that is, on his view, the only expression of the natural sexual drive that is compatible with the moral personality of men and women. It is worth placing particular emphasis on the transfer of property rights, since Fichte’s view here is quite novel and distinctive of civil society. The marriage is ipso facto a consolidation of property under the husband’s ownership, since he

100  The Politics of German Idealism is the only person that shows up as accountable in civil society: “In recognizing a marriage, the state simultaneously recognizes and guarantees the man’s ownership of his wife’s property. . . . His acquisition of her property is unrestricted; for after all, only he continues to exist as the sole juridical person” (FNR 282/​ 326). But this consolidation of property is completely reversed upon divorce, at which point the property of the husband must be redistributed according to the proportions that each spouse brought into the marriage. This brings us to our next topic—​the extent to which this surrender is limited to marriage. Outside of marriage, women have all of the same economic rights as men: Everyone in the state should possess property and manage it himself in accordance with his own will; hence, so should the single woman. This property need not consist in absolute property, money, or valuables; it can also consist in civil rights and privileges. There is no reason why women should not possess these as well. A woman can own fields and carry on agriculture. . . . She can harvest other products. She could also pursue an art or handicraft, as long as it is suited to her abilities. She can pursue commercial trade, if she understands it. . . . The only thing women cannot do is hold public office. (FNR 301–​2/​348–​49)

This follows consistently from Fichte’s view that marriage is necessary only to deal with expressions of the natural sexual drive. Outside of marriage—​that is, outside of the institutionalized form of sexual expression—​there is no passive natural expression that conflicts with active reason, and so women appear in civil society in a way just as accountable as men. Fichte grounds the restriction on public office in the notion that if a woman marries, then her husband would have control of the office—​and no woman can rationally promise not to marry, he thinks. When Fichte turns to the relation between parents and children, all of the emphasis is on a purported natural tendency of the parents to educate their children toward freedom: “This upbringing includes the following two ends: first, that the child’s capacities are developed and cultivated as to be useful for all sorts of ends; and second, that the child’s mind is directed towards morality” (FNR 310/​ 359). In fact, Fichte thinks, the parents have a duty to the state to provide such an upbringing, particularly with respect to the first end. By doing so they provide workers for the new civil society, and as soon as the child is ready for the work they are free from any authority of the parents over them (FNR 316/​365). So much for the basic outlines of the family as an institution on Fichte’s view. Even from these basic outlines we can already see features that show an institution viewed and designed from the civil-​social perspective. There is a very clean distinction between the inner structure of the family and its outer representation that comes out in both the binary status of women in and out of marriage,

Family  101 and in the complete severing of any authority relation over children upon the achievement of economic maturity. The family reads as one individual within a civil society structured by ownership relations, and Fichte identifies that individual legally, economically, and politically with the father/​husband. Within the family everyone else has not even moral rights so much as emotional claims, but outside of the family they read as full individuals—​since that is the only option within civil society. More generally, the emphasis on the central role of the family is itself an important part of this newer civil-​social perspective and differentiates it from the older corporate-​social perspective. In corporate society, no one thought that marriage was a universal institution appropriate for all persons. In the so-​called European marriage system that persisted into the 18th century, there was a threshold of economic self-​sufficiency that had to be crossed before marriage became an option, with the result that marriage was generally delayed well beyond the achievement of sexual maturity and there were high rates of celibacy. (This is the order of the first set of associations described by Hull above.) In contrast, Fichte claims that “It is the absolute vocation of each individual of both genders to marry” (SE 315/​332). Readers of the 21st century are likely to encounter such a phrase and take it for an expression of traditional morality, but nothing could be further from the truth. Fichte’s view here is a radical reimagining of the family in the context of the new meritocratic and contractual order of civil society. The abstract sharpness of individuality in this new social order is registered in his black-​and-​white vision of who counts where and when. Furthermore, Fichte attempts to unify the newly arisen moral interest in sexual practices with strict limits on state power in relation to private life. The second part—​that is, the limits set by Fichte on state power—​has received a great deal of commentary. Fichte also distinguishes the private sphere of the family very sharply from the public sphere controlled by the state. Fichte attempts to show that the power of the state should be used to establish and protect both the external rights and the inner moral private sphere of the nuclear family. Furthermore, Fichte argues for defending these institutions (property and the family) from both governmental intervention and traditional-​corporate interference. He holds not only adultery and cohabitation outside of marriage but also (at least potentially) infanticide to be non-​punishable. In addition, he defends the legality of divorce. The first part—​that is, the new moral interest in sexual practices—​has received less attention but is just as much characteristic of the new civil-​social perspective. Fichte argues that “For the woman chastity is the principle of all morality” (SE 313/​330) and “The unmarried person is only half a human being” (SE 315/​332). In this, Fichte is articulating a central claim of the new civil society to the importance of marriage, also well represented in Theodor von Hippel’s claim that “The word ‘father’ is a great word, the greatest that exists

102  The Politics of German Idealism in a state. Whoever is not [a father] does not deserve the name citizen! And, even being generous, only half deserves the name human!”9 It is worth briefly returning to the circuit of meanings that we first described in Section 1.1, just to see them working out in detail in this case. Fichte repeatedly transforms social experiences into moral characteristics, and corporate-​ social reputation into the ethical dignity. That notion of dignity itself marked the value of civil-​social relations as understood through the lens of universal human freedom and thus strict responsibility. This transformation is achieved through a kind of psychological projection. Hull describes the way in which bureaucrats projected their own understanding of permanent ethical character onto peasants as they spoke in the voice of civil society. In contrast, the overwhelming majority of the population viewed sexual shame as fleeting and not necessarily a barrier to future marriage. In Fichte, then, we see not only the civil-​social perspective itself, but also a trace of its arising through the transferal of corporate meanings via the administrative (state) institutions. This is clearest in his discussion of adultery, in which Fichte interprets the phenomenon of social disrespect as a moral vice. At the risk of getting into the weeds, a bit more detail will help us connect this circuit of meanings to one of the argumentative moves we discussed in the previous chapter, namely: for civil society to take over the corporate meanings, they must first be described as natural rather than traditional or social.10 We already saw this move above in connection with Fichte’s assertion that only through marriage do we move from nature to virtue. But we also saw it in Chapter 3, first as a distortion imposed on the agency of the Right of Knowledge (which is that of corporate society) by the agency of the Right of Intention (that of civil society), and then as a pathology of the latter itself which renders its contentful motivations as natural inclinations. That is, the perspective of civil society misunderstands the customary attachments of corporate society as merely natural drives rather than social forms with their own history, significance, and expectations. Because it cannot then understand the significance of those attachments in human social terms, representatives of this perspective reach for indirect ways of making them significant qua natural. In Fichte, this works by means of the sorts of natural-​ purpose arguments that are familiar from Kant but no less jarring in the context of their theoretical commitments. When it comes to these attachments, all of a sudden nature is no longer a rule-​governed causal nexus but rather a personified and purposive agent: “Nature has grounded her end of reproducing the human species in a natural drive that is found in two distinct sexes. . . . This drive is itself an end of our nature, but for nature in general it is only a means” (FNR 264/​305).

9 Quoted in Hull, Sexuality, State, and Civil Society, 242. 10 See also his discussion of the importance of reproduction in the System der Sittenlehre, GA 5, 287–​88.

Family  103 All of this indirectness fundamentally misconceives the experience and moral psychology of corporate society in a way that is tendentious and naturally lends itself to elitism. That elitism comes home to roost when the civil-​social agent sees themselves in similar terms, and must keep up the Kantian struggle between their rational and natural motivations. For that very reason, this step in the family threatens Fichte’s doctrine with heteronomy, and this threat is then the motivation for his development of the very strict conditions for marital and familial right that we have just seen. Accordingly, for Fichte marriage and hence the family in general is “not an artificial custom or arbitrary arrangement, but is rather a relation in which the spouses’ union is necessarily and completely determined by nature and reason.” Marriage is the natural rock on which the legal civil society could be founded, because it belongs not to “right [Recht], but rather to the much higher law of nature and reason, which—​through their products—​first provide a domain for the law of right” (FNR 274/​317). But of course, Fichte might have learned from Rousseau the extent to which this then leads to the kinds of competition for status, particularly in the choice of spouses, which undermines the purported freedom of individuals in civil society. And within civil society itself, this move involves an interposition of an elaborate and strict form of asymmetrical recognition within the sexual relationship and its mundane satisfactions. It is important to understand the necessity of this appeal to gender difference in Fichte’s thought, and understanding this will help us to see how Fichte’s view includes all of the social perspectives we have taken up. For the necessity of gender difference in Fichte is just as much historical-​political as conceptual. As the striving toward the new civil society brought the older corporate divisions into disrepute, there remained nonetheless a need for particular descriptions through which new laws could get a grip on society. Without the corporate differences of status, bodily differences between human beings emerge as the universal particulars, that is, as the species of the genus ‘citizen’ that are regulated by law.11 This is an essentially governmental imperative, and so shows the operation of the state perspective in Fichte’s analysis. Furthermore, Fichte’s explicit use of the concept of an estate in his treatment of the family despite elsewhere rigorously stripping away the older corporate statuses is the exception that proves the rule. Fichte holds marriages between spouses who come from different estates to be invalid (since the two spouses purportedly cannot share their lives completely). And yet there are only two estates for him: “one which cultivates [ausbildet] only its body for mechanical work, and one which eminently cultivates its mind” (FNR 289/​334). This is a paradoxically corporate-​social solution to the Rousseauian problem of competition for spouses and status, since it at

11 Hull, Sexuality, State, and Civil Society, 5.

104  The Politics of German Idealism least limits that competition to a given stratum of society. This is a general feature of Fichte’s work that we will see in subsequent chapters as well: the recourse to corporate-​social forms as solutions to mitigate civil-​social problems. In this case, we have an example for the circuit from corporate to civil society via the state, since the concept of an estate is taken from corporate society but then given this new Kantian, dualistic interpretation so as to be brought to bear as a mitigation of a problem with a radically civil-​social institution of the family. In Fichte we see the perspective of those in society who wanted to replace the Hausstand by the nuclear family; but in order to build a bridge in the present to that future form of the family, recourse to the recent past was necessary in the form of a corporate restriction on marriage partners.12 Thus in Fichte we see all of these perspectives, but with a heavy emphasis on the civil-​social perspective.

4.3  Hegel: The Nuclear Family It is, of course, often remarked that Hegel is a representative of the state’s perspective, and this is also the line of interpretation followed here with respect to his views on the family. But it is worthwhile saying some more about the historical context of Hegel’s use of terms such as Staat (state) and Regierung (government), so as to be more specific about the way in which Hegel is a representative of the state’s perspective. The most important bit of historical context follows on something that we have already seen in Section 4.1, which is the long gestation of a distinctively German notion of the state given the particular nature of the principalities of the Holy Roman Empire and the reliance of most princes on the income derived from domain lands. It was thus common to identify the state with their estate, as it were. The first move beyond this was the Cameralists, who started to use the term ‘state’ (Staat) to describe the whole of society.13 This is an aspirational usage, since it embodied the substantive view that true success of a prince’s rule required the development of the whole society rather than merely his domain lands. But then under the pressure of the practical demands of administering that whole society, the distinction within it between civil society and the state proper, or even the government (Regierung) more narrowly, became more and more pronounced.

12 However, the Prussian legal reforms did not succeed in replacing the Hausstand with the family by means of the Allgemeines Landrecht and in this respect Prussia was in no way an outlier in Germany. See Koselleck, Preussen zwischen Reform und Revolution, 69–​70. 13 On the Cameralist usage of ‘state’ for the whole of society, see Hull, Sexuality, State, and Civil Society, 157; and Tribe, Governing Economy, 63–​64.

Family  105 Hegel very much writes against the background of this tradition of usage. Of course, Hegel does speak of the state as a totality (e.g., PR §256R). When he does so, ‘the state [der Staat]’ means the entirety of institutionally articulated society; that is, he counts the family and civil society as well as the government as part of the state. The state is the whole of those institutionally articulated relationships of significance between people living in the same place. But there is also a narrower use of the term ‘state,’ and often the use of the term ‘Regierung,’ that signals his recognition that the action of the government on society faces substantial resistance and can only be made effective by arduous effort. In his division of the powers of the state, for example, the Regierungsgewalt is described as “the subsumption of particular spheres and individual cases under the universal” in distinction from the legislative power, on the one hand, and the crown (sovereign), on the other. In Hegel we also get the explicit recognition that there are two sorts of independent social powers that can resist and modify state action, namely corporate society and civil society. This is why Hegel tries to bring both of these social powers into the state through representation in the estates-​assembly (i.e., the legislative power). In an important practical sense, Hegel takes up the state’s perspective as one among many, and in an attempt to mark this I have adopted the terminology ‘governmental perspective’ rather than ‘state perspective.’ This recognition of the significance and validity of other basic social perspectives is a hallmark of the governmental perspective, and a feature that marks it out as embodying the Right of Insight into the Good—​with all of the advantages and disadvantages that come with it. There are many indications of this recognition in Hegel’s discussion of the family in the Philosophy of Right. We find the first indication in his idea of the family and in the general theoretical task that this idea is supposed to accomplish. The task at issue derives from the difficulty of administration and the need for an anchor point for the new laws in actual social behaviors and expectations. This difficulty and the indispensability of social particularities are to be found in the chapter on Ethical Life: The objective ethical order, which comes on the scene in place of good in the abstract, is substance made concrete by subjectivity as infinite form. Hence it posits within itself distinctions whose specific character is thereby determined by the concept, and which endow the ethical order with a stable content which is necessary for itself and whose existence is exalted above subjective opinion and caprice. These distinctions are laws and institutions that have being in and for themselves. (PR §144)

When one considers the family from the perspective of this necessity, one sees an institution that serves not one but many purposes:

106  The Politics of German Idealism If with a view to framing or criticizing legal determinations, the question is asked: what should be regarded as the chief end of marriage?, the question may be taken to mean: which single facet of marriage in its actuality is to be regarded as the most essential one? No one facet by itself, however, makes up the whole range of its content in and for itself, i.e. of its ethical character, and one or other of its facets may be lacking in an existing marriage without detriment to the essence of marriage itself. (PR §164R)

Thus, we find in Hegel’s rather mundane discussion not a univocal institution with a similarly singular main purpose but rather a complex and multipolar institution that provides different advantages, rights, and duties for men, women, and children and which must be integrated with civil society. Unlike for Fichte, for whom the family has a single essential function of making sexual expression and rationality consistent, the Hegelian family is a motley collection of interconnected relationships subserving multiple functions. Hegel’s conception of the family is of a recognizably modern institution—​a nuclear family formed by voluntary agreement between the spouses, united by love, collectively disposing of its property, and bringing up its children. The Stamm or clan, and even the extended family, has been replaced by a nuclear family of parents and children, one of whose goals is to release children eventually from the family into civil society.14 In marriage, one man and one woman each give themselves to each other to form a single person (PR §§162 & 167). Marriage has the effect of reducing the sexual drive to a merely natural and occasional phenomenon, rather than raising the sexual drive to a rational expression (PR §163)—​and yet marriage does give the natural sex difference “an intellectual and ethical significance” (PR §165). This natural difference turns on the purported male capacity for generality and conceptual thought as opposed to the purported female capacity for concreteness and feeling (PR §166). The family is further an economic entity in the sense that it is the owner of resources (Vermögen). With this term, Hegel introduces a distinctive conception of property that we will discuss in the following chapter in more detail. Briefly, we can say that while a piece of (private) property is a single object that meets a particular need for a single individual, a resource is a “permanent and secure” object of ownership that is subject to “care and acquisition for a communal purpose” (PR §170). A family heirloom would be a piece of property (Eigentum), but the family farm is a resource (Vermögen) that is dedicated to the long-​term support of the members of the family. These resources are held by the family in common, and each member has rights to them though the head of the household is the husband/​father (PR 14 This was, of course, a long process, and not one that happened all at once at the end of the 18th century. See Goody, The Development of the Family and Marriage in Europe, 25.

Family  107 §171). This non-​Fichtean talk of rights within the family extends to children, who are said to have “a right to be brought up and supported at the expense of the family” (PR §174). Because marriage is founded on love—​which is a contingent feeling—​divorce must be permissible but subject to oversight and modulated by the estate of the spouses. As Hegel puts it, “Marriage contains . . . liveliness [Lebendigkeit] in its totality” (PR §161). Clearly, Hegel’s presentation of this institution must therefore find a number of equilibria between the different aspects of its liveliness, but it is characteristic of the third form of agency represented by the governmental perspective is that it doesn’t even try to reduce these to a formula for how right and welfare are to be maintained. Instead, the decisions are local, and a matter more of good judgment than abstract principles. Hegel is for this reason often content to point out points of conflict that have to be watched, as it were—​for example, the potential conflict between the rights of all family members to support from the family’s resources and the authority of father as the head of household (PR §171). Here are two brief examples of Hegel at least institutionally trying to model what he takes to be good judgment. First, Hegel notes in a handwritten remark (to PR §166) that the wife in the nuclear family (Hausfrau) is in a status between polygamy (in which each wife is disrespected) and chivalry (in which the wife enjoys a higher standing than the husband) (GW 14,2: 749). Polygamy was a common thought experiment of the Cameralists and Enlightenment thinkers (and appears briefly in Fichte’s discussion of the family as well). It served to raise the question of whether and how given family structures could be modified in the new civil society.15 The thought experiment is thus a measure for the distance to the horizon of expectations and at the same time a procedure by means of which the content of these expectations could be determined. In contrast, chivalry is a concept of corporate society, and in particular one that magnifies the distance between corporate society and the present. The Hausfrau is Hegel’s institutional solution to the problem of the social status of women, who no longer have any corporate duties and rights but nonetheless require a particular social position. It is supposed to be a substantive expression of equality in the historical present, but only as compared to two other possible forms of the marriage relation that also are essentially grounded in gender difference. Gender difference thus remains the overarching horizon within which Hegel understands historical possibility. This tracks one version of the empty formalism objection to which the third form of agency—​the Right of Insight—​is subject, namely that the substantive choices are generated by features of the world external to the decision itself, so that only a formal choice is made between fixed options.

15 Hull, Sexuality, State, and Civil Society, 176–​79.

108  The Politics of German Idealism Second, Hegel considers the legal permission to divorce as a middle path between the excessive strictness of the Catholic Church’s doctrine and the excessive laxity of Roman law (GW 14,2: 751). In contrast, the state must care for the stability of the institution (its “ethical substantiality”), but also recognize the contingency of love (PR §176). Here we recognize the governmental perspective of administration, from which Hegel wants to maintain a corporate property of marriage in a civil-​social context, even though in large part marriage is stamped by the civil-​social expectations relating to love and property. At first it might appear that both poles of the opposition—​Catholicism and Rome—​lie in the past, but Hegel often uses Roman law as a thought experiment regarding the future, since it contained the formal conception of personhood and property that seemed also to define the central values of the future civil society. Here Roman divorce law plays a similar role to polygamy as a historical example of a future possibility. Both are relationships that are characterized by formal universality (all wives play the same role equally), whereas the historical examples of the past (chivalry and Catholicism) present images of traditional particularities. Between these past and far future possibilities Hegel searches for that which now and in the near future can be politically and socially realized.16 This search for workable policy options is characteristic of the third form of agency and its overarching drive to be effective. The empty formalism objection that we saw threaten it finds its response in these balancing acts that draw their content and consequences from other actually existing forms of the family. In Hegel, we thus already see the other perspectives—​the corporate-​social and civil-​social—​in the balancing acts he tries to accomplish in his doctrine of the family. But the presence of multiple perspectives is perhaps most clearly to be seen in the overall structure of ethical life, with its division into family, civil society, and state. To put it in abstract terms, the family represents the particular perspective, civil society the universal, and state (in the contrastive sense of government) the individual (PR §157). And it is clear that the government has a kind of priority for Hegel. In fact, the mistake often made by Hegel scholars, namely of confusing the state for the government, has its root in this priority. For Hegel, it is the governmental perspective that most fully illuminates the familial and civil-​social perspectives, and thus most clearly illuminates the whole (i.e., the state). But this illumination from perspectives is a primarily subjective phenomenon, which is why the objective vocabulary of part/​whole or substance/​accident is of such limited use here (even though it is not, strictly speaking, inapplicable). Though Hegel’s take on the family is an individual take (in the logical sense of ‘individual’) in comparison with Fichte’s and Kant’s, the institution of the family 16 For a recent interpretation of Hegel’s theory of the family that also emphasizes its attempt to find a middle ways between extremes, see Jaeggi, Kritik von Lebensformen, sec. 4.3.

Family  109 represents the particular perspective within the state (i.e., as compared with civil society and government). Hegel offers us an individual take on the way that the particular, universal, and individual institutions of the state hang together.17 Hegel’s conceptualization of the function of gender roles within the family represents an alternative approach to Fichte’s, but nonetheless fails for largely the same reason. Unlike Fichte (and Kant), Hegel is not much troubled by the potential of sexuality to generate heteronomy. On Hegel’s view the naturalness of the sexual drive is a positive effect of marriage, not a problem for which the institution is a solution, because precisely that naturalness minimizes its threat to self-​determination. But like Fichte (and unlike Kant), marriage has the function of providing an articulation of the significance of sexual difference in social terms: “The natural determinacy of both sexes [Geschlechter] obtains through its rationality intellectual and ethical significance. This significance is determined through the difference in which the ethical substantiality divides itself as concept in itself, in order to gain out of its concept its vitality as concrete unity” (PR §165). And though Hegel’s view of the new social terms in which that significance is to be articulated is more sophisticated than Fichte’s, the basic problem is similar because of the abstraction of the nuclear family as opposed to the economic household. In a household conceived as simultaneously familial and economic, all sorts of physical and social aspects of sexual difference might be brought in to explain and justify why wives did some things and husbands did other things. But this richness of context is largely lost in the new institution, which leads Hegel to inflate the significance of sexual difference in conceptual terms along similar lines to Fichte: The one [sex] is therefore the spiritual, as that which divides itself into personal self-​sufficiency for itself and the knowing and willing of free universality, into the self-​consciousness of conceptualizing thought [begreifenden Gedankens] and into the willing of the objective final end. The other [sex] is the spiritual that maintains itself in unity as knowing and willing of the substantial in the form of concrete individuality and of feeling. The former in external relations is the powerful and active, the latter the passive and subjective. (PR §166)

Though similar to Fichte, this inflation of the significance of sexual difference is broader, since Fichte’s is grounded in the sexual drive but Hegel’s in terms having nothing directly to do with either sexual desire or reproduction. Hegel’s doctrine of the family thus suffers from a similar defect as Fichte’s: in the absence of any meaningful recourse to the way the past informs the present of the family, Hegel 17 For a more general treatment of this sort of perspectival unification of perspectives, see my “Perspective and Logical Pluralism in Hegel.”

110  The Politics of German Idealism appeals to biological sex to secure that end of the field of tension (i.e., the end of the past or of corporate society). The attachment cannot hold, however, precisely because the proposed interpretation of gender roles is so radically new and foreign to corporate society. Hegel’s own metaphysics of subjectivity as a system of perspectives entails that every subject is not only in principle capable of taking up each of the conceptual perspectives, but that also in some sense they already do because the others are present in secondary or rudimentary form within their own. Aspects of this doctrine peek through even in the passages cited here, to the extent that both sexes are characterized in terms of their ‘knowing and willing [Wissen und Wollen]’ of merely different forms. The fundamental normative demand made by Hegel’s metaphysics of subjectivity on politics is, in fact, to magnify the visibility of these different perspectives and their ability to illuminate the public institutions shared by all citizens, and to mitigate the inevitable distortion that is produced by such perspective.18 This is a commitment to the maintenance of this field of tension as both in tension and yet one field. Hegel’s insistence on a male head of household is a normative disaster even on his own assumptions, because it institutionally discourages the reciprocal repair strategies of the spouses. Thus, there is some truth to the charge that in Hegel’s state (as in reality), the family is essentially abandoned to economic institutions (even if quite against Hegel’s own wishes). This then puts a great deal of pressure on the particular aspects of civil society (the estates and the corporations), a pressure that they cannot bear because their new status as primarily productive entities prioritizes the universal perspective and thus continually pulls them away from their role as ‘second family.’

4.4  Kant: The Household We have already seen quite a bit about one aspect of Kant’s doctrine of the family in Chapter 2, in our discussion of the provisionality of private rights to servants, so this discussion will be a bit shorter and attempts primarily to bring out the distinctive perspective of Kant’s account. In this historical perspective, perhaps the greatest surprise is the extent to which Kant’s understanding of the family remains rooted in corporate society. In fact, instead of a doctrine of the family he offers us a doctrine of the Hausstand. Let me briefly summarize Kant’s account of the family, and then I will point to three corporate characteristics from Kant’s discussion in the Doctrine of Right.



18

Cf. Stone, Nature, Ethics and Gender in German Romanticism and Idealism, chap. 12.

Family  111 There is something strikingly mundane and matter-​of-​fact about Kant’s presentation of the family, essentially pre-​romantic, and Kant sees the rights involved as the most personal rights of acquisition. Even more than Hegel and completely unlike Fichte, Kant’s description of the family—​or, more specifically, of ‘domestic society [häusliche Gesellschaft]’—​proceeds in terms of an enumeration of rights. There is the marriage right, the parental right, and the right of the master of the house [Hausherr]. Kant’s discussion of the marriage right is perhaps best known: it is a bilateral contract between members of the opposite sex “for lifelong possession of each other’s sexual attributes” (MM 6:277). Like Fichte and unlike Hegel, the goal of producing and raising children is only tangentially related, and Kant explicitly denies that it must be the end of marriage. Marriage has no end (goal), in fact, and is merely the only way that human beings can make use of each other’s sexual organs and still respect themselves and the other rather than treating them as mere things. In this respect, of course, Kant’s picture is like Fichte’s and completely unlike Hegel’s. It is like Fichte’s insofar as it sees a potential threat to autonomy in sexual activity, whereas Hegel seems to worry more about the possibility of obsession over sexual objects—​and in any rate does not have the moral psychology in which natural inclinations are suspect as they are for Kant and Fichte. But Kant’s picture is rather unlike Fichte’s both because there is no appeal to putative differences between the sexual drives of the two sexes, and the topic of concern is the act of using another’s body rather than the shape of the motivation behind it. Kant’s marriage is a contract between equals, whose equality is essentially an equality of possession: “equality both in their possession of each other as persons (hence only in monogamy, since in polygamy the person who surrenders herself gains only a part of the man who gets her completely, and therefore makes herself into a mere thing), and also equality in their possession of material goods” (MM 6:278). We will come back to this equality of possession of goods as one of the distinctively corporate features of Kant’s perspective. Similarly, parents are in possession of their children—​they do not have a merely contractual relationship with them purely as persons—​but those children remain persons in that possession. The normative presentation of their personhood is found in their right to be nurtured and educated by their parents, which imposes a corresponding duty on their parents (MM 6:280). Kant takes these two aspects to be paradigmatic of the new kind of right he is articulating: From a child’s personality it also follows that the right of parents is not just a right to a thing, since a child can never be considered as the property of his parents, so that their right is not alienable (ius personalissimum). But this right is also not just a right against a person, since a child still belongs to his parents as what is theirs (is still in their possession like a thing and can be brought back even against his will into his parents’ possession from another’s possession).

112  The Politics of German Idealism It is, instead, a right to a person akin to a right to a thing [ein auf dingliche Art persönliches Recht]. (MM 6:282)

Finally, there is the right of the master of the house over their adult children and servants, which we discussed already in Chapter 2. Now for the three corporate aspects of the institution as Kant sees it. The most clearly corporate element is one that we have already seen, namely Kant’s presentation of “Rights to persons akin to rights to things [Von dem auf dingliche Art persönlichen Recht]” as his concept of “domestic society [häusslichen Gesellschaft]” (MM 6:277), and more particularly his inclusion of servants in this society. It deserves repeating just to avoid any misunderstanding: the significance of servants in Kant is not at all archaic, since at the time of the publication of the Doctrine of Right roughly one-​seventh of the Prussian population consisted of servants. Neither Hegel nor Fichte even refers to servants, but for Kant they play a similar theoretical role to resources (Vermögen) for Hegel, that is, they make the inner economic activity and structure of the household (Hauswesen) visible. But what then comes into view is a peculiar and political economic society, an essentially “unequal society (of a commander or ruler and of those who obey, i.e., servants [Dienerschaft])” (MM 6:283). In Kant, then, we find less economic continuity between the family and civil society as we do in Hegel, for whom the family resources have approximately the same structure as social resources.19 But Kant has no developed theory of civil society and its institutional structure—​as far as he gets are the individual relationships of property and contract—​and so the family stands out even more as an individual structure. A second corporate characteristic of Kant’s concept of the family is the equality of rights and duties of husband and wife within marriage. Purported gender differences do not play as important a role in Kant as they play in Fichte and Hegel.20 Section 26, which lays out the equality of possession between the spouses, also includes the stipulation that both spouses have the authority to maintain property outside the community property of the marriage. This passes rather quickly in Kant’s text, but it is an important feature that distinguishes Kant’s view sharply from those of Fichte and Hegel. In the corporate society of the 18th century this practice was widespread, but Fichte specifically denies the moral and legal permissibility of such a practice, and Hegel allows the practice but only in a subordinate role (i.e., as in effect a prospective decision about

19 Koselleck, Preussen zwischen Reform und Revolution, 133. 20 Hull thus sees Kant as the paradigmatic example of what she calls the “implicit sexual model” of pre-​Napoleonic German liberalism. Hull, Sexuality, State, and Civil Society, 301. There are, however, plenty of other texts in which Kant draws distinctions between the genders—​perhaps most famously in the third section of the 1764 Observations on the Feeling of the Beautiful and the Sublime (2:228ff).

Family  113 how to distribute property upon the dissolution of the family) (PR §172R).21 Of course, Kant allows that the law may determine the father to be head of household in charge of advancing the common interests of the family.22 But when the wife has the opportunity to keep a part of her property separate from community property, then she also has greater power in the determination of this common interest. The equal bargaining capacity and sexual activity of both genders corresponds to a pre-​civil, corporate society, in which wives had an essential and public economic role to play and in which it was presupposed that the sexual drives of both genders were roughly the same. Kant offers us a model of the family that is not yet the private sphere that contrasts with either the public sphere of civil society or that of the state. A further and final corporate property of Kant’s family we have already seen in Hegel, namely the absence of a fundamental purpose. The possibility of reproduction limits the allowed use of sexual organs, “but it is not requisite for the human being who marries to make this their end in order for this union to be compatible with rights” (MM 6:277). Even further than for Hegel, for Kant the family is not a goal-​directed institution but rather a pattern of permissible actions.23 There is no talk of a duty to marry as there is in Fichte and Hegel, nor talk of a duty to the state to provide for the children’s upbringing as there is in Fichte. This lack of a duty is consistent with the general tenor of the first half of the Metaphysics of Morals, that is, the Doctrine of Right. The Doctrine of Right concerns permissible objects of choice and our duties to respect others’ choices under the right conditions. But even in the second half—​the Doctrine of Virtue, in which obligatory ends are the primary subject of discussion—​the goal-​ directedness of marriage is minimized. There Kant is prompted to consider the casuistical question whether “without consideration” for the goal of reproduction one is nonetheless allowed to have sexual intercourse, and proposes a “permissive law of moral practical reason” (MM 6:426). In addition, Kant does not appear to be interested in the question of how the marriage and family should be integrated into the new civil society. He merely emphasizes that the actuality of marriage, family, and servants shows that there is more to private law than rights to things and rights to persons (the two categories of the ALR), namely a right to person akin to a right to things. This legal recognition of such a right is precisely 21 Hull sees the same tension in Kant’s view between the designation of the husband as master of the house and the equality of property rights, but sees the balance falling further towards the former rather than the latter. See Hull, Sexuality, State, and Civil Society, 310–​11. 22 Kant goes farther in the Observations: “In marital life the united pair should as it were constitute a single moral person, which is animated and ruled by the understanding of the man and the taste of the wife” (2:242). 23 In many sociological definitions of ‘institution’ these two sides (goal-​directedness and a pattern of norms) are brought together, but Kant’s corporate separation of the two reveals the distinctively modern expectations that such definitions contain.

114  The Politics of German Idealism the recognition of a kind of society, which in the civil-​social sense is neither private nor public. All of these features essentially track the traditional marriage practices of corporate society described by Hull: Synchronizing marriage with a material base was perhaps the chief regulative chore of the traditional networks. The simultaneity of marriage and property became even more complex through the addition of sexual monopoly. Marriage (or courtship leading to marriage) was the only framework for legitimate socially approved sexual expression. This meant that marriage was a colossally overdetermined institution carrying an unsurpassed density of social meanings. Wealth, social standing, adulthood, independence, livelihood, communal responsibility, (for males) political representation, and sexual expression were all joined symbolically in this one estate, which meant that any one of these social meanings might stand for any other.24

As we saw in the Introduction, civil society attempted to put the family to use for analogous functions in different ways—​but Kant shows absolutely no interest in the way the family might be connected to this new civil society. His description is purely internal and private (from the perspective of civil society), but very much an integrated economic Hauswesen from the perspective of corporate society. In closing this section I want to indicate briefly the way in which the other social perspectives are present as well. We have already seen the way in which, for Kant, the rights pertaining to different members of the household are both like property rights and like contract rights—​that is, that there is a continuum of resemblances between them that marks them all as aspects of acquired private rights. In this connection it is worth noting that on Kant’s view what I possess in my spouse, children, and servants is their status (Zustand), and status is a suspicious category in political philosophy precisely because of the overwhelming particularity that is ordinarily associated with it. This is a feature of persons that is thing-​like, and provides a kind of middle term anchoring a continuum between the things that are the objects of property right and the persons who are the objects of contract right. If we can further make out the way in which property rights and contract rights represent objects of ownership as viewed from the civil-​social and governmental perspective, then we can make out the way in which that continuum of rights is equally a continuum of perspectives. As we will see in more detail in the following chapter, Kant adopts a remarkably civil-​social perspective on property rights (i.e., rights to things). He has an extraordinarily broad and flexible conception of both the ownership object and the form of the

24 Hull, Sexuality, State, and Civil Society, 30–​31.

Family  115 ownership relation. It is not going too far to say that he has the most universal conception of property rights, in three different senses: First, it is the only kind of acquisition that can be original—​in particular, contract rights presuppose property rights (MM 6:259 & 271). Second, the property right is private right generalized, that is, it is my right to the private use to a thing that is underwritten by “the united choice of all who possess it in common [durch vereinigte Willkür Aller in einem Gesamtbesitz]” (MM 6:261). (This is true whether one is discussing provisional right in the state of nature or completed right in the civil condition.) Finally, property rights are the collective form of all private right: “the sum of all of the principles [Inbegriff aller Gesetze] having to do with things being mine or yours” (MM 6:261). And though the topic doesn’t receive any detailed analysis in this study, Kant’s perspective on contracts is an essentially governmental one. This is easiest to see in the analogy between the limited united will of a contract (MM 6:272) and the much broader united will of the state that constitutes a civil condition (MM 6:312)—​though it must immediately be noted that there is a duty to enter into the latter and not into the former. But it must be admitted that the governmental perspective is the weakest here—​and even Kant’s discussion of public law shows precious little attention to the practical exigencies of governance and administration. (Thus there is no chapter on Kant in Part III of this book.)

4.5  The System of Perspectives We have then, from this and the previous section, three main results. First, in each of the three authors’ observations on the family one of the three perspectives is dominant: the corporate in Kant, the civil-​social in Fichte, and the governmental in Hegel. Second, in each author the other two perspectives are simultaneously present in a secondary form. And third, there is a different kind of secondary form in each of the three authors: in Fichte, the secondary perspectives appear as a kind of genetic trace of the transfer of the institution from corporate society via the state to civil society; in Hegel, as extremes between which a mean has to be found (i.e., as goals between which a balance must be found); and in Kant really only indirectly, that is, through similarity or analogy. I want to say just briefly here why these three results are connected to each other before moving on to the discussion of property in the next chapter. They are connected because there is no point outside of political reality from which to view the whole, which means that the whole can only be seen from inside. In Nietzsche’s famous phrase, there is only a perspectival seeing, and nowhere is this more true than in our political seeing. But inside the whole, there are the three perspectives generated by the historical split between corporate

116  The Politics of German Idealism society, civil society, and the state. There are thus three different views on the whole, or three different ways in which the interconnections that constitute the whole as whole can look to the observer. Each of these ways of relating the dominant to the other perspectives is characteristic of the field of vision formed from that perspective. The civil-​social perspective is a universal perspective that sees the relations essentially causally and thus they appear as genetic traces. The governmental perspective is an individual perspective that sees them as desiderata to be balanced in the right way. And the corporate perspective is a particular perspective that sees them as a continuum of resemblances, so that the family is like a property right to a thing (the universal aspect) but also like a contractual right to a choice (the individual aspect). The universal perspective is essentially rule-​governed and exploits the common conceptual form of natural (causal) and practical laws; the individual perspective aims at realizing the most comprehensive good; and the particular perspective works sideways, as it were, by a principle of analogy.

5

Property Here we return to the issue of the relation between reason and politics.1 The proximate source of concern about this relation for the German Idealists is the French Revolution, which sparks the Theory-​Practice debate in German political philosophy. Of particular interest in this debate is the question of whether reason can validate any particular form of a social institution, with the kind of specificity needed to orient planning and make political debates between options transparent and meaningful. In this chapter, I take up one of these institutions in particular, namely property rights. I will construe all three of the Idealists as constructivists about property, using this common feature as a kind of species by reference to which they can be distinguished as individuals. My discussion here will continue my emphasis on synchronic rather than diachronic problems in this area. In fact, in my view, the question of historical progress is largely a red herring. The real problem in understanding the connection between reason and history is the conceptual problem of understanding the connection between something relatively simple and abstract with something relatively complex and concrete. The problem is the complicated specificity of history, rather than its temporal duration or becoming. That concreteness has a temporal form—​that is what makes it historical—​but the temporal form is itself more complex than mere duration or change. The temporal form proper to history is the way that the present is constituted as a field of tension by expectations that pull in different and sometimes opposite directions. This is a conception of historicity worked out by Koselleck and his collaborators.2 In various points in the previous two chapters I have begun to connect this conception of historicity with a Hegelian method of perspectival pluralism. The important point to make here is just that the multiplicity of perspectives mitigates the apparent simplicity and abstractness of reason. The greater structure of reason when understood as a multiplicity of perspectives provides more attachment points, as it were, to the concrete realities of social institutions. In this chapter I introduce two new elements. First, I characterize views of property by reference the function of property that comes to the fore in their 1 An earlier version of some material in this chapter appeared in Yeomans, “Historical Constructivism.” 2 See especially Koselleck, Zeitschichten. The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/​oso/​9780197667309.003.0005

118  The Politics of German Idealism analyses: the personal, the economic, or the political. Taking one of these functions as paramount defines a specific perspective on the institution, and taking the personal function as paramount defines the juridical perspective in particular. The economic, juridical, and political perspectives each represent certain expectations that are in tension with each other and together form the historical field of tension within which the German Idealists did their work as political theorists. In my view, what makes Kant, Fichte, and Hegel philosophers rather than simply apologists for a certain class position is that all of the three historical perspectives show up in each of their work, and the differences between them are largely a matter of emphasis (though not any less real differences for that). Second, I extend this perspectivalism to argument forms by undertaking a meta-​ethical comparison of the way Kant, Fichte, and Hegel derive the institution of property from their fundamental principles. These fundamental principles are, respectively, Kant’s Universal Principle of Right, Fichte’s Summons (Aufforderung), and Hegel’s Command of Right (Rechtsgebot). The comparison is meta-​ethical in the sense that the guiding theme will be the different ways in which historicity is involved in the derivations, and what difference that makes with respect to the character of the arguments as constructivist. I begin in Section 5.1 with a brief discussion of constructivism, oriented by the work of Kenneth Westphal and Arto Laitinen.3 Then, in Sections 5.2 to 5.4, I sketch the arguments for and shape of the institution of property in Kant, Fichte, and Hegel. Finally, in Section 5.5, I say a bit about how these features of their doctrines of property relations relate to the social and political tensions surrounding property relations at the turn of the 19th century and thus what is historical about the constructivism employed.

5.1  Constructivism I’ll begin with Kenneth Westphal, who has long advocated an interpretation of both Kant and Hegel as constructivists, and specifically against the background of Onora O’Neill’s contributions to the contemporary meta-​ethical debate. More specifically, Westphal has interpreted them as natural law constructivists, but here I leave this aspect of his view out of consideration to focus on the nature of the constructivism itself (as I also leave aside the connection to O’Neill’s 3 I leave out of consideration the placement of German Idealist constructivism with respect to the realism/​anti-​realism split. I remain unpersuaded of the value of this distinction for ethics, despite the impressive efforts of Robert Stern and Sebastian Ostritsch. See Stern, “Freedom, Self-​ Legislation and Morality in Kant and Hegel: Constructivist vs. Realist Accounts.” and Ostritsch, Hegels Rechtsphilosophie als Metaethik.

Property  119 work).4 There are four aspects to this constructivism that I want to highlight, though I don’t pretend to offer a full reconstruction of Westphal’s views. These four aspects are: first, that the relevant criterion of justice is modal rather than indicative or hypothetical. Second, that the procedure for articulating duties from this basic criterion is regressive, not progressive. Third, that the relevant facts of agents’ finitude on which this regressive procedure operates are social rather than counterfactual. And fourth, that the resulting theory is objectivist rather than realist. Let me briefly explain these distinctions before putting them to work. I should say in advance that I don’t take these four criteria to set out necessary and sufficient conditions for any view to count as constructivist, but only to indicate a meaningful sense of constructivism that has both historical resonance with the German texts and contemporary appeal. First, the relevant criterion of justice is modal rather than hypothetical. As Westphal puts it, “[A]‌greement plays no role at all in Kant’s rational idea of the social contract. . . . Instead of contractarian agreement, Kant’s theory of normative justification relies on possible consistency of human maxims or forms of outer action. Kant’s basic criterion of right action, along with its various instances, is neither indicative nor hypothetical; it is modal.”5 Instead of attempting to specify that to which we did (implicitly) agree or would agree under the hypothetical circumstances of, for example, the state of nature, it attempts to specify that to which we could not agree under any circumstances. Historically speaking, this aspect of German Idealist constructivism represents the essentially provisional outlook of the Sattelzeit, a period that knew that its own conditions would not last and that its own substantive judgments were essentially subject to revision once the right conditions were obtained. Of course, as a result of this modal shift the rights and duties specified by a constructivist basic principle can be minimal at best. A further constructivist application of the principle in the derivation of extended rights and duties is therefore required, which leads to the second element. That derivation is regressive rather than progressive.6 That is, instead of attempting to further spell out what is implicit in the minimal rights justified by the modal test of possible agreement, Kant (and especially Hegel) inquire into what conditions are required in order to secure those very minimal rights. (This is the sense in which this constructivist regress has aspects of transcendental argumentation, though the constructivist justifications regress on the conditions

4 On Westphal’s view, Kant and Hegel are natural law theorists because they share a set of common problems with the natural law tradition (“the normativity and objectivity of justice, the possibility and necessity of social cooperation (resolving fundamental social conflict) and the possibility of legitimate possession”). Westphal, “Normative Constructivism,” 37. 5 Ibid., 13–​14. 6 Ibid., 31.

120  The Politics of German Idealism of a different object—​rights instead of experience.) In contrast to contractualist justifications of specific duties by the progressive application of bargaining scenarios, the constructivist procedure inquires into the conditions that make possible such bargaining and any resulting voluntary agreement in the first place. Historically speaking, this represents the essentially anticipatory outlook of the Sattelzeit, a kind of political advent in which the task was to lay the ground for a politics to come. This then introduces two questions: what sort of conditions are sought? and What characterization is given for the agents whose (non-​)agreement is subject to the modal test? The answer to both of these questions is essentially social. The conditions sought are largely institutions, and the subjects whose agreement is to be secured (or whose necessary disagreement is to be avoided) are finite reasoners with an essential need for discourse with others of their kind. The argument reconstructs the institutions within which agents are able to first identify their own interests and pursue them in concert with others, and thus to bargain and execute contracts with others. In both cases, the social aspect of the regress leads Kant and Hegel to move from private to public law, and in such a way that the elements of public law substantially modify the elements of private law. This subsequent modification gives their theories an aspect of progressive argumentation (since the institutional conditions of the basic rights place certain constraints on and suggest certain specific forms of those basic rights), but not in a way that reintroduces contractualist bargaining scenarios. Finally, the resulting theory is objectivist rather than realist. Westphal means by this that the theory is orthogonal to the realism/​anti-​realism debate, and need take no stand on the question of whether the values in question are “out there” independent of subjects or generated by subjects in some way. Meta-​ethical questions surrounding the nature of justification and the possibility of objectivity remain in play, but the unfortunate, positivistic framing of the latter issues in terms of the location of norms (modeled after the location of spatio-​temporal objects) is discarded. The point of the theory is to generate the stable norms that can justifiably command assent and thus address the possibility of social conflict. As long as it can generate such norms, their location or ontological status is irrelevant. Obviously, Kantians and post-​Kantians have strong epistemological and conceptual reasons to frame the issue this way, but even for contemporary meta-​ ethics there is value in backing away from the commitment to positivism implicit in the location debate. In contrast, Laitinen explicitly characterizes (Hegelian) constructivism as an alternative to realism.7 But the main force of his objection to what he takes to 7 Laitinen, “Hegelian Construction in Ethical Theory?,” 128. He does not distinguish between objectivism and realism because he takes any objective reason to be a reason independent of the agent and thus a reason located in a separate domain (e.g., ibid., 132).

Property  121 be anti-​realist forms of constructivism applies equally well to an objectivist variant, since his main objection is that constructivism makes us infallible because it makes us the ultimate sources of value: constructivism makes the [the source of value] an infallible source of value, normativity and deontic features. For something to be mistaken, there must be some criterion according to which it can be mistaken. In the constructivist view, there isn’t. (Whatever the constructivist view deems fallible is not thereby [the source of value]). The same point concerns any change in the social norms: without an independent standard, any different social norms are just different, and no transition from A to B or from B to A can count as development.8

In response, Laitinen proposes a “mediated realism” on which the social constructions are not themselves sources of normative truth but rather “epistemic devices” for discovering that truth through the experience of success or failure of such constructions. The social institutions that structure our ethical life don’t ultimately give us reasons for thinking that we ought to do or avoid certain things, but they do give us the opportunity to discover those ultimate reasons through their correspondence with those ultimate reasons (or lack thereof). In the rest of the chapter I will take the four features outlined above to characterize constructivism: the criterion is modal rather than hypothetical; the procedure is regressive, not progressive; the relevant facts are social rather than counterfactual; and the theory is (at least) objectivist (again, putting aside the ontological issue of realism—​I mean only that the theory purports to construct norms with objective rather than merely subjective or idiosyncratic validity). And I will take the infallibility objection to be the chief skeptical doubt to which constructivism must respond, and which generates a dilemma for any constructivist. With respect to Laitinen’s objection to constructivism, the concept of property makes an interesting test case because the modern institution of property is a kind of institutionalization of infallibility at the individual level. What I mean by that is that qua my property, I cannot misuse a thing. I can do all sorts of harm with it, or fail to use it profitably, but the modern concept of property builds an arbitrariness of purpose into my relation to a thing that makes misuse of a thing qua property impossible. Perhaps no one has seen this element more clearly than Proudhon:



8

Ibid., 128.

122  The Politics of German Idealism The Roman law defined property as the right to use and abuse one’s own within the limits of the law—​jus utendi et abutendi re suâ, guatenus juris ratio patitur. A justification of the word abuse has been attempted, on the ground that it signifies, not senseless and immoral abuse, but only absolute domain. Vain distinction! invented as an excuse for property, and powerless against the frenzy of possession, which it neither prevents nor represses. The proprietor may, if he chooses, allow his crops to rot under foot; sow his field with salt; milk his cows on the sand; change his vineyard into a desert, and use his vegetable-​garden as a park: do these things constitute abuse, or not? In the matter of property, use and abuse are necessarily indistinguishable.9

In the contemporary literature, Peter Benson makes the same claim: “Even one who uses his or her property in a way that violates the rights of another . . . does not thereby and as a matter of the right of property cease to be owner of it.”10 Whatever we, the non-​owners, think of the owner’s use is irrelevant. Every owner is the infallible source of the norms relating to their own use of their property qua property.

5.2  Kant and the Universal Principle of Right First take Kant’s doctrine of property. The basic argument for the institution of property is structured by the relationship between the general normative principle of Kant’s political philosophy, the Universal Principle of Right, and the specific principle of acquired rights to property, contract, and status that Kant terms the Postulate of Practical Reason with Regard to Rights. Here they are in full: The Universal Principle of Rights (UPR): Any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law. (MM 6:230) The Postulate of Practical Reason with Regard to Rights (PPRR): It is possible for me to have any external object of my choice as mine, that is, a maxim by which, if it were to become a law, an object of choice would in itself (objectively) have to belong to no one (res nullius) is contrary to rights. (MM 6:246)



9 Proudhon, What Is Property?, chap. 2.

10

Benson, “Philosophy of Property Law,” 769.

Property  123 How do we get from the first to the second? Kant does not make it easy to find out. Rather than entering into a full reconstruction, I want to pull two ideas from the interpretations of Westphal and Arthur Ripstein. First Ripstein: on his view, the relation between the UPR and the PPRR is one of extension. Whereas the UPR is sufficient to generate your innate right to control over your own body, it only generates your acquired right to property if it is extended by means of the a priori intuition of space. Both rights concern the incompatibility of control over something, but the intuition of space generates new incompatibilities outside the body itself in the control of external objects. On the one hand, this can look progressive rather than regressive, and thus perhaps more contractualist than constructivist. But it is essential to this move that no particular kind of interest is invoked nor any bargaining scenario. Instead, Kant tries to show that under the conditions of our sharing space with other human beings, the mere possibility of choice—​which cannot be given up without giving up the kind of freedom mentioned in the UPR—​requires the right of property. As we saw already in Chapter 2, on Ripstein’s view, this property right is quite sweeping in its modality (i.e., in the extent of control it confers on owners), and equally sweeping in its restriction of the holder of the right to individual agents: Kant’s argument shows, first, that the only way that a person could have an entitlement to an external object of choice is if that person had the entitlement formally, because having means subject to your choice is prior to using them for any particular purpose. Second, Kant argues that the exercise of acquired rights is consistent with the freedom of others, because it never deprives another person of something that person already has. So anything less than fully private rights of property, contract and status would create a restriction on freedom that was illegitimate because based on something other than freedom.11

But as I tried to show in Chapter 2, there are good reasons to doubt that this argument is valid. There is just nothing in either the formal notion of choice or the formal intuition of space that will do the requisite work of justifying such full and complete control, nor the individuality of owners. And in terms of institutional features of the property right, all that Kant seems to think he can get out of the formal notion of choice extended by the formal intuition of space is the notion that land is the first and paradigmatic form of property (MM 6:261–​62). Thus it is not surprising that, in contrast, Westphal’s Kant concludes from precisely this formality to a far more restricted modality of control in Kant’s right to property—​in fact such a restricted modality that Westphal emphasizes that Kant justifies only possession (Besitz) and not property (Eigentum). In a reading much

11 Ripstein, Force and Freedom, 62.

124  The Politics of German Idealism closer to the text of the PPRR, Westphal’s Kant concludes only that there cannot be an unconditional prohibition on use and possession (and says nothing about any of the other incidents to the right to property, such as income or transference).12 And, importantly, rules about the specific extent of use and possession, and its potential combination with other incidents of the right to property, must be justified on independent grounds and settled by positive legislation. The property right is just the collection of all of these positive laws (MM 6:261). At this point—​just as we get to historical features of property relations (where historical is here understood in the sense of institutional specificity more than change over time)—​Kant’s constructivism must turn to a meta-​level right (public law), which frames the political conversation over the proper scope of property right.

5.3  Fichte and Efficacy Fichte picks up precisely that feature of choice, the formalism of which makes Kant’s doctrine so general. It is crucial to Kant’s theory that the choice in question be distinguished from mere wishing—​you cannot have a property right to anything you wish to have, but only to those things that can actually serve as means for your ends. This is explicitly built into the relevant derivation of the property right for Fichte, which turns on the notion of efficacy. The derivation of property right therefore turns on the relation between freedom and efficacy. In fact this is built into the very first theorem of the Foundations: “A finite rational being cannot posit itself without ascribing a free efficacy to itself ” (FNR 18/​17). As Fichte’s derivation proceeds, it turns out that such efficacy requires the resistance of an external world, and in particular the resistance provided by the efficacy of other finite rational creatures (second theorem). The key form of resistance is a summons from the other for us to engage in free willing that defines our relationship by the conditions of free willing, namely right (third theorem). At least this part of Fichte’s argument seems properly characterized as constructivist, specifically in the second and third meanings of that term: the procedure is regressive, not progressive; and the relevant facts are social rather than counterfactual. How, then, do we get from this basic relation of right to the right to property? Separating my efficacy from your efficacy requires a stable distinction between the spheres in which we operate. The security and stability involved must be of a high order, since we are inquiring here into a condition of possibility of free (finite) rational beings as such: “What initially, and from a merely speculative perspective, are the conditions of personality become rights simply by thinking

12

Westphal, “A Kantian Justification of Possession,” 90–​92.

Property  125 of other beings who—​in accordance with the law of right—​may not violate the conditions of personality” (FNR 101/​111). Specifically, the kind of security involved is the freedom from others interfering with the contexts of our action in such a way as to compromise our efficacy: Only other free beings could have produced an unforeseeable and unpreventable change in our world, i.e. in the system of things that we have known and related to our purposes; but in that case, our free efficacy would be disrupted.—​The person has the right to demand that in the entire region of the world known to him everything should remain as he has known it, because in exercising his efficacy he orients himself in accordance with his knowledge of the world. . . . (Here is the ground of all property rights . . .). (FNR 105–​6/​116)

The key is the need for the free subject, in its appearance as a body, to have a way to recognize its own efficacy in the sensible world. This, in turn, requires absence of interference from other agents, so that any non-​natural change can be traced by the subject back to her own ends and thus provide evidence of her efficacy. But as David James has pointed out, this role of efficacy decisively changes the nature of the property right: Fichte treats the right to undertake a certain activity as more fundamental than the right to a thing when, in § 18 of the Foundations of Natural Right, he comes to determine in more detail the terms of the property contract. Fichte here states that any objects which are an individual’s property are so only in virtue of the particular use that this individual makes of them, so that the most fundamental object of property rights is to be understood as a particular activity. He consequently describes the right to property as “the exclusive right to actions, and by no means to things.”13

Thus Fichte’s “sphere” of property here points less to a determinate spatio-​ temporal region (as it does in Kant) than to a range of activities that can be securely pursued without interference and thus which I can be assured to be the effects of my own will and activity. The nature of the property right is further changed because Fichte introduces a particular end, that of self-​preservation, as required by all other ends. It is required for all other ends because it is required for the existence of the free will itself. This supplements the generality that we saw in Kant’s view of choice (since it specifies a particular end that can be used to determine whether something in the world is truly a means and in what respect), and it specifies the most basic

13

James, “Fichte’s Theory of Property,” 206.

126  The Politics of German Idealism means-​end relation as one of labor. Fichte then connects this specification of ends with the notion of a sphere of activities to argue that the basic form of efficacy is a right to a profession or occupation. Ultimately the sphere of freedom required for free efficacy is the bundle of activities that make up an occupation that allows one to make her living in the economic world. In fact, the situation is more complicated, since there are two different forms of property in Fichte. The kind of property described thus far is the basic form, and the one that must be protected first and foremost. Protection of this form of property involves support of the state and therefore a compelling state interest in seeing that everyone has a profession and pursues it diligently. Whatever is left after everyone’s basic property has been secured and the relevant support has been paid to the state is “absolute property,” and this form of property is thus exempt from the sort of state intervention that is intrinsic to the basic form. Absolute property, then, corresponds to the modern form of property with respect to which we are infallible. And though this form of property is therefore more closely associated with things rather than with activities, one might think that the central insight is that a kind of leisure is owed to us for the free play of our faculties.14 To come back to the meta-​ethical question, most of this looks straightforwardly constructivist. It is regressive, social, and objectivist. Unlike Kant, however, Fichte’s social contract is indicative rather than modal or even hypothetical. Not only does Fichte envision regular constitutional conventions to set things like the number and nature of occupations; even in their absence he claims that positive law is so clearly derived from the basic principles that anyone can “do the math.” The detailed agreement can therefore be considered as one to which all have actually agreed, even if only implicitly (FNR 98–​99/​106–​7). In this respect the procedure is quite a departure from the Kantian constructivist model. Again, as in Kant, the constructivism breaks down at the very point where we come to historical specificity; in Fichte, where the specific bundles of activities cohere to make up an occupation. Fichte’s procedure is a departure from the Kantian constructivist model despite the fact that, for Fichte, this direct application of norms to facts is precisely what secures the constructivism of the account (in the sense that it secures the status of finite rational agents as sources of all the relevant norms). It does so because the principle of direct application eliminates problems of judgment for which other norms with perhaps other sources might need to be found. Before moving on to Hegel’s conception of property I want to connect this point to the problem of infallibility identified by Laitinen for constructivist accounts. The reason constructivism seems to break down precisely at the point

14

James, “Conceptual Innovation in Fichte’s Theory of Property.”

Property  127 of historical specificity is that this is precisely the point at which it seems absurd to think that reasonable people couldn’t disagree, and thus that reason itself could settle the issue. Kant accepts this possibility of reasonable disagreement and turns primarily to public law as a way to provide institutional form to the debate and to propose some basic and largely formal guidelines. Fichte quite notoriously rejected the notion that reasonable people could disagree about even the finest details of application of moral and political judgment, but this threatens to saddle his view with absurdity at these points of historical specificity. We seem to have a kind of dilemma for constructivism: either abandon the notion that we are sources of the norms of historically specific institutions, or abandon the notion that reasonable people can disagree about those norms. If we take the first horn of the dilemma we create a space for pure politics and the individual exercise of judgment but at the expense of normative criteria of decision. If we take the second horn we seem to owe our interlocutors a derivation that seems wildly implausible. It is against the background of this dilemma that I want to consider Hegel’s derivation of the concept of property.

5.4  Hegel and Personhood The initial discussion of property in Hegel’s Elements of the Philosophy of Right is situated within a section entitled “Abstract Right.” Here is where the initial theme of infallibility is introduced, through the important role it plays in Hegel’s derivation of property from the Rechtsgebot: “be a person and respect others as persons” (PR §36). Infallibility is introduced by the way that personality is characterized as subjectivity aware of itself as determinate and yet unlimited: “Personality begins only at that point where the subject has not merely a consciousness of itself in general as concrete and in some way determined, but a consciousness of itself as a completely abstract “I” in which all concrete limitation and validity are negated and invalidated” (PR §35R). One is tempted, of course, to immediately add “as unlimited normatively speaking,” but it is not clear that the addition quite captures the depth of Hegel’s meaning here. As Heidegger reminds us that talk of values is poor recompense for the loss of being, Hegel here calls us back to a lived sense of independence not just from norms but from patterns of living. This independence marked the lives of the nobility (at least away from court), and one of the functions of the modern conception of property is precisely to generalize this personal independence. This is a kind of social infallibility, if you like, that is connected to experiments in living and self-​authorship. Indeed, schematically considered, one might say that Hegel’s derivation of property has only one step, which is just to point out that the very absence of general conditions on the scope of legitimate property relations is precisely that

128  The Politics of German Idealism feature which makes property the actualization of personality in the world. In Hegel’s text, this comes out in the connection between the “infinity” of the will and its existence as reason: The person must give himself an external sphere of freedom in order to have being as idea. The person is the infinite will, the will which has being in and for itself. . . . (PR §41). The rational aspect of property is to be found not in the satisfaction of needs but in the superseding of mere subjectivity of personality. Not until he has property does the person exist as reason [Erst im Eigentume ist die Person als Vernunft]. (PR §41Z)15

One cannot overstate the generality of this claim, nor its modernity: property just is the way the world appears to us when we approach it from the perspective of a self-​conscious subjectivity that knows itself to be the source of value. Property is not this bit of the world or that bit of the world; rather, the world as such comes into view under the description of it as property once we have achieved this self-​conception. It is not so much an example of constructivism but rather the world seen through a constructivist lens. This gets us quite close to Ripstein’s Kant, where the very absence of restrictions on proper ends is supposed to generate the fullness of the property right. And as in Fichte, there is a grounding of property rights in the very conditions of rational self-​consciousness. But instead of then turning either to a general conception of independent choice (Kant) or to a necessary end (self-​preservation in Fichte) to begin to give shape to that right, Hegel turns back to reason and particularly the forms of judgment inherent in reason. Specifically, he turns to the different kinds of judgments of quality (positive, negative, infinite) as a means to spell out what must be involved in the property right (PR §53; cf. EL §172–​73). The way that a piece of property is judged positively is by possessing it, negatively by using it, and infinitely by alienating it. That is, in possessing the thing I identify my subjectivity positively with it; in using the thing I express the superiority of my subjectivity to this mere thing; and in alienating the thing I express the lack of connection of the thing to my subjectivity. One noteworthy aspect of this argument structure in comparison with Kant and Fichte is that the means-​end relationship of property only comes in through the negative judgment. The teleological character of the ownership relation is thus an implication of a more basic (or at any rate more general) feature of any rational relationship to a thing, namely the negative judging of it as

15 Hegel’s seriousness about the extent of this infinity is further displayed by the way that he adduces our attitude toward property—​in particular, our acceptance of the legitimacy of possession of any external thing—​as an argument against transcendental idealism (PR §44).

Property  129 determined by my subjective attitude toward it. But also this means that there are more aspects of finite rational agency that provide resources for specifying the property right than the means-​end relation that distinguishes true choice from mere wish in Kant, and which provide an alternative to the pick-​a-​necessary-​end strategy of Fichte. In fact, Hegel purports to derive more of the characteristically modern conception of property rights than Kant before any discussion of public law, and furthermore out of the Fichtean requirement that reason be actualized in the world. Out of the affirmative judgment he derives various ways of taking possession (PR §§54–​58). Out of the negative judgment he derives the co-​extension of full use and ownership (and thus the right to exclusion) (PR §§61–​62), as well as ownership of value (and thus rights to compensation) (PR §63). Out of the infinite judgment he derives rights to transfer (and exchange) (PR §65). If one takes the rights of use, exclusion, transfer, and compensation to constitute the core sticks in the modern property rights bundle, then Hegel purports to have an argument for that bundle that hinges neither on the form of choice nor on the end of self-​ preservation, but simply on what is required for the free will to judge that some part of the world is its own. Let’s stop and take stock according to our questions about constructivism. First, the procedure is clearly regressive rather than progressive. Though there is no space to go into detail here, Hegel in the Introduction to the Philosophy of Right has already set out the rudimentary structure of the will as idea, and the argument here works as a regress on the possibility of that idea (PR §§25–​26).16 As in so many of Hegel’s arguments, the actual argumentative step is short (one step, as I have reconstructed it above), but then Hegel asks us to reflect on what is embedded in that step and relies on other arguments to unfold what is embedded. Here, he relies on prior arguments about the categories of reason to specify what it means that property is the world qua objectivity for the rational will.17 Second, at least as concerns the initial discussion of property in Abstract Right, the agreement is modal rather than indicative or hypothetical: “With reference to concrete action and to moral and ethical relations, abstract right is only a possibility as compared with the rest of their content, and the determination of right is therefore only a permission or warrant. For the same reason of its abstractness, the necessity of this right is limited to the negative—​not to violate personality and what ensues from personality” (PR §38, emphasis in original). There is no question yet of implicit or hypothetical agreement. Hegel’s point in 16 Yeomans, Expansion of Autonomy, 82–​95. 17 There are other arguments that are reasonably construed as progressive, such as the Lockean argument that takes one from Abstract Right to Morality, which hangs on the impossibility of adequate protection of rights in the absence of an impartial arbiter.

130  The Politics of German Idealism showing us what is embedded in our judging of the world is not to show us that we already agree to this treatment of the world, but that what we call property is already a consideration of the world under this description. Third, as to the question of whether the relevant facts are social or counterfactual, I have stopped the argument before we have reached enough of it to truly answer it. There is nothing counterfactual here, but the social aspect doesn’t make its appearance for some time, when one comes to the discussion of Ethical Life. One does get contract, crime, and punishment further on in Abstract Right, but the problems discovered in them (particularly in punishment) seem to show that they are being considered intersubjectively rather than socially. That is, they are considered in terms of bargaining scenarios rather than in terms of the institutions that make such scenarios possible. There is a long argumentative road to travel between these arguments and the arguments about social institutions, but there is an important sense in which this road is traveled by means of meta-​ethical arguments. What I mean by this is that the very limitations pointed out by Hegel in contract, punishment, and then moral reasoning all show that such non-​institutional practical contexts are inadequate as devices for generating objective practical norms concerning property rights (including rights to one’s body). Fourth, the norms of property offered here are obviously taken by Hegel to be objective, though the very insistence on those norms as specifying the way subjectivity controls or is dominant over objectivity make it hard to see as any kind of realism, at least if realism is taken as a claim that the values are “out there” somewhere. Finally, let us come to the infallibility objection. In comparing Kant and Fichte we came to a dilemma, in which it seemed that the constructivist either had to abandon the notion that we are sources of the norms of historically specific institutions, or to abandon the notion that reasonable people can disagree about those norms.18 It is initially hard to know how to locate Hegel with respect to this dilemma, but here is a start: on his account, it turns out that the norms of those institutions have a more general orientation than one might have thought, and so it makes more sense than might have initially seemed plausible to think both that these are norms about which there is a demonstrable, objective truth and that we might be their source. What I mean is this: Hegel doesn’t distinguish between the categories of theoretical and practical reason (which is why it is wrong to consider Hegel’s Logic as his theoretical philosophy). The basic logical, or, if you like, metaphysical categories do more to structure the practical treatment of the 18 I leave out of consideration here the question of whether Hegel’s central idea that the will is embodied in the property object is tenable. Kant thought it nonsense (MM 6:260). For my part, I find Dudley Knowles’s defense of the notion convincing. See Knowles, “Hegel on Property and Personality.”

Property  131 world than one might have expected.19 This is analogous to the Kantian strategy played up by Ripstein, in which (apparently theoretical) intuitions of space and conceptions of force and substance generate novel incompatibilities and thus real rights to specific features of the actual world such as land. But it is particularly significant that in his derivation Hegel chooses forms of judgment, that is, necessary modes of the subjective relation to objective reality.20 I think for this reason it makes sense to think of Hegel’s procedure with respect to the justification of property relations as constructivist, because the source of the norm that controls the property relation and specifies owners’ rights is a necessary structure of self-​consciousness.21 Of course, there is much more historical specificity in Hegel’s treatment of property in Ethical Life, but even in Abstract Right there are specific, and specifically modern features of property that Hegel purports to derive directly from these features of judgment.

5.5  Historical Constructivism The differences in Kant’s, Fichte’s, and Hegel’s constructivism are essentially historical differences. I mean by this not that there is a progression from one to another to another, but rather that each philosopher constructs a doctrine of property from a distinctive and identifiable social perspective that nonetheless opens out onto the perspectives represented by the others. Their difference is historical in a synchronic rather than diachronic sense, for it is precisely the tension between these different perspectives that defines the field of the present that the philosophers sought to understand and in which to intervene. That is, historicity is paradigmatically the field of tension at any particular time rather than change over time. Before taking up the social nature of the positions, I want to begin with their thematic differentiation. Here we can say that modern philosophers in general, and 18th-​and 19th-​century German political theorists in particular, approached the problem of property simultaneously from juridical, economic, and political perspectives.22 From the juridical perspective the most important feature of property is the way that it helps to specify enforceable protections for personal autonomy. From the economic perspective, the most important feature of property is its flexibility, that is, the way that different sorts of ownership relations can be developed which correspond to and enable the growth of commerce. From 19 See Nuzzo, “The Relevance of the Logical Method for Hegel’s Practical Philosophy.” 20 There is a further question that I put aside here, which is: why these categories rather than others? 21 See Thompson, “The Metaphysical Infrastructure of Hegel’s Practical Philosophy.” 22 Compare Dieter Schwab’s entry on Eigentum in the Geschichtliche Grundbegriffe.

132  The Politics of German Idealism the political perspective, property serves as a cornerstone in the construction of a liberal state with greater political participation by equal and independent citizens. From the early modern period through the present day, these three perspectives constitute the field of tension within which the institution of property becomes visible as an object of public debate. They represent the fundamental interests to which that institution is responsive. Against this background Fichte appears most clearly as proceeding from the political perspective. From the beginning, his emphasis on the way that property is to allow each citizen to provide for himself and his family by work is oriented by the notion that only such economic independence could provide the basis for independent citizenship. In both the Foundations of Natural Right and even more so the Closed Commercial State, Fichte is deeply attentive to the relation between economic self-​sufficiency and political independence, and shows a willingness to bite quite deeply into economic structures and development in order to secure that self-​sufficiency and thus that independence.23 But, of course, the very emphasis on political issues brings economic issues to the fore, even if economic goals like growth and free trade are held to be subordinate to political goals. Also present, but to a lesser extent, is the juridical perspective on personal autonomy. This is paradoxical given the starting point in individual efficacy, but that efficacy is very quickly rendered in socially visible and economically intertwined ways. Thus the promise of property for radically particular personal freedom fades from view despite its initial prominence. From this generally governmental perspective, the other perspectives show up as extremes of personal independence and economic acquisition between which a middle path of active citizenship must be found. Hegel’s doctrine of property is most clearly juridical. Private property is a radically direct extension of the self in a way rejected by both Kant and Fichte, and wrong is understood by Hegel as an injury to the will embodied in the object damaged. The emphasis on the absolute nullity of objects as such, and the corresponding importance of the right of first occupancy, express most fully that infallibility of the property owner discussed in the previous section. The political aspect of property is also present from Hegel’s viewpoint, even before the introduction of state institutions. Among other places, this can be seen in the variety of legal determinations concerning forms of wrong that Hegel attempts to validate simply on the basis of reflection on the ways that different wills can fail to be truly united in the disposition of goods. To this political question Hegel once again applies the forms of qualitative judgment: whereas contract represents a

23 On this point see Nakhimovsky, The Closed Commercial State. On the necessity of self-​ sufficiency for the vast majority of the population—​the peasantry—​see Braudel, The Wheels of Commerce, 55.

Property  133 positive judgment between the parties, unintentional (civil) wrong represents a negative judgment and crime an infinite (negative) judgment (PR §§85, 88, 95). Furthermore, there is (as in Kant) already a derivation of the right to punishment or coercion, but for Hegel this right is further spelled out as a right of revenge. There is, in other words, already a nascent political society within Hegel’s Abstract Right that centers around the maintenance of the boundaries of spheres of rights in the face of violations (of the sort thematized more explicitly by Kant under the title ‘provisional right’). Here we have secondary perspectives showing up as similarities or analogies. In contrast, economic considerations don’t enter into Hegel’s discussion of property in Abstract Right much at all. This fact is crucial to his later modifications of property doctrines in Ethical Life, since it helps to make the case that the economically significant forms of property are already modifications of the abstract right to property effected by state intervention, as opposed to the view that the economically significant forms of private property are themselves natural rights that are then injured by state intervention. In interpreting Kant’s doctrine, Ripstein also presents Kant as a juridical thinker. But as I suggested above, that saddles Kant with an impossibly ambitious argument. I think it best to interpret Kant’s PPRR along the lines suggested by Westphal, according to which it simply rejects any general principles that would put any type of object outside the set of legitimately possessable objects. Similarly, its formality also entails the rejection of any general principles which would put any type of end outside the set of legitimately pursuable ends with respect to which objects can be identified and used as means. This is central to the economic perspective, which for the growth of commerce requires not a particular form of the property relation—​not even full and complete ownership according to the central incidents of the modern property bundle—​but rather a flexible and formal conception of ownership that might be modulated in a thousand different ways as appropriate for different sorts of commercial relations. From the economic perspective, the conceptual poverty of the idea of property is its central virtue; a feature, not a bug. Once the economic perspective is seen to be primary, we can see the way that the juridical approach comes in as secondary and tempts readings like Ripstein’s. Precisely for this sort of multiple specification of the property right, the right of particular persons to put objects to their own ends for their own reasons is crucial. The more formally the property right is described, the more these particular uses fade from legal and political view. As a result, the political element recedes from view and there are great difficulties in understanding what the constraints of public law mean for the actual exercise of property rights, and Kant notoriously rejects any requirement of actual political participation in the legislation of the regulatory scheme. Thus, each of the three German constructivists approaches the topic from a predominant perspective: juridical, economic, or political. One of the remaining

134  The Politics of German Idealism two perspectives is clearly present but the second of the remaining perspectives is far less clearly present or perspicuous. So much, then, for the thematic differences in the perspectives of our three philosophers. Now I want to say just a bit about the social differences so as to bring out the way in which these thematic differences are historical differences. These patterns of clarity and obscurity are not a matter of idiosyncratic taste or blindness, but are rather constitutive of the social interests that animate the perspectives on the institution of property. This is important for constructivism because the modal question of that to which we could or could not agree is a historical question articulated by the different social personae whose agreement is in question. Hegel himself has a historical theory of the social perspectives to which the institution of property appears. In this theory the different historical perspectives that are involved in the question of that to which anyone could not agree are defined by the estates structure of Sattelzeit Germany. The answers to basic questions surrounding the meaning of property relations differed substantially and reasonably according to the social position of persons. These social positions are neither idiosyncratic nor defined by class. There is, of course, a substantive debate about the proper taxonomy of these positions; but the estates structure proposed by Hegel would be a serious alternative in that debate at the level of reconstruction required by a historical constructivism. Much more is coming on this topic in Chapter 8, but for now we can just note that the three basic estates Hegel identifies are the public estate (civil service), the commercial estate (civil society), and the agricultural estate (both peasantry and nobility but quite optimistically also family farmers) (PR §§199–​208). Let us then take Hegel’s social theory and use it to understand the debate between Fichte, Kant, and Hegel. Here it is, I think, quite easy to see Kant’s economic approach to property as proceeding primarily from the perspective of the commercial estate, and thus of civil society more generally. The flexibility provided by a minimal notion of property is just the mixture of warrant and protection from interference that developing industries required. It is also quite easy to see Fichte’s political approach as representative of the public estate, and thus the governmental perspective. One of the great hopes of the bureaucrats was the creation of a society with as many property holders as possible, and intensive planning and coordination efforts by the state were seen as requisite to make this happen. It is perhaps a bit more difficult to see Hegel’s juridical perspective as the representative of the agricultural estate, and thus of corporate society more generally. The key is to see just how personal and how particular the rural claims to property were. One can speak in generalizations, of course, but in actual fact the different sorts of divided ownership relations that characterized rural property in the context of personal relations between villagers and manorial lords was extraordinarily varied and yet locally quite fixed. Rural property shared the variation typical of commercial

Property  135 conceptions of property but not its actual variability, so to speak.24 The same could be said of ownership interests within the guild system. At the risk of getting into the weeds, I want briefly to interpret the different Idealist theories of property in terms of the abstract conceptual dimension of our field of tension. Fichte’s predominantly political perspective on property is, conceptually speaking, the individual perspective. He tries to understand, first and foremost, how the different spheres of freedom can fit together in the right way so as to be stable and perceptible. The society as an individual entity is in the center of focus, and the Closed Commercial State is like a German hometown writ large. Furthermore, the property right protects activities first and foremost, and activities are associated by Hegel with individuality. From this individual perspective Fichte can also make out the universal perspective (i.e., the economic perspective). But there is some distortion here, and the economic features of property are primarily rendered in terms of the household. This is a sort of ancient understanding of economics as the Greek etymology suggests—​household management. And in the end, the juridical side cannot be clearly brought into view. It remains a kind of caricature, and the personal freedom the juridical approach aims to protect collapses under the paternalism of the state. Conceptually speaking, this is the inability of the individual perspective to bring the particular perspective clearly into view. Kant’s predominantly economic perspective is, conceptually speaking, the universal perspective. This is exactly what makes his treatment so formal, and allows for the diametrically opposed conclusions from that formality represented by Ripstein and Westphal. This corresponds to the very rudimentary and thus slippery nature of the concept of property as a social meaning in the Sattelzeit. From this universal perspective Kant can make out the particular, juridical perspective (this is precisely what tempts Ripstein’s interpretation). The way in which external objects serve as means for a whole variety of specific ends is clearly seen, though it is rendered rather generally in terms of spatio-​temporal incompatibilities. But the individual, political perspective is rendered as a caricature of politics without political participation and only tenuously connected to the private right to property. Hegel’s predominantly juridical perspective is, conceptually speaking, the particular perspective. In the center of focus is the direct connection to and even extension of self in the object. The most particular and personal of all external connections—​that between the individual person and their body—​is made the model for all property relations, and indeed for the basic normative approach 24 There is lots of good detail on these points in Schwab’s entry on Eigentum in the Geschichtliche Grundbegriffe.

136  The Politics of German Idealism to external objects. From this particular perspective a certain coherent system of rights—​to possession, use, and alienation—​can be made out, which is the way that the individual, political perspective is brought into view. But the universal perspective is more difficult to bring into view. This is what gives rise to the Lockean problem of a cycle of revenge at the end of the discussion in Abstract Right—​there is no universal criterion or even conception of impartiality for resolving disputes. Instead of that impartiality one has crime, which is a sort of caricature of ownership. Even on Hegel’s own terms, there are no perspectives (even his own) without distortion and blindness. The three preceding paragraphs simply take the talk of thematic perspectives and parse them in conceptual language. But it is valuable because it helps to see how we might reconstruct a constructivism for our own historical moment. In my view, what makes Kant, Fichte, and Hegel philosophers rather than simply apologists for a certain class position is that all of the three historical perspectives show up in each of their work, and the differences between them are largely a matter of emphasis.25 These are not insignificant differences, but the explicitness with which all three of the perspectives show up in each creates the tissue of an engaged conversation and presents a series of views onto the complete phenomenon of property relations. Because the historical perspectives are embodiments of necessary conceptual perspectives, this series of views is a process of conceptualization of the object. Historically speaking, the debate is a necessary part of that conceptualization. The point here is that the philosophical field of tension between Kant, Fichte, and Hegel presents in conceptual form the social field of tension that constituted their historical moment. With respect to the concept of property, that field took the form of a hopeful anticipation of a future political system in which the coherence and mutual significance of personal, economic, and political freedom would

25 In contrast, one might take up one of the perspectives to the exclusion of all others: one can defend a coherent conception of property along these lines that dispenses entirely with the economic and political dimensions. In some respects Peter Benson’s defense of a juridical conception of property borders on this exclusivity (though it does not cross that line—​Benson is no mere apologist but offers a philosophy of property). In an account that is remarkably close to Hegel’s, Benson’s notion of property is entirely identified with first occupancy (for Hegel, the right of a subject over mere objectivity) (see Benson, “Philosophy of Property Law”). Possession, use, and alienation are conceptually derived from the conditions of that first occupancy in a similar way as Hegel (though using a somewhat different vocabulary). Economic features of the common law of property are then grounded not in the idea of property at all but rather in the idea of contract. Political features are then considered to be a part of public law. Putting aside the political features, there are two main difficulties. First, the resulting conception of property is conceptually coherent but existentially uninstantiated. For example, no one has the right to alienate their property in Benson’s sense of simply abandoning ownership—​even trash must be contractually transferred. Second, the concept of contract is even more subject to the pressures toward disaggregation into a bundle that looks more like a heap. This, of course, is the upshot of the “death of contracts” literature. See Gilmore, Death of Contract; and Mirabito and Snyder, “The Death of Contracts.”

Property  137 be validated. We now know that this hope was in vain, but that doesn’t make this hope either unreasonable at the time nor any less central to reconstructing German Idealist conceptions of property. Koselleck is quite good on why this hope was dashed: the legal reforms championed in one way or another by the German Idealists presupposed the society that only those reforms could first create. But that circle didn’t close, because the rights that would have had one extension in the society to be created had another extension in the transitional society (e.g., rural property rights designed for family farms were instead primarily held by large landowners). When those rights were granted in the transitional society, they led social and economic development in a different direction and produced a society quite different from the one presupposed by the reforms. Of all the institutions discussed in this work, it is surprisingly here that we are most stuck with Beiser’s historiographical choice between archaism and anachronism. Since the concept of property is of no use to us now in organizing the normativity of either our economic or political relations, and of questionable use in organizing that of our personal autonomy, the choice of archaism is clear. It is a misrecognition of our own historical moment to think that such hopes as were articulated in the modern philosophical debates on property reveal the outline of our own field of tension. This is true not only of the social form of those perspectives (the estates), but also perhaps of their thematic form. It is far from clear to me that the juridical, the economic, and the political identify the requisite perspectives with respect to which the successor institution to property ought to be justified. But there remains much in the German Idealist accounts that can be important to us. One thing on which we ought to insist is the historicity of constructivism. The modal question of that to which we could or could not agree is, essentially, a historical question. I have also argued elsewhere that there is much to be gained for contemporary critical theory by mining this strain of German Idealist thought, particularly in combination with the proper understanding of the three projects of self-​determination discussed in Chapter 3. Such an approach would back up to the conceptual level of perspective, and then do the sociological work of identifying the social perspectives that embody those conceptual perspectives and projects of self-​determination in extant social institutions.26



26

Yeomans and Litaker, “Towards an Immanent Conception of Economic Agency.”

6

Inheritance Inheritance lies at the intersection of family structure, individual property rights, and the economic structure of society.1 Laws concerning who gets to bequeath what to whom, and who gets to inherit what from whom, play an important role in tracing the outlines of the family by giving economic structure to its multigenerational nature. Such laws also directly constrain and enable distinctive sorts of property rights, as individuals find their options for the transfer of their property expand or contract according to the rights of family members to that property. Finally, more recent works such as those by Piketty2 and Beckert3 have made us painfully aware of the role that intergenerational wealth transfer plays in economic inequality and class structure. An adequate theory of inheritance can reduce it to none of its individual aspects, but must hold them all together and find a way to balance the concerns and interests that are wrapped up in the property and other social relations at stake. Of course, the kinds and extent of inequality made possible by capitalism are beyond even the imaginations of the German Idealists (for whom almost everything of value that could be amassed was land). But the basic problem of understanding how the property relation interacted with family rights and death was taken up by the German Idealists in the context of newly liberalizing economic and family structures. Since Hegel thematized these issues with the greatest explicitness I will begin with a discussion of his view before turning to Fichte and Kant.

6.1  Hegel: Private Property and Family Resources Key to Hegel’s view are (1) a distinction between two forms of property, personal property (Eigentum) and economic resources (Vermögen); and (2) a theory of social institutions in which such property is embedded. In setting out Hegel’s view, I will take the spirit (and much of the substance) of the view to be continued in Eduard Gans’s lectures on Hegel. There we find a clarification of Hegel’s views

1 An earlier version of some material in this chapter appeared in Yeomans, “Property in the Tension between Family and Civil Society.” 2 Piketty, Capital in the Twenty-​First Century. 3 Beckert, Inherited Wealth. The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/​oso/​9780197667309.003.0006

Inheritance  139 that reverses the priority of family structure to individual property rights usually assumed in discussions of inheritance. In the usual discussion, the starting point is the individual right to dispose arbitrarily over one’s property, and then the question is whether the law should carve out an obligatory share for family members which is protected from disposition by the will of a testator (in German a Pflichtteil, in French a quantité disponible). But for Gans’s understanding of Hegel, the situation is reversed: out of the economic resources of the family an obligatory share is provided to the testator who may dispose of it as they wish, as a way of safeguarding their personal property rights. The first thing to note about Hegel’s theory of inheritance is the placement of his discussion. It appears toward the end of his discussion of the family in the Philosophy of Right. Hegel speaks there of the dissolution of the family, and two senses of such dissolution must be distinguished. The first is implicit: the ethical dissolution of the older versions of the family in favor of newer versions. The second is explicit, and in fact the occasion of inheritance: the natural dissolution of the family through the death of the parents and/​or the emancipation of the children. The implicit, ethical dissolution is important because it speaks to the specific form of the family that is relevant to questions of inheritance. This is the dissolution of the older conception of the family as a long-​enduring clan (Stamm) and its replacement by the modern nuclear family (Kleinfamilie). (In fact, linguistically, the German term ‘Familie’ only came into common and then dominant usage through the course of the 18th century.) Hegel entirely endorses this replacement as fitting the greater autonomy demanded by modern conceptions of freedom. This context is crucial for understanding Hegel’s views, or rather primarily for avoiding misunderstanding. Though Hegel will end up arguing for a view according to which the relevant property is primarily family property, and only secondarily individual property, he must not be misunderstood to be arguing for dynastic family bloodlines. Property is primarily family property because it forms the resources that allow it to care for its two generations: parents and children. The explicit, natural dissolution is the proximate occasion of the inheritance question. Of course, this is particularly the case when a parent dies but the fact that such a natural dissolution also includes the emancipation of children is important. The very point of the modern family is to dissolve itself, Hegel thinks: to produce children capable of leaving their family of origin and entering another institution—​ civil society—​ as independent members of it, capable of then forming families of their own. Whatever ethical value inheritance is to have, it must be consistent with this more general orientation of the family. But, of course, the most relevant part of the natural dissolution is the death of the parents, and that is how Hegel introduces the topic of inheritances:

140  The Politics of German Idealism The natural dissolution of the family by the death of the parents, particularly the father, has inheritance [Erbschaft] as its consequence so far as the family resources [Vermögen] are concerned. The essence of inheritance is the transfer to individual ownership of what are in themselves common resources [ihrem Wesen nach ein Eintreten in den eigentümlichen Besitz des an sich gemeinsamen Vermögens]—​an acquisition which, in the case of more distant relationships and with the increasing self-​sufficiency of persons and families as a result of the dispersal of civil society, becomes more indeterminate as the disposition of unity declines and as every marriage leads to the renunciation of previous family relationships and the establishment of a new and self-​sufficient family. (PR §178)

The conceptual structure of inheritance is thus understood as a kind of transformation of the family’s community resources (gemeinsames Vermögen) into the individual possession of one of its members (eigentümlicher Besitz). More on this shortly, but first I want to round out this basic outline of Hegel’s views by identifying the specific tension in the ethics of inheritance that tracks this conceptual structure. The tension combines this transformation of community resources into individual property with the aim of the family to produce self-​sufficient individuals. Hegel expresses it as follows: The principle that the members of the family grow up to be self-​subsistent persons in the eyes of the law . . . lets into the circle of the family something of the same arbitrariness and discrimination [Willkür und Unterscheidung] among the natural heirs, though its exercise there must be restricted to a minimum in order to prevent injury to the basic family relationship. (PR §180)

That is, the shift from community resources to individual property is not just a contingent or bureaucratic shift in labeling on the occasion of the death of a parent. It isn’t just a legal strategy for responding to natural death and the need to dispose of the decedent’s property in some manner or other.4 Rather, the shift is analogous to the more general transformation of children from being members of the family to being self-​sufficient persons in the modern economy. Hegel’s point is that this principle of arbitrary disposition of property, which seems so foreign to the ethical value of the family as an institution of love and support for its members, is actually already to be found within the family in virtue of the goal toward which that love and support are aimed: individual persons capable of making their own free choices. That means that inheritance brings to light an ethical tension within the family, rather than simply an external principle of

4

Hegel explicitly rejects this approach to the question in PR §178R.

Inheritance  141 a different institution (civil society) with which the family is confronted. The modern family is already aimed at civil society, and in inheritance its members are forced to recognize that fact. There is not an extensive literature on Hegel’s views on inheritance, and the most important original contribution to the topic along Hegelian lines is that of Eduard Gans from the mid-​19th century. This speaks less to the unimportance of the topic for Hegel than to the unimportance of the topic to most philosophers of the last century. Nonetheless we can orient ourselves by means of two contributions from the last half-​century. On Karl Welker’s interpretation, the insoluble tension at the heart of Hegel’s account of inheritance is that between freedom of choice (Willkür), one the one hand, and ethics (Sitten) with duties (Pflichten), on the other.5 The burden of Hegel’s theory is to provide some sort of criterion that allows us to find a balance between the two. But Hegel is unable to provide this criterion, and so in practice the arbitrary element (Willkür) is essentially unlimited. On Welker’s view, Hegel makes a show of trying to maintain the substantial ethical bond of family ties, but the free disposition of property ultimately wins out and his gesture toward a balance is a merely ideological cover for that victory. Though this interpretation is wrong in important respects, it does at least grasp the right animating tension. Indeed, Gans’s own view—​which is explicitly sympathetic to Hegel—​operates with the same basic tension between free choice and ethical duty. In his historical work, Gans tries to show that this tension animates the entire world-​historical development of inheritance law. In this historical story, the Roman Empire plays the role of the place and time in which the tension rises to consciousness and becomes insoluble at the same time. But an important difference between Gans and Welker is that Gans recognizes that Willkür is itself an essential ingredient of any freedom worthy of the name, whereas for Welker it is just a false freedom of arbitrary choice that must be abandoned if we are to protect the truly rational and ethical freedom of will (Wille). According to Jens Beckert’s more recent work on inheritance, Hegel’s view embodies the contradiction of the Vormärz period: freedom of property along with absolutist monarchy. I will argue below that Hegel’s view has very little to do with absolutist monarchy in the usual sense—​neither his political view in general nor his take on inheritance in particular—​but in a more general stage-​setting of the German context Beckert does refer to those aspects of the social situation that form the coordinate axis of Hegel’s consideration of inheritance:

5 Welker, “Hegelianischer Freiheitsbegriff und Geschichtsschreibung im Vormärz: Testierfreiheit bei Hegel und Gans.”

142  The Politics of German Idealism In Germany, too, the issue of testamentary freedom became an important topic of legal and political controversy. [H]‌owever . . . the discursive context that developed in Germany was different from that in France. Criticism of testamentary freedom was not ignited by a threat to natural equality, but by two other aspects: (1) protection of the family against an excessive individualism that found expression in the legal institution of the will and was perceived as a menace to society’s moral foundation in the family; (2) the question of how one could create a basis in legal theory for the use of bequests to pursue the goals of social policy.6

We have already seen (1); (2) will become relevant further on when we consider Hegel’s support for primogeniture (i.e., for the rule according to which agricultural property passes undivided to the first-​born son). But before taking up Hegel’s specific policy proposals, I want to lay out two features of Hegel’s larger social philosophy that are relevant to his discussion of inheritance. The first concerns his distinction between two forms of property, Eigentum and Vermögen. The second we have seen already, namely his theory of social organization, which he presents as a taxonomy of the different estates (Stände) of society. In the background of both features is the more general perspectival pluralism we have already seen, according to which any successful philosophical consideration of such a topic—​a conceptualization of it in Hegel’s distinctive sense of that term—​requires that it be simultaneously revealed in its personal, political, and economic dimensions. To recap from Chapter 5, when we consider the institution of property from each of these three dimensions, we get very different senses of what the institution is, why it is important, and thus how it can be normatively justified. The personal dimension emphasizes the way in which private property—​perhaps including property in one’s own body—​provides a sphere of physical control and non-​interference that makes self-​determination possible. The economic dimension emphasizes the way in which a variety of ownership interests provide economic incentives and enable economic growth and development. And the political dimension emphasizes the way in which the self-​sufficiency provided by property—​whether land, wealth, or even a stable income—​generates equal citizens who can enter the political sphere in relations of non-​dependence and thus deliberate on issues of public concern in a way freed from control and (perhaps) selfish interest. In any given political philosopher’s discussion of property, one of these dimensions will dominate. For Hegel, it is the personal. For Kant, it is the economic. And for Fichte, it is the political.



6 Beckert, Inherited Wealth, 50.

Inheritance  143 Hegel begins along the personal dimension. On Hegel’s conception of personal property (Eigentum)—​including the property in one’s own body—​property is literally the agent’s will in the world in the form of an objective sphere subject to their exclusive control. This objective sphere consists of specific objects subject to such control, and the initial justification of our modern property rights bundle of rights to use, exclusion, transfer, and compensation proceeds with this notion of control as its target (PR §§41–​55). This is the conception of property that is inherently private property subject to individual control, and which was discussed at some length in the previous chapter. But then a very interesting thing happens when Hegel begins to understand specific social institutions such as the family and civil society. There, Hegel begins to develop an alternative conception of property that is less tied to direct personal control and more tied to long-​term planning. He uses the term ‘Vermögen’ to describe this form of property—​a term that can be translated as ‘resources’ or even ‘capital.’ Some remarks from his lecture courses are particularly instructive: Personal property is something immediate, but resources are not so; they are the possibility of possession and so something lasting. [Das Eigentum ist etwas unmittelbares, das Vermögen nicht so, es ist die Möglichkeit des Besitzes, also etwas bleibendes.] (Griesheim Lectures, VPR IV, 450) Resources are the possibility of enjoyment not only individually, not only for me, but rather something continuous for an ensemble of needs. [Vermögen ist die Möglichkeit, nicht der einzelne Genuß, nicht nur für mich, sondern ein Fortdauerndes für ein Ganzes von Bedürfnissen.] (Hotho Lectures, VPR III, 539)

The point of resources is that they satisfy more than one need for more than one person at more than one time. They involve more than the immediate satisfaction of needs and the aspect of autonomy that I have referred to as the specification of the content of the will. They are more than (rightful) immediate possession and rather set out the context in which such possession counts as property (they are “the possibility of possession”). In fact, it is in his discussion of the family that one first gets this notion of resources—​before Hegel even gets to his detailed discussion of civil society—​so ‘economic resources’ should not be understood in such a way as to read ‘economic’ as exclusively commercial or financial. Gans has a helpful gloss on what is at stake: A freedom without resources is an empty freedom; freedom must realize itself in a resource. . . . The true relationship of resources, as it is built in marriage, is community property. It is the external expression for the community of

144  The Politics of German Idealism life. . . . [Eine Freiheit ohne Vermögen ist eine leere Freiheit; die Freiheit muß sich in einem Vermögen realisieren. . . . Das wahre Vermögensverhältnis, wie es die Ehe erschafft, ist die Gütergemeinschaft. Sie ist der äußerliche Ausdruck für die Gemeinschaft des Lebens. . . ].7

This form of community property then extends into civil society. The property that I own as a member of an economic system—​including the property that I have in my own skills and even tools—​is a share of common resources rather than exclusive control of a specific object. My ownership interest is in a portion of income or production streams, and this kind of ownership interest provides the context for my individual rightful possession of, for example, a house or a set of china dishes. On this way of thinking about things, the sorts of ownership interests held by spouses in community property and by shareholders in a joint-​ stock corporation are the institutional prerequisite for private property ownership. In fact, the existence of this economic dimension first reveals the notion of private property to be essentially personal property and thus limited to particular sorts of property relations rather than providing the genus of property under which both personal and economic property fall as species. The second conceptual resource essential for understanding Hegel’s views on inheritance is his social theory of the estates (which is discussed at greater length in Chapter 9). It is directly connected to the issue of Vermögen, and Hegel in fact introduces the estates in the subsection of the Philosophy of Right entitled ‘Vermögen.’ Here ‘estates’ translates the German term ‘Stände,’ and it is, by all accounts, an unhappy translation. ‘Estate’ in English generally refers either to a large residential landholding or to the assets left behind by a dead person. In contrast, the German term ‘Stand’ refers to a broad notion of social class. (By ‘broad’ I simply mean a notion not limited to the Marxist conception of control over productive resources.) The traditional way of talking about the estates in early Modern Germany was to speak of the ‘Lehr-​, Wehr-​und Nährstand,’ that is, the learned, the fighting, and the nutritive estates (the clergy, the nobility, and the peasantry). Hegel’s specific taxonomy is rather different, but it serves the same function of providing a theory of the basic organization of society—​the function that the later Marxist theory of economic classes will serve. To bring the distinction between Stand and economic class into focus, we can use some later terminology from Max Weber. As Weber has it, a class is a large number of people whose life chances are caused to be what they are by economic interests within commodity and labor markets. But “ ‘Stände,’ in contrast to classes, are normally communally based Gemeinschaften [communities].”8 The Stände in

7 Gans, Naturrecht und Universalrechtsgeschichte, 145. 8

Weber, “The Distribution of Power within the Community,” 142.

Inheritance  145 Hegel’s theory are very much communally based, and include Weberian classes within them. This is clearest for the classes of workers, managers, and owners who all coexist within Hegel’s business estate (Stand des Gewerbes). The agricultural estate includes the nobility and the peasantry, who would not be classes in Weber’s sense—​because there is only a very minimal commodity or labor market context—​but whom we might distinguish as classes in a looser sense. To get a bit more specific—​and to anticipate Chapter 8—​Hegel’s theory of the estates is importantly influenced by Montesquieu. Like Montesquieu, he sees the estates as fulfilling three different functions. They are: 1. social preconditions for the validity and functioning of strictly legal and political structures. 2. forms of political participation in their own right, and thus crucial mediators between other elements in the totality of the state. 3. essential to the prospects of what Montesquieu called moderate government. It is this first function that is particularly relevant in the case of inheritance. One of the great challenges of all legal systems, and particularly of the newly publicly codified legal system of Sattelzeit Germany, is the basic problem of bridging the gap between the abstract legal categories and the particular forms of social relationships those categories are supposed to regulate. On Montesquieu’s and Hegel’s views, they cannot regulate those relationships if they do not already reflect the nature of those relationships. Some mediating terms of intermediate generality are required to bridge that gap, and for Hegel estate membership is that intermediate generality between the particular individuals and their status as equal citizens under the law. The power of government consists in the fact that each system shapes itself freely and independently according to its concept—​and the wisdom of government consists in modifying each system at the same time according to its estate, i.e. to abate the strictness of the abstract concept for the sake of its living internal organs [für ihr lebendiges Eingeweide], as the veins and nerves defer to the different internal organs, adjusting and forming themselves according to them.9

This function of intermediate generality is particularly crucial when we come to cases such as inheritance, where the proper doctrine requires that we balance a series of competing priorities. That kind of balancing requires a sort of thick



9

Jenaer Realphilosophie, GW 8:271.

146  The Politics of German Idealism ethical description of the relationships at issue; if the relationships are left in the abstract, it is impossible to see anything but the tension. What we can now say concisely is that Hegel’s theory requires that his account of the estates help us to balance the tension between personal property (Eigentum) and economic resources (Vermögen) that is inherent in the problem of inheritance law. Before we can see how it does so, however, we need to set out a bit more regarding his estates theory itself. As noted above, Hegel rejects as outmoded the early modern taxonomy of clergy, nobility, and peasantry. Hegel’s theory of the estates goes through a process of development from his early Jena period onward, but the details of that development needn’t detain us here. What is important, however, is that at each stage he seeks to connect two different aspects of the estates: their political disposition (Gesinnung) and their distinctive mode of economic production. (Over the course of that development, the relative importance of the two shifts from the former to the latter.) By the time he gets to the 1820s he has settled on the following taxonomy: the “substantial” agricultural estate, the estate of trades (or business estate), and the universal or public estate (civil servants, broadly construed). Each of these estates has a specific mode of economic production (in order: agriculture, craft and commercial production, service) and a particular political disposition (in order: patriotism, insistence on the protection of rights, promotion of the general good). But what is crucial for our purposes is that each of the estates has a distinctive mode of collectivity—​that is, a distinctive mode of institutional organization (in order: family farmsteads, corporations, the state). This is essential because we have just seen that Vermögen is fundamentally a collective resource, and the intermediate generality that will help us balance the tension in inheritance will be some specific form of collectivity. That will be provided by the estates. A bit of review before we get into fully articulating Hegel’s views on inheritance: of its very nature, inheritance lies at the intersections of different institutions: the family, property rights, and the wider economic structure. Hegel’s theory searches for a way to balance the goals of those different institutions, which marks it as taking up the individual, governmental perspective we have considered before. Recall that from this perspective, the other perspectives appear as desiderata in the form of extremes, and the way to bring them into focus is to find a mean in which each of the desiderata can be satisfied to the extent consistent with the satisfaction of the other. Here the particular perspective of the family and the universal perspective of economic production (i.e., of civil society) must be balanced by a state policy. But on Hegel’s view, the need for balancing goes deeper, and is a part of the modern family structure itself. Seeing this will help us to see how, when two perspectives are brought into focus together by a third, they are seen as interpenetrating.

Inheritance  147 Because the modern family aims at its own dissolution in the sense that it aims to produce individuals who are able to leave the family and go out into civil society, it aims at creating in its own members property owners and economic agents. Thus, the free disposition of property is not just a norm of a separate institution (civil society), but is rather a norm of the family itself. Furthermore, the difference between family and civil society also cannot be cleanly drawn by distinguishing between personal property and economic resources. Both the family and civil society aim to protect both sorts of property. For both of these reasons, the question of inheritance is not just a problem of balancing the needs of the family with the needs of civil society, but rather the meta-​level problem of balancing the need of the family for a balance between personal property and economic resources with the need of civil society for a different balance between personal property and economic resources. This additional complexity of the problem cries out for some additional conceptual resources, which Hegel provides with his theory of the social estates. Now we have to see how that theory helps with the problem, and the way that it provides the third perspective that allows the other two to be given their due. This is easiest to see in the case of the property of the agricultural estate, which is the one estate for which Hegel provides an explicit recommendation for balancing these interests. Briefly put, he argues that the proper balance for farmsteads is primogeniture (Majorat). We have to see two specific aspects of the agricultural estate before we will be able to follow Hegel’s reasoning here. The first aspect concerns the specific nature of agriculturally productive land as an object of an ownership interest. Paradoxically, it is only with this ancient kind of physical object that we get truly private property in the modern, even Lockean sense: The substantial [or agricultural] estate has its resources in the natural products of the soil which it cultivates—​soil which is capable of exclusively private ownership and which demands formation in an objective way and not mere haphazard exploitation. . . . [B]‌ecause of the conditions to which it is subject, this provision [for the future] retains the character of subsistence in which reflection and the will of the individual play a lesser role, and thus its substantial disposition (Gesinnung) in general is that of an immediate ethical life based on the family relationship and on trust. (PR §203)10

The connections drawn in this paragraph are common for Hegel—​he elsewhere credits ancient Chinese society with first developing the concept of 10 Cf. Braudel, The Structures of Everyday Life, 74, on the difference in planning for future contingencies between the agricultural and urban populations.

148  The Politics of German Idealism property precisely because it was an agricultural society organized by families—​ but they have striking implications in the modern period. For Hegel’s view is that only for agricultural land are the ownership interests of personal property (Eigentum) and economic resources (Vermögen) co-​extensive. Only here do we have a piece of the world that is simultaneously a sphere of immediate physical control via labor and a complete economic system for the satisfaction of needs. Here, then, both the personal and the economic dimensions of the modern conception of property are aligned. Hegel goes further and claims that this alignment of the personal and the economic also brings two institutions into alignment: civil society and the family. Because here the economic system is the local system of the farm and village, it is (largely) co-​extensive with family relations and the two institutions are organized on the same basis. The second aspect concerns the political dimension of the agricultural estate, and so brings into consideration the final dimension of the property relation. As we briefly discussed above, one of the reasons that property relations are held to be significant is because they provide a self-​sufficiency that, in principle, allows citizens of a state to participate as independent deliberators and voters in republican and democratic states. Many political philosophers of the modern period—​including Kant—​argued for a general property qualification on active citizenship. But Hegel goes in a slightly different direction by arguing that the different estates have different forms of self-​sufficiency that qualify them for different roles in government. Hegel’s state-​plan calls for a bicameral assembly in which one house is filled by members of the agricultural estate. The political function formerly served by the nobility—​the backward-​looking respect for tradition and social stability—​is now to be served by the agricultural estate as a whole (to be represented now primarily by small but self-​sufficient landholders). This estate is to be an inertial check on the acceleration of civil society, whose representatives compose the other chamber in the estates assembly. The nobility as such no longer plays this role—​in part because their military function has been replaced by a standing army in which advancement is determined by talent rather than birth. The remaining features of the nobility—​namely, selection by birth and “stringent sacrifices for the political end” (PR §307)—​are features of all agricultural landholders who therefore qualify for a substantial political role in the legislative power. When we combine these three aspects of the agricultural estate together with the distinction between personal property and economic resources, we get the key for Hegel’s justification for a legal primogeniture requirement for agricultural lands: [The agricultural estate] is better equipped for its political role and significance inasmuch as its resources [Vermögen] are equally independent of the resources

Inheritance  149 of the state [Staatsvermögen] and of the uncertainty of trade, the quest for profit, and the variability of possession [Besitz] in general. It is likewise independent of the favor of the government [Regierungsgewalt] and of the masses, and is even protected against its own arbitrariness [gegen die eigene Willkür] by the fact that those members of this estate who are called to this vocation lack the same right as other citizens either to dispose freely of their entire property [Eigentum] or to know that it will pass on to their children in accordance with the equality of love [nach der Gleichheit der Liebe]. Thus their resources [Vermögen] become an inalienable inherited good [unveräußerliches . . . Erbgut], burdened with primogeniture [Majorat]. (PR §306)

This is the only place where Hegel thinks he can demonstrate the necessity of a specific policy on inheritance, because this is the easiest case on his theory. As I noted above, the problem itself is devilishly hard: the question of inheritance is not just a problem of balancing the needs of the family with the needs of civil society, but rather the meta-​level problem of balancing the needs of the family for a balance between personal property and economic resources with the needs of civil society for a different balance between personal property and economic resources. In the case of the agricultural estate, it becomes easier because of the substantial overlap between the family structure and the form of agricultural collectivity, namely the family farmstead. Because of that overlap, the two balances between personal property and economic resources—​those of the family and those of civil society—​are largely the same balance. The ethical significance of that overlap is then confirmed by the political interest in property, namely to enable meaningful political participation. Hegel himself restricts such participation to men, which further confirms primogeniture as the right balance here on his view (though this seems to us now as a reason to think that the account is entirely unbalanced). As far as I can see, there appears to be no attempt to justify the specific constraint that the property pass to the first-​born son. Perhaps, as in the case of his understanding of the monarchy, the point for Hegel is just that succession is clear and inalienable. But this is only one third of a theory of inheritance on Hegel’s social taxonomy—​though a theory that would account for the vast majority of wealth for the vast majority of the population in the societies with which Hegel was familiar, since wealth in forms different from landholdings is largely a development of capitalist economies since Hegel’s time. Hegel himself doesn’t offer us any more clues as to how to view inheritance in the other estates, but some brief considerations of why he does offer us such an explicit policy in the case of the agricultural estate can help us see why he doesn’t offer us much for the other estates. These considerations can be organized by coming back to one of the two interpretations from which we started, namely that of Welker. In relation to

150  The Politics of German Idealism Welker’s complaint that in the absence of a criterion to determine the correct balance between free choice and ethical duty, free choice is effectively unlimited, we have seen at least one case in which exactly the opposite is Hegel’s view. The agricultural estate’s mode of production and political disposition are relatively stable, Hegel thinks. (In point of fact, one might think that despite the dramatic changes in agricultural technology and the economic structures of food production since Hegel’s time, it is remarkable how much of agricultural production even in the most advanced economies is still organized on a family basis and still produces a reliably conservative political outlook.) In this estate, there is a kind of solid and stable social structure to which legal standards can attach. And that social structure is furthermore one in which personal property and economic resources also largely overlap. Farmers can be expected to have relatively few possessions of value that compare with the value of the land they work, and they work their land in the way that others possess their personal property. In contrast, think of how things stand with the estate of trade. In the estate of trade the political disposition is precisely the insistence on individual rights, and the nature of economic production is constantly to seek out new forms of organization for that production. What personal property people have is likely to be quite different from their economic resources. My heirloom china may give me some social capital, but it doesn’t give me any economic capital. Hegel’s view about such personal property is that it is an issue without much wider social significance. In our positive laws on such things we might want to address the question of whether such property can be bequeathed outside of the family, but Hegel’s general contextualism about the significance of positive law should make us skeptical that philosophical consideration will provide us much on its own. More important, this isn’t an issue that intersects with the economic and political institutions, and so the importance of a legal framework for it is lessened. There is, however, one form of property for this estate in which the personal aspect of property and the economic aspect of resources substantially overlap: the skills and tools of workers (particularly artisans). In other contexts, Hegel thinks of tools as being a part of the person of a worker, since they are extensions of the body that enable their skills to be effective in the world (PR §127R). But I mention skills and tools together because they only have significance together. And though we speak colloquially about ‘passing on’ a skill, that is a matter of educating someone else in the skill rather than actually bequeathing it. What should one say about tools? I suspect that this is a case in which the economic side wins out—​that is, that something like transfer within the corporation or trade union to others with the requisite skills to use them—​is the default consideration. But again, this is an issue with no obviously great social significance, so there are few resources within Hegel’s theory for articulating a determinate response.

Inheritance  151 Third, think of how things stand with respect to the estate of civil servants (broadly construed to include doctors, lawyers, clergy, and others whose professions are defined with reference to the public good, regardless of whether they work directly for the state). Putting issues of money wealth aside for the moment as basically the same as for any other estate, the primary form of economic resource here is the salary and position of the civil servant. I don’t know of any passage where he addresses the inheritability of such positions directly but Hegel was, of course, quite familiar with bureaucracies staffed by venal positions. In both the military and civil service, Hegel is adamant that positions be open to candidates on the basis of merit, that is, on the basis of education (Bildung) (see the Griesheim Lectures at GW 26, 1336). This is at least implicitly a rejection of the notion that they could be inherited. And more generally, he is keen to distinguish his theory of the estates from any hereditary theory of castes or any Platonic assignment of individuals to roles by the government (e.g., the Hotho Lectures at GW 26, 969). He is not blind to the role that contingency (including birth) plays, but holds that “subjective opinion and particular free choice” must be respected in the determination of estate and profession (Griesheim Lectures at GW 26, 1337). As indicated, I want to extend Hegel’s ideas a bit by saying something about the way in which the jurist Eduard Gans developed his view, since it adds another general principle that clarifies the Hegelian outlook on inheritance. First, a bit of background. As was the case with many German progressives, Gans admired the Code Napoleon and saw within it valuable tools for the development of German law in the circumstances of the early 19th-​century reform movement. Of particular relevance for our purposes is the fact that he admired the Code’s provisions on inheritance law and the way that those provisions struck a specific balance between the rights of family members and the right of the testator, and thus the institutions of the family and private property. In striking that balance, the Code gave greater significance to intestate inheritance—​that is, to the rights of family members—​than to the testamentary freedom of the deceased property holder. It thus sided more with the institution of the family and the rights of family members to a share of community property than it did with the private property right to freely transfer that property. The Code thus took a step in the direction favored by Gans, Hegel, and most German writers toward defending the integrity of the family from a perceived attack by an expanding right to private property. The Code did so by means of a very specific mechanism. Out of the property of the testator it carved out an obligatory share (quantité disponible [Pflichtteil]) for the family members that could not be given away in a will to anyone else. In this way, family members were guaranteed to inherit at least some resources from the deceased, regardless of the attitude or emotional relationship between them and the testator. The testator was thus obligated to make some provisions

152  The Politics of German Idealism for family members. But as Gans has it, this way of framing the issue is confused. Perhaps better put, it is backward. It attempts to safeguard the family but does so in a way that simply confirms the priority of the institution of private property. To see this, consider Gans’s version of the Pflichtteil. On that version, the proper obligatory share is not one reserved for the family members, but rather one reserved for the deceased testator (Erblasser) so that their abstract right to property can be maintained even within the family.11 The point is not that the testator has some sort of moral obligation, out of their own private property, to leave some of it for the members of their immediate family. The point is rather that out of the legal community property of the family, some part of it should be reserved to the testator in order to secure their own partial control over that property, and thus to make manifest at the end and in a small way the partial ownership interest the testator had in community property during their lifetime. This brings us back to Beckert’s analysis of the historical context in which German discussions of inheritance take place, namely the felt need to protect “the family against an excessive individualism that found expression in the legal institution of the will and was perceived as a menace to society’s moral foundation in the family.” Both Hegel and Gans want to do this. Gans sees in the Code’s provision for the Pflichtteil a means for doing so, but a means that confusingly maintains the priority of private property, which as a fundamental right is then simply constrained by the necessary but secondary provision of part of that private property for other family members. Instead, the best defense of the family is to establish the community property of the family institution as the fundamental description of the resources at issue, which community property is then constrained by the secondary need to validate the private ownership interest of the deceased in those community resources.

6.2  Fichte: Relative and Absolute Property I want to take up Fichte next, who also has a complicated view of inheritance that brings into focus some of its different characteristics, and which trades on two different conceptions of property. Fichte discusses inheritance both in the Foundations of Natural Right and the 1812 System der Rechtslehre.12 In the Foundations, there are at least two discussions. The first is purely in the context of contracts, and the second in the context of families. 11 Gans, Naturrecht und Universalrechtsgeschichte, 155. 12 There is also a discussion of inheritance in his Contribution towards Correcting the Public’s Judgment of the French Revolution, but it appears to advance a view that is incompatible with the later presentations. For a good discussion of why Fichte might have been dissatisfied with the Contribution account, see James, Fichte’s Social and Political Philosophy, 65–​66.

Inheritance  153 In the contract discussion (§19), the problem is primarily metaphysical: “how can the decedent’s will be binding upon the living? The concept of right applies only to persons who can and actually do stand in reciprocal interaction with each other in the sensible world” (FNR 224/​257). Fichte’s answer to this question brings him implicitly within the family: the knowledge of the validity of a will (testament) has value to the living testator because they will be able to obtain more favorable care from their heirs as a result. Thus there is value to the living testator of recognition of the validity of wills. As such a consequentialist justification would lead one to expect, Fichte repeatedly emphasizes that laws making such testaments valid are entirely optional, and not required by right. They secure certain benefits, but they are not required to maintain the mutuality of the reciprocal interaction of co-​citizens. Everything else is left to the discretion of the legislator, except: There is only one necessary, a priori restriction on such free disposition, and it is the same one that applied to gifts in general: namely, the decedent’s survivors—​ e.g., his widow—​must have enough to live on, and his children must be brought up (i.e., taught how) to earn their own livelihood. Testamentary freedom may not be so broad as to override these provisions, since the state, after all, is responsible for seeing to it that the decedent’s survivors are provided for. (FNR 226/​259)

At least on the surface, this important proviso seems in tension with Fichte’s discussion in the context of the family (§60), which leaves questions about inheritance entirely to practical politics: Should children inherit equal shares of their parents’ intestate estate? Should parents have the right to make wills? And how free should parents be to give their property to those who are not family members? How extensive should the legal formalities be? To what extent should parents have the right to disinherit their children? Answers to these questions depend solely on the state’s positive laws, which decide such matters on political grounds. There are no a priori grounds for deciding them. (FNR 318/​367)

The immediate context of Fichte’s discussions in §60 of the Foundations centers on his claim that the state only has the right to intervene in the family to the extent justified by its compelling interest in ensuring that every citizen has the means to earn their own living, and that the population of the state as a whole remains constant (e.g., §46). Similarly to Hegel, then, the context of inheritance is the ethical dissolution of the family, in which the family is oriented by its function of educating and training workers for the economy. That function legally

154  The Politics of German Idealism defines the unity of the family (as it related to children): “The sole ground of the parents’ dominion over their children is that the children need an upbringing. If the ground of something ceases to exist, then what is grounded ceases to exist. As soon as the child’s upbringing is complete, he is free” (FNR 315–​16/​365). But at the point of departure from the family, the child is owed enough property to live on. The parents may give the child more without the state being able to object, but the state can require that the child (and the new family in the case in which this is accompanied by a marriage) has enough property to live on. This is the subject of the a priori restriction referenced in §19, and essentially concerns relative property which is the right to the activity of earning one’s own living. The property whose disposition is turned over to practical politics in §60 can only be absolute property, that is, personal effects and wealth that are aside from or in addition to whatever is required to earn one’s living. Thus we can see in Fichte a similar strategy to that in Hegel, where an obligatory share is distinguished from the rest of the estate, to which testamentary freedom generally applies (but can be constricted by state policy). And, as in Hegel, this generally tracks two different conceptions of property. What is different is the planned economy of the ideal state model that Fichte envisions, which generates such an obligatory share not only in the case of the natural dissolution of the family but also in the ethical dissolution—​that is, not only in the case of the death of a parent but in the case of the emancipation of a child. That the distinction between relative and absolute property is central is confirmed in the very first sentence of the discussion in the 1812 System, which has a great advantage in presentation as opposed to the Foundations. The same considerations that are scattered in different parts of the latter work are combined in the former in a way that makes the tensions with which Fichte was grappling far more apparent. In the System he makes it quite clear that the vast majority of the estate of the decedent will consist of absolute property that could nonetheless be relative property for someone else: for example, the same tools whose monetary value is absolute property for the estate could be used by another citizen to earn their living, that is, used as relative property. Since relative property rights are fundamental, the state’s right to redistribute such means of production trumps any supposed privilege to bequeath (Gerechtsame zu vererben). And yet one must take into account the particular attachments and presupposed intentions (Verbindlichkeiten und verausetzende Absichten) of the decedent; otherwise one has not done justice to the family’s moral nature. Again we have inheritance caught between two different principles of the modern world: the economic principle of an interdependent system of producers and consumers, and the personal principle of the nuclear family based on love and affection. Unexpectedly, Fichte’s solution is a return to a corporate understanding of the family:

Inheritance  155 Principle: the family is the owner [Eigentümer], not the head of it; as long as [the family] does not die out, the resources [Vermögen] are not without a master. This is quite fair and appropriate. Who can know how the whole family, through work, care, and deprivation, has contributed to the acquisition of the resources [Vermögen] that it is now about to lose through the death of its head? Who shall interfere in these matters concerning absolute property [Eigentum]? Grundsatz: die Familie ist der Eigentümer, nicht das Haupt derselben; so lange diese nicht ausstirbt, ist das Vermögen nicht ohne Herrn. Dies ist durchaus billig und angemessen. Wer kann wissen, wie die ganze Familie durch Arbeit, Sorge, Abdarben beigetragen hat zu der Erwerbung des Vermögens, das sie nun durch den Tod ihres Hauptes verlieren soll? Wer soll sich in diese Dinge mischen, welche absolutes Eigentum betreffen?13

This is a conception of the family as a productive unit, as itself an economy, and thus more a conception of the Hausstand than the Familie. Here, then, we have another sense in which the governmental perspective that Fichte takes up here is forced to make recourse to past meanings in order to solve a problem that arises in planning for a future society. He therefore almost immediately moves to restrict this conception of the family unit to the nuclear family (excluding both distant relatives, and “strictly speaking,” emancipated children who have already been vested by their parents with sufficient relative property). Only once the family as a whole has been guaranteed sufficient relative property to support itself can any testament of the decedent be considered valid.

6.3  Kant: Inheritance as a Purely Economic Question Kant’s doctrine is not extensive, and is primarily oriented toward understanding how a will (testament) could transfer a right in the absence of the usual acceptance required for a contract. It is the most universal of the three perspectives, since it treats the question of inheritance as a purely economic question. In contrast to Hegel and Fichte, there is no obvious attempt at balancing the goals of the different social institutions involved, which reflects the domination of this universal treatment of inheritance by Kant’s more overarching particular perspective, in which the relevant institutions don’t show up as goal-​directed at all. But despite the short treatment given by Kant initially, the topic is raised in the 13 As a linguistic side-​note, Fichte uses both Eigentum and Vermögen in these passages in the System in ways that suggest that they are treated as synonyms or merely stylistic variants, rather than indicating any fundamental contrast. They certainly do not map onto the distinction between relative and absolute property, which is Eigentum in both cases.

156  The Politics of German Idealism most important early engagement with Kant’s Rechtslehre, namely Bouterwek’s review, leading to a brief clarificatory remark by Kant in subsequent editions. A brief reconstruction of the debate may help us understand the significance of Kant’s doctrine. Kant’s initial exposition of the inheritance right is purely in the context of a sort of supplement within private law to property, contract, and status rights entitled “On ideal acquisition of an external object of choice” (MM 6:291–​96). Three ways of acquisition relating to three different objects of choice are discussed in three sections that discuss acquisition by prolonged possession, inheritance, and a dead person’s reputation. By prolonged possession I can acquire property without any specific temporal act, and when I die I should be considered to continue to possess my good reputation (if I have one) ideally qua homo noumenon. In both cases, it is clear that the basic motivation for Kant’s reflections is the basic problem with property rights, namely the conflict between sensible and intelligible possession. This is a reflection of the real problem of property in the Sattelzeit period, which is not the problem of who can take up unowned things but rather the problem of simplifying and ordering a profusion of ownership interests as reflected in actual uses with legal titles and history of extremely varying degrees of proof and explicitness. The case of a dead person’s reputation is clearly occasioned by a need to validate a kind of intelligible possession under circumstances in which physical possession is impossible; in contract, the case of prolonged possession is occasioned by a need to validate the significance of physical possession. Importantly, Kant is clear that the case he envisions in acquisition by prolonged possession is not what lawyers now term adverse possession—​that is, a doctrine sometimes known colloquially as ‘squatter’s rights’ by which your property becomes mine through my actual, open, hostile, and continuous possession of it while excluding you for a sufficient period of time. Instead, Kant claims that failure to insist on the legitimacy of acquisition by prolonged possession in the absence of use or a continuous sign of possession by the original owner would make all legal titles tenuous. (In fact, this is why title searches and insurance are an essential part of real property sales.) Of course, in the course of the Sattelzeit, social displacement as a result of war resulted in many poorly documented shifts of possession of important pieces of land such as farmsteads. Kant specifically ties this form of occupation to the state of nature, but the fact that it was such a commonplace even within the states of Kant’s own times shows, again, the ideal nature of the state and its commonwealth in Kant’s political philosophy. In his discussion of inheritance, Kant proposes both a distinctive form of acquisition and a distinctive object to go with it. The distinctive form of acquisition arises from the fact that a will (testament) cannot be a contract, because no acceptance is required for its validity at the time that the will is made. In fact, it

Inheritance  157 is not even possible for the heir to accept before the death of the testator, and the testator has full property rights to their things before death. Nonetheless, it does appear that the heir has some sort of ownership interest in the estate before death—​but ownership of what? Of “the exclusive right to accept it” (MM 6:294). Of course, a testament is valid even in the absence of the acceptance of that right—​since it is valid even if the heir knows nothing about it—​but “every human being would necessarily accept such a right (since he can always gain but never lose by it)” (MM 6:294). Thus, acceptance of this right of acceptance can be intelligibly attributed to the heir, even though not sensibly. Bouterwek casts doubt on the presupposition embedded in this parenthetical phrase within parentheses of his own: “(And what would be such a thing by the acquisition of which I could not possibly lose another advantage, more important to me, e.g., to be rid of troubles?)”14 Kant then responds by clarifying that he meant not that any thing would necessarily be so accepted, but rather that such a right would be so accepted (MM 6:365–​66). He then goes on to give an example of an analogous right, namely the right to accept a gift of a piece of furniture from the landlord of the house from which the recipient is about to move (MM 6:366). What is relevant about this short exchange is both what Bouterwek is hinting at and what Kant doesn’t discuss: the usual situation of family inheritance. Kant’s example is from a strictly economic relationship, or at any rate a relationship more likely to have its institutional background in a Hausstand situation than a Familie. In the original presentation Kant uses the placeholder names Caius and Titius, and the closest we get to a familial relationship is the suggestion of the relation between the dying (Sterbende) and the surviving (Überlebende). But surely Bouterwek is not making the simple mistake of a thing for a right, but rather pointing out that to be offered an inheritance one does not want might entangle one in family feuds or bring unwelcome struggles with memory. In fact, it seems quite easy to imagine family situations in which one would not want any part of any of it. I make a lot of this issue not to offer a criticism of Kant’s account here—​that account is a solution to a problem that is hausgemacht and peculiar to Kant—​but rather to show the particular context, or lack thereof, in which the problem of inheritance becomes an issue for Kant. Unlike both Kant and Fichte, its intersection with larger institutional structures—​even the obvious structure of the family—​never comes into the picture. This is a classic case of a norm that is taken from common usage and projected against the background of one model image of society, but which had then quite a different significance in the actual society that developed in the 19th century. Kant takes up the validity of inheritance transfer in perhaps the only way one could if one were trying to do descriptive justice to the bewildering profusion of

14

Bouterwek, “Kant’s Metaphysical Foundations of the Doctrine of Right,” 20: 452.

158  The Politics of German Idealism forms of inheritance practices in the corporate society of 18th-​century Germany, namely in a completely general way. This is then projected into an ideal society (the civil condition of the commonwealth) as a purely economic relationship, flexible in all of its particulars, which tracks Kant’s economic perspective on property generally. But paradoxically, as this norm was actualized in the industrializing societies of the 19th century, it combined with family structures in a new but also very old way, creating dynastic family clans (Stämme) that persist into our own day. This combination makes this apparently general conception of inheritance actually a conception of a specific institution whose range of actual exercise is quite narrow.15 In this chapter we have seen a marked difference between Fichte and Hegel, on the one hand, and Kant, on the other. Despite Hegel’s rather cursory and uncharitable engagement with Fichte on this question, their views are actually quite close, and both are motivated to attempt to balance the principle of a modern economy with the principle of the family. Kant, in contrast, views the issue quite narrowly in economic terms alone, and the attempt to balance economic and familial rights never comes into the picture. The great difference, of course, is in Fichte’s and Hegel’s conceptions of what the modern economy will look like. Both Fichte and Hegel take on inheritance from the governmental perspective, but Fichte’s political perspective on property lends the problem a different form than Hegel’s juridical perspective on property. For Fichte, the modern economy is essentially a planned economy, and the economic rights to be vindicated are the rights of each to earn their own living and of the state to maintain a stable and productive population according to its plan for production and consumption. For Hegel, the modern economy is essentially a market economy in which industries form according to economic pressures rather than government decrees, but the actual norm is one of individual choice (Willkür). The economic right to be validated is thus the right to the free ownership and use of property. This is another example of the point noted in the previous two chapters, namely that rights of property were formulated against the background of anticipations of the way in which the future should be different from the past, that is, of the way in which failings of the late feudal system would be replaced by rightful relations in the society to be created by historical action.

15 In somewhat the same way, the 20th-​century removal of many types of contracts (e.g., labor and commercial contracts) from the general domain of contract law has changed that apparently general doctrine of contracts into a doctrine of real estate, services, and intellectual property masquerading in a general form.

PART III

P U BL IC L AW

7

Fichte’s Three Political Philosophies In this chapter, Fichte finally takes center stage. This is due to a remarkably astute consideration of the nature of law as presented in his version of that classically Kantian trope, the antinomy. Here it is an antinomy of punishment, in which Fichte lays out two options for understanding punishment and its relation to law. Neither of these options much resembles the retributivist or consequentialist theories of punishment that are so familiar to us today, and so we require alternate hermeneutic resources to grasp their significance. In fact, with this antinomy, Fichte articulates a fundamental tension in the administration of law in the Sattelzeit, but to see this requires first a bit of background in Kant’s theory of punishment and then a social-​historical framework. That framework will return us to an issue we have already seen to be relevant to Kant’s theory of law, namely the complicated relation between patrimonial courts and state courts. But it will also require us to take up an issue made practical by the greater frequency of legislation in this period, namely the problem of the distinction between law (Gesetz) and regulation (Verordnung). Then, we will use the antinomy as a fulcrum to open up the full sweep of Fichte’s political philosophy, turning from the restricted domain of law to the nature of the state as such. Fichte gives us a perfect example of a theorist suffering from “reality-​related refractions” of concepts that were first formulated as abstract natural laws, where those refractions then open onto concepts for social problems. Fichte’s great contribution to the historicity of political philosophy lies in his simultaneous development of three different political philosophies that are only tenuously connected to each other: an ideal theory in his Foundations of Natural Right, a non-​ideal theory in his Closed Commercial State, and an educational theory of progress in his Characteristics of the Present Age and Addresses to the German Nation.1 These three political philosophies can be characterized in terms that the historian Koselleck has left us: the Foundations as a horizon of expectation, the Closed Commercial State as a space of experience, and the Characteristics and Addresses as the relation of agency that connects the horizon and the space. Though these three political philosophies are, theoretically 1 I say very little here concerning Fichte’s political thought either before or after these works. On the former see Radrizzani, “Staatsverfassung und Staatsveränderung: Fichtes frühe politische Philosophie”; on the latter see Zöller, “Freedom, Right, and Law: Fichte’s Late Political Philosophy.” The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/​oso/​9780197667309.003.0007

162  The Politics of German Idealism speaking, only tenuously connected to each other, this can easily obscure the way in which they are historically very tightly joined—​and they are joined in a distinctive tension that illuminates the historicity of the period in which they were written.

7.1  Kantian and Social-​Historical Background The Kantian background is the simple identification of right with a norm whose violation is punishable—​Kant’s insistence that law and punishment are simply flip sides of the same coin. Kant’s account is succinct and conceptually tight and extraordinarily influential. Neither Fichte nor Hegel challenges it in any way, even though they see more clearly than Kant some of its difficult consequences. Kant’s account is set out most clearly in §D of the Introduction to the Doctrine of Right, “Right is joined with the authorization to coerce [Das Recht ist mit der Befugniß zu zwingen verbunden]”: Resistance that counteracts the hindering of an effect promotes this effect and is consistent with it. Now whatever is wrong is a hindrance of freedom in accordance with universal laws. But coercion is a hindrance or resistance to freedom. Therefore, if a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws, that is, it is right. Hence there is linked with right by the principle of contradiction an authorization to coerce someone who infringes upon it. (MM 6:231)

Of course, Kant famously goes on in the following section to tie the two notions (“strict right” and coercion) even more closely together by claiming that that the same notion of right that the Universal Principle of Right presents in terms of the coexistence of freedom can also be presented in terms of the reciprocity of coercion. (This is the claim that then generates the geometrical analogies that were discussed in Chapter 2.) To add the final piece to this influential Kantian idea, Kant understands the innate equality of co-​citizens in terms of this reciprocal coercion: “independence from being bound by others to more than one can in turn bind them” (MM 6:237; also TP 8:292). Kant is less interested in the question, ‘equality of what?’ than in the question, ‘equality of whom?’ His conceptions of freedom, equality, and independence are attempts to define the citizen who is free, equal, and independent (TP 8:291). This seems like a trivial point, but it is important to bear in mind and connects with the point made in previous chapters with respect to the ALR: these legal reform movements clearly recognized that

Fichte’s Three Political Philosophies  163 they had the task to establish the responsible person as a legal and social fact in the way that the previous kinds of persons, for example, masters and serfs, had been both legal and social fact.2 For Kant, this new person is an equal citizen in the sense that they can coerce others to the same degree that others can coerce them—​this is just what it means to be a rights-​bearing individual. There is a lot more historical background than we can unpack in this chapter. Rolf Grawert offers a nice discussion of the complexity involved: Sovereign-​legal and rational-​legal [Hoheitsrechtliche und vernunft-​rechtliche] aspects, Montesquieuan thoughts, and the historical school of law joined here with positive constitutional borrowings into a conceptual mélange [Gemengelage] which characterized the relationship of countless theorists of the time to the practice of the state. So long as positive constitutional law and the historical-​political problem-​situation stood behind theoretical and systematic concerns as objects of reflection, neither landständische participation nor the social relationship of powers could impress itself on the concepts, but they nonetheless ensured realty-​related refractions [realitätsbezogene Brechungen] of the conceptuality that was first formulated logically-​ abstractly in the rational-​legal methodical tradition, and they led finally to concepts of socially and politically-​oriented problems.3

But we can limit ourselves to the two pieces of historical background we mentioned in the introduction to this chapter in order to help to set the scene for Fichte’s intervention. We can see the social content of this connection between right and coercion by locating the German Idealist conceptions of law along two axes: first, the distinction between law (Gesetz) and regulation (Verordnung), and second, the distinction between patrimonial and state courts. We can introduce the first by taking up the second and expanding it a bit. What I mean is that patrimonial and state courts represented only two of the many different legal regimes that coexisted in late modern Germany. We have focused on them so far because they are the two legal fora in which almost all citizens would have been held accountable. But if we broaden our view to include different legal regimes in the sense of different forms of legislation, it is clear that there is a whole variety that can be characterized both in terms of their sources and in terms of their objects. To begin with the big picture, there was, of course, a distinction between the laws and constitution of the Holy Roman Empire and subsequent German Confederation, on the one hand, and the territorial states,

2 On the way that the legal and social validity of the corporate forms of personhood separated, see Behrens, Society, Government and the Enlightenment. 3 Geschichtliche Grundbegriffe, 2: 910.

164  The Politics of German Idealism on the other. Though legislation in the Empire was more occasional and understood as having a mixture of command and contractual elements, legislation in the Confederation became more frequent and was held to be immediately binding on member states—​even those states in which the participation of the estates was nominally required for true law. This leads to an important feature of the development of late-​modern German law, which is the distinction between law and regulation—​or sometimes between true and provisional law—​on the basis of whether the government had the agreement of the estates to the law. Such participation made for true law, as opposed to provisional law. Sometimes this same distinction between species of law was made on the basis of the objects of law: true laws were general/​abstract because they concerned the freedoms and property of residents, whereas regulations were provisional or particular because they concerned only certain practices or privileges. These forms of distinction could then be combined in different ways—​either by conceiving of regulations as the enforcement of law in specific circumstances (and thus as having their source of validity in the combined, participatory lawgiving of government and the estates), or as direct exercises of the government’s police power (and thus having their source of validity in the power of the government alone). But regardless of the conceptual understanding, reforming Germany in the Sattelzeit was learning a lesson that had also being learned by the French Revolutionary governments: the vast majority of legal norms ended up being not true laws but rather provisional laws or regulations, since these dealt with the practical problems of government. These two distinctions are connected to Kant’s internal connection of law and punishment. The first is so connected because one very standard way of distinguishing between law and regulation was to characterize the former as those rules that concerned the freedom and property (Freiheit und Eigentum) of citizens, and any rule that involved punishment (as opposed, e.g., to a fine) was likely to fall into that category. Reciprocally, any crime that fell into that category calls out for punishment in a particularly stringent way, since that punishment is necessary to secure the basic freedoms that are involved. Put another way, it is necessary to secure the basic freedoms that are necessary for agency in the external world—​particularly the Kantian freedoms of bodily security and property. The second is so connected because a distinguishing feature of state courts was their greater willingness to prosecute and punish offenders as compared with the patrimonial courts. In patrimonial courts, a person to be incarcerated was also, for example, a laborer needed for the harvest or the only blacksmith in town—​so there was a natural hesitance to lose the labor power of a worker in the common enterprise of rural production. In the course of the Sattelzeit this difference and the cost of running a criminal court led to a shift of jurisdiction over criminal law from the patrimonial to the state courts.

Fichte’s Three Political Philosophies  165 Abstracting away from Kant, the dominant social tension on this issue is primarily between the governmental perspective, on the one hand, and the corporate perspective, on the other. The nobility fought to uphold their right to private jurisdiction, but given the relative laxity of prosecution in those courts, the greater access of women to them as opposed to the state courts, and the frequent use of such courts by farmers in particular to settle disputes and protect their economic interests, it is not a stretch to see the nobility standing in for the general corporate perspective here.4 In contrast, the bureaucrats in the justice ministry and court system advocated for the reform and spread of state courts.5 The civil-​social perspective here fades into the background, though it is precisely the insistence on property rights from that perspective that complicates the reform process, since the right to private jurisdiction had to be rendered as a property right for which compensation was due. The nobility was perfectly willing to take up the civil-​social perspective when it advanced their cause and promised them payment as well as the relief from the obligation to provide dispute resolution through their patrimonial courts. Nonetheless, the distinction between law and regulation has an obvious terminological and textual foothold in Kant’s separation of the legislature and the executive, which includes some of the standard tensions in the distinction (MM 6:316). Among the tensions are two that are primarily relevant for our theme in this chapter: First, though the abstractness of law is the very guarantee of its protection of individuals from the whims and values of others, this tends to render all substantive rules a matter of regulation on account of their necessary specificity. This tends to make the executive, which promulgates such regulations, into the true lawgivers as opposed to the legislature (which is then only nominally the sovereign). Second, the executive tends in Kant to shade over to include the judiciary, since both are involved in the enforcement of the law in specific cases. But this then necessarily brings punishment more under the auspices of regulation rather than law, and thus undercuts the intimate relation between punishment and law announced in Kant’s very conception of rights, and with it the notion that citizens stand in relations of equal relations of coercive power with each other. Kant very much represents the universal perspective that is then embodied in the civil-​social and economic perspective on law (as we also saw in Chapter 5). The universal can make out the particular but cannot bring the individual into focus. Kant has a clear presentation of the universal form of law, and its relation to the freedom and property of every citizen according to their particular choices—​but he has no conception either of the process of legislation nor any

4 5

See Wienfort, Patrimonialgerichte in Preußen, 48. Ibid., 38.

166  The Politics of German Idealism guidance for understanding the operation of the police power as an enforcement of law. Law and regulation are apportioned to the legislative and executive powers, which are kept strictly apart. Both a general picture of the whole state as an individual entity and the sort of mediating structures between the general and the specific that animate his first Critique are entirely lacking in his political philosophy.

7.2  The Antinomy of Punishment Fichte’s initial discussion of punishment in the Foundations has such an obvious Kantian resonance that it can be difficult, at first, to see what is different (FNR 123–​25/​137–​39). For example, as with Kant the internal connection between law and punishment is itself connected to the distinction between law and morality. But there is nonetheless a fundamental difference: in Kant this distinction helps to generate the internal connection because it marks law as being distinctively external, exclusively a matter of the effectiveness of our achieving whatever ends we freely set for ourselves rather than the quality of those ends themselves or of our motivations in setting and pursuing them. Thus, punishment is simply the continuation of the original goal-​directedness of the agent: “Resistance that counteracts the hindering of an effect promotes this effect and is consistent with it” (MM 6:231). But for Fichte, the distinction between law and morality generates a task for punishment with a deeply historical content: the inability to appeal to morality leads to an absence of trust in others, which trust is required for the relations of mutual recognition that make us rights-​bearing individuals. Somewhat unusually for Fichte, the problem here is put not in abstractly theoretical terms but in terms of a historical loss of trust: “As soon as honesty and trust between persons who live together have been lost, mutual security and any relation of right between them become impossible, as we have seen” (FNR 125/​139). The experience of the Thirty Years’ War, which gave rise to the Absolutist states in Germany, is no doubt on Fichte’s mind here, as is the rising social mobility of Germans that only accelerates into the 19th century. The brilliance of Fichte’s analysis comes, as usual, from his unflinching willingness to draw consequences, even when they lead to contradictions. In particular, Fichte sees that the form of punishment appropriate to equal standing before the sorts of laws that can be willed by citizens as citizens—​namely absolutely general laws—​is the exclusion of the criminal from the bonds of citizenship. Because the only legitimate laws are those that are universally necessary for the recognition and protection of rights, any crime is a denial of rights as such. He thus denies Kant’s version of the distinction between criminal and civil law, according to which crimes are precisely those transgressions that make one unfit

Fichte’s Three Political Philosophies  167 to be a citizen (MM 6:331). For Fichte, in principle all transgressions make one unfit to be a citizen. Furthermore, because the only legitimate laws have this rights-​protecting structure precisely as a response to the Hobbesian condition of lack of trust, the legitimacy of their enforcement turns on making their abrogation impossible. One citizen respects the rights of another because the first is assured that the second will respect their rights, and they are assured of this precisely because the certainty and severity of punishment literally cancels out the will to violate those rights in the second. The universality of law required by legislative sovereignty thus has the perverse effect of flattening out the apparent differences in the evils of different crimes, and thus of eliminating the basis for differences in punishment. The proper punishment is normative exclusion from the community, rendering the criminal “free as a bird [Vogelfrei]” but thereby rendering them just as completely without rights as a bird. As a dangerous animal, the criminal can and indeed must be treated as such without regard for their humanity. Historically, this is the logic of the new state courts pushed to its natural extreme, when that logic is understood in terms of the state-​building exigency to establish judicial as well as legislative sovereignty; the consequence follows from the conjunction of those two forms of sovereignty. The one legal system of the rule of law must apply universal laws promulgated by the legislature in such a way as to protect the freedom and property of the citizens, that is, their capacity for rights. For Fichte, any transgression of such laws makes one unfit to be a citizen. This is as true of his initial justification of punishment in §13 of the FNR as it is of the antinomy of punishment in §20, to which we now turn. In the antinomy, Fichte immediately opposes to this starkly universal conception of legal standing an essentially particular conception—​the criminal is a useful member of a community with a division of labor that has to struggle for economic self-​sufficiency in order to resist its manipulation by foreign powers, to say nothing of merely feeding and clothing its population. To provide a complementary animal metaphor to the free bird, there is equally a need to return the criminal sheep to the working fold. This is exactly the economic approach to legal justice that dominated in the patrimonial courts. Thus, we are confronted in Fichte’s antinomy of punishment with purified but recognizable forms of the two dominant models of judicial authority in the Sattelzeit, state and patrimonial courts. Here are Fichte’s statements of the two horns of the antinomy: Thesis: If a person violates any part of the civil contract, whether willfully or out of negligence (i.e., where the contract counted on him to act prudently), then, strictly speaking, he loses all his rights as a citizen and as a human being, and becomes completely rightless [völlig rechtlos]. . . . In either case [i.e., willful

168  The Politics of German Idealism or negligent], the condition of the person’s capacity to have rights (his fitness to live in a society of free beings) ceases to exist; and if the condition ceases to exist, then so does the conditioned: his capacity to have rights. . . . Every offense results in the offender’s exclusion from the state (the criminal is outlawed and set free as a bird), i.e., his security is guaranteed as little as that of a bird; ex lex, hors de la loi). . . . Antithesis: The sole end of state authority is the mutual security of the rights of all in relation to all others; and the state is obligated only to employ those means that suffice for achieving this end. Now if it could achieve this end without completely excluding all offenders, then it would not necessarily be bound to impose this punishment for violations from which it can protect its citizens by some other means. . . . So from every perspective there is good reason, in all cases where there is no risk to public security, to impose alternative punishments for offenses that, strictly speaking, merit exclusion. (226–​27/​ 260–​61)

The interpretive difficulties here are immense, and perhaps foremost among them is the way that the Thesis concisely articulates the main thrust of Fichte’s political philosophy to this point in the book, and yet the subsequent resolution to the antinomy looks surprisingly like a simple acceptance of the Antithesis and rejection of the Thesis along with the conditions of justice that give rise to it (lack of trust). This latter impression is only strengthened by the textual asymmetry, in which both ‘Thesis’ and its ‘Proof ’ are marked out by separate titles, and yet after the title ‘Antithesis’ both the proof and the solution follow immediately without additional title. But before moving on to those issues, I want to pause and just note the two very different sorts of logics animating the Thesis and the Antithesis. The first is an all-​or-​nothing logic of condition and conditioned that reflects Fichte’s view that the capacity for rights depends on working out just political relations. The second is a logic of goal-​directed planning in which costs and benefits are weighed. It is easy to dismiss the first, all-​or-​nothing conception as an idiosyncratic aspect of Fichte’s view (perhaps simply a product of his overly strident personality), but that would be too quick. In fact, it is of a piece with a main trend of modern and contemporary understandings of the value of the rule of law (the Rechtsstaat) that we express when we say things such as “None are free when anyone is oppressed.” Both Fichte’s view and our current slogans reflect a commitment to equality and a recognition that even minor deviations can easily make equality the sham that we now associate with the Orwellian phrase that “all animals are equal, but some are more equal than others.” What Fichte adds to this commitment

Fichte’s Three Political Philosophies  169 is a dangerous but lucid recognition that the only way to secure such absolute equality is to double down on the notion that it is equality of citizens, and to mark a hard boundary between those persons who can be trusted as citizens and those who cannot. From this perspective, it seems obvious that any crime puts one outside that circle of trust, and thus outside the protection of rights. This is a perspective on the administration of justice that responds to the needs of formal equality, but also that is grounded in the growing phenomenon of social movement where it became more and more likely that the parties to the action and the judge would be unknown to each other and hail from different places with different customs. One further point I want to make about this all-​or-​nothing logic is its distance from any recognizable retributivism. Fichte is trying to make a point about who can be equal citizens in a commonwealth, not about returning one evil for another. Precisely the flattening out of crime into a blanket attack on rights and punishment into the exclusion from the community of rights means that there is no meaningful question of proportionality, no application of the lex talionis. And Fichte flatly states, “Punishment is not an absolute end” (FNR 228/​ 262). What remains from retributivism is a lingering sense of desert—​that the criminal deserves the extraordinary punishment of being treated like a thing for any crime—​and this will be important when we come to Fichte’s solution to this antinomy. With regard to the goal-​directed logic of the Antithesis, it also belies the consequentialist justification of punishment that it appears to be at first. The question is not, primarily, one of the threat required to deter future crimes. If anything, that is the guiding thought of Fichte’s initial presentation of coercion in FNR §13 that then gets taken up into the Thesis—​but there the point is that punishment should make crime impossible to commit, rather than thinking of it as a social tool to lower the incidence of crime (also FNR 228/​262). Here in the antinomy of §19, there is talk of utility, but it is fundamentally the utility of the criminal for the social enterprise of which they are a part, not the disutility of crimes for the victim and thus the utility of the punishment itself in minimizing the disutility of the victim. The point to be recognized is that each citizen plays a role in advancing society toward certain goals (e.g., producing enough food). Punishment eliminates the ability of society to use the citizen for those ends, and so punishment may be constrained by recognition of those ends. This is the logic of the patrimonial courts who were not judging a person in the abstract but rather, for example, the miller whom, if jailed for two months, would be unable to grind flour for the village for two months. Given this perspective of the patrimonial courts, one can understand why punishment was more lenient than in state courts. More generally, this is the perspective on the administrative of

170  The Politics of German Idealism justice taken up by people who know one another. This is signaled by Fichte’s caveat that it is the appropriate perspective to take when “there is no risk to public security,” which strikes such a discordant note because the whole point of the line of thought that culminates in the Thesis is that we cannot even trust ourselves always to respect others’ rights without the threat of punishment, much less trust others. Fichte’s text here is difficult to interpret, and it seems clear that he does not have control of his material. Not only are there the above-​mentioned difficulties—​ most important, that the solution just looks like the Antithesis—​but in addition, the next twenty pages or so actually seems to return to an earlier (§13) mechanical model of punishment as if nothing had happened. But where there is conceptual confusion there is so often concrete historical content, and this is one of those places in Fichte’s philosophy. We shouldn’t allow the simultaneously banal and hyperbolic discussion of hypothetical cases that follows the Antithesis to blind us to the real illumination that it provides. The focal point of that illumination is Fichte’s notion of an expiation contract (Abbüsungsvertrag). This contract is the actual mechanism for solving the Antinomy, for this contract holds on to the Thesis and Antithesis at the same time: This can be arranged only through a contract of all with all, which would subsequently become the norm for the executive power. The content of this contract would be as follows: All promise to all others not to exclude them from the state for their offenses (provided that this is consistent with public security), but rather to allow them to expiate their offenses by some other means. We shall refer to this contract as the expiation contract. (FNR 227/​261)

In line with the Thesis, Fichte sees that anything less than expulsion from the community is better treatment than the criminal deserves—​that’s why the expiation contract is a sort of formalized forgiveness. (The religious overtones are here in the German as they are in the English term ‘expiation.’ The usual objects of the verb ‘abbüßen’ are ‘sin [Sünde]’ and ‘original sin [Urshuld].’) In line with the Antithesis, the state retains citizens “whose usefulness outweighs their harmfulness” and the citizen gains a useful right to forgiveness. Crucially, this is a founding of the actual state on an institutionalized form of forgiveness and even grace—​in the state, we give each other better than we deserve. We cannot overstate the insightfulness of this notion as an expression of the social situation of the Sattelzeit. Kant saw a kind of abstract form in limited cases: out of necessity for preserving the population, the sovereign can grant clemency (Begnadigung) instead of the death penalty (MM 6:334). And more generally, the provisional rights claims that we make are permissible, inevitable, and yet open to revision by a conclusive system of omnilateral rights claims.

Fichte’s Three Political Philosophies  171 Hegel sees the different constitutive difficulties of different kinds of responsible lives, and thus the different sorts of exculpation that are systematically appropriate in contexts of legal responsibility. But in a moment of brilliance Fichte sees the way that the two basic social goals—​rights and welfare—​connect to two very different forms of the administration of justice. In his own text, he largely buries his own insight under twenty pages of tedious and occasionally sanctimonious casuistry, but it remains an extraordinary pivot point away from the rechtsstattlich ideal theory of the Foundations and towards the sozialstaatlich non-​ideal theory of the Closed Commercial State. Perhaps the better metaphor is one we have invoked repeatedly: the antinomy is a point at which a stereoscopic perspective is introduced that allows both to be brought into focus jointly. And this stereoscopic perspective is fixed by a kind of forgiveness, just as it is for Hegel. The religious language is thickly interwoven with this theme in all three philosophers, at the heart of what it could mean to have an equality before the law that would be worth wanting. A brief contrast with Kant and Hegel here can help to bring the specificity of Fichte’s stereoscopic perspective into relief. For Kant, there is the general binocular vision that tries to hold together our provisional claims made in good faith and out of the necessity of continued anticipation, on the one hand, with the conclusive claims that can be only partially predicted as belonging to the ideal civil condition to come, on the other. For Hegel, there are provisional (abstract) claims to property and contract that are directly enforceable by a kind of revenge, and these need to be held together with the claims to resources and corporate productive forms that are enabled by the state in ethical life. This is managed in a particular way for inheritance, as we have seen, by setting aside from the family resources a limited sphere of personal property that can be bequeathed at will. But because resources and corporate forms vary with social estate, the variation in modes of exculpation is brought in as a lens to see what is a reasonable provisional claim. For Fichte, there is expiation based on the necessity of social reproduction via economic production that must be held together with the strictness demanded of a truly egalitarian law, where the latter is what is foundational for the very kind of society the former is trying to reproduce. This fundamental tension holds together not only Fichte’s Antinomy of Punishment, but also his different political works. In fact, there is an important sense in which the lesson of the Antithesis and the Solution must await different works. In the context of the Foundations’ project in ideal theory, it makes some sense that after the Solution, Fichte merely reverts to the perspective of the Thesis. Even though the Antinomy is found in Part II of the Foundations, on applied natural right, Fichte never in Part II escapes the boundaries of ideal theory, least of all in his lengthy discussion of the family. But he does come back to the perspective of the Antithesis only three years later in The Closed Commercial State.

172  The Politics of German Idealism

7.3  The Closed Commercial State The Closed Commercial State (CCS) is another text that resists easy interpretation. On the one hand, this is no doubt due to the fact that it is very close to the socioeconomic problem situation at the turn of the 19th century, and also to monetary-​theoretical understandings of that problem that exceed the usual boundaries of political philosophy.6 But on the other hand, it is due to the extraordinarily unique solution proposed by Fichte to that problem, and particularly the fact that the solution contains both futuristic elements of socialism and very traditional elements of the guild economy. In this section, I will display very little interest in evaluating the success or failure of that solution. We are separated from it by such dramatic changes in state and economic structure that we should be suspicious of any armchair judgments about it. But we can make visible the historicity of the solution, both on its own terms and as it connects this work to the Foundations, on the one hand, and the Addresses, on the other. Once we can see the historicity of the CCS, we can then expand it into the relation between all three works. The CCS is divided into three books, which almost perfectly represent the Koselleckian framework of a horizon of expectation connected to a space of experience by political action. FIRST BOOK. Philosophy—​what is right with respect to commerce in the rational state. SECOND BOOK. History of the present [Zeitgeschichte]—​the condition of commerce in the actual states of the present. THIRD BOOK. Politics—​how the commerce of an existing state can be brought into the arrangement required by reason; or, on the closure of the commercial state. Philosophy gives us the horizon of expectation: that which will be because it must be, a kind of future made present by its own necessity. History gives us the space of experience: a past made present by the way that the unintended consequences of historical developments structure and constrain the possibilities for action in the present. Finally, politics is the action that will liberate us from those historical constraints and inaugurate the present in which the future comes to pass. The First Book gives the impression of summarizing the perspective of the Foundations, but it is remarkable how little of that text makes its way into the First Book. In fact, it is only the first chapter of the latter—​running to all of four pages—​that counts as recapitulating the outlook of the Foundations. And only

6

For good background on the latter discussion, see Nakhimovsky, The Closed Commercial State.

Fichte’s Three Political Philosophies  173 one idea is taken up, which is the notion that the property right is fundamentally the right to the labor sufficient to support oneself; as Fichte puts it, “an exclusive right to acts, not to things” (CCS 92/​401). It then moves on to a series of chapters that nominally concern the application of that principle, but what these chapters actually do is to provide an idealized description of features of the present in terms of their necessity—​a way to see the presence of the future in the present already. This comes out in so much of the language that Fichte uses to present these arrangements. Perhaps the best example is the most paradoxical, which is Fichte’s presentation of the difference of estates (Stände) as a necessary future, articulated through the subjunctive mood (Konjunktiv): “The treaty between these two chief estates would be as follows. [Der Vertrag dieser beiden Hauptstände wäre der folgende.]” Here we have Fichte presenting a hypothetical contract in the ideal state between two groups conceptualized in an apparently archaic way—​through the notion of a Stand—​a way even Fichte will come to reject in the Addresses in favor of a notion of class. But the most important feature of the present that is projected into the future by necessity is a notion of “customary needs [gewöhnliche Bedürfnisse].” More on this in a moment, because one needs to see Fichte’s diagnosis of the central problem of the space of experience before one can see why this element is made necessary. The short story is that a planned economy of the sort proposed by Fichte presupposes a given, static, and measurable standard of living. As Isaac Nakhimovsky nicely summarizes: The institutions Fichte proposed for realizing these principles were extended and idealized versions of traditional, ancien regime arrangements. The state would set food prices according to a nationally appropriate standard of basic subsistence, and it would guard against natural fluctuations in the food supply by operating public granaries. A farmer whose harvest exceeded the state’s calculations would be a given a production credit against future shortfalls, and the surplus would be either stored in a public granary or used to address a shortfall in another region. The state’s debt would be cancelled during a subsequent bad harvest or, should that fail to happen, via a tax credit. This system would prevent famine (still an immediate concern for a European state in 1800) and ensure that food prices remained stable (a perennial concern).7

These extended, idealized arrangements included a version of the guild system, which is a natural articulation of Fichte’s conception of property as a kind of monopoly right to a certain activity (CCS 133/​446). In the Second Book, we get the features of the present that provide both the barriers and opportunities for realizing the idealized vision of the first book.

7

Ibid., 112.

174  The Politics of German Idealism The most important story told in the second book is a historical story about the diverging paths of the state and the market, or the political state and the commercial state. On Fichte’s view, before 18th-​century state-​building took place, all of Europe was one nation and one economy. Of course, there were smaller units that we might characterize as political (e.g., tribes), but they were so multifaceted and cross-​cutting that there was nothing that even resembled the kinds of states being built by Prussia, Austria, and others in the 18th century: “Were one to apply our concepts of state, authority, and subject to these individual settlements of half-​barbarians, one would be led completely astray” (CCS 139/​450). Because there were no customs borders or differences in currency, these members of the one Continental nation also shared the same market, at least to the extent and distance that was available to them by their geographical circumstances. But then in the 18th century these constitutional states divide up the nation into separate states, without dividing up the economy. Fichte explicitly remarks on the difference between this way in which the modern states are arising as opposed to the way envisioned by the social-​ contractarian hypothesis: In this way modern states were formed: not as the doctrine of right is wont to describe the emergence of a state—​through the collection and unification of unattached individuals under the unity of the law—​but rather through separating and dividing into pieces a large, unitary, though only weakly bound, mass of men. The individual states of Europe are just such pieces torn away from a former whole, with the extension of their boundaries for the most part determined by chance. (CCS 140/​451–​52)

But as these political parts are torn away, the economic whole remains. This disconnect is one aspect of the provisionality of the current situation, to use a Kantian term to characterize Fichte’s reasoning here. The second aspect of that provisionality results from the fact that those building the new states have not recognized that situation, and so tend to confirm the unnecessary and unjust elements in it: For a long time there were no states at all in modern Europe. At present, one is still attempting to form them. Moreover, one has up till now only one-​ sidedly, only half comprehended the task of the state, conceiving of it as an institution that, through the law, should preserve the citizen in whatever state of possession it finds him in. Yet one failed to see that the profounder duty of the state is to put each in possession of what is his due. Yet the latter is only possible by eliminating the anarchy of trade, just as one gradually is eliminating political anarchy. The state must close itself off as a commercial

Fichte’s Three Political Philosophies  175 state, just as it has already been closed off in its legislative apparatus and judiciary. (CCS 141/​453)

We have already seen that states closing their legislative and judiciary apparatuses off from the larger Continental system—​particularly the Holy Roman Empire—​didn’t do much immediately to eliminate internal diversity in both the authority and execution of law. And we have also seen the historical evidence that the problem of property was not that of setting out new boundaries but rather of disentangling a whole host of ownership interests. In Fichte’s claim, we get a confluence of these themes: only by completing the separation of states from the nation that is currently halfway there can we redeem the promise of the state. Once there is an economic separation, then legislative and judicial sovereignty can be put to work for the purposes that legitimize it, namely the protection of true property rights understood as the right to earn a living. (As we will see in discussion of the Third Book there is an additional element of provisionality here, in that Fichte holds that those who will lose property in the transition must be compensated for that loss—​in Kantian terms, they must be compensated for the loss of an ownership interest that was inconclusively valid.) The difference between the historicity of the First Book and the Second Book is striking. Whereas the features presented in the first book strike us as more archaic—​guild systems and credit granaries—​the scene on which they are presented is a hypothetical future. In contrast, the developmental story told in the second book still strikes us as quite contemporary—​with the 2008 mortgage and sovereign debt crisis just the most recent cataclysm that makes us reflect on the disconnect between political and economic borders—​and yet the scene on which that developmental story is presented is a past that is over and done with, leaving only unintended consequences for the present. Fichte himself remarks on this difference: He, on the other hand, who has become accustomed to using thought not only to copy what actually exists, but to freely create within himself what is possible, very often finds that entirely different nexuses and relations of things are just as possible—​indeed far more possible, natural, and rational—​than those that are given. He not only finds the given relations to be accidental, but at times wondrously strange. And he raises the question: How and in which way did everything come to be the way that it is, since it surely could have been otherwise in countless different ways. The history of the past answers this question for him, since indeed all historical research of deep penetration neither can nor should be anything else than a genetic answer to the causal question: How has the present state of things arisen, and what are the reasons that the world formed itself into what we find before us? (CCS 137–​38/​449)

176  The Politics of German Idealism Fichte thinks that the genetic story connecting the past to the present is quite different from the hypothetical social-​contractarian story of the Foundations, which is presented in nuce for the case of property in the First Book. But one very past-​oriented element from the First Book is necessary for the proposal outlined in the Second Book, and that is a notion of customary expectations. Often Fichte puts the point in terms of subsistence, but sometimes more broadly in terms of the specific standard of living expected by a given culture. The important thing is not so much its content as its stability, because only if it can be fixed can the requisite calculations of demand be made. In the absence of a price mechanism which would signal producers, Fichte’s planned economy depends on the advanced calculation of demand to determine the requisite production. The potential disruption of the domestic balance of supply and demand by foreign trade is the primary (though not only) reason that international trade must be at first eliminated and thereafter carefully managed by the state itself. For without the right planning for the proper scale of production for each monopoly, no one can be guaranteed a living from their labor: “It is only through the precise calculation of the reciprocal relation of the different estates of the nation in the way described in the first book, and the complete closure of trade with foreign countries, that a government would be able to secure for all its subjects the state of existence to which they are accustomed” (CCS 156/​470; emphasis added). The further and essentially provisional problem, Fichte realizes, is that part of that to which they were accustomed is whatever they could get with their own strength and wit in the one open economy of the Continent as a whole (CCS 159/​ 472). This motivates an important part of the plan for political action, which we find in the Third Book. As already suggested, that plan is to divide the economy so that the political and economic states once again match each other. There are at least three substantial elements to the plan: (1) allow political states to expand to their “natural” borders, that is, to the borders that allow them to be economically self-​sufficient; (2) close those borders to commerce; and (3) issue fiat currency to become the only legal tender for all business within the state (including payment of taxes). Together, these three measures would re-​establish the co-​extensiveness of the political and economic states, which would allow the political state to discharge its basic function of securing property rights (understood as the right to earn a living). On the one hand, Fichte presents this move as quite easy—​essentially just the single, negative step of the closure of the commercial state, from which everything else follows with necessity. Yet even in the first chapter of the Third Book, Fichte recalls the existence of provisional rights: If the individual citizens as well as the state as a whole are not without previous relations, as the idea of a rational state presupposes, but have instead emerged,

Fichte’s Three Political Philosophies  177 respectively, as free citizens of a great commercial republic and as a part torn off by chance from the great whole, then they may well have obtained special claims that, while rightful, are enjoyed neither by the citizens of the rational state nor the state itself, and that must be secured before the complete closure of the state and its perfect separation from the rest of the inhabited world. Before all else, it is necessary to investigate whether there are indeed such rightful claims originating in the previous state of affairs, and what these claims are. (CCS 164/​476–​77)

But though Fichte introduces this investigation as the theme of the Third Book—​or at least an important aspect of it—​there is precious little discussion of it. We do, however, get a commitment to compensate merchants for any losses they might suffer from the devaluation of their inventory upon the closure of the state and the change in currency (CCS 184/​496). This is then extended into a government program for taking on and settling all open accounts with foreigners. One thing that must be said here is that even in the part of a political work addressed to a Prussian minister (which is as close as Germany in 1800 had to a politician in the modern sense of that term), Fichte is at great pains to minimize the specifically political nature of what he is proposing. As he presents it, there is a single change that requires decisive political action (close the state), and the rest is a matter of administration and planning. Here we see the dominance of his future-​oriented perspective, even as he spells out a genetic story about the influence of the past and a political program for the present to overcome that influence. Even here, he cannot quite overcome the civil-​social perspective that persists into the politics of our own day, according to which the failure to achieve the future is primarily a failure of nerve, a failure to take responsibility, and a failure to liberate ourselves from our passive relation to the circumstances transmitted to us by the past.

7.4  The Historical Works In addition to the program of political action proposed in the CCS, there is a much more fundamental program of action that is introduced in Fichte’s historical works, particularly the Characteristics of the Present Age and the Addresses to the German Nation. But before diving into these works, let us step back a moment and think about the historicity of such a political action plan. More than anything, an action needs an agent; historical action needs a historical agent. Such an agent has to be a recognizable individual and have some effectiveness in the context in which their agency is proposed.

178  The Politics of German Idealism One way to characterize the differences between the Foundations, CCS, and the historical works is in terms of their different agents. In the Foundations, the agents are natural individuals who form a state via a social contract. They possess a peculiar kind of effectiveness in the form of the summons (Aufforderung): they are literally able to create self-​conscious freedom in others by calling them to responsibility. By doing so they generate a community of self-​consciously free individuals, but the price paid is a loss of trust in the other members of that community because of the awareness of their transcendental freedom to act in accordance with or against the requirements of morality. The state is an outgrowth of this extraordinary power, and it stabilizes the expectations of all so that a different kind of effectiveness—​the effectiveness of transforming the natural world—​can be revealed to each within the exclusive sphere carved out by their property rights. The state is simultaneously a solution to the moral uncertainty that is engendered by the summons to free will, and a clearing of the ground on which each agent’s effectiveness can be made apparent and perceptible to them. The important thing here is the way that these features hang together: in a hypothetical state of nature, natural individuals are effective in virtue of a power that lies dormant in them until it is awakened by others, and out of those unique interactions a state can be formed. The context of agency here—​the circumstances of justice—​are simultaneously hypothetical and natural in Fichte’s very self-​aware employment of the social-​contract trope. This context is neither past nor present, but forms the past of a future that is anticipated. In that future past—​a zukunftige Vergangenheit rather than a vergangene Zukunft—​a natural individual can have a historical efficacy that they can have neither in the present space of experience nor along the path that is to connect such a space with the horizon of expectation. CCS is most clearly the context of that present space of experience. It is addressed to the Prussian bureaucracy and the primary step—​closure of the borders—​is something that could potentially be done in a month’s time, so the temporal extension of this space is rather minimal. As Fichte presents it, there is only one negative step that takes us to the horizon: The state must close itself off entirely to all foreign trade, forming from this point on an isolated commercial body, just as it had already previously formed an isolated juridical and political body. Once this closure has been brought about, everything else will follow quite easily, and the measure that should be pursued from this point on no longer lie within the domain of politics but rather of the pure doctrine of right, and have already been set forth by us in the first book. (CCS 163–​64/​476)

This is crucially still the view on a space of experience from a philosopher essentially adopting the standpoint of the horizon of expectation—​one who sees

Fichte’s Three Political Philosophies  179 the world in predominantly universal terms and seeks the means to accelerate our transit to that horizon. And yet it is nonetheless a sincere attempt to grapple with the barriers to that acceleration that were transmitted to the present by the past. It isolates a particular barrier—​the disconnect between political and economic states—​that can be bypassed via state action to control the economy. And it would exercise that control via a variety of arrangements that—​fiat money excluded—​essentially involve extensions of the guilds and other social forms of the Ständegesellschaft. The key to their effectiveness, however, is that they are now to be directed by the state, which stands as the historical individual in the social field. Only the state has the administrative and police powers requisite for the establishment of a self-​sufficient planned economy. But that was 1800. In the Characteristics of the Present Age (from 1806) and Addresses to the German Nation (from 1807), the Prussian state has been laid low by the Napoleonic Wars, and rather than see there the opportunity for the reform of the state to which Hegel will pin his hopes, Fichte turns to the nation as the historical individual. In the historical works, the agent is the nation or people (Fichte uses Nation and Volk interchangeably). I focus here on the Addresses, but some brief comments on the generally neglected Characteristics will help to set the stage. In the Characteristics we catch Fichte at a low point, forced by the apparent receding of the horizon of expectation into an explicit meditation on the overall pattern of history. He settles on a five-​stage model of decline and resurgence, in which the present age is at stage three. We start in a first stage in which reason rules by instinct, followed by a second stage in which reason rules by external authority. But then external authority is attacked in the third stage, and along with it reason itself. This is the age of liberation and critique, the present age. This is to be followed first by a fourth age in which reason is understood theoretically and a fifth stage in which it is practically made into our governing principle. In a classic Sattelzeit image, the present lies between a premodern peak in which reason was shrouded in darkness and yet nonetheless ruled, and a fully modern peak in which reason will rule but also stand in full illumination. Fichte holds that future Germans are destined to proceed to do with freedom what past ages have done by instinct and coercion. But that also means that his contemporaries share a singular fate, which is to live in the one age in which reason does not govern at all. Though only separated by a year, the Characteristics and Addresses have dramatically different tones. Paradoxically, in the Addresses the more optimistic tone is spurred by Fichte’s thought that the intervening defeat of Prussia by Napoleon at Jena signifies rock bottom, the point at which there is nowhere to go but up, and at which the urgency of the situation is unmistakable. If the Characteristics primarily chides the Germans for their decadence, the Addresses exhorts them to make a virtue of the necessity of their defeat. Speaking in the terms of his idealism, he thinks it is a point at which no one will be tempted to passively copy

180  The Politics of German Idealism the current conditions into their mind as an empiricist and to construct the boundaries of experience on that basis, but rather everyone will see as an idealist the necessity to project the future out of their conceptual grasp of what is necessary. To do so, the Germans need two things: a sense of themselves as a historical individual and an educational practice to create visionaries. To begin with the first, the Addresses is a central text in the troubled history of German nationalism. That this nationalism is formulated by a philosopher who also believes that nations have to expand to the boundaries of their natural self-​ sufficiency generates a continuity with the Lebensraum policies of the first half of the 20th century. Furthermore, the circumstances of Weimar Germany have a great similarity to the decadence and disaster in which Fichte wrote his historical works. I will not wade into the full debate on Fichte’s place here.8 But I do want to emphasize some themes that distinguish Fichte from the further development of German nationalism, primarily because they go to defining what it would mean for a nation to be a historical individual—​an actor on the historical stage—​and what defines the character of the German historical individual in particular. Significantly, a people (Volk) is primarily defined linguistically, rather than by blood or soil (A 48–​49).9 And what distinguishes the Germans as a people from the other peoples of Europe is that they continued to speak their own language rather than switching to Latin. This isn’t important to Fichte for Heideggerian or Hegelian reasons, that is, because of some inherent superiority of the language itself. Rather, what matters is the continuity with which the language has been spoken, which has allowed it to absorb gradually and continually all the minute changes in habits and practices of the people who speak it.10 In addition to this linguistic characteristic, there is an additional characteristic: the people must understand itself historically, that is, as a progressively developing whole. Once we get these two features, we get a historical individual that can be effective on the world stage. Fichte presents this view with a very strong mixture of historical and conceptual terms. The people is how we see the eternal in the temporal: “The divine has appeared in the people [Volk], and that which is original has deemed it worthy to make this its vesture and direct means of flowing into the world; therefore the divine will further break forth from it” (A 104). This requires that the people understand themselves to have an original character 8 There is a large literature on this topic. Good recent places to start are Fuchs, “Fichte—​ Stammvater des deutschen Nationalismus?”; and Aichele, “Ending Individuality.” 9 At any rate, this is Fichte’s official story, but he has read Tacitus’ Germania and there are ethnic elements in the background. Arash Abizadeh attributes to Fichte a ‘crypto-​ethnic’ theory. See “Was Fichte an Ethnic Nationalist?” 10 Sometimes, Fichte will go as far as to say that the distinctiveness of this continuity among the peoples of Europe entails that the Germans are the only true nation in Europe (A 100). But it should be noted that Fichte evinces no interest in comparing the Germans or the peoples of Europe generally with non-​European peoples in the Addresses.

Fichte’s Three Political Philosophies  181 whose history is one of progressive development—​without which they “are not a people in the higher sense, and since they do not, strictly speaking actually exist, they are equally incapable of possessing a national character [im höhern Sinne gar kein Volk sind und, da sie in der Tat eigentlich auch nicht da sind, ebensowenig einen Nationalcharakter zu haben vermögen]” (A 103). The nation (Vaterland) is the particularity (Eigentümlichkeit) that is appropriate to the universality of pure thought—​the only present adequate to the future (A 118). Thus cosmopolitanism is to be fought: “If these particularities [of the nation (Nation)] are dulled by adulteration and friction, then this flatness gives rise to a separation from spiritual nature, which in turn causes all men to become fused together in uniform and mutual ruination” (A 172). But paradoxically, once the Germans come to this sense of the character of the German nation, they should realize that they require a transformative educational practice to recover their nationhood. The Germans must break with the recent past in order to recover the true past, their essence as Germans (A 124).11 To do this, isolated schools utilizing Pestalozzi’s pedagogy are required. On Fichte’s understanding, Pestalozzi’s pedagogy is implicitly idealistic, because it involves students projecting thoughts into the world rather than generalizing the world into their thoughts. Politically speaking, this means that students trained in Pestalozzi’s method will be able to project the anticipated social order—​the social order that they will see is necessary on the basis of the sort of reasoning presented in the Foundations—​rather than developing reform efforts by generalizing from recent experience. These schools would thus create a moral vanguard to lead the German nation to abolish hereditary Stand distinctions, and instead, through education, sort people into intellectual and manual classes (A 39). And in a remark that already points to a path down which Hegel will travel, these classes have different historical valences as well: the manual classes (the masses) will forever be charged with maintaining the present, while the intellectual class (the scholars) prepare the future (A 139). Again, the affinity of this conception with aspects of 20th-​century totalitarianism cannot be ignored. In particular, there is an aspect of total mobilization of a unified people led by a moral vanguard with which it is impossible for us to be comfortable: Each individual is well practiced in every possible application of his physical strength and understands on the spot what he has to do, is accustomed to enduring every effort and exertion; his spirit, raised in immediate intuition, is always present and alert, and his soul lives the love of that whole whereof he is a



11

For Kant’s brief but sweeping rejection of such a plan, see his Conflict of the Faculties 7:92.

182  The Politics of German Idealism member—​the state [Staat] and the fatherland [Vaterland]—​and this annihilates every other selfish impulse. (A 143)

But there is an even more fundamental feature of Fichte’s view with a strange resonance with later totalitarianisms, which is its simultaneous futurism and nostalgia. Here as in the CCS, Fichte remains a representative of the civil-​social perspective, impatient with progress and inclined to see simple stubbornness and cowardice as the real barriers to change. And yet the pace and scale of change that eventually came about in the 19th century—​and its engine, industrial capitalism—​are anathema to his vision of a just society. He is responding to the possibility of such changes avant la lettre, as opposed to 20th-​century totalitarianisms which responded to them during and after the fact.

7.5  Horizon of Expectation, Space of Experience, and Action Taking the broad view, we must note the contrast between these three works. The Foundations is quite clearly a collection of a priori arguments for the rightful form of political and social life (including the family). The one (partial) exception is the Antinomy of Punishment, which we have considered in §7.2. The Closed Commercial State is self-​consciously an intervention into practical debates and spells out the crucial additional practical feature of the political state described Foundations, namely that the economic state be co-​extensive with the political state. Finally, the historical works—​and the Addresses most of all—​attempt to locate Fichte’s temporal moment in a historical sequence and to identify the means by which the political state of the Foundations can be brought about by human agency. In the Addresses, the key is a new set of educational practices. In this way of thinking about the texts, the Foundations presents what Koselleck called the horizon of expectation (Erwartungshorizont), which is a kind of future made present. Again and again in the Foundations, Fichte argues that the relations he is presenting are possible because they are necessary—​in fact, they are required for human beings to live free and self-​conscious lives. This way in which such relations condition something so basic makes them almost tangible even as they remain ideal. Their absoluteness is both terrifying in its Jacobin purity—​the only appropriate punishment for any crime is stripping the criminal of their humanity and treating them as a wild beast—​and yet also a simple and elegant way to recognize the equality of all free citizens. In contrast, the central condition of the Closed Commercial State is its static and customary nature. For the planned economy to work, the needs of the people must be determined by what they are used to and then never change, except in a sort of gradual, quantitative way. In Koselleck’s terms this is the space of experience (Erfahrungsraum),

Fichte’s Three Political Philosophies  183 which is a kind of past made present. Fichte’s closed commercial state resembles nothing so much as a German hometown writ large. In particular, the conception of property as a kind of monopoly on a certain sort of production resembles nothing so much as the guild system (though stripped of its hereditary basis). Finally, in the Addresses we get the practical suggestion for political action to take us from the space of experience to the horizon of expectation. Socially speaking, this is a shift in which the largely hereditary estates (Stände) of the space of experience are transformed into the classes (Klassen) of the horizon of expectation through an adoption of Pestalozzi’s scheme of education. Even once that shift is accomplished, however, it will be up to the lower classes to maintain the present while the scholars prepare the future. But this presentation so far glosses over the fact that these projects do not align perfectly with each other. What the Foundations tells us to expect is what a just society would be like that had had no prior social relations, that is, what would be produced from a space of experience that was itself a pure state of nature. In contrast, the CCS only takes the conception of property from the horizon of the Foundations, and its proposal for political action is quite different from that of the Addresses. The latter’s proposal of the isolated education of the moral vanguard is, in a sense, a return to orientation by the horizon of the Foundations. But it does so by eschewing any space of experience, since the purported idealism of Pestalozzi’s method is said to lie in teaching students not to generalize from past experience but to project the necessary future into the present. In point of fact, in Fichte we could equally see the three elements in each of the works, even if in less clarity. We have already seen this in the CCS, which is explicitly divided into a pure part (the theory of property from the Foundations), an applied part, and a means to get there (close the state at its natural borders). But also in the Foundations there is an important shift in the antinomy of punishment toward a recognition of the economic challenges of the given level of development, and in the Addresses the point of the educational system to be adopted is for students to project the anticipated social order rather than generalizing from their experience. For my purposes, the fundamental insight is that these works of Fichte hang together in the same way that we have seen Kant’s, Fichte’s, and Hegel’s views on topics such as property and the family hang together. The same historicity that we can see writ large over the span of their views we can also see writ small in Fichte’s own changing view. Or, as I would rather put it: we can see it in Fichte’s sequential exploration of the different internal perspectives of his own view, successively from the horizon of expectation, the space of experience, and the seat of agency. What we will see in the following chapter is Hegel’s attempt to do the same within a single work, the Philosophy of Right.

8

Hegel’s State In this chapter, I reconstruct Hegel’s theory of the state.1 Of crucial importance to the structure of Hegel’s state is understanding the way that its pattern is essentially that of the estates—​and thus the way Hegel’s institutional design of the state is a self-​conscious attempt to bridge the gap between state and society with which political modernity begins. Because the very notion of the estates sounds as archaic and idiosyncratic to us now as does Kant’s thing-​like right to persons, the first section of this chapter goes into some detail regarding the context and function of Hegel’s theory of the estates. I argue that for Hegel, the estates are social preconditions for legal and political practices, forms of political participation in their own right, and conditions of possibility of moderate government (three functions also attributed to the estates by Montesquieu). Then, in the second section I connect this feature of the Hegelian state with the analysis of Fichte’s political philosophy in the previous chapter. I show that Hegel’s state is the result of the stereoscopic task of including within a single institution all three of the elements that Fichte distributes to different texts and projects. The different institutional elements of the Hegelian state embody the temporal perspectives of the social groups that Hegel envisions populating its members.

8.1  Estates and the State Scholars do not wonder enough about the prominence Hegel gives to the estates in his ethics and political philosophy. Part of the reason Hegelians in particular do not is surely the concern that doing so will render Hegel archaic or parochial, and thus condemn Hegel to the kind of respectful neglect from which Montesquieu has suffered for similar reasons. In fact, it is often claimed that the German term for a society structured by the estates—​‘die Ständegesellschaft’—​has a translation into French—​‘la société d’ordres’—​but not into English. It names a form of social order grounded in custom in which legal and political statuses are individually specified by particular grants to and agreements with both individuals but

1 An earlier version of some material in this chapter appeared in Yeomans, “Perspectives without Privileges.” The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/​oso/​9780197667309.003.0008

Hegel’s State  185 primarily groups (e.g., the clergy, nobility, or the peasantry).2 In such a social system there is talk of rights, of course, but the rights seem to us to be primarily prerogatives or privileges rather than universal protections. As such, the estates seem to refer to a form of order that is decisively behind us historically, and such an impression is only strengthened by the fact that Hegel’s usage of ‘die Stände’ is common for his time in referring to such social groups but also to both to the assemblies formed along their lines for political representation, as well as to the constituent entities of the Holy Roman Empire. But mainly, I think, one simply gets used to the sui generis character of Hegel’s central texts, and there is simply so much strangeness all around that the strangeness of Hegel’s emphasis on the estates does not stand out so much. But it is strange, particularly in the context of other modern political philosophers, and particularly for Hegel. Forget, for the moment, Hegel’s admiration for the Scottish Enlightenment authors—​just focus on his views on German society itself. Like Fichte, Hegel despised the German status hierarchy; but he went even further than Fichte in condemning the “miserable guild system” (PR §255). Why would someone with his distaste for the Holy Roman Empire and in particular the behavior of the estates within it3 then use the estates as a central schematizing structure for his vision of ethical lives? For Hegel makes the claim that the fundamental way in which his contemporaries could “be somebody,” that is, be recognized as an individual with dignified status in public, was by achieving the honor of their estate (PR §253). In fact, Hegel goes so far as to claim that the estates are what turn Willkür or arbitrary choice into Wille or rational free will, and that virtue as a personal character trait comes to be replaced by the honor of one’s estate. But how can someone so impressed by Kant’s revolution in moral theory seemingly retreat to the conservative position that the ethical meaning of one’s life was standesgemäß, or determined by one’s position in the social order, even if on his account that position is to be determined by the free choice of careers open to talent rather than being divinely preordained? To take up a second way in which Hegel’s theory of the estates is strange, even for him: why would someone who had recently and publicly heaped scorn on the political judgment of the estates assembly in his native Württemberg turn around a few years later and publish a text (the Philosophy of Right) in which the estates are the crucial mechanism of political participation? For in Hegel’s reconstructed state, political participation is channeled through the estates such that the agricultural estate is represented by landowners in one chamber 2 See Hegel’s comments in his essay on “The German Constitution,” Theorie Werkausgabe, I, 505–​6, and Political Writings, 41–​42 (where this is used as the critical evaluation of the Holy Roman Empire); and also Behrens, Society, Government and the Enlightenment, chap. 1. 3 See, for example, his complaints on this score in the essay on “The German Constitution,” Theorie Werkausgabe, I, 469–​70, and Political Writings, 13.

186  The Politics of German Idealism of an estates assembly; the estate of trade and industry is represented in another chamber by delegates elected through the essential corporations of civil society (what we would now think of as industries); and the public estate of civil servants, teachers, soldiers and the like are considered to have their political participation in their daily work for the common good and so do not have suffrage rights at all.4 There is, of course, an obvious and non-​trivial answer to this question. The Owl of Minerva flies only at dusk, and so Hegel holds that a political philosophy can be nothing other than “its own time comprehended in thoughts” (PR Preface). But there is a version of this answer that is reasonable and hermeneutically productive, and versions that are neither, and we would do well to distinguish between them. As an example of the latter, the historian Hans-​Ulrich Wehler locates Hegel in his Prussian Zeitgeist, where that involves a combination of peasant servility and bureaucratic power that sets Germany on a special path leading to the disasters of the 20th century. This historical contextualization animates a version of Hegel as a deeply conservative opponent of popular sovereignty and proponent of a hierarchical, monarchical state.5 But Hegel does not see the peasantry as servile; instead he takes them to be, on the whole, refractory and stiff-​necked.6 Or again, it seems plausible to put Hegel’s theory of the estates into the historical context of the expectation that members of the newly formed German Confederation provide a constitution to their citizens based on social estates. But rather than the Landstände of nobility, town, and country envisioned in the 1815 Bundesakte, Hegel’s estates are agriculture, trade and industry, and civil service (to shoehorn them into three categories for comparison’s sake). And descriptively these estates fit the usual description of neither Prussia nor Württemberg. Nonetheless one might charge Hegel with being an instrument of the restoration, vainly attempting to re-​establish an organically harmonious feudal society after the disruption of the Napoleonic Wars, by the paradoxical means of a powerful administrative state that (again) sets Germany on a unique and disastrous historical course.7 But there is less hierarchy, and more dissonance in the harmony in Hegel’s estates system than at first appears. What is needed is to combine the notion that philosophy is its own time comprehended in thoughts with a deeper consideration of what it would mean for a time to comprehend itself in thought, and furthermore the sense in which

4 See also Cafagna, “Die Garantie der Freiheit: Hegels Begriff der Korporation als Bestandteil der Verfassung.” 5 Wehler, Deutsche Gesellschaftsgeschichte, II.456–​57. 6 Some important recent historical research supports Hegel’s view even for the East Prussian peasantry (which was supposed to be the most servile on Wehler’s line). See Hagen, Ordinary Prussians. 7 E.g., Botzenhart, Reform, Restauration, Krise, 94–​95.

Hegel’s State  187 the turn of the 19th century was precisely a time that experienced its time as comprehensible in thought; that is, a time that experienced itself as historical. Without doing so, it is easy to slip into the mistake of thinking that our own political situation is dramatically different from Hegel’s because unlike us he lived in a time of non-​conflictual and stable institutions.8 To the contrary, much in Hegel’s practical political writings is animated by a very concrete sense of the way in which institutions were changing as a result of conflict and the way that those institutional changes then reframed future conflicts between groups. For example, in his essay on the German constitution he chides his contemporaries for having the view that Germany is still a state today only because it once was a state, and because those forms whose inner life has [now] departed are still with us. . . . The organization of that body known as the German constitution took shape in a life quite different from that which later invested it and does so now. . . . If these laws have lost their former life, the vitality of the present age has not managed to express itself in laws.9

And in the later essay on the proceedings of the Württemberg estates, Hegel continually presses a line of thought according to which the shift of Württemberg’s status from being a mere duchy within the Holy Roman Empire to being an independent kingdom—​itself an institutional change brought on by the conflict of the Napoleonic wars—​radically changed the functions of rights held by different estates within Württemberg and thus reconstituted the perennial but institutionally mediated conflict between the estates on a new basis.10 We do better by taking the line suggested in this study, which is to conceive of Hegel’s time as a Sattelzeit—​as a transitional period that understood itself as such. One aspect of such a transitional period is that planning for the future is a part of the present political reality in a distinctive way. Here is how Koselleck describes this aspect of the period: Diplomatic, bureaucratic and propagandistic phrases reciprocally colored each other. All that may be valid mutatis mutandis for all historical periods. What is new is the feedback of historical-​philosophical blueprints for the future and their concepts in political planning and its operational language [Sprachsteuerung]. The relation of concepts to the conceptualized reversed 8 E.g., Honneth, Freedom’s Right, vii, 2. 9 “The German Constitution,” Theorie Werkausgabe, I, 465, and Political Writings, 9–​10. This is a way of thinking that continues throughout Hegel’s career—​see Avineri’s discussions of Hegel’s rector’s addresses from the first half of the 1810s in Hegel’s Theory of the Modern State, 69–​72. 10 Theorie Werkausgabe, IV.462–​597, and Heidelberg Writings, 32–​136.

188  The Politics of German Idealism itself, it shifted in favor of linguistic anticipations, which were to be effective in coining the future. And so arose concepts, which far transcended empirical redemption, without sacrificing their political or social consequences. To the contrary.11

This is in the same spirit as the remark we just saw from Hegel’s German constitution essay that “the vitality of the present age has not [yet] managed to express itself in laws.” In both cases, there is the discovery of an essence-​appearance structure within political reality, where the tension between the two sides creates the space for concepts to be actual and effective even if they do not immediately play either an adequate descriptive role with respect to the order of appearances or even a straightforward explanatory role within that order. For the same reason, this description of Hegel’s time should remind us of the remark that he makes in the Preface to the Philosophy of Right—​that Plato’s Republic is misunderstood as a utopia, and is instead “essentially the embodiment of nothing other than the nature of Greek ethics; and Plato [was] aware that the ethics of his time were being penetrated by a deeper principle which, within this context, could appear immediately only as an as yet unsatisfied longing and hence only as a destructive force” (PR Preface). If Hegel is trying to capture a form of life that has grown old, he is trying to capture its age in part by showing its decay—​that is, by showing how something that was young and vital in the past has aged but remains present in the present. But he shows its decay by showing how elements of that form of life that formerly subsisted in a seemingly organic unity with each other—​that is, without the space between essence and appearance—​are being repurposed according to the new principle and thus given a different life, meaning, and function. This is a point at which what might seem to make Hegel a hypocritical prognosticator of future trends actually makes him a child of his time, since such repurposing was the order of the day for the latter half of the 18th century already.12 There is, if you like, a genealogy here in something like the Nietzschean sense of the term. In addition, for Hegel we grasp something conceptually only when we grasp the norm inherent in the kind of a thing it is, and this requires seeing the norm as valid (at least in some respect). The validity of the norm is to be investigated not abstractly but rather in the specific context of its operation. To grasp a form of life grown old is thus to grasp the way that the validity of its normative use of its different elements has been lost and the new normative uses of those elements were producing a new form of validity. This new norm is encapsulated in a new 11 Geschichtliche Grundbegriffe I.xviii. 12 For other examples, see Habermas’s discussion of the repurposing or functional conversion of the family and the initially state-​governed public sphere during this time period (Structural Transformation, 43–​51).

Hegel’s State  189 conception of human agency, and so the fundamental rationale for Hegel’s theory of the estates is grounded in this conception of agency. To review briefly from Chapter 3, by the publication of the Philosophy of Right in 1821 Hegel had completed a long-​gestating analysis of self-​determination into three interrelated projects: self-​appropriation, specification of content, and effectiveness (see PR §§25–​27). In willing, we are trying simultaneously to take possession of ourselves, to distinguish between what is central and what is peripheral in the events of our lives, and to make happen what we want to happen in those events. When we act, we try to do all three of these things at once, but this is naturally quite complicated. In most areas of human life in which we try to do multiple things at once we have developed explicit training processes that first separate the requisite skills and activities and train them individually before combining them. So one might break down the different parts of knitting, or shooting a free throw, into specific elements that could be targeted, tested, and improved. But no one has ever been taught first to take possession of themselves, then to distinguish the central from the peripheral, then to translate those central ideas into the world, and finally to put it all together as a complete performance of agency. Or perhaps they have just never been taught this explicitly. As part of this gestation period, Hegel seems to discover in the world of lived experience three general strategies for solving this problem of coordinating the three projects of action. He calls these three forms of accountability (Zurechnungsfähigkeit), and his description of each form represents a conceptual distillation of common ways of life that are attempts to manage this complexity on the ground, as it were. Each of the three subsections in the part on Morality in the Philosophy of Right describes a different, relatively independent form of agency that wrestles with the problem of combining these three projects in a distinctive way. But even this is of relatively little help if you are an individual agent trying to get a grip on what you are doing when you are acting, since the descriptions of these forms of agency are too abstract and complicated to condense insight in the requisite way. What one needs are concrete forms of life. We find this in Hegel’s phenomenology of the estates, in which he tried to identify both the distinctive ways in which members of different estates hold themselves and each other accountable for their actions, and the distinctive values implicit in each way of life. Hegel thinks of farmers and soldiers as embodying and thus modeling the first form of accountability, workers and managers the second, and civil servants and merchants the third. So he thinks that farmers generally hold each other accountable only for those features of their actions that they actually foresaw; workers and managers generally hold each other accountable for the broader range of consequences that usually attach to the type of action in question; and civil servants hold each other accountable for the whole network of

190  The Politics of German Idealism consequences and any infringement of rights and effects on the general welfare that result. In parallel fashion, he thinks the basic value of farmers is the right to security, of workers and managers is welfare, and of civil servants is the good understood as some sort of balance between right and welfare.13 Hegel sees in these more localized forms of life the possibility of formation (Bildung) that allows individuals to get a handle on becoming a determinate kind of person with a kind of integrity that comes from pursuing a common solution to the threefold problem of agency. Human free agency is an enormous and slippery problem that continually threatens to become intractable; so many things must go right or at least not terribly wrong for free agency to be successfully exercised. In the same way that using a certain piece of software or playing a particular kind of instrument does, pursuing a particular kind of solution to that threefold problem gives a community a body of practical knowledge embodied in tips, virtues, training programs, workarounds, habits, compensations, etc. It is for this reason that in Hegel’s diagnosis of his own time, an estates schema is nothing less than a precondition for robust individual agency as such. The estates (and, within them, the corporations) represent the circles of practical engagement in which this knowledge can be developed, honed, diversified, and transmitted. The exemplars of these estates—​whether patron saints, stock characters in artistic representations, or just locally recognized successes—​provide visible schemas for this practical knowledge that enable both emulation and debate. The estates system thus writes large what is written too small in the individual to be clearly made out. In this respect, Hegel’s procedure is much like that suggested by Socrates in The Republic when he shifts from the discussion of individual justice to the form of the city with the suggestion “Perhaps, then, there is more justice in the larger thing, and it will be easier to learn what it is” (II, 368e). This is the sense in which the characters (Gesinnungen) of the estates should be taken in Hegel’s portrayal—​neither primarily as attempts to describe all appearances nor as attempts to prescribe a norm for a certain practice as applications of more general ethical principles, but rather as attempts to make visible the inherent if implicit normativity of a way of life. If this phenomenological analysis can be done in such a way as to bring out how a particular way of life embodies a solution to the threefold problem of agency, then the validity of its normative perceptions can be secured without prejudice to the validity of the perceptions of other ways of life. This problem of visibility is not just an idiosyncratic element of Hegel’s view; rather, it is deeply derived from the social and legal context in which

13 These are generic judgments in Michael Thompson’s sense of the term, and their function is connected with the specific difference that marks out the notion of a practice within the genus ‘life form,’ namely self-​consciousness that one is engaging in a practice. See Life and Action, pt. 3.

Hegel’s State  191 agency becomes a problem since the middle of the 18th century. Specifically, conceptions of freedom and norms of action that had previously had particular connections to corporate groups and estates were reconceived as universal in their application. Instead of discussions of the freedom of the nobility from taxes, or the freedom of journeymen to seek employment, there begins a discussion of freedom tout court. Among other effects, this shift deprives terms such as ‘freedom’ of visible criteria of application. But precisely this social context of the specifically modern problem of agency makes it somewhat puzzling that Hegel would attempt to solve that problem of application by means of an estates schema.14 That is, one might think that precisely in such a transitional period as Hegel’s, the category of the estates would be the first to go; as a matter of historical fact the estates seem to be the most salient element of the old order that was not repurposed. Why did Hegel think that the “unsatisfied longing” of his time for a realization of this new conception of agency had to be satisfied by reference to a “historical-​philosophical blueprint” structured by the estates? Why did Hegel think that the estates were the proper object of his genealogy? And why did he think that the vitality of the present age (which for Hegel was always centered on its conception of freedom) might present itself in laws that used the estates as organizing principles? To sum up all of these questions in the light of the problem of agency we have just seen: why did Hegel think that the problem of rendering visible this new and complex form of agency was best solved by an institutional design structured by estates and corporations? There is one historical answer here: even the most dedicated legal reformers in Prussia both found it impossible to do without an estates system and yet by the process of the codification of that system transformed the very concept of the estates from forms of domination to forms of civil professions. The estates system both died harder and changed its colors to a greater extent than most historians of philosophy have recognized.15 But there are also three philosophical answers, and each follows a strand of Montesquieu’s way of conceptualizing political reality.16 The similarity between Hegel and Montesquieu should not surprise us. Though Hegel says only a few things here and there about Montesquieu in his corpus, and there is very little on Montesquieu in his lectures on the history of philosophy, many of the comments repeat the same point. To quote from the Philosophy of Right:

14 Or, if not puzzling, Hegel’s strategy looks precisely like that of the restoration faction. 15 Koselleck, Preussen zwischen Reform und Revolution, 73–​74. 16 The importance of Montesquieu as providing an alternative to democratic and civic-​republican conceptions of political representation cannot be overstated; see Zöller, “Participation of the People through Its Deputies: Montesquieu, Kant and Hegel on German Freedom.”

192  The Politics of German Idealism 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. (PR §3R)

The three additional answers to our question derive from this shared methodological perspective. First, Hegel sees the estates as a part of the social preconditions for the validity and functioning of strictly legal and political structures. Second, Hegel sees the estates as forms of political participation in their own right, and thus as crucial mediators between other elements in the totality of the state. And third, Hegel sees the estates as essential to the prospects of what Montesquieu called moderate government. All of these political functions are essential to Hegelian agency and its visibility.

8.1.1  Social Preconditions of Validity If Montesquieu is remembered at all by philosophers nowadays, it is usually for his advocacy of the separation of powers within government. But it is even less noticed that Montesquieu is explicit that a merely formal separation of powers is insufficient to prevent tyranny: All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals. . . . In the Italian republics, where the three powers are united, there is less liberty than in our monarchies. . . . Thus, in Venice, the Great Council has legislation; the Pregadi, execution; Quarantia, the power of judging. But the ill is that these different tribunals are formed of magistrates taken from the same body; this makes them nearly a single power. (SL XI, 6)17

Throughout his discussions of the separation of powers in different nations and times, Montesquieu is finely attuned to the actual functioning of these powers in the context of the specific social groups in relation to which these powers operate.18 It is essential to him, for example, that the different groups who populate 17 But cf. Hegel PR §300Z where this is moderately criticized. I will follow the usual practice for Montesquieu’s Spirit of the Laws of citing book and chapter, with quotations from Spirit of the Laws. 18 On Hegel’s own early and continuing recognition of this relation, see Avineri, Hegel’s Theory of the Modern State, 7.

Hegel’s State  193 the different branches of government not only be nominally distinct but have really different “views and interests” (SL XI, 6).19 The important point for Hegel is that Montesquieu sees social distinctions not as in principle suspect but rather as necessary resources and thus prerequisites for the functioning of justified political authority. That is, whatever the social distinctions are, they constitute the context in which the political norms of a nation can have validity. In this way of thinking, there can be no question of eliminating social distinctions, particularly between groups. On the manuscript of the Jenaer Realphilosophie (1805/​6) Hegel wrote by hand, “The French Revolution—​abolition of the privileged estates—​this was achieved; abolition of the inequality/​diversity [ungleichheit] of estates—​empty talk.”20 Instead, the question is how to repurpose the notion of social distinctions in such a way that it can form a condition for the validity of political organization in a new age in which the self-​determination of the individual is the centerpiece of that validity. In answering this question with his version of the estates, Hegel really is a child of his time—​essentially a relatively straightforward Cameralist as that German tradition of public administration developed through the 17th and 18th centuries. Two aspects of this doctrine are particularly important to this repurposing. First, the notion of the estates was lifted out of its Aristotelian provenance and recontextualized via the notions of the state (Staat) and its economy (Wirtschaft).21 This was done in the context of a notion of political activity that aimed not to conserve an organic order but to develop what we would now call the human resources of the estates, particularly the peasantry as (by far) the largest. Second, the same forms of education that are essential to this development within each estate also allow for individuals to choose which estate they want to join. Rather than Aristotle’s exclusively functional determination, one has the free choice of careers open to talent. But it is essential, on Hegel’s view, that there be choices between qualitatively distinct alternatives. The complex problem of agency that Hegel describes necessarily leaves open the possibility of qualitatively diverse solutions, and the success of those solutions requires communities and exemplars. Nothing about that success requires that this diversity be located within an organic whole, however, since whatever unity the diverse ways of life possess is grounded not in the complementary virtues of particular kinds of human beings so much as in the status of those ways of life as different attempts to solve the same, necessary problem.

19 See also XIX.27 and the discussion in Dijn, French Political Thought from Montesquieu to Tocqueville, 25. 20 Gesammelte Werke, VIII, 273–​74. On the contradiction involved in the idea of such legal privilege, see “The German Constitution,” Theorie Werkausgabe, IV, 507, and Political Writings, 43. 21 For a concise statement of this shift with respect to the estate of the peasantry, see Werner Conze’s entry in Geschichtliche Grundbegriffe, I.413–​15.

194  The Politics of German Idealism (Though with respect to women and their talents, Hegel follows Aristotle’s purely functional approach.) The kind of society represented by economic creativity and government regulation is just as good a way of managing this kind of unity within diversity as the organic order in which all roles cohere with each other functionally. In light of this we can note two specific ways in which the estates are repurposed as social preconditions, first for legal and second for political institutions. As we noted in opening the discussion of the Ständegesellschaft, the reciprocal rights and duties of groups were largely a matter of historical and particular grants of privileges and prerogatives. In a remark to the Philosophy of Right Hegel makes the following distinction: Privileges, in the sense of rights of a branch of civil society which constitutes a corporation, are distinct from privileges proper in the etymological sense [i.e., ‘private law’], in that the latter are contingent exceptions to the universal law, whereas the former are no more than legally fixed determinations which lie in the particular nature of an essential branch of society itself. (PR §252R)

Whereas the prior use of social distinctions had been to generate different and private laws for different groups, the new use of those distinctions is rather to specify what universal law means for different individual citizens, and it does so by understanding them as members of different groups.22 Though it is a much maligned term in the philosophy of law these days, Hegel thinks that the law has to make reasonable demands on its subjects, even if he sometimes puts the point using organic metaphors: The power of government consists in the fact that each system shapes itself freely and independently according to its concept—​and the wisdom of government consists in modifying each system at the same time according to its estate, i.e. to abate the strictness of the abstract concept for the sake of its living internal organs [für ihr lebendiges Eingeweide], as the veins and nerves defer to the different internal organs, adjusting and forming themselves according to them.23

But Hegel’s notion is in accord with contemporary criticisms of the notion of reasonableness in legal contexts, since he agrees with the critics that there is no single standard of reasonableness—​this varies according to the kind of life one

22 See also PR §273R where Hegel marks this shift as the difference between the constitutional monarchy he advocates and the feudal monarchy he attributes to Montesquieu. 23 Gesammelte Werke, VIII, 271.

Hegel’s State  195 leads. Whatever one might say about Hegel’s legal and political use of the estates, it has one virtue that contemporary critical theorists of law might envy: rather than obscuring the force of social distinctions under formally neutral language, it brings that force out into the open and makes it the subject of political rights and debate. With regard to the visibility of agency, the point here is that the function of the estates system shifts to solving the problem of what the norms of universal (civil) law could mean for particular circles of practical engagement. This is done to make it possible not only for the participants in each circle to see those norms as their own but also to see the versions of those norms that are held valid in other circles precisely as versions of the same norm. Second, Hegel is adamant that the system of the estates is an essential social condition for the possibility of political right more narrowly construed (public law): The idea that those communities which are already present in the circles referred to above [i.e., the estates and the corporations] can be split up again into a collection of individuals as soon as they enter the sphere of politics—​i.e. the sphere of the highest concrete universality—​involves separating civil and political life from each other and leaves political life hanging, so to speak, in the air;24 for its basis is then merely the abstract individuality of arbitrary will and opinion, and is thus grounded only on contingency rather than on a foundation which is stable and legitimate in and for itself. (PR §303R)

This stability and legitimacy cannot be found in individual opinion—​neither each on their own nor in aggregate—​but only in those circles of practical engagement that have already developed the outlines of common norms and the axes of dispute concerning them. These outlines and axes are the concreteness of the norms that provide the content of political debate. To some degree this seems slightly less a transformation of the purpose of the estates than in the legal case, since it is really an extension of a role that social distinctions already played. Thus, many historians think of the feudal estates assemblies as forerunners of modern parliamentary bodies.25 But the substantial shift in Hegel’s conception of what the estates are and what they do economically shifts their political function dramatically. To begin with, the clergy and the secondary estates of civil servants have become part of the public estate that does not have any representation in the estates assemblies, since they play their role in collective will formation more directly

24 Compare the almost identical language in Humboldt, “Denkschrift über Preußens ständische Verfassung,” sec. 11. 25 See, e.g., Whaley, Germany and the Holy Roman Empire, II:247.

196  The Politics of German Idealism and already have sufficient power to influence policy, on Hegel’s view. Second, the estate of town-​citizens has been replaced by corporations of craft and industrial production. Their character is derived from their mode of production, and representatives to their chamber of the estates assembly are elected from workplaces. More radically, the landed nobility has been swept into a general agricultural estate represented by landowners, where the dominant character of this chamber of the assembly is derived from the mode of agricultural production rather than hereditary claims. One reason for this is the positing in Hegel’s model of a standing army open to all male citizens with promotion based on talent, so that the old definition of the nobility as the Wehrstand or the nobility of the sword loses its functional rationale. Furthermore, while the nobility certainly reacted with hostility to the shift from feudal personal labor services to wage labor, they nonetheless attempted from at least the middle of the 18th century onward to turn those personal labor services from traditional assistance in taking in the manor’s own harvests primarily for its own consumption to assistance in the production of a market-​bound surplus. This is an economic practice that the historian William Hagen has dubbed “commercialized manorialism.”26 Against the background of this undermining we can then see Hegel repurposing the political function of the nobility by casting in its role the agricultural estate as a whole. Specifically, he uses the notion that primogeniture is a justified restriction on the property rights to arable land to argue that the traditional features of the nobility—​that is, selection by birth and “stringent sacrifices for the political end” (PR §306–​7)—​are features of all agricultural landholders who therefore qualify for a substantial political role in the legislative power. But now the model for these role players are middle-​class self-​sufficient farmers rather than the owners of large manor farms with subservient villages.27 In the light of our concerns about the visibility of agency we can see the importance of the way that this repurposing again shifts away from any grounding in the native talents or virtues of certain kinds of people and toward the concrete forms of their practical engagement. Here this engagement is represented most prominently by the mode of production but also by the intergenerational transfers of farm property and the institution of military service. Hegel wants to make politics possible—​ that is, he wants to make a conversation about shared norms possible—​by grounding that conversation in a social world diversified by the forms of engagement that themselves render such norms intelligible as internal structures

26 Hagen, Ordinary Prussians. 27 This is in contrast with Montesquieu, who wants to maintain the nobility (but by similar means and for similar reasons that Hegel wants to maintain the estates). See the discussion in Dijn, French Political Thought from Montesquieu to Tocqueville, 31–​32.

Hegel’s State  197 of the shared problem of agency (i.e., as terms in which we appropriate ourselves, specify what is essential to us, and judge our effectiveness in the world).

8.1.2  Political Participation It is important to recognize that Hegel, like Montesquieu, is a political realist. Like Montesquieu, Hegel’s realism comes from his understanding political relations as necessarily embedded in the whole context of other kinds of relations, on pain of leaving political life “hanging in the air,” as Hegel complains. But it also comes from their shared understanding that political forms of organization have the significance they do in virtue of the contrasts between them and other possible forms. In this connection, both Montesquieu and Hegel fail to share our own contemporary assumption that direct participatory democracy is a real possibility against which our extant forms of political life ought to be measured. Against the background of their contrary assumption, Hegel sees an additional role for the estates system: In our modern states, the citizens have only a limited share in the universal business of the state; but it is necessary to provide ethical man with a universal activity in addition to his private end. This universal, which the modern state does not always offer him, can be found in the corporation. We saw earlier that, in providing for himself, the individual in society is also acting for others. But this unconscious necessity is not enough; only in the corporation does it become a knowing and thinking ethical life. (PR §255Z)

What the corporations and by extension the estates system itself are supposed to offer are forms of political participation themselves, somewhat independent of their representation in the estates assembly. That is, they are supposed to provide practical circles of engagement within which the more general significance of shared forms of life can come to personal consciousness and individual members of those circles can take contrasting stands on the nature of that significance. This is a repurposing of the estates system against the background of a double historical shift: on the one hand, the development of the notion of the citizen to include a much larger proportion of residents; and on the other hand, the development of larger states with more extensive administrative functions. The expectation of participation generated by the first development simply cannot be satisfied at the level of the state given the second.28 Put in terms of the visibility of agency, specifically universal political norms such as rights have become essential resources

28

On this tension see Koselleck, Critique and Crisis, 11.

198  The Politics of German Idealism for modern solutions to the problem of agency. They are ineluctable and irreplaceable means for taking possession of ourselves, clarifying what really matters to us, and evaluating whether we have made a difference to the world. And yet the most obvious institutional arrangement (the state) that would render visible those resources and their use manifestly fails to do so for the vast majority of the population. The estates and corporations are thus brought in as intermediate but still political institutions.29 So, on the one hand, this is Hegel putting an old institution to new use (even if in a modified form). In this new use, the corporate bodies of a Ständegesellschaft are political in something like the sense given that term by Hannah Arendt: rather than being tied to policy and administration, politics is a matter of truly acting as an individual by taking a public stand.30 Of course, Arendt has her version of an estates system as well, in which action is only truly possible in the political realm and certainly neither in civil society nor personal life. Hegel holds out the possibility of both more local and more particularized circles of engagement within the social sphere that will make possible the kind of political action Arendt denies is possible there (precisely because of its mass regularity). We should not, however, lay too much stress on the term ‘political’ here. In fact, the same point might be put in Montesquieuan terms by meditating on the particular nature of honor as the cement of the political universe rather than virtue or interest, or in more distinctively Hegelian terms with talk of recognition. The important thing is that in the absence of direct insight into the universal significance of particular actions, the possibility of understanding that significance relies on public practices of interpreting shared norms. But all is lost on Hegel’s account if those shared norms are limited to the high-​level principles of government with which very few of us have much in the way of practical engagement. Enacting those meanings requires contesting them, and this requires concreteness that the estates and corporations are supposed to provide. On the other hand, Hegel thinks that this new use is already embedded in the three traditionally related meanings of ‘der Stand’ that I noted at the outset: it refers to social groups, to the assemblies formed along their lines for political representation, and to the constituent entities of the Holy Roman Empire. Here, Hegel praises what appears to be an ambiguity in the German term: “Although the estates of civil society in general and the Estates in the political sense are represented, in so-​called [political] theories, as remote from each other, linguistic usage still preserves the unity which they certainly possessed in earlier times” (PR §303R). The context of this particular passage is Hegel’s unusual view

29 See also Hedrick, “Reifying and Reconciling Class Conflict from Hegel’s Estates through Habermas’ Interchange Roles.” 30 Arendt, The Human Condition.

Hegel’s State  199 that the point of the estates assemblies is not to propose legislation, but rather to serve as a kind of wing of the press: their function is that they are where “the state enters into the subjective consciousness of the people” (PR §302). The political function of the social estates is thus something rather similar to the function of the estates assembly—​or rather they are both political in the same sense of the term: they are both ways in which explicitly universal norms become reflectively available to their members and thus visible tools for agency. This raises substantial historical and political questions that cannot be satisfied to anyone’s satisfaction here. But I do want to take up the issues in reference to one specific estate, namely that of farmers, since of all Hegel’s treatments of the estates, his descriptions of farmers and his ascription to them of a fundamental yet apparently subordinate political role have seemed most a scandal to his readers. Briefly, Hegel portrays the basic Gesinnung or character of the agricultural estate in terms of a trust that is immediate, familial, substantial, and even lacking in individuality. Both need and desire, on the one hand, and labor and satisfaction, on the other, are immediate, physical, and concrete. More abstract norms and requirements are considered to be arbitrary commands or at best promises from social superiors that are to be taken at face value as power relations rather than internalized as self-​given moral guidance. And, at least in his early writings, he picks up the common adjective for the peasantry—​“tückisch”—​that had been turned into a technical term by the German Enlightenment author Christian Garve. As Garve used it, the term meant that peasants were suspicious of the landlord, irrationally resistant to any suggestions of change in practices, and excessively unconfident in their own reasoning abilities.31 Now, as Garve understood this character of the peasantry, it was grounded in their experience of vulnerability to arbitrary treatment by the landlord without effective legal protection or remedy. It is, therefore, tied to precisely the exemption of the nobility from positive law to which Hegel objects. They have a kind of patriotism encapsulated in their trust that the government would protect them from predatory landlords, as exemplified by the famous Miller Arnold case in Prussia.32 Clearly, Hegel’s presentation of an estates system is indexed to a society in transition. But Hegel nonetheless holds that the basic attitudes and character of 31 See Garve, Ueber den Charakter der Bauern und ihr Verhältniss gegen die Gutsherrn und gegen die Regierung. Also the discussion in Behrens, Society, Government and the Enlightenment, 149; and Jennison, “Christian Garve and Garlieb Merkel.” 32 Cited by Hegel at PR §295R. This generates an additional puzzlement at Hegel’s folding of the landed nobility into the same estate as the peasantry, but it should be noted that most of the 18th-​ century landed nobility reacted with the same obstinacy as the peasantry to proposed agricultural reforms, even when their benefits were proven on model government farms. See Whaley, Germany and the Holy Roman Empire, II:247. For valuable work on Hegel’s conception of patriotism, see Moland, Hegel on Political Identity.

200  The Politics of German Idealism the agricultural estate will survive these transitions, and that their refractoriness or obstinacy might be made a virtue (see PR §203Z). Obstinacy is not a traditional philosophical concept, but this particular form of stubbornness was given a philosophical diagnosis by Fichte (though not explicitly under that description): it is a rejection of the summons to be free. We discussed this in the previous chapter, but a review would no doubt be helpful. First, Fichte’s idea: Fichte thinks that we only first come to an awareness of ourselves as free subjects in the world by being summoned to exercise that freedom by another free subject.33 That summons, which might take the form of education, or being held responsible for something that we have done, must be a strange kind of cause. On the one hand it must necessarily bring about our awareness of ourselves as free; but, on the other hand, in order to be aware of ourselves as free, that cause cannot determine us to do anything in particular. So it is crucial to the nature of the summons that even by rejecting it we come to an awareness of our own free subjectivity. Even if we refuse to accept responsibility for something for which we are blamed, for example, that very refusal is a free action that only has its force because we accept responsibility for it. Since the production of that awareness of responsibility is the essential goal of the summons, there is thus a way in which even rejecting it is accepting it. This is precisely what is going on in Hegel’s description of the agricultural estate, and connects to Garve’s idea that farmers underestimate their own reasoning ability. So, Hegel says, the farmer “does not attain the self-​assurance of his understanding [nicht zum Selbstgefühl seines Verstandes . . . kommt].”34 As Hegel understands farmers, their life is rooted in the specific geography and personal relations that give context to their life, all of which is directly perceptible. From the perspective of this way of life, universal legal norms have an external character that makes them appear to be commands or, at best, promises—​since that is the perceptible, social form in which they appear. Some of the best passages from Hegel’s theory of the estates come from the Jenaer Realphilosophie, and take the form, “A farmer and a craftsman walk into a bar. . . .” In this way Hegel dramatizes the inevitable if minimal recognition of the summons: on his side the farmer brings his peasant common sense [Bauernverstand] to light and shows that he is not so dumb. [He] speaks up while carousing, some maxims, and in response to the force used against him, says, sure, he will do it. And to the extent that in this way he keeps the right of his understanding and will safe, he obeys. It is the formality of speaking and insight.35



33

Sämtliche Werke, III, 32–​35.

34 Garve, Vorlesungen über Rechtsphilosophie, IV, 516. 35 Hegel, Gesammelte Werke, VIII, 268.

Hegel’s State  201 The recognition of an agricultural estate is a way of acknowledging traditionalism as a free act. More provocatively, it is a way of counting an apparent refusal to reason as itself a form of reasoning. It is a way of acknowledging in the refusal of the summons more intelligence than the refuser himself acknowledges. It is a way of bringing into the conversation those who appear to reject the presupposition of the conversation, and so a way of fighting against the reification of social relations that nonetheless acknowledges the reality and stability of different roles and practices. It is a way of meeting the needs of political society articulated in “The Earliest System Program of German Idealism,” which opposes to the state as machine a conception of political society as a communicative act in which “finally the enlightened and unenlightened must shake hands. . . . Never again the contemptuous glance, never the blind trembling of the people before its wise men and priests.”36 But here this is directly connected to the more explicitly political role of the agricultural estate, which is essentially conservative on Hegel’s view.37

8.1.3  Moderate Government For Montesquieu, the goal of the separation of powers is the prevention of tyranny. That is, the goal is the maintenance of what he calls ‘moderate government.’ Particularly as they function within monarchies, Montesquieu has a finely developed theory of the value of the diversity of estates and corporations. Specifically, he values their sloth: The bodies that are the depository of the laws never obey better than when they drag their feet and bring into the prince’s business the reflection that one can hardly expect from the absence of enlightenment in the court concerning the laws of the state and the haste of the prince’s council. . . . [E]‌ven in their frenzy, these orders have longed only for the laws and their duty and have slowed the ardor and impetuosity of factious men more than they were able to serve them. (SL V, 10&11)

As Annelien de Dijn nicely puts it, for Montesquieu the corporate forms embedded in the estates system constituted “institutionalized insubordination” that checked the apparently absolute power of the monarch.38 36 Hegle, Theorie Werkausgabe, I, 236. 37 This has broader implications as well, since in the German Constitution essay Hegel argues that it is German obstinacy in defense of their traditional prerogatives that has prevented them from forming any state at all. See the discussion in Avineri, Hegel’s Theory of the Modern State, 42–​44. 38 Dijn, French Political Thought from Montesquieu to Tocqueville, 25–​26.

202  The Politics of German Idealism At first, this seems quite contrary to Hegel’s oft-​cited claims to the power of the state, and certainly “insubordination” would be putting the point too strongly for his tastes. Nonetheless, Hegel similarly emphasizes the mediating function of the estates (e.g., PR §§301 & 302), and claims that in contrast to a despotic state, “The constitution is essentially a system of mediation” (PR §302Z). And as with Montesquieu, the way that outwardly similar institutions play those mediating roles varies widely according to the particular social and historical context in which they play them. At the political level, Hegel has the (to us) rather surprising view that the assembly’s function must be less to legislate than to publicize. And he expects it less to offer concrete proposals or even concretely to modify the executive’s proposals than to talk about those proposals in such a way that their content and rationale can be appreciated by their constituents. In Hegelian terms, this function at the level of the state is a continuation of the function we found in the corporations themselves: making the concrete content of norms visible as resources for solving the problem of agency. The highest-​level political norms go to questions about whether we can take possession of ourselves as citizens of the state in which we reside, and whether such citizenship if available is something central or peripheral to who we are. Secondarily, these norms as embedded in positive laws (e.g., concerning property and taxes) control effectiveness (particularly for the new economic activities). This function is essential, even if it necessarily involves slowing the pace of government and administration. Thus far the function of Hegel’s estates assembly as a whole is roughly continuous with Montesquieu’s notion of its function in the continental monarchy, even if underlying it is a deeper conception of agency. But it confronts a different world, one in which the very pace of change has to become a subject for constitutional attention. Montesquieu notes at one point that sometimes nations thrive more in a time of transition between constitutions than in stable forms, but for Hegel the newly modern world is one of perpetual transition. On Hegel’s analysis, civil society just is permanent revolution and this is a new social precondition for any justified government.39 But following good Montesquieuan method, the condition is brought into the explicit constitution and made a principle of right. Thus Hegel introduces this move by writing that “The second section of the Estates encompasses the changing element in civil society” (PR §308). Civil Society is the permanent revolution, and the second chamber of the estates brings this new feature of the world into the heart of the constitution. Were it not brought into the constitution, it would be a politically exogenous force. But precisely in the context of this internalization of revolutionary temporality in the constitution, the counterbalancing force of the traditional agricultural

39

This is a theme developed throughout Ritter, Hegel and the French Revolution.

Hegel’s State  203 estate is even more important. Thus in contrast to the “changing element” Hegel introduces the agricultural estate as the “substantial” estate. This is an old function now made more important. We noted earlier the fundamental change from an estate defined by landed nobility subject to military service to a class of landowners defined by their agricultural mode of production (what we would now call ‘family farms’ rather than commercialized manor farms). Thus, it is a question of finding a new group to play the same role as one that had vanished, rather than repurposing a given group. The agricultural estate gets a full chamber in the assembly precisely as an inertial control on the pace and scope of modernization. Historically speaking, the early modern estates assemblies in general tended to be conservative—​even where there were specific chambers or delegates for peasants, those representatives were usually the wealthier peasants and so more invested in the status quo.40 But the addition of one of the mediating factors (civil society or the second estate) fundamentally changes the nature of this mediation itself. Consider the difference between identifying this estate with the nature of its activity—​Gewerbe or industry—​and the identification of the estate with its location—​the towns, which would be the closest of the traditional estates to Hegel’s notion. A town takes its place within the one totality through its dependence on rural agriculture and constitutes a kind of totality of its own in virtue of the life of the city itself. But the activity of industry is creative destruction and thus the constant generation of new totalities neither geographically nor substantively determined in advance.41 The function of this second estate is itself a constant repurposing of resources. With the addition of this revolutionary principle to the constitution, the function of mediation itself is repurposed—​it serves less to check and balance than to articulate the terms of change. In terms of the visibility of agency, this means that the political conversation has radically changed, and now involves a meta-​level reflection on the terms in which discussions of specific norms can proceed. The changed mediation introduces a public reflection not only on what H. L. A. Hart called primary rules—​that is, rules about actions such as the prohibition on theft or assault—​ but also on secondary rules—​that is, rules about rules that tell you how to recognize what the rules are, how to change them, and how to apply them.42 But Hegel grounds this reflection socially in the estate whose activity makes the need 40 Whaley, Germany and the Holy Roman Empire, II.247. Also Humboldt, “Denkschrift über Preußens ständische Verfassung,” §17. 41 As Marxists and others have long noted, many of the first developments of capitalism came outside the towns because of the freedom of rural land from the guild restrictions of the towns. 42 Hart, The Concept of Law. I do not mean by this reference to suggest that Hegel was a positivist in Hart’s sense; among these secondary rules in Hegel’s way of thinking would be included ethical, customary, and political conceptions that would quite exceed Hart’s strictures on the content of such rules.

204  The Politics of German Idealism for change concrete, and thus makes the need for terms in which change can be managed palpable, and thus in turn makes the problem of articulating those terms tractable. This is essential to the visibility of agency, since it connects a way of life with an evolving body of practical knowledge to what otherwise threatens to become an abstract problem without obvious connection to the difficulties individual agents face in exercising their agency.

8.2  The Stereoscopic Historical Perspective The purpose of this final section is to illuminate the historicity of the Hegelian state. According to Hegel, the state is the historical object par excellence, and so it should contain all of the different dimensions of historicity available in Hegel’s understanding of that term. Furthermore, it should do so as a paradigmatic example, bringing those dimensions into relief in a particularly perspicuous way. I begin with two sections that collect relevant dimensions of historicity from the political philosophies of Kant and Fichte, respectively, and show how these dimensions are operative within Hegel’s state. I will put off until the Conclusion my attempt to profile the different ways of assembling or coordinating these dimensions that are utilized by Kant and Fichte in contrast to Hegel (and each other). But again to resist the misunderstanding that I am offering a teleological reading according to which Hegel’s state is the fullest expression of Kant’s and Fichte’s view, I want to reiterate that the very notion that these different dimensions of historicity should be gathered into a single institution is itself just one position in the debate, and a controversial position at that. To review some of the results from previous chapters, Kant’s great contribution to the historicity of political philosophy is his conception of provisionality, whose importance for his own Doctrine of Right has been severely underestimated. Hegel’s state too is essentially provisional, and its institutional structure is designed to model and support the kind of publicity that Kant saw as the motor of progress in a provisional state. Fichte’s great contribution to the historicity of political philosophy lies in his simultaneous development of three different political philosophies that are only tenuously connected to each other: an ideal theory in his Foundations of Natural Right, a non-​ideal theory in his Closed Commercial State, and an educational theory of progress in his Characteristics of the Present Age and Addresses to the German Nation. These three political philosophies can be characterized in terms that the historian Reinhart Koselleck has left us: the Foundations as a horizon of expectation, the Closed Commercial State as a space of experience, and the Characteristics and Addresses as the relation of agency that connects the horizon and the space. In this section I try to show that Hegel’s state is the stereoscopic result of including all three of these elements within a single

Hegel’s State  205 institution. The next two subsections try to work out this notion, first simply by interpreting different institutional elements of the Hegelian state in terms of the temporal perspective of the social groups that Hegel envisions populating its members. In the estates assembly, for example, the lower house populated by the agricultural estate is inertial, pulling the state backward toward the standards of past practices in the space of experience. By contrast, the upper house populated by the estate of trade and industry is accelerationist, pressing forward toward the horizon of expectation. But then in the fourth subsection I go on to show how each of these Hegelian groups contains the whole package of historical dimensions—​the space of experience, the horizon of expectation, and their relation. The genius of Hegel’s state is to form an interlocking mechanism of social groups, each with their own historicity.

8.2.1  The Kantian Provisionality of the Hegelian State At its heart, Kant’s conception of provisional right is a conception of right as both valid and inconclusive. It is valid both because it is natural in its general form and the result of permissible (and inevitable) human actions in its specific form. But it is inconclusive both in its general form because it is the result of particular wills rather than the general (omnilateral) will, and in its specific form as claims to particular objects and choices because such claims are subject to disagreement without the possibility of definitive adjudication. Our possession today would not be valid if it were not in anticipation and preparation, but it is nonetheless valid in advance of that which we anticipate and for which we prepare. It is possession that is consistent with the possibility of that which we anticipate, but which does not itself do anything to bring about or even make more likely that which we anticipate. Through the public use of reason we may prepare for that which we anticipate, but our property and contract claims are not, themselves, such a preparation. Most importantly—​but also most controversially—​Kant saw more clearly than most today that this provisionality is a permanent condition of modernity, and that the point of neither politics nor political philosophy is to move past some threshold at which time provisionality can be put behind us. The “moral politician” should try to prepare the way for the civil condition, and we citizens may anticipate the civil condition, and may even play some part of our own in preparing for it indirectly through our participation in publicity. But we do not, properly speaking, wait for such a civil condition to either make or evaluate rights claims. The fact that Hegel’s state is provisional in this sense is unlikely to take anyone by surprise, at least as far as the general outlines are concerned. From Hegel’s view that political philosophy in particular is its own time comprehended in

206  The Politics of German Idealism thoughts to the very specific institutional design of Hegel’s state, it is abundantly clear to most readers that Hegel is providing a theory of political relations for a particular time. It is perhaps less clear that Hegel is providing a theory of political relations for a time that lived in anticipation of and preparation for another time, and that understood itself in relation to such a horizon of expectation. That Hegel’s time answered to this description is beyond doubt—​but do we find it explicitly in Hegel’s state? We do, but the nature of and distance to that horizon are rather different than they are for Kant. Kant’s horizon is very far off in the distance—​ even if it is set by natural law and thus in some sense visible, Kant thinks that it is impossible to set up any kind of metric that would measure our distance to it. There is progress in principle but not in practice. This is yet another reason to think of it as something purely ideal, despite our temporal orientation to it. And in fact, Koselleck himself introduces the notion of a horizon of expectation via the old joke that when Khrushchev said that communism was on the horizon, he meant that it is at that point which always recedes the closer one approaches. (As we will see in the following section, Hegel’s horizon is not even as far off as Fichte’s is, which is at least a vision of a cosmopolitan collection of economically self-​sufficient states to be produced within a generation.) Hegel’s horizon is the reformer’s horizon, or the horizon of a five-​year plan. It is a horizon already in some sense in contact with the space of experience—​an institutionalization, Hegel thinks, of the social forces that already exist in Continental European states. And what about the notion that rights claims are provisional in anticipation of more definitive adjudication by the general will? This is perhaps the deepest sense in which Hegel’s state is provisional, but also perhaps the hardest to see. Two important things to note here, one conceptual and one institutional. The conceptual point is that the terms Hegel uses in Abstract Right for the sorts of private legal claims that are provisional—​property (Eigentum) and contract (Vertrag)—​are almost completely replaced in Ethical Life by parallel notions—​ resources (Vermögen) and corporations (we saw this in the context of Hegel’s treatment of inheritance in Chapter 6). For Hegel, the specific rights claims that we make to private objects and choices are valid only because they anticipate a cooperative productive arrangement in which flows of income and work opportunities are more important than any physical object or personal attachment. The second important thing to note is that of all of the classical German political philosophers, Hegel has by far the most to say about the actual structure of the legislature and the process of legislation. That is, he is the most attentive to the specific processes by which the general principles and specific applications of property and contract rights are made more definite and more public. He is also the only one among the German Idealists to pick up on the Montesquieuan

Hegel’s State  207 insight that the separation of powers is only meaningful if it is an institutional separation that goes hand-​in-​hand with a social differentiation (Spirit of the Laws XI, 6). This means that Hegel has added to Kant’s account of provisionality a sociology of precisely the kinds of disputes that tend to undermine the certainty of rights claims in the absence of the civil condition. He has built into his state a discussion about those claims that involves the perspectives of the different groups precisely as a mechanism for minimizing the uncertainty that such differences might produce in those claims.

8.2.2  The Threefold Fichtean Root of the Principle of the Hegelian State Though Fichte’s reputation as an a priori philosopher is, on the whole, well deserved, his political philosophy has a multifaceted nature that belies this characterization. Taking the broad view, we have noted the contrast between his major works on political philosophy: the Foundations of Natural Right, the Closed Commercial State, and his historical works (the Characteristics of the Present Age and Addresses to the German Nation). The first is a collection of a priori arguments for the rightful form of political and social life (including the family). The second is self-​ consciously an intervention into practical debates, and spells out the crucial additional practical feature of the political state described Foundations, namely that the economic state be coextensive with the political state. Finally, the historical works—​and the Addresses most of all—​attempt to locate Fichte’s temporal moment in a historical sequence and to identify the means by which the political state of the Foundations can be brought about by human agency. In the Addresses, the key is a new set of educational practices. As I argued in the previous chapter, the Foundations presents the horizon of expectation (Erwartungshorizont), which is a kind of future made present. In contrast, the Closed Commercial State presents the space of experience (Erfahrungsraum), which is a kind of past made present. Finally, in the Addresses we get the practical suggestion for political action to take us from the space of experience to the horizon of expectation. The estates (Stände) of the space of experience are to become the classes (Klassen) of the horizon of expectation through an adoption of Pestalozzi’s scheme of education. The distinction between the space and the horizon persists in both the form of action in the functional differentiation between the task of the lower classes to sustain the present while the scholars envision and project the future. But this presentation so far glosses over the fact that these projects to not align perfectly with each other. What the Foundations tells us to expect is what a just society would be like that had had no prior social relations, that is, what would be

208  The Politics of German Idealism produced from a space of experience that was itself a pure state of nature. In contrast, the CCS really only takes the conception of property from the horizon of the Foundations, and its proposal for political action is quite different from that of the Addresses. The latter’s proposal of the isolated education of the moral vanguard is, in a sense, a return to orientation by the horizon of the Foundations. But it does so by eschewing any space of experience, since the purported idealism of Pestalozzi’s method is said to lie in teaching students not to generalize from past experience but to project the necessary future into the present. The details, obviously, are rather different in Hegel. Among the obvious differences, Hegel thinks that it is better to repurpose the concept of estate (Stand) rather than supersede it in favor of a notion of class, despite the fact that Hegel sees no prospects for a planned economy and accepts the necessity of free markets with price mechanisms. He also has no sympathy for Fichte’s notion in the Addresses that a radical change in educational practice will generate a moral vanguard to transform society. But that lack of sympathy can easily mask Hegel’s recognition that there already existed a political vanguard in the form of the reforming bureaucracy. On Hegel’s view, who needs Fichte’s education camps when teachers like Kant were busy producing students such as Theodor von Schön, the author of the Oktoberedikt that ended serfdom in Prussia? Despite these differences, the historicist structure is transferred from Fichte to Hegel, and specifically by making the political structure of the state coextensive with the economic structure of society. For Hegel, this is done by reproducing the corporate (ständisch) structure of the economy in the state, rather than making the boundaries of political and economic sovereignty identical. This approach is very far from Fichte’s view in the Addresses, less far from his view in the Foundations, but somewhat close to his view in the CCS. Hegel insists that this reproduction of the economic social structure in the political structure is crucial, on pain of leaving the political state hanging in the air without connection to the actual interests of society. But the particular way that this is done reveals the historicist structure of both state and society. Specifically, the state includes a chamber of the estates assembly for the agricultural estate that represents the space of experience. In their connection to traditional modes of production and customary social expectations, the members of the agricultural estate represent the perspective of the past made present, and take up proposed legislation and regulation from that point of view. Another chamber of the estates assembly is for the estate of trade and industry (Stand des Gewerbes), which represents the horizon of expectation. These representatives of civil society are oriented toward a future that seems achievable precisely in its simplicity—​in the reduction of social relations to voluntary agreements and the justice of property in particular to the validity of acquisition and transfer. This liberation of productive capacity from the fetters of corporate society represents

Hegel’s State  209 an ideal future that forms the point of view from which this estate takes up legislation and the operations of government. Finally, there is the Stand of the government itself—​the public estate—​which is the primary state agent and thus the primary source of the actions and regulations that are subject to the publicity of the agricultural and industrial points of view. The public estate is oriented toward the near future, or the extended present: what might be done now under given conditions to promote the anticipated future. Its conception of political action is a kind of present made future, a perpetually delayed fulfilment of practical interventions in society. But we can say further that when it comes to the question of the political action that would take us from the space of experience to the horizon of expectation, we find the German Idealists splitting along lines that we already saw in the analysis of property. Kant offers us an essentially personal perspective—​in publicity, everyone should speak the truth according to their own conscience and point of view. Fichte offers an essentially economic perspective, at least in the CCS—​the key move is to change the money and to eliminate international trade. And Hegel offers an essentially political perspective—​so much so that it is hard, at first, to see what the action is supposed to be. It is not distributed to individuals as it is for Kant, but nor is it to be accomplished in one fell swoop by a specific set of government actions, as it is for Fichte. It is governmental like Fichte but also diffuse in time like Kant, for in fact the political action is nothing less than the structure of the state, which is a kind of interminable action structured as a conversation between different social groups. In this sense it sits alongside Kant and Fichte as one other option, rather than being a culmination of their development. From Hegel’s perspective, of course, it supersedes Kant’s and Fichte’s by including those options within its own. Unlike Kant and Fichte, who have very little to say about the structure of government, Hegel goes to great lengths to clarify that structure. And in that structure, one finds the Kantian and Fichtean elements reproduced. The Kantian element of publicity is reproduced in the way that the Hegelian legislature is supposed to work—​not by actually legislating, but rather by holding the bureaucracy to account through public hearings. And the Fichtean element is reproduced in the way that Hegel takes seriously the economic constitution of the state. Again, Hegel has no sympathy with the form of Fichte’s solution to this separation of the economic and political states. But there is nonetheless in Hegel an attentiveness to the political dimension of economic life that is largely missing in Kant (with the exception of the latter’s property qualifications for voting). This attentiveness has two different dimensions, one more traditional and one more modern, in the way that both the ständisch constitution of society generally and the corporate form of industrial society are reflected in the structure of the state.

210  The Politics of German Idealism

8.2.3  The Hegelian State as a Combination of Temporal Orientations Here I want to just say a bit more about the temporal orientations of different estates and thus the different parts of government in Hegel’s state. We have just seen some of this. In their connection to traditional modes of production and customary social expectations, the members of the agricultural estate represent the perspective of the past made present, and take up proposed legislation and regulation from that point of view. The estate of trade and industry is oriented toward a future that seems achievable precisely in its simplicity—​in the reduction of social relations to voluntary agreements and the justice of property in particular to the validity of acquisition and transfer. This liberation of productive capacity from the fetters of corporate society represents an ideal future that forms the point of view from which this estate takes up legislation and the operations of government. And the public estate is oriented toward the near future, or the extended present: what might be done now under given conditions to promote the anticipated future. Let us say a bit more about each of these estates and how their economic-​social form of experience gets built into the Hegelian state in such a way as to constitute its historicity. As I have already argued, Hegel’s description of the agricultural estate is both grounded in German Enlightenment and Cameralist treatments of that estate, and represents a Fichtean conceptual claim regarding their specific relation to the rational discussion of policy in the state. Hegel picks up on Garve’s use of the common term ‘tückisch’ to describe the peasantry. As Garve understands the term, it refers to a kind of irrational resistance to any suggestions of change. There is thus a natural conservatism to this estate as a matter of its basic outlook (Gesinnung). As Garve had it, this resistance to even considering change was due to the peasants’ experience of arbitrary treatment by the manorial lords. But in the context of Hegel’s Grundlinien thirty-​five years later, it is worth mentioning that by that time the nobility itself was responding in exactly the same way to proposals for reform. Partly for this reason, Hegel folds the landed nobility into the agricultural estate along with the peasantry. The conceptual claim is that such an estate represents the group of people who have rejected Fichte’s summons to be free, and who are thus dragged into the space of reasons against their will by their very rejection of it. Hegel’s legal recognition of the agricultural estate and his giving to it an essential political role through its sole possession of one chamber of the estates assembly amounts to an institutional recognition of traditionalism as a free choice, that is, as an outlook befitting a citizen of a modern state. Historically speaking, this is an anchoring of the state in the space of experience, in the past made present.

Hegel’s State  211 It is easy to see Hegel’s treatment of the business estate (Stand des Gewerbes) as continuous with a wide swath of modern political philosophy, though Hegel is attentive to the ways in which the conceptual claims made represent social interests and, in fact, the perspective of a particular group. And that particular group is introduced by giving it an essentially historical valence: “In the other part of the corporate element there falls the moving side of civil society [In den andern Teil des ständischen Elements fällt der bewegliche Seite der bürgerlichen Gesellschaft]” (PR §308). The connection of the moving or changing side with civil society is not accidental, but reflects Hegel’s understanding of civil society as permanent revolution (a feature of Hegel’s view that is emphasized by Joachim Ritter, among others). In contrast to the agricultural estate for which the past represents the default, the business estate represents change as the default, and there is a constant striving for new opportunities. Importantly, there is a tension within this estate just as there is with the last one, and the tension is similarly a tension between philosophical significance and social position. For the agricultural estate, its social position ties it to the past but the significance of its newly enunciated attachment is precisely to drag it into the present. For the business estate, its philosophical significance is its articulation and defense of the atomistic conceptions of property and contract that are so well represented in modern political philosophy. But its social position is different, which Hegel emphasizes in the very paragraph in which he introduces the political function of this estate. Its social position is one of overlapping communities: Insofar as these deputies are elected by civil society, it is immediately evident that, in electing them, society acts as what it is. That is, it is not split up into individual atomic units which are merely assembled for a moment to perform a single temporary act and have no further cohesion; on the contrary, it is articulated into its associations, communities, and corporations, which, although they are already in being, acquire in this way a political context [einen politischen Zusammenhang]. (PR §308)

This contrasts quite sharply with the agricultural estate, which possess precisely that kind of object (arable land) that can be turned into exclusively private property (PR §203). To put the contrast between the agricultural estate and the business estate in historical terms, the business estate is defined by its horizon of expectation just as the agricultural estate is defined by its space of experience, and in recognizing the business estate politically via a chamber of the estates assembly, Hegel anchors another corner of the state in that horizon of expectation. It thus makes the expectation of perpetual revolution in the future into a politically endogenous force, bringing it into the state in the person of the business estate. The third

212  The Politics of German Idealism anchor is in the conception of political action relating the space and the horizon, and the state is anchored in this conception of action in the person of the public estate. This is trivially true for the paradigmatic members of the public estate, namely civil servants. Political action is, quite literally, their job. That can be hard to see from our own contemporary perspective, in which we often contrast administration (Verwaltung) with politics. But in the Sattelzeit period all administrative questions are simultaneously constitutional questions. As Koselleck has pointed out, in many respects the Stein-​Hardenberg reform efforts were politically more radical than anything that happened in 1848.43 Another unique feature of this estate also ties it close to modern conceptions of political action, namely its universal accessibility. No one is guaranteed the ability to become a farmer or a member of industry, but the public estate is open to everyone with the requisite interest and talent (PR §291). Most fundamentally, the work of the public estate consists in reflecting the needs of the space of experience upward and that of the horizon of expectations downward, so that they can meet in specific policies and judicial decisions which articulate the historical present. Descriptively, this is accurate of the constitutional role of this estate, as the reformist bureaucracy attempted to manage goals such as judicial sovereignty in the light of resource shortages that necessitated a continued reliance on patrimonial courts. But it is also true most generally for any goals that included institutional change, and thus an element that exceeded the space of experience. The job of the civil servant was to make progress toward that change while simultaneously meeting the needs in the present that were to be met in the future by the new form of the institution. In this sense, its perspective is a kind of present made future. This is no easy task, and often the very means used to meet needs in the present so as to prepare society for change only deepened the entrenchment of the traditional institution. For example, the continued reliance on private jurisdiction to collect the taxes needed to fund the state courts that were to replace the private courts in the future had the natural effect of confirming the authority of those private courts. But the main point that is relevant here is that this is the task of political action, of dirty hands and endless compromises: politics as the art of the possible.

8.2.4  The Hegelian State as a Combination of Historical Orientations I want to expand the conception of historicity in Hegel’s state by one further dimension. So far, we already have the sense in which Hegel’s state is provisional in

43 Koselleck, Preussen zwischen Reform und Revolution, 13.

Hegel’s State  213 such a way that there are institutional representations of the space of experience, the horizon of expectation, and political action connecting them. And we have the sense in which these elements are anchored in the state via social groups (the estates) that are given different institutions in the state (the two chambers of the estates assembly and the executive branch, respectively). The state is a continuing conversation about what norms should be valid within the state, carried on between these three groups who almost seem to live in different times. To use Friedrich Perthes’s selection of dates, the agricultural estate is of 1750, the business estate of 1789, and the public estate of 1815. Their coexistence—​this “dynamic of a coexisting plurality of times”—​constitutes the historicity of the Hegelian state.44 Part of this dynamic involves different metrics for the time itself. For agriculture, time is measured as velocity. For the business estate, it is measured as acceleration. In this sense agricultural time is natural time, and industrial time is progress. But in this last section I want to show that each estate itself contains the whole complex of space, horizon, and action. To use some terms from François Hartog, they are not just different regimes of temporality that come together to form a historical present; they are, rather, different regimes of historicity within themselves.45 The agricultural estate is inertial: it holds the space and the horizon together paradoxically by claiming that they have no relation to one another. This is the premodern, predominantly Christian mode of historicity that Koselleck describes, in which the horizon of expectation is rendered eschatologically as the End of the World, which is to be produced by God’s action rather than our own. Every few generations, there will be predictions of the end times, but they don’t impinge on the actual mode of life.46 Hegel emphasizes the annual and generational rhythms of agriculture. Even though that rhythm introduces vulnerability, and thus generates a concern to provide for the future, the sense of providing for the future is really just that of maintaining the present in the face of threats to it.47 It is a future defined as subsistence, and this is true just as much politically as economically (PR §203). More generally, and more politically, this is an estate defined not by planning but by trust. The business estate is accelerationist: it holds the space and the horizon together via progress—​here is where, in Koselleck’s phrase neue Zeit is conceived as Neuzeit (i.e., new time by modernity).48 This is the generation of 1789 because 44 Koselleck, Vergangene Zukunft, 367. 45 Hartog, Regimes of Historicity. 46 Koselleck, Vergangene Zukunft, 362. 47 Cf. Braudel’s description: “Now the world between the fifteenth and eighteenth centuries consisted of one vast peasantry, where between 80% and 90% of people lived from the land and from nothing else. The rhythm, quality and deficiency of harvests ordered all material life” (Braudel, The Structures of Everyday Life, 49). 48 Koselleck, Vergangene Zukunft, 366.

214  The Politics of German Idealism the French Revolution made all prior experience irrelevant. The point is to get to the future as fast as possible; there is no going back. So again, somewhat like the agricultural estate, the business estate holds the space of experience and the horizon of expectation together precisely by holding them apart. They coexist but without influence on each other, or at least without acknowledged influence. Unlike the agricultural estate, the business estate associates political action with the horizon of expectation. Its own agency is aimed at realizing the future rather than maintaining the past. The key to the difference between the business estate and the public estate lies itself in a historical event, namely the defeat of the German states by Napoleon. The economic crisis demanded immediate and radical action.49 This shortened the distance to the horizon of expectation, bringing it almost into contact with the space of experience. At the same time, both the succession of French governments and the succession of reform plans in Germany generated real experiences of this new time, and this begins to shift the basic outlook. Koselleck again: The lesser the experience, the greater the expectation: this is a formula for the temporal structure of the modern, to the degree that it is rendered a concept by “progress.” This was plausible for as long as all previous experience was inadequate to the establishment of expectations derivable from the process of a world reforming itself technologically. If corresponding political designs were realized, then, once generated by a revolution, the old expectations worked themselves out on the basis of the new experiences.50

The public estate represents the group that started to have experience of the new times themselves, and thus started to orient themselves toward expectations on those grounds. “Thus it could happen that an old relation once again came into force; the greater the experience, the more cautious one is, but also the more open is the future. If this were the case, then the end of Neuzeit as optimizing progress would have arrived.”51 Rather than optimization, Hegel as himself the spokesperson of the public estate gives us the ‘good-​enough’ state. But it is a state that is itself a form of political action rather than an end-​state to be produced by such action. In part, this is because it is a state more interested in promoting positive freedoms of resources and organization than in protecting negative freedoms of property and contract. But it is also because the feedback loop for reform and thus the timeline for generating new experiences shortens dramatically. Its



49 Koselleck, Preussen zwischen Reform und Revolution, 153. 50 Koselleck, Vergangene Zukunft, 374.

51 Ibid.

Hegel’s State  215 regime of historicity is most alive in the promise of reform, which lives as the present between the space of experience and the horizon of expectation. The final point I want to make is that it is precisely in terms of their differential emphasis on one of the three elements of the historical structure that these three regimes of historicity fit together, and thus the social structure of Hegel’s state fits together. The agricultural estate’s emphasis on the space of experience fits together with the business estate’s emphasis on the horizon of expectation and with the public estate’s emphasis on political action, even though the agricultural estate’s experience of the horizon of expectation is quite different from that of the business estate and its conception of political action is quite different from that of the public estate. And so on, mutatis mutandis. They are both interlocking and in tension. This interlocked tension constitutes a deeper historicity of Hegel’s state, and the very purpose of the state is to bring this tension to light and make it itself a form of political action.

9

Conclusion The contemporary relevance of Kant, Fichte, and Hegel is where we least expected it—​in fact, where they seem most archaic—​because it is where they seem most archaic to us that they were most political, that is, made most contact with the actual problems of state-​building and governance. And though their political problems are not our political problems, their encounter with those problems forced them to thematize the relation of philosophy to politics in a way that remains broadly relevant for us today. Rather than seeking to advance or defend any of their positions on any particular institution, I have in this work sought to reconstruct those positions in a way that highlights the provisionality, pluralism, and historicism of those positions. On my view these three features are the crucial theoretical resources that Kant, Fichte, and Hegel have to contribute to our own political theorizing. Since the preceding discussion has been organized by the institutions, I will attempt in this conclusion to summarize the results instead under the headings of these three features.

9.1  Provisionality Kant was both the least interested of the three philosophers in institutional design but also the one with the deepest understanding of the general form of the problem faced by such design. That problem is the co-​presence of two different kinds of normative claims: the reasonable local and partial claims of particular persons to particular objects, choices, and statuses, on the one hand; and the final, systematic, and equal system of such claims in a fully just state. Once we disabuse ourselves of the notion that there is a threshold to be crossed from the former to the latter that will put the former decisively behind us, we are stuck needing a stereoscopic vision to theorize political action under these conditions. And political action under these conditions will always have two valences: its significance as it relates to the local and partial claims, and its significance as it relates to the systematic and equal claims. In one paradigmatic version of the problem, the same action that might be an injury to a local claim might be the necessary means to the achievement of a more equal system of claims (e.g., land redistribution). But here we must tease apart two aspects of this issue in order to make out what is of contemporary relevance. On the one hand, there are the The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/​oso/​9780197667309.003.0009

Conclusion  217 very specific historical conditions of both the partial claims and the plans for systematic equality that are specific to Sattelzeit Germany and are quite unlike the conditions prevailing in most of the world in the early 21st century. To take just one example, the way in which ownership interests in land have been replaced by ownership interests in capital as the form of property that is the most pressing political problem. But on the other hand, these specific conditions gave rise to a general problem of political theorizing, which is the fact that action in the provisional state that attempts to move society closer to the conclusive state can always run off-​track. The very means used to achieve conclusive ends are bound up with provisional ends as well, and it is very difficult to keep both kinds of causal networks in view at the same time. (And furthermore one specific form of this connection between the provisional and conclusive is still with us today, namely the persistence of private forms of authority and the reliance of public authority on those private forms for its own reforming action.) Kant sees all of this so clearly, and thus the imperatives for political action one gets from Kant are essentially negative: that we should do nothing that would prevent the conclusive state from coming about. Kant does not think that we have the ability to plan to bring about that conclusive state positively, though he has some hope that if we simply do not prevent our unsocial sociability from moving us in that direction, it will do so behind our back and as a species. But given the magnitude of the problem—​and viewing this ourselves with the benefit of hindsight onto several centuries of large-​scale social engineering—​Kant’s is a respectable conservative position that attempts at least to do no harm to the prospects of conclusive justice. Fichte and Hegel see themselves as duty-​bound to provide a more positive plan of action. Again, part of this has to do with contingent historical circumstances, many of which are not our own. The dramatic changes brought about in Germany through the Napoleonic wars and the concomitant real possibilities for reform in German states are circumstances that can have no historical resonance with our time. I make no attempt in this work at a version of historia magistra vitae, according to which we can learn from Napoleon’s strategic mistakes or Hardenberg’s compromises. On the other hand, increasing social mobility and the weakening of local ties was also an important circumstance, as we discussed in Chapter 7 with respect to Fichte, and that phenomenon has certainly not left us. Furthermore, though the specific problems resulting in the tension between political and economic sovereignty that animates Fichte’s most practical work—​The Closed Commercial State—​have been left in the historical past, the significance of that split itself only grown in importance. Nonetheless, the most enduring lesson Fichte has to offer us again has to do with the provisionality of any current institution. Though Fichte is the most enraptured by the promise of a conclusive state of the three philosophers, he is also most clear-​eyed

218  The Politics of German Idealism about what would be required to plan it—​namely, a society that changed only gradually and quantitatively. In his unflinching encounter with the demands of justice, Fichte highlights the provisionality of institutions by foregrounding precisely the cost of changing them, and the effects that would have on already given rights claims. Precisely in his yearning for the future, he magnifies its difference from the past and exposes the provisionality of the present. He knows how different the claims of the conclusive future are from the claims of the provisional past, and thus sees the need to educate a new generation of leaders to free themselves from the past and project us into the future. Fichte’s is a respectable radical position that doesn’t attempt to minimize the challenge or understate the cost of revolutionary change. In Hegel, provisionality becomes the very form of government, and one almost loses the stereoscopic vision because the conclusive state fades into the background. The greatest mark of this is the almost complete absence of decisive criteria for the justice of the state in Hegel’s account. There are desiderata and functions, but no principle such as Kant’s UPR. Ultimately the state functions as an interpretive device, which tries to articulate downward the specific applications of general norms such as right and welfare, and upward the content of those norms (and perhaps what additional norms there are). It presents a mode of governance with which we are now familiar, and which was anathema to Frederick the Great’s hopes for the ALR to provide a final and conclusive set of rules that would make lawyers superfluous. On Hegel’s model, legislation is constantly involved in a feedback loop, always intended to be better than the previous version of the legislation in current conditions, and destined to be superseded by new legislation in new conditions. This results in a feature of the state that is prominent in his lectures on world history, which is that historically effective states are precisely those most likely to disappear without a trace after they have served their local function in their specific circumstances. Hegel’s is a respectable reformist position that acknowledges the way in which the horizon comes closer to the extent one is interested in being effective in the present.

9.2  Pluralism The second main feature of German Idealist political philosophy that deserves our sustained attention and respect is their pluralism, and my attribution of this feature to them may be the most surprising of the three. From tales of Hegel’s monolithic Prussian state to Kant’s a priori cosmopolitanism to Fichte’s claims that political disagreements are always evidence of bad faith, there has been plenty of reason to think of the three philosophers as monists offering a rational deduction from basic principles of the single just form of the state. But I have

Conclusion  219 tried to show that this picture is plausible only at a very high level of abstraction, and even then requires relegating important doctrines and texts to secondary status or ignoring them altogether. For Hegel, this has meant ignoring the estates structure and the way that it brings fundamentally different yet interconnected normative standpoints into conversation with each other as the very business of government. For Fichte, this has meant keeping The Closed Commercial State and his historical works separate from the Foundations of Natural Right. For Kant, this has meant treating provisional right as a stage to be bypassed and sidelining the historical works and their identification of social conflict as the motor of progress. But on Kant’s view, those unpredictable differences of opinion must be allowed to play out in the public sphere, independent of both upstream central direction via censorship and downstream effects on actual policy. That independence allows the pluralism of the sphere to be maximized, a trade-​off that Kant thinks will pay off in the long run. And on Fichte’s view the Foundations set out only very general normative principles, which require a more concrete historical perspective to grasp their application; as we saw in Chapter 7, that historical perspective is itself plural. Fichte also makes a first step in trying to grasp the sociology of the plurality, particularly in understanding the shift in social groupings from estates to classes, and the importance of generational change. Hegel takes the next further step to reconstructing that sociology at a deep level—​as differences in forms of responsibility that attach to social groups that are themselves closely identified with some of the institutions. And lest it seem that this narrative presents Hegel as the fullest development of the view, it must be noted that this complexity Hegel builds into his pluralism is also the feature of his view that makes it most archaic to us. The social groups have changed, and the institutional identifications no longer work in the same way. The methodological principles involved in the construction might be relevant for doing something similar today, but Hegel’s specific suggestions have most the character of a mere example for us today. In contrast, Kant’s abstract conception of social difference renders those differences merely particular; this makes it impossible to connect to any particular institutional design (except freedom of expression), but also insulates Kant’s view from being rendered irrelevant by historical change. In addition to what we can learn from each of the three philosophers as being pluralists in their own right, I want to plead the case for treating these philosophers together and the pluralism one can see when one takes them in conversation with each other, because this approach allows us to see them taking different perspectives on the same institutions, and this allows us to see them collectively articulating the different social perspectives on those institutions, which in turn allows us to see the traces of the other perspectives in each individual philosopher. Furthermore, these basic perspectives have in many respects

220  The Politics of German Idealism continued into our current age, even as the institutions on which they are perspectives have changed. This is another surprising way in which the German Idealists are most contemporary where they are most archaic. We saw this in Chapter 5 with respect to property, but indeed all the institutions of private law, including the family, can be viewed from a juridical, economic, or political perspective. From the juridical perspective the most important feature of property is the way that it helps to specify enforceable protections for personal autonomy. From the economic perspective, the most important feature of property is its flexibility, that is, the way that different sorts of ownership relations can be developed that correspond to and enable the growth of commerce. From the political perspective, property serves as a cornerstone in the construction of a liberal state with greater political participation by equal and independent citizens. From the early modern period through the present day,1 these three perspectives constitute the field of tension within which the institution of property becomes visible as an object of public debate. They represent the fundamental interests to which that institution is responsive. This theoretical taxonomy of the plurality of perspectives was also mapped onto a social taxonomy: the juridical perspective that of corporate society, the economic perspective that of civil society, and the political perspective that of the state. It seems clear that the social taxonomy has changed, but the theoretical taxonomy has remained. I leave it as an open question whether that is because the theoretical taxonomy derives from a deeper conceptual pluralism that remains valid, or whether the current approaches are a simply a legacy of the early modern debates. But I do think that recognizing in the German Idealists a plurality of perspectives at a plurality of levels gives us an expanded theoretical toolbox for our own historical moment.

9.3  Historicism Finally, I want to suggest that the historicism of the German Idealists is an essential feature to understand, but a two-​strand historicism that combines the diachronic philosophy of history with a synchronic articulation of historical experience. In Kant, we saw how the provisionality of private law (including private jurisdiction) provides a synchronic snapshot of a historical present in the midst of the sort of diachronic change Kant traced in his works on the philosophy of history. In Fichte we saw the way in which his historical works set

1 For a contemporary example of the juridical perspective see Benson, “Philosophy of Property Law.” For a contemporary example of the political perspective, see Christman, The Myth of Property. For a contemporary example of the economic perspective see Posner and Weyl, Radical Markets.

Conclusion  221 out in diachronic form one aspect of the synchronic historical present, namely the space of political action connecting the space of experience of the Closed Commercial State to the horizon of expectation of the Foundations. These texts represent Fichte’s sequential exploration of the different internal perspectives of his own view, successively from the horizon of expectation, the space of experience, and the seat of agency. And we just saw in Hegel the complex way in which this historicity is modeled in the institutional sociology of the state. To return to the framing of Chapter 5, we ought to insist on the historicity of constructivism. The modal question of that to which we could or could not agree is, essentially, a historical question. But this historical question must be investigated along both strands or axes—​the diachronic and the synchronic. Part of the value of doing so lies in making apparent to us ways in which the same social phenomenon may be approached at different times from different historical directions, as it were. One example of this comes from inheritance, where the difference in historical context between the German Idealist context and our own is more complicated than it seems. Hegel in particular is certainly quite concerned about the encroachment of individualism on the family, an encroachment that is paradoxically both just as live an issue today and yet not a usual way that the problem of inheritance is approached, either politically or philosophically. Instead, we approach the problem of inheritance from the historical point of view of an issue that Hegel thought largely closed, namely the recurrence of family dynasties (only now under capitalist conditions). Though this may have surprised Hegel personally, the arguments he makes against the ethical value of dynastic or extended forms of the family thus have a surprising relevance today, and one that may be filed under the title ‘re-​feudalization’ of the contemporary economy.2 This also frames the relation of Hegel’s invocation of the estates with respect to our own contemporary context, which invocation may give that theory its most archaic ring to modern ears. In this regard it is worth listening to an author writing roughly halfway between Hegel’s time and our own, namely Max Weber. Weber argued that both Stand and class organization are still present in modern (i.e., capitalist) societies. Their relative prominence and explanatory value is determined by the pace of social change: “[A]‌relatively stable base for the acquisition and distribution of goods [is] needed for Stände stratification to be favored. Destabilization by technical and economic change, and upheaval, however, can threaten the Stand stratification by pushing the ‘class situation’ into the foreground.”3 It falls also into the ‘re-​feudalization’ category that contemporary

2 Habermas, The Structural Transformation of the Public Sphere, 195; and Neckel, “Refeudalisierung der Ökonomie.” 3 Weber, “The Distribution of Power within the Community,” 152.

222  The Politics of German Idealism economic development produces some segments of society in which change makes class more relevant, and others that make Stand or estate more relevant. This is a case in which a development that the diachronic philosophy of history presents as a transition from an earlier to a later stage of organization can also be approached as an oscillation that depends not on the direction of change but on the pace of change.

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Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages. Allgemeines Landrecht  36, 44, 48, 60–​3, 70, 80–​2, 88, 162 Anderson, Elizabeth  50 Arendt, Hannah  198 Aristotle  45, 94–​5, 194 Beckert, Jens  141, 152 Behrens, C.B.A.  1199 Beiser, Frederick  70, 137 Benson, Peter  122 Botzenhart 6187 Braudel, Fernand  5, 132, 147, 214 Bryd, Sharon and Joachim Hruschka  42–​3 Camerialism  15, 43, 61, 74, 78, 96–​8, 104, 107, 193, 210 Civil society  3–​9, 13, 23–​26, 33–​61, 73, 78, 82–​6, 93–​115, 134–​149, 158, 171, 182–​186, 194–​198, 202–​212, 220 Class  9, 17, 94, 118, 134–​8, 144, 173, 181, 196–​ 208, 221–​2 Colonialism  12, 34, 38 Constructivism  43, 52–​3, 83, 85, 102–​4, 110–​5, 118–​137, 148, 208, 221 Cosmopolitanism  12, 52, 218 Dijn, Annelien.  202 Effectiveness  64–​9, 76–​9, 166, 178–​9, 197, 202 Ellis, Elizabeth  27, 37 Empty formalism objection  79–​80, 107–​8 Estate (Stand)  ix, 3–​19, 44–​9, 63, 76–​8, 84–​9, 103–​114, 134–​158, 164, 171–​6, 183, 184–​6, 189–​215 Exculpation  14, 66–​8, 70–​9, 87, 170–​1 Expiation contract  170–​1 Family  6–​8, 15–​8, 23, 44, 46–​7, 61, 93–​116, 132–​58, 171, 182–​8, 203, 207, 220 Fichte’s summons  83–​5, 118, 124 178, 200–​ 1, 211 Flikschuh, Katrin  30

Gans, Eduard  138–​43, 151–​2 Garve, Christian  75, 199–​200, 210 Girard, Rene  72 Grawert, Rolf  163 Hardenberg, Karl August  48, 59, 61, 89, 212, 217 Hart, H.L.A.  203 Hartog, François  213 Hasan, Rafeeq  25–​6, 29 Hagen, William  93, 196 Historicism  2–​3, 14, 19, 59, 216, 220–​2 Houellebecq, Michel  72 Humbold, Wilhelm von  195n24, 203n40 Hull, Isabel  6–​8, 78, 96, 98, 102–​104, 107, 112–​4 Idealism  1, 179–​81, 183, 208 James, David  125–​6, Koselleck, Reinhart  36, 41, 61, 66, 84–​5, 137, 161, 172, 182–​3, 188, 206, 212 Laitinen, Arto  120–​6 Legal standing  59–​90 Ludwig, Bernd  35 Messina, JP  24 Montesquieu  19, 145, 184–​207 Nakhimovsky, Issac  173 Nationalism 180 Perspectives  6–​10, 15–​19, 84, 94, 103–​110, 114–​8, 131–​7, 146, 155–​8, 171, 183–​4, 207, 219–​221 Perthes, Friedrich  213 Philosophy of history  51–​8, 131–​7, 220–​2 Pinkard, Terry  10, 84 Pluralism  63, 117, 142, 218–​20 Primogeniture  147–​9 Private jurisdiction and patrimonial courts  2, 40–​51, 56, 81–​6, 161–​9, 212, 220

230 Index Property  28, 80–​3, 99–​100, 117–​130, 138–​9, 142, relative vs. absolute 154, 173 Proudhon  121–​2 Provisionality  13–​4, 23–​58, 61–​2, 84–​6, 110, 174, 205–​15, 216–​18 Punishment  68, 130, 166–​72, 182 Regulation  4, 7, 62, 78, 161–​6, 194, 209–​10 Responsibility/​accountability  63–​90, 189 Resources  61–​4, 76, 138–​152, 171, 206, 215 Ripstein, Arthur  28–​31, 36, 123, 133 Ritter, Joachim  211 Rousseau  55, 72, 103 Schopenhauer 30 Schwab, Dieter  33, 37, 41 Sellars, Wilfrid  84 Seigel, Jerrold  4, 17, 73, 78 Self–​appropriation  63–​74 Servants  44–​51 Space of reasons  70, 83, 211 Specification of content  64–​9, 79–​80, 189

State  1–​27, 33–​119, 125–​133, 148, 154, 158, 163–​168, 170–​188, 197, 204, 207–​9, 216–​8 State–​society split  4, 23, 39, 43, 52, 94 Synchronic vs diachronic  2–​3, 14, 23, 52–​9, 94, 117, 131, 220 Teleology  11, 52, 65, 77, 128, 204 Thing–​like right to persons  44–​51 Tribe, Keith  4, 97, 104 Varden, Helga  27–​8, 37–​43, 51 Weber, Max  144–​5, 221 Wehler, Hans Ulrich  186 Welker, Karl  141, 150 Westphal, Kenneth  31, 118–​24, 133–​5 Whaley, Joachim  199 Wienfort, Monika  40–​1, 81–​2, 165 Wolff, Christian  96 Žižek, Slavoj  72 Zöller, Günter  161