Hegel, Smith, Subjectivity and Intersubjectivity
Thanks for the comment Tim. I am, however, somewhat confused as to where, or if, you disagree with me in saying that you are proferring a “radically alternative” classical view that “emphasizes the jural relation between people within society while modern theory emphasizes subjective rights.” As I am basically a Hegelian, I don’t understand what “subjective” rights could even be. I would have said that virtually every modern jurist accepts the Hehfeldian proposition that all legal rights and duties and jural in nature: one does not have rights or duties in a vacuum, but only rights and duties that run to specific individuals or groups of persons and are enforced by society in general
I speak in my comment about individuals being mutually created through law. I should clarify my terminology. Following the speculative tradition, I usually avoid that term which I associate with liberalism, in favor of “subjectivity”. This is the term I use in my books and in my review of Mark’s book. Subjectivity should be thought of as the type of personhood that is capable of bearing the rights and duties of private law specifically (i.e. contract and private property). It is a necessary step in the development of the type of personhood who can act as a citizen in a modern representative state.
It is “subjectivity” that is mutually created by a jural conception of private law. In my formulation subjectivity is intersubjectivity mediated by objectivity. It is a triune concept: created through interpersonal relations by and among at least two subjects that must be objectively recognized and enforced by others. This seems to be similar to your “classical” conception.
What distinguishes speculative theory from most versions of classical liberalism is is that it does not assume the existence of the individual subject – rather subjectivity is created through jural relations in a modern state. This is why Hegel thought that modern constitutional states did not start appearing until the late eighteenth and early nineteenth century (when he was writing). That is, it is only with early capitalism that “subjectivity” came into its own.
Of course his Philosophy of Right, like all of his works, is an extended critique of Kant. Accordingly, he takes as his starting place Kant’s radical notion of the absolute free individual, having no affirmative characteristics. Hegel argues that Kant’s notion must go under because the freedom of such an individual, being completely negative, is only abstract and potential. To be actual, however, it must become positive and concrete. And this can only happen through interpersonal relations. To Hegel the most logically “primitive” form of intersubjectivity is the jural relations of what he calls “abstract right” which is roughly equivalent to what Americans call private law. By submitting to private law we give up some of our radically negative freedom to achieve a more meaningful positive freedom through our relationships with others.
One important thing to note here is that, although Hegel thinks that are the most logically primitive (which is why he discusses them before he discusses family relations) this does not mean that they are empirically prior. Indeed, his point is that they were empirically late to develop (which is why subjectivity and citizenship are modern inventions). This relates precisely to Mark’s point.
As an empirical matter, family and clan relations precede abstract rights. Here the role of private law in developing subjectivity has a different aspect than the logical argument against Kant. When contrasting himself to Kant, Hegel emphasizes how private law brings people together – that is, through law, Kant’s logical construct of the abstract individual becomes the intersubjective subject who only exists in her relations to others. However, when contrasted with the empirically early stage of clan life, law has the opposite role. The person starts in the bosom of the family and law allows the person to become separate and individuated.
That is, in order to be a subject, and eventually a citizen, one cannot merely be a member of a clan with collective rights. Or more importantly, one must recognize others not as member of clan, but separate, individuals.
This is a very important aspect of Hegel. He adopts Kant’s categorical imperative that requires that one treat every other person as an end in and of herself and never as the means to one’s own ends. The motto is that one must be a person and treat the other as a person. You speak of rights as claims, but this is incorrect to a Hegelian. To Hegel, any claim of a right against another person is itself initially a wrong because it is to treat the other as a means to one’s ends. Rather, one can only rightly accord rights to others (i.e. accept duties for oneself). A claim of right for oneself can only retroactively become a right if others (the person against whom the right is claimed through contract, or society generally, in other contexts) recognize the claim. In other words, wrong logically precedes right which only retroactively appear in the righting of a wrong.
I argue in my review of Mark’s book that Hegel’s understanding of the function of abstract right (i.e. contract, private property etc.) in freeing person’s from the collective tyranny of the clan surprisingly parallels that of Adam Smith. Smith’s concept of self-interest is not that of the modern law-and-economics movement. Rather, it includes the natural feelings of love and affection that each man feels first, for his immediate family and friends, and more generally to his kinship and other groups (such as co-religionists) with whom he feels affinity.
The problem, of course, is that neither a modern economy nor a democratic state is compatible with such clan loyalties. Naturally, we do not treat others as equals, we favor our kin. In the Europe context in which Smith was writing, a government and economy founded on the natural feelings of kinship was the feudalism that the Enlightenment was trying to overcome. Smith, like Hegel, thought that capitalist market relations (i.e. abstract right) break down kinship relations by treating individuals as individuals (subjects, in my terminology). It is this context that frames Smith’s famous assertion that “it is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest”. Market relations actually break down the “natural” pull of the family, and allow cooperation among persons who are not friends.
To be equals – or more accurately, to be able to recognize others as equals – requires that we be individuated (recognized as our own ends and not means to the ends of the clan), and therefore separate and alienated from those we naturally love to some extent. This is the tragedy of modernity: positive freedom through individual rights comes at a great cost.