Author: Jeanne L. Schroeder

1

The Kantian subject, freedom, retroactivity

Thanks for the comments Tim, etc. Let me clarify a few points. First, Hegel is Kant’s greatest critic because he is his most faithful reader. He absolutely does not reject the Kantian radically free individual (despite the fact that Hegel does reject Kant’s basic distinction between the noumena and the phenomena). He adopts it hook, line and sinker which is why he uses it as the basis of his Philosophy of Right. Hegel believes that it is a logically necessary aspect of personhood, albeit not a complete one. When I say that it is a concept that must “go under” I refer to Hegel’s logical method which is inadequately translated into English as “sublation” – which means both negation and preservation. When an early stage in the logic is superceded by a later one, it is not obliterated. It must always be retained as a necessary building block of the latter idea. Ths metaphor I usually give is that the earlier stage is like a foundation of a building. Before the building is built, it is merely a hole in the ground. After the building is built, we retroactively recognize its function as a foundation. Moreover the foundation can not eliminated after the building is built, or the entire edifice will come crashing down.

To move away from this metaphor, this process should also not be seen as a complete reconciliation or harmonization of the earlier and later logical stages.  As in Lacan, internal conflict and contradiction is an essential part of every aspect of the universe – even, or especially, God. Human beings are simultaneously both truly atomistic individuals and truly intersubjective legal subjects even though these aspects of personality are often in conflict. Moreover, the person is more than this. What I am calling the Hegelian subject is rather a pathetic creature because abstract right is the most minimal mode of intersubjective relationship – the subject is essentially a lawyer, for Pete’s sake. This is why this aspect of personality must also be sublated by more complex notions of personhood mutually constituted by more complex forms of “right” such as morality and Sittlicheit (inadequately translated as “ethical life”).

Second, Hegel’s is not an empirical account of human history or personal development. It is a retroactive, “logical” account. That is, while writing the Philosophy of Right, Hegel was located in early-nineteenth century Germany and was contemplating the great changes that have occurred in Europe in the last century or so and seem to be culminating in the adoption, in every western nation, of some form of liberal constitutional state. He is asking, what theory of human nature would explain this massive changes? Consequently, empirical history does not neatly follow the logical stages he posits. Of course, aspects of abstract right existed in earlier societies, since it is “logically” necessary to pesonhood. However, – and this is a major theme of Mark’s book and I think a pretty well understood one –  earlier stages in history have been primarily characterized by status relations not by abstract right. It was only in the early modern that abstract right (i.e. primarily private property and contract) started to supercede status relations as the primary organizing principle of society and this happened at the same time as the modern constitutional state and the modern subject came into being. Hegel’s argument is that this is not a coincidence since the three are necessarily related.

One last aspect to this: although Hegel’s account is “logical” and not empirical and Hegel is ordinarily thought of as an idealist, he is not a neo-Platonist, but a thorough-going materialist. The one aspect of Kant which he absolutely rejects, as I mentioned, is the noumena-phenomena distinction, or any other concept of transcendence. Nothing is possible unless and until it is already actual. A logical concept cannot be true unless one observe its manifestation in the material world. This is why his understanding of logical necessity is always retroactive, and never predictive. He is always writing about what must have happened.  To give a graphic illustration that I have used before, I retroactively understand from the fact that I am typing this that it was absolutely necessary for my parents to have had sexual relations one day in the Fall of 1953. But from my parent’s perspective in the Fall of 1953, what could conceivably (poor pun, I know) been more contingent?

Consequently, in my reading Fukuyama gets Hegel’s concept of the “end of history” wrong. As Hegel I think makes clear in his famous preface to the Philosophy of Right, he believes that he is writing at the beginning of the end of an era (i.e. the development of early capitalism and the modern state), which is why he although he is in a position to  comment on “a shape of life [that] has grown old and . . . cannot be rejuvenated, but only recognized.” “As the thought of the world, it appears only at a time when actuality has gone through its formative process and attained its completed state.” Which is why philosophy always comes too late to give advice (advice being the bailiwick or pragmatism, which Hegel does not characterize as philosophy, but as philosophy’s necessary supplement). As the Hegel thinks that the entire universe, including God, is in unstable contradiction, the only thing constant is change, and the only necessity is contingency, all we can predict about the future is that it will be unpredictably different. We can posit that, it Hegel is correct that we have seen the appearance of abstract right, morality and Sittlicheit in the past, then they will all  eventually be sublated – they will be superceded, but preserved, as will the subject, the citizen and the State. What will that look like? Who knows.

To return to the top of this comment, one of the reasons for this is that Hegel does not reject Kant’s idea of the radically free autonomous individual, he buys it hook, line and sinker. Kantian freedom is the capacity for pure spontaneity, the ability to create ab nihilo. If our future were logically necessitated and predictable, we would not be free.

Just one more comment on Tim’s comment about “subjective” rights. I am afraid that your point illustrates why I think that many (if not most legal) academics think that, despite the use of the same term, international and human rights “law” is not “law”.  From a legal perspective a “right” which is not recognized and enforced is, by definition, not yet a “right”, although it might be a moral or political assertion that such a right should exist. I am afraid that I lean towards the view of Costas Douzinas that human rights “law” is at this stage is a rather incoherent mishmash of natural law and positivism at its weakest – even though I am often intuitively sympathetic to its goals.

This is a matter of semantics, but not merely so. I believe that international and human rights are not legal in nature, but should be thought of in terms of political theory and moral philosophy – which is not to say inferior but very different. The overlapping vocabulary of legal and human rights obfuscates rather than helps analysis. (We see this the two founding documents of the U.S. The Declaration of Independence reflects natural law and speaks of all men being “endowed with unalienable rights”. But the Declaration is not American law. The Constitution is, which is usually considered a positive law document creating (and recognizing) specific legal rights.

Tim seems to be saying that (or, more accurately, suggesting that some would say) persons in clan societies qua persons have natural human rights that the international community should recognize. Mark is arguing, however, that within status-based societies like clans, they in fact do not have full individual legal rights which can only be established through positive law. I agree. To put this is my terminology if one defines a subject as that which is recognized as being capable of bearing rights in duties, then in traditional societies, the family, not the individual, is the subject. Individual rights only exist in the state that recognizes the individual as the subject.

Consequently, Mark defends the state because he thinks that individuals rights are a good thing. Once again, I agree. But, not because I believe in natural human rights. I don’t. Rather, because I am persuaded that legal rights are necessary for the actualization of freedom. As such, from a Hegelian perspective, rights are not natural, they are completely unnatural. They are artificial in the affirmative sense of human creations: works of art, our highest achievement.

It’s been fun. Unfortunately, I have an appointment this afternoon and have to sign off and run.

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(W)oman does not exist.

I have only time for a quick response to Tim. I am certainly not ignoring post modern feminism. As a Lacanian, post modern (or perhaps more accurately, post-post modern) feminism is what I “do.” The idea that there is not coherent concept of (W)oman is not a denial that societies do in fact characterize people into men and women (The Lacanian concept of woman does not refer to female human beings, but to persons, regardless of their anatomy or sexual orientation who take on the feminine position, which is precisely the position of “not existing” — (The) woman does not exist in the same way that, according to  Lacan, the big Other of the symbolic order, and, according to Hegel, God, does not  exist. They, instead are essential, they insist. Existence is the static dead status of things and “man” who, in Zizek’s wonderful rewording of Lacan’s point, is a woman who thinks she exists – but that gets into the highly technical analysis of the Hegelian-Lacanian distinction between being and essence).

I also am not in any way implying that specific women (as well as specific men) in traditional societies carve out meaningful lives. I am, however, generally agreeing with Mark’s point that persons in clan societies are not “individual subjects” in the same way as persons in the modern liberal state are (and, they certainly don’t have the legal status as such). In this connection, however, one must remember that words like “clan” “modern state”, etc. are analytical categories. There will always be empirical exception to and within these neat categories.

As an aside, in medieval Europe, a woman who did achieve renown was often referred to as a virago, which was not a reproach, but the compliment that she had the moral strength of, and therefore was a sort of honorary, man (vir) — think of Elizabeth I’s famous speech. (As such, I am told that in St. Jerome’s Vulgate, Eve is referred to as virago before the Fall, and as mulier after — according to St. Isadore’s highly questionable etymology, this Latin word for woman comes from a root that means soft and vulnerable).

 

1

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.

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The Clan,Law and Individuation

Mark’s thesis concerning the role of the state in promoting individuation and rights is more consistent with the speculative tradition of Continental theory than with American liberalism. Mark observes the necessary relationship between rights and the state. In liberalism the individual is natural and the state the problem to be explained. In speculative theory, individualism is the problem. As an empirical matter, we are born as helpless infants within families, necessarily learn a collective language, become subject to laws, etc. and nevertheless experience ourselves as being unique. Speculative theory explains this phenomena. Individuality is an artifice: a human creation and a hard won achievement. The individual and the private law regime of rights are mutually constituting, each giving birth to the other. Furthermore, speculative theory seeks to explain the persistent and dangerous nostalgic longing for an Edenic past that never existed.(7)

By refusing to recognize the role of the state in creating and preserving rights, libertarianism threatens to emasculate it in a way that could allow the re-emergence of clan values. Being a political liberal, as well as a classical liberal, Mark cautions that modern, multi-national, business corporations are becoming clan-like.(9, 202) Although not based on kinship, corporations are collectivist in structure and governed by their own internal rules, in which members are valued only for their function.

This concern animated Ronald Coase’s The Nature of the Firm. Coase, was writing during the Great Depression when both Bolshevism and Fascism promoted non-democratic, centralized governments as the next stage of human development. Coase asked, in effect, ‘if liberal states and capitalistic economies are based on individuality, equality and competition, why do we find collective, hierarchical, centrally-planned institutions at their very heart?’ The economic theory of his time assumed that “the direction of resources is dependent directly on the price mechanism.” But, “within a firm, the description does not fit at all.” “Why are there these ‘islands of conscious’ power’” within a market economy which “market transactions are eliminated”? Coase argued that we should find economic activity organized as firms when the costs of ceding authority to a centralized hierarchy is less than the cost of using market mechanisms”.

Mark’s proposition is that the political-economic movements that seemed to be the waves of the future in the 1930’s were, in fact, riptides carrying us back to the past – Communists and Nazis drawing different lessons for a romantic nostalgia for the clan.(183, 186) Mark suggests that firms, in which status trumps contract, can be seen as a similar return of clan mentality.

Speculative theory offers a way of analyzing the phenomena that Mark describes. One the one hand, the liberal capitalist state – understood as encompassing both representative government and the private law regime of property and contract – is necessary for the individuation that permits the creation of rights and the actualization of freedom. On the other, it is equally true, according to both Hegel, and surprisingly, Adam Smith, that individualism, rights and market forces breaks down family bonds and that this is necessary for the functioning of a democratic government and the rule of law.

Moreover, individuation and freedom on the one hand, and alienation on the other, are intrinsically linked as a logical matter – they are two sides of the same coin. In order to be an identifiable individual who is not merely a cog in a clan-machine, one needs to be distinguished and to some degree alienated from others. We want to be both free individuals and yet integrated within society. Consequently we fantasize that there once was, and could be again, a society different from our own where this could occur. We are drawn reject the status quo either in the libertarian dream that wholeness could be re-established if the state were weakened, or the socialist dream that wholeness could be re-established if the state were strengthened. Both post-modern dreams of community are, according to Mark, the pre-modern nightmare of the clan.