‘Expression of Contempt’: Hegel’s Critique of Legal Freedom

Abstract

In this paper, I argue for the existence of pathologies of juridicism. I attempt to show that the Western regime of right tends to colonize our intersubjective relations, resulting in the formation of affective and habitual dispositions that actually hinder participation in social life. Speaking of pathologies of juridicism is to claim that the legal form fundamentally contaminates the way in which we relate to ourselves, to others, and to the world, resulting in an ethically deformed, distorted or deficient form of (inter-) subjectivity. To support my thesis I consult a philosopher, whose work still provides a powerful analysis and critique of juridicism, namely, Hegel. Hegel provides an historic and a systematic theory of the pathologies of juridicism. His historical theory locates the origin of the abstract subjectivity of right in Roman antiquity. His systematic theory understands the negative effects of an absolutization of the legal domain as a persistent threat to social integration and an individual’s pursuit of the good life. I clarify these argumentative dimensions in two steps, beginning with Hegel’s historical analysis of right in his Lectures on the Philosophy of History. I then reconstruct Hegel’s critique of the subjectivity of right in the short chapter on the ‘Condition of Right’ in his Phenomenology of Spirit. In conclusion, I argue that, although Hegel’s diagnosis is correct, his prescribed therapy must fail: instead of radically altering abstract right in terms of content and form, it only recommends its complementation through other ethical spheres.

This is a preview of subscription content, log in to check access.

Notes

  1. 1.

    Historically speaking, most of Hegel’s assumptions about the Greek and the Roman world are of course highly questionable. Hegel projects features of his own contemporary societies, most importantly the bourgeois French society, back to Ancient Rome. Like Roman law, Hegel believes, the French Revolution too separates out into ‘extremes equally abstract, into a simple, inflexible, cold universality, and into the discrete absolutely hard rigidity and self-willed atomism of actual self-consciousness’ (Hegel 1977, p. 359). In criticizing Rome, he is actually criticizing Paris: this leaves the task of rejuvenating Greece, i.e. the creation of a true ethical life, to the Prussian state.

  2. 2.

    In reality these constructions did not all come about at the same point in time, but in the course of a long history of right. ‘Person’ did not yet have the specific value as a legal concept in Rome, which Hegel ascribes to it; the full blooming of legal personality actually first occurs in modernity with contractualism. For a general overview see Fuhrmann (1989) and Schiemann (2013).

  3. 3.

    Christoph Menke mentions Judge Adam in Kleist’s The Broken Jug as an example of such a human being who is no more capable of right, who thinks no more about law but only about eating—he is too distracted to be a subject of right and at the end of the play is also discharged from the law by the court supervisor Walter. Cf. Menke (2012), p. 77ff.

  4. 4.

    For an overview of Hegel’s critique of abstraction, cf. Brudner (1991), esp. p. 135ff.

  5. 5.

    Adorno had advanced a radical critique of the linguistic decapitation of the particular in Negative Dialectics. He gave an analogy between language and the abstract principle of exchange that disregards the particularity of the single thing. But Adorno also saw in abstraction the right of the ‘primal phenomenon of irrational rationality’, because it ‘cuts short what is not covered, every specific experience that has not been shaped in advance’ (Adorno 2004, p. 309).

  6. 6.

    Marx holds precisely the same twin-play of singularization and despotism responsible for the rise of Bonapartist tyranny, see Marx (1996).

  7. 7.

    Thus, not only are women, children and slaves unfree but also the family-despots themselves, as Hannah Arendt showed (although she showed this with reference to Greek patriarchal control already, not first with the Roman one). Cf. Arendt (2006).

  8. 8.

    In the Phenomenology of Spirit Hegel does not name any philosophers who represented these philosophical approaches. It is generally accepted that Hegel meant Greek philosophers like Zeno, Pyrrho, and Diogenes in talking of Soicism and Skepticism (Hyppolite 1974 is exemplary; see p. 185). However, there do exist interpretations that locate both philosophical approaches primarily in Rome with reference to philosophers like Seneca and Marcus Aurelius, who also commanded great political influence (e.g., cf. Franklin 1958; Rose 1981, p. 160). Cicero and Sextus Empiricus were leading representatives of skeptical positions in Roman antiquity. For Hegel the Roman import of Greek ideas is decisive: the Greeks developed them but they became paradigmatic only in Rome. For especially helpful discussions of Stoicism, Skepticism and the Unhappy Consciousness, see Pinkard (1996) and Chiereghin (2009).

  9. 9.

    Chad Kautzer has described the contemporary legal subjectivity as a ‘self-defensive subjectivity’ (Kautzer 2014). Kautzer’s brilliant analysis differs from mine only phenomenologically, since he focuses more on the white man’s rage, while I focus on apathy and indifference, but I believe both diagnoses are not incompatible. Without being able to discuss this thought further here, it might be the case that we witness the emergence of subjects who angrily cling to their rights, while at the same time being depressed about their emptiness.

  10. 10.

    Honneth develops this theme from his lectures on the Philosophy of Right. I try to show that the diagnosis of the suffering from indeterminacy might find stronger textual support in the Phenomenology of Spirit.

  11. 11.

    This point and the problematic connected with it became a topic of rich discussion; in the specific context of the Phenomenology of Spirit, see esp. Desmond (1989).

References

  1. Adorno, Theodor W. 2004. Negative dialectics (trans: Ashton, E.B.). London/New York: Routledge.

  2. Arendt, Hannah. 2006. What is authority? In Between past and future. London: Penguin.

  3. Bernasconi, Robert. 1991. Persons and masks: The Phenomenology of Spirit and its laws. In Hegel and legal theory, ed. Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson. London: Routledge.

    Google Scholar 

  4. Brudner, Alan. 1991. Hegel and the crisis of private law. In Hegel and legal theory, ed. Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson. London: Routledge.

    Google Scholar 

  5. Chiereghin, Franco. 2009. Freedom and thought: Stoicism, scepticism, and unhappy consciousness. In The Blackwell guide to Hegel’s phenomenology of spirt, ed. Kenneth R. Westphal. Chichester: Wiley.

    Google Scholar 

  6. Desmond, William. 1989. Hegel, legal status, and otherness. Cardozo Law Review 10(5–6): 1713–1726.

    Google Scholar 

  7. Fuhrmann, Manfred. 1989. Person. Von der Antike bis zum Mittelalter. In Historisches Wörterbuch der Philosophie, Band 7, ed. Joachim Ritter, Karlfried Gründer and Gottfried Gabriel. Basel: Schwabe.

  8. Franklin, Mitchell. 1958. The significance of stoicism in Roman law in the development and outcome of Hegel’s theory of alienation. Acta Juridica 246: 246–259.

  9. Hegel, Georg W.F. 1956. The philosophy of history (trans: Sibree, J.). Mineola: Dover.

  10. Hegel, Georg W.F. 1977. Phenomenology of spirit (trans. Miller, A.V.). Oxford: Oxford University Press.

  11. Hegel, Georg W.F. 2008. Outlines of the philosophy of right (trans. Know, T.M.). Oxford: Oxford University Press.

  12. Honneth, Axel. 1996. The struggle for recognition. The moral grammar of social conflict (trans. Anderson, Joel). Cambridge: MIT Press.

  13. Honneth, Axel. 2000. Pathologien des Sozialen. Tradition und Aktualität der Sozialphilosophie. In Das Andere der Gerechtigkeit. Aufsätze zur praktischen Philosophie. Frankfurt am Main: Suhrkamp.

  14. Honneth, Axel. 2010. The pathologies of individual freedom. Hegel’s social theory. Princeton: Princeton University Press.

    Google Scholar 

  15. Honneth, Axel. 2014. Freedom’s right. The social foundations of democratic life (trans. Ganahl, Joseph.). New York: Columbia University Press.

  16. Hyppolite, Jean. 1974. Genesis and structure of Hegel’s phenomenology of spirit. Evanston: Northwestern University Press.

    Google Scholar 

  17. Jaeggi, Rahel. 2014. Alienation (trans. Neuhouser, Frederic.). New York: Columbia University Press.

  18. Kant, Immanuel. 1996. The metaphysics of morals (trans. Gregor, Mary). Cambridge: Cambridge University Press.

  19. Kautzer, Chad. 2014. Self-defensive subjectivity: The diagnosis of a social pathology. Philosophy and Social Criticism 40(8): 743–756.

    Article  Google Scholar 

  20. Loick, Daniel. 2014. Juridification and politics: From the dilemma of juridification to the paradoxes of rights. Philosophy and Social Criticism 40(8): 757–788.

    Article  Google Scholar 

  21. Marx, Karl. 1964. Early writings (trans. Bottomore, T.B.). New York: McGraw Hill.

  22. Marx, Karl. 1996. The eighteenth brumaire of Louis Bonaparte. In Later political writings. Cambridge: Cambridge University Press.

  23. Marx, Karl, and Friedrich Engels. 2013. The Communist manifesto (trans. Bender, Frederic). London: Norton.

  24. Menke, Christoph. 2012. Recht und Gewalt. Berlin: August.

    Google Scholar 

  25. Menke, Christoph, and Juliane Rebentisch, ed. 2009. Kreation und Depression. Freiheit im gegenwärtigen Kapitalismus. Berlin: Kadmos.

    Google Scholar 

  26. Pinkard, Terry. 1996. Hegel’s phenomenology. The sociality of reason. Cambridge: Cambridge University Press.

    Google Scholar 

  27. Rosa, Hartmut. 2013. Social acceleration: A new theory of modernity (trans. Trejo-Mathys, Jonathan). New York: Columbia University Press.

  28. Rose, Gillian. 1981. Hegel contra sociology. London: Athlone.

    Google Scholar 

  29. Schiemann, Gottfried. 2013. Persona. In Der Neue Pauly, ed. Hubert Cancik, Helmuth Schneider, and Manfred Landfester. Brill Online.

Download references

Acknowledgments

This study was funded by the VolkswagenStiftung (Germany) and carried out during my fellowship at the Mahindra Humanities Center at Harvard University. I am grateful for tremendously helpful comments by Amy Allen, Chad Kautzer, and the participants of the ‘Right & Subjectivity’ workshop that took place in April 2013 at Harvard.

Author information

Affiliations

Authors

Corresponding author

Correspondence to Daniel Loick.

Additional information

Translator: Meghant Sudan.

Rights and permissions

Reprints and Permissions

About this article

Verify currency and authenticity via CrossMark

Cite this article

Loick, D. ‘Expression of Contempt’: Hegel’s Critique of Legal Freedom. Law Critique 26, 189–206 (2015). https://doi.org/10.1007/s10978-015-9159-7

Download citation

Keywords

  • Abstract right
  • Hegel
  • Juridicism
  • Legal subjectivity
  • Rome
  • Social pathology