Property has signal importance in Hegel’s Philosophy of Right.1 Hegel himself suggests property’s importance by beginning his substantive text with the issue of property and then raising it in each subsequent section. Later interpreters, from Marx to the present, sometimes focus on—and in any case can hardly avoid touching on— property and its implications.2 In this Article, I examine Hegel’s treatment of property throughout the Philosophy of Right to explore several related political and legal issues that turn on one basic conundrum: Hegel’s juxtaposition of extensive private property rights in his chapter on “Abstract Right,” with limitations on and redefinitions of property in the major sociopolitical institutions of Sittlichkeit or ethical life. Or, to put the matter as a question: how and why can Hegel commence his political philosophy with a seemingly sweeping assertion of individual private property and freedom of contract rights, and at the same time present—in his discussion of the major sociopolitical institutions of Sittlichkeit—both limitations on private property and freedom of contract as well as different varieties of property and human relations, with different names and characteristics from the private property and free contract of abstract right?
This conundrum or question is important from many perspectives. In terms of Hegel’s thought itself, the relation of abstract right to Sittlichkeit is not settled. Hegel scholars have diligently studied the rights of the person to property and contract (in “Abstract Right”). They have cogently related personal rights to the system of needs and the administration of justice (in “Civil Society”). But not enough attention has been devoted to the relation between property rights and the other major sociopolitical institutions of Sittlichkeit, that is, to the rest of civil society, the family, and the state.3
The relation of property to sociopolitical institutions is also important in terms of the history of political thought. Like many modern political philosophers, Hegel starts his presentation or justification of property with a single person in a presocial condition. The person asserts his right to property, and the right to property is the origin of the person’s right to life and liberty. From that origin, Hegel closely links property to freedom and personality, and presents personality as an odyssey of Bildung. But Hegel’s original presocial condition and even the priority of the right to property do not lead to Hegel’s seeing that social and political life need or should reflect a monological view of property and contract (such as a possessive individualism throughout society, or the view that all important human relations be based on private property and free contract).4 Rather, Hegel uncovers a variety of forms of property, individuality, and social relations.
How and to what extent the law and other social institutions should reflect the norms and practices implicit in private property and free contract are prominently vexed questions in current debates in legal theory. As Hegel discusses the nexus of property, rights, freedom, contracts, and social and political associations, he argues about why and how he values property and contract, what freedom is, and how all three can be instantiated in social institutions. For example, he criticizes the contractual or (in contemporary terminolgy) economic analysis of the law and other social and political institutions,5 starting with the question of why institutions enforce restraints on alienation.6 He determines criteria for the alienability or inalienability of property,7 discusses property and personhood,8 and then differentiates between discrete transactions and relational contracts.9 In general, Hegel wrestles with problems about property and contract— and their relation to sociopolitical life—that continue to exercise legal scholarship as well as political thought and its interpretation.10
Hegel first discusses property in the opening section of the Philosophy of Right, entitled “Abstract Right.” Like many modern political philosophers, Hegel commences his exposition by stripping individuals of their political, social, and economic roles and attainments. He does not, however, use a prepolitical state of nature that is an historical construct; rather, Hegel’s “abstract right” is a logical construct. The human actors in “Abstract Right” are logical abstractions from full human beings; they are persons who have Willkür or arbitrary free will (“to do or forbear doing”11 as they wish), particular characteristics (such as age and height, needs and passions), and the normative imperative (“ ‘Do not infringe personality and what personality entails.’ ”12). Persons face a world of things, which are also logical abstractions from the full world of institutions and shaped nature. Things are natural objects and animals, defined by their lack of free will, different from persons, and incapable of rights.13
Confronting this external world, the person sees that he is limited to being only subjective by this world that, as external to him, appears different and strange. “Personality is that which struggles to lift itself above this restriction and give itself reality, or in other words to claim that external world as its own.”14 To overcome this restriction, the person “has as his substantive end the right of putting his will into any and every thing and thereby making it his” property.15 A property is a thing that contains a person’s will.
At the same time that willing is the essence of property, the person must “occupy” his property—by “grasping,” “forming,” or “marking”—so that others may recognize it as his.16 The person has full use of his property and he may alienate it—except for his property in himself, and in his life and liberty,17 which is inalienable—by letting it fall ownerless, by giving it away, or by exchanging it by contract.18 In a contract, property-holding persons who recognize each others’ property rights freely exchange “single external thing[s]” of equivalent value according to their own arbitrary wills.19 So persons relate through the media of things and recognize each other as persons through recognizing each other’s property and through the free and equal contract relation.
“Abstract Right,” then, is a realm of private property and free contract among persons who are equal in terms of rights. The capacity to hold property and have other rights depends solely on bare, unencumbered, independent personhood; social status or position in political hierarchy are irrelevant. Similarly, things that can be property are sweepingly defined. For example, Hegel rejects any special status or treatment for land (as opposed to movable property) or for objects that might have religious or magical significance, that is, whose “enchantment” would have prevented them from being property.20 Private property is full and complete; the owner has full use (and abuse), and can completely and cleanly alienate it. Contracts are discrete transactions; the exchange of equivalents in the market by parties who are equal (as property owners). In short, Hegel’s portrayal of persons, property, and contract has many points of similarity with visions of society and freedom variously labeled modern, liberal, neo-conservative (1980s), formal, commercial, capitalistic, or market.21
When Hegel discusses property in Sittlichkeit, the abstractions from “Abstract Right” become actualized, full, and concrete. The person becomes a full human being: the family member in the family, the “man” in civil society, and the citizen of the state. The interpersonal recognition of property owners, the external world of things, and the imperative of right are transformed into the world of actuality with social institutions, fabricated nature, and a developed ethos of rights and duties. This actuality is rational because it is created and maintained by Geist or spirit, articulated and organized by the constitution, and vitalized by the constructive interactions of its major elements.22 Property too becomes concrete; the meaning and implications of abstract property and contract both continue and change. The Philosophy of Right reconstructs how individuals come to be free and how the external, objective world comes to be human and rational. Indeed, it shows how individuals become free as the world becomes rational, and it shows the development of interaction between person and thing, and between person and person via the medium of a thing. The development of property and contract plays a central role in Hegel’s reconstruction.
For Hegel, property is essential for an individual’s freedom. In the immanent logical development of the free will, a person’s will, hitherto internal and merely subjective,23 becomes in property “an actual will” for the first time because it gains its “first embodiment” in the external world.24 For Hegel, “[m]an is implicitly rational, but he must also become explicitly so by struggling to create himself, not only by going forth from himself but also by building himself up within.”25 By putting his will into a thing and making it his property,26 the person goes out from himself into the external world of nature. Through his property, the person goes forth from himself to relate to other men and to build social institutions; and, by developing his will in the natural and social worlds as well as by claiming himself, his life and liberty, as his property, man builds himself up from within as an independent and free individual.27
In other words, in owning property, men act in the external world. Property is freedom because it gives the individual a scope for action and makes it possible for him to extend and expand his personality. Through their property, human beings dominate nature—liberating themselves from its toils—and create social institutions. In shaping the natural and the social world according to their intentions and goals, men develop and express their own capabilities. In reflecting on the results of their actions, men educate themselves about the world of actuality and about themselves—and thereby prepare themselves for additional action. Property, the embodiment of the free will in the world, is essential for human beings if they are to attain a developed freedom and individuality.
But for Hegel, the freedom and individuality of property have shortcomings. Although a form of freedom and necessary for individuality, property is limited because in property the will “has its freedom immediately in reality, in something external, … in a thing.”28 So the will in property is limited to some extent by the external characteristics of the thing the person owns and by the social context in which he owns it. Similarly, by putting his will in a thing, the person makes himself vulnerable to the vagaries that external things suffer.
Moreover, the characteristics of the abstract person are not very appealing: “To have no interest except in one’s formal right may be pure obstinacy, often a fitting accompaniment of a cold heart and restricted sympathies. It is uncultured people who insist most on their rights, while noble minds look on other aspects of the thing.”29 The will that is content to find its freedom in property, the individual for whom his property is his highest concern, and the isolated individual concerned only with his own desires and interests are each defective, unable fully to participate in the education and development offered by ethical life.
So the person must be educated in ways of living that are not exclusively tied to abstract rights and property. Through the understanding of morality and through the variety of social institutions of family, state, and civil society, the individual comes to be more than merely a property-owning person; he gains a concrete set of characteristics and attitudes which shape and express (indeed which are) his life.30
From the point of view of Sittlichkeit, of social and political life, the development of abstract rights is crucial because they form the basis of the system of needs and the administration of justice in civil society. But an exclusive concern with property seems deficient. Although property is a precondition of moral action, morality rests on conceptualizations that are different from abstract rights. Moreover, for Hegel, property and contract relations seem insufficient or wrong when it comes to accurately and fully characterizing the family and the state, two central communities of ethical life.
Hegel’s political philosophy is founded on property; but it is founded on property only so that it can transcend property. The fully developed individual—active outside the sphere of abstract rights, the system of needs, and the administration of justice—has moral and ethical ideals and human interactions (for example, family and state) that are not based on private property. But property nonetheless remains a permanent apparatus for carrying out a life plan, for giving reality to a conception of his own good, for his further development, and for his self-satisfaction. To the fully developed world of objective spirit, characterized by a variety of institutions and interactions, property remains a permanent dimension of freedom—actualized and guaranteed in the system of needs and the administration of justice. In Hegelian terms, then, property must be aufgehoben, both preserved and transcended,31 both in the life of the individual and in the structure of the society described in the Philosophy of Right.
How property is both preserved and transcended is not necessarily immediately or intuitively obvious; the process warrants examination and analysis. To state the process in non-Hegelian terms: Hegel’s Philosophy of Right starts out with a single person, owning undifferentiated things as private property; the person’s freedom and development require both that he exercise ownership of his private property and that he enter into institutions and interactions that are not derived from private property. How and wliy can Hegel get from the property-centered starting point of “Abstract Right” to a Sittlichkeit that is pluralistic, varied, and rich in types of human relations and human development as well as logically and practically coherent as a society?
The preservation and transcending of property occurs throughout the Philosophy of Right. In each major institution of Sittlichkeit, property takes on different characteristics. But even in the section on “Abstract Right,” where property is first treated extensively, Hegel prepares for modifications of private property and free contract and for varieties in the forms of property. This section and the two subsequent sections look at three aspects of property in “Abstract Right”: the logical status of “Abstract Right” itself, the connection between property and personality, and the distinctions about alienation in the opening discussions.
In Hegel’s thought, even the possibility that property can be transcended or limited draws on the distinction between the role abstract right plays in his overall political philosophy and the role of the state of nature (or a similar prepolitical construct) in most other major modern political philosophies. This distinction subsists despite the parallels that can readily be drawn between Hegel’s abstract right and constructs from Locke’s state of nature through Rawls’s “veil of ignorance.”32 From their states of nature—historical or hypothetical— Locke, Kant, and Rawls derive the rights of man and certain rules about social relations. They then hold to these rights and rules as a constant paradigm, norm, or criterion of what contemporary social and political life should be. For instance, once Locke has derived in the state of nature the rights to life, liberty, estates, the use of money, and the unequal distribution of property, then Locke sees that the role of government in “civil or political society” is to maintain and protect those rights, money use, and property inequalities. For Locke, Kant, and Rawls, not only is the state of nature primary, in the sense of coming first in order either historically or conceptually, but conclusions derived from it are also primary, in the sense of coming first in predominance. Or, as Dworkin would have it, institutions, and ideas that come later in order than those derived from the abstract original condition are always to be tested against, subjected to, and vulnerable to being “trumped” by the principles derived from the abstract original condition.33
Given the structure of Hegel’s thought, his abstract right functions in the exact opposite way. Abstract right, being first or primary in the logical order of the major parts of Hegel’s political philosophy, is therefore the least adequate part of “objective spirit.”34 And the specific contents of abstract right—the rights, principles, and paradigms of property, contract, and annulment of crime (or punishment)—are similarly inadequate; they are primitive, thin, and insufficient,35 The models of human being and of social interaction that derive from abstract rights alone are one-sided and narrow. For example, from rights alone it is difficult or impossible logically to deduce human love and love-based institutions. Moreover, abstract rights are neither self-generating nor self-maintaining but rather rely on norms and values that are external to and prior to rights. Neither possession nor exchange can itself generate the rights to property and contract. Rights require a preexisting relational structure of reciprocally recognizing persons (with free wills)—a structure that has developed historically, that represents the crystallization of certain habits and customs, and that (for Hegel) is characterized as Sittlichkeit. As the “minimal mode of human freedom” for individual and institution, and as dependent on preexisting social relations for their very existence as rights, abstract rights are “in radical need of correction and completion through contextualizing.”36 Consequently, for Hegel, the abstract rights of property and contract are always vulnerable to being modified, limited, and filled out by later developments in his text—later developments in what Hegel would call institutions of right, logical structure, social interaction, or human Bildung.37 Rights must be modified and supplemented so that Hegel’s person can develop fully, so that the sociopolitical world can generate relations and goals that encourage individual Bildung and facilitate social stability, and so that a social context can be generated in which rights can even exist.
In addition, Hegel has a very different conception of the person from most social contract theorists. By deriving the person’s rights to life and liberty from the right to property, Hegel displays a concern for the education and culturation (Bildung) of the individual. A comparison with Locke may sharply bring out Hegel’s concern.38 Locke postulates the individual’s property in himself as the original. “[E]very man has a property in his own person …. The labour of his body, and the work of his hands, we may say, are properly his.”39 Locke assumes that the individual owns himself as his own property and derives property in things from property in self. Because Locke begins with the assertion that individuals own their bodies and minds, he regards that property as a given, not as a task for the individual nor as a problem for his political philosophy.
Hegel, on the other hand, sees the right to property in things as the basis for the rights of the person to life and liberty. The person claims himself as he claims a property—through his will to own, occupy, and modify and transform himself. “[I]t is only through the development of his own body and mind, essentially through his self-consciousness’s apprehension of itself as free, that he takes possession of himself and becomes his own property and no one else’s.”40 So the individual’s appropriation of himself as his own property—his self-conscious apprehension of himself as free—is neither automatic nor easy, but a long struggle in claiming one’s self and developing one’s individuality.
In short, Locke’s person is socially and psychologically somewhat static and protective because he already has everything that he needs—except a government to assure that he can keep what he has. He does not need structured experiences or interactions to become a mature adult capable of acting in the modern world.41 Hegel’s per son, on the other hand, is dynamic and developmental. Hegel’s person must work to appropriate and apprehend himself—tasks which, to be fully accomplished, require not only the content of the prepolitical condition but also, and necessarily, moral attitudes and practical experience in a range of rational social institutions. Locke’s prepolitical person, given his self-ownership, is complete as given, with his rights in the state of nature. But the abstract right to property is only one aspect of the full development of Hegel’s person, and other aspects lie outside abstract right.
Concurrently, Hegel holds a developmental idea of society. Again, the contrast with Locke may be helpful. Since Locke postulates the individual’s property in himself as the original, he sees property as inhering in the individual as an individual, independent of and regardless of the individual’s social relations in the state of nature and in civil or political society. So in the Lockean universe, the preservation of the person’s property is a constant and unchanging goal for citizens and for political society. But Hegel insists that private property inheres in persons only because of their relations to other persons in a nexus of mutual recognition of personality; property is social from the start. And the social context adequate to persons with property does not, for Hegel, define and determine the ultimate social context for fully developed individuals. The social and political world Hegel envisions must grow progressively richer, more complex and more various, after abstract right, in order to generate the values and relations that can enrich the developing individuality that citizens pursue and that politics encourages.
In addition to the logical status of abstract right in his political philosophy as a whole and to the characterization of the person as dynamic and developmental, Hegel’s ability to preserve and transcend property also depends on his careful differentiation between the person’s alienable property in things and his inalienable property in his life and liberty. He makes this differentiation by following consistently and rigorously his definition of property, and especially by insisting that the object that is to be the property must be a single external thing, “something not free, not personal, without rights.”42 Further, Hegel insists that “[t]he object about which a contract is made is a single external thing, since it is only things of that kind which the parties’ purely arbitrary will has it in its power to alienate.”43
He also insists that alienation is an essential element of property. Alienation is an inevitable deduction from Hegel’s concept of judgments44 and a completion of his definition of property (a person having put his will into the thing can thereafter withdraw his will from the thing) and of the right to use property as the person wishes (including, for instance, letting it drop). The possibility of alienation leads into contract.45 Integrating alienation into property allows Hegel to connect property with individuality, because without alienation persons would be entrapped in and determined by their property.46
When a person claims a property by putting his will in the thing, the person has the full use and alienation of that property, so long as (here is where Hegel’s definition enters) the thing that is property remains “external” and “not personal.” So for Hegel, one kind of property—property in one’s self, one’s body and mind—must be treated somewhat differently from the paradigmatic case of property as simply the will in the thing. For Hegel, the difference in treatment arises because a person’s body and mind are special kinds of things and thus special kinds of property. Unlike other property in the early discussions in “Abstract Right,” the person’s body and mind—though at first “things” to the person because they do not yet contain his will, purposes, and personality—are immediately connected to the person and so are not external and not alienable from the point of view of others.
For Hegel, the person’s body is inalienable; other persons cannot appropriate it whether the person has put his will in it and claimed it as his own. The person cannot sell, relinquish, or otherwise alienate it. À person, who is free to own and occupy property in things, must be recognized by others as owning his body, because it is only through our bodies—by speech, by grasping, forming, and marking—that we are seen to be and act in the world. It is through our bodies that our free wills manifest and actualize themselves in the world through free actions. If my body did not belong to me, I could not manifest my will in the world, because the words and actions emanating from me would not be mine. If I try to sell myself into slavery, I act wrongly because once I have claimed my body as my property, it is no longer external and impersonal to me but it is a part of me, not a thing, and thus inalienable.
Further, as the person takes possession of his self—his mind and body, his willing, his thinking, and acting—he gains as his property those substantive characteristics of himself that are not “external by nature” but that are internal to himself and “constitute” his “own private personality and the universal essence of [his] self-consciousness.”47 In other words, he gains as his own property his will and reason, his moral and religious life, and his ethical life. Once gained, they cannot be alienated because they are not single external things.48 Unlike other property in “Abstract Right,” then, the person’s “substantive characteristics” are inalienable because, once they become the person’s property, they are no longer external to the person and no longer external things. From the point of view of others, of course, these “substantive characteristics” are never external things but always internal to the person. The inalienability and imprescriptability of a person’s mind and body—life and liberty—are indispensible constituents of the centrality of freedom in Hegel’s political philosophy.
Hegel’s treatment of the rights to life and liberty is so important that it may be worthwhile to linger here briefly. Starting from a rigorous (and generally modern and market) definition of private property and free contract, Hegel has shown that persons cannot be property; human beings cannot be slaves. This inalienability of life and liberty is not “paternalistic,” either in the specific denotative or the generally negative connotative meanings of that term.49 Rather, for Hegel the inalienability of life and liberty is built into the very definition of personality.50 Inalienability is constitutive of personality, not accidental to or separable from it. Persons qua persons have free will and thus must potentially or actually own, permeate, and control their own minds and bodies.51 For a person to do anything that destroys his free will—to alienate his life or liberty—is for him to destroy that which constitutes himself; the freedom of the person is a necessary permanent precondition for all the rights and freedoms that the person exercises.52
Equally, inalienability of life and liberty is built into Hegel’s definition of property as single external things. If a human being could be the property of someone else, it would have to be because he were not a person but a thing. To admit slavery is to see human beings as things, as nonhuman, as essentially natural beings like any other bit of nature, no different from trees (except less stately than elms, but more mobile) or billiard balls (except less geometrically perfect, even if more imaginative).53 And to see any human beings as natural beings pure and simple—which is to see human beings as things—is to remove human beings as a universal category from participation in entitlements and rights.54 Persons, free and with rights, are in a network of mutually recognized and respected rights and entitlements. If some human beings are slaves, then such slavery is the assertion that human beings are only natural beings and are to be used.
Moreover, Hegel’s arguments about persons, things, and property leads him to assert essentially the freedoms of bodily and personal integrity. Not only does his argument oppose slavery and serfdom, but also the frequently asserted claims of a husband to property in his wife’s body and of parents to property in their children’s bodies.
At the same time that Hegel asserts the person’s inalienable rights to life and liberty, he argues that human beings can create new “things” that are property by externalizing some portion of themselves into the objective world. For example, an object of fabricated nature (that in civil society can be used to satisfy needs) contains (externalized) human labor as well as natural thing-hood. Hegel argues that a book, and each single copy of the book, is the externalization (the printing on paper) of the ideas of the author, and hence a thing that can be sold and used by others. At the same time, the “means of expression” of the ideas are part of the author’s mind and still belong to him. Therefore copyrighting is proper, and pirating books and plagiarizing ideas are wrong.55 Similarly, Hegel argues that discrete portions of a person’s skill (an object produced by labor) and a person’s time (an hour of labor) are externalizations from the totality of personality. Piecework and hourly wage-labor are legal, because they are limited, whereas slavery is wrong, because it involves the whole range of the individual—all the skills and all the time.
Single products of my particular physical and mental skill and of my power to act I can alienate to someone else, and I can give him the use of my abilities for a restricted period, because, on the strength of this restriction, my abilities require an external relation to the totality and universality of my being.56
To rephrase (and invert) Hegel’s statement in terms of his characterization of property: property involves the full use of the thing; if a laborer restricts the use of his labor to delimited periods of time, his employer does not have the full use of his labor (but only the limited use of his labor), and so does not own the laborer and the laborer is not a slave.
Hegel’s discussion of copyright, plagiarism, and labor contracts leaves many uncertainties. For example, is it, as Marx suggested, wage slavery if the worker, in selling discrete hours of his labor, ends up selling the totality of his existence, one hour at a time?57 Hegel’s formulations are vulnerable to such questions, and because Marx faithfully read Hegel, those formulations may even encourage the reader to find such uncertainties. As Hegel himself notes in discussing specific dilemmas that arise in defining plagiarism, “there is no precise principle of determination available to answer these questions, and therefore they cannot be finally settled either in principle or by positive legislation.”58
Just as Hegel’s discussion of what is alienable hinges on property being “single external thing[s],” so too does his discussion of what can be contractual. For Hegel, the strict definition of property and contract means most especially that neither marriage nor the estate can be contractual relations.59 In a lament that could be made today, Hegel complains that “[t]he intrusion of… contractual relation, and relationships concerning private property generally” into thinking about the state “has been productive of the greatest confusion in both constitutional law and public life.”60 Theorists who see the family and the state in contractual terms “have transferred the characteristics of private property into a sphere of a quite different and higher nature.”61
In sum, starting even in the section on “Abstract Right,” where property seems at first to be defined in unequivocal, unambivalent, and far-reaching terms, Hegel follows precisely the meaning and implications of his definition of property. That path leads him to see that slavery is illegitimate because it is incompatible with free personality, that wage labor and other limited externalizations of self are legitimate even though surrounded with ambiguity, and that the scope of contractual relations (and consequently of contractual thinking) must be limited. In other words, Hegel moves from the apparently undifferentiated beginning point of private property as the will in the thing—free, complete, and alienable—to the crucial development of the person’s inalienable rights, rights compatible with both bodily integrity and the creation of externalizations. He then moves to limit private property and free contract to their proper practical sphere of relations about single external things, so that the family and the state are not seen purely in contract terms, in property terms, or (as at present) in economic terms.
Beyond the limits of “Abstract Right,”62 Hegel’s discussions of property in “Ethical Life [Sittlichkeit]” continue to involve precise distinctions and careful attention to circumstances—of the thing that is the property, the human beings and their Bildung or development, and the institutional context. As those distinctions and circumstances require, the characteristics defining property in abstract right are modified in Sittlichkeit. Because property’s characteristics, attendant distinctions, and circumstances are important in every major area of ethical life, it may be helpful to summarize briefly the next few sections as they treat different dimensions of civil society, the family, and the state.
Property gains embodiment differently in different institutions of Sittlichkeit. In civil society, both the system of needs and the administration of justice involve substantially a translation into concrete terms of the paradigmatic property of abstract right—the will in the thing, which has been occupied and which can be freely used and alienated. In the system of needs, the concretization of abstract rights serves to satisfy the needs of the concrete person. In the administration of justice, the concretization of abstract rights serves to assure his legal rights and freedoms. But two other major institutions of civil society limit aspects of that paradigmatic property. The public authorities work to assure the satisfaction of needs by regulating prices and trade, especially the prices of daily necessities and the dislocations attendant on foreign trade. Their intervention in the price structure, tariffs, and the flow of trade, limits and in some cases prevents the free use and alienation of property. In the corporations,63 the corporation member finds scope for liberality and rectitude, as his free use and alienation of property are affected by the norms and goals of the corporation. He must contribute to the corporation’s charitable undertakings and he seeks recognition, not maximum income.
In the family, the unity of the marriage partners in love and the intimate community of parents and children mean that the person is transformed into community member. Private property is thus transformed into communal resources, to which every member of the community has a rightful claim and which should not be disposed according to the arbitrary will of the paterfamilias, who should be not so much the private owner as the trustee of the resources. The children, as potential adults, cannot be claimed as any one’s private property just as, in abstract right, the person’s body is a unique “thing” because it cannot be claimed as property by anyone other than himself. Further, the children have the claim to be educated by their parents to autonomous and free adulthood.
The state too is a community, whose citizens are community members. The state has a legitimate claim (taxation) on the citizens’ use and alienation of property; and, in its necessary exercise of sovereignty, it can legitimately require its citizens to defend it by fighting, thereby putting at risk their lives—the full compass of their individuality and earthly being. To put these issues from the point of view of the citizen: the citizen of the state sees the state not merely as protecting his personal rights and his property but as providing him the context in which he can grow to a mature self-development. The citizen sees the state as providing him with the substance of his life, the social contexts, institutions, and interactions that motivate him (and his fellow citizens), generate goals for him (and his fellow citizens), and help give meaning to his life (and the lives of his fellow citizens). The state, as the substance that has done so much for each individual citizen, has a claim on each to act; and to fight, if need be, to defend and protect the state (and, thereby, the individual’s fellow citizens, past, present, and future).
In the system of needs in civil society, private property and free contract have extensive play. The human being (Afensch) of the system of needs, with his multiplicity of differentiated needs64 finds himself unable to satisfy those needs through unworked nature or unclaimed things, because almost everything is owned by someone as property. So he can satisfy his needs only through “external things, which … are … the property and product of the needs and wills of others….”65 These properties can be obtained only through his own work and effort in a complex system of “interdependence of each on all” in which each man contracts with others, alienating his own property (for example, money) for whatever properties (goods and services) he wishes for the satisfaction of his needs. Following Smith, Say, and Ricardo, Hegel sees the system of needs as a locus of the free play of the individual’s arbitrary will and self-interest, as he works, earns, and exchanges freely to satisfy his needs, interests, and whims, that is, to gain properties that he can use.66 His activities occur within a system of interdependence differentiated into classes or estates (Stände).67 The three major classes are defined in terms of types of property and work: the “substantial” or agricultural estate owns land and tills the soil; the “business class” owns moveable property and crafts it, manufactures it, or trades it; and the “universal class,” the class of civil servants, has as its task “the universal interests of the community” and so is divorced from working raw material and from the (narrow self-)interests that could result from property in their jobs or the state.68 When an individual chooses his class position, “natural capacity, birth, and other circumstances have their influence.” But “the essential and final determining factors are subjective opinion and the individual’s arbitrary will, which win in this sphere their right, their merit, and their dignity.”69 Because the system of needs overflows with particularity, the universal is present only as the form.70 “[T]he principle of this system of needs contains absolute universality, the universality of freedom, only abstractly and therefore as the right of property.”71
Likewise, in the administration of justice in civil society, the major aspects of property have extensive scope. Indeed, the administration of justice “gives abstract right the determinate existence of being something universally recognized, known, and willed, and having a validity and an objective actuality mediated by this known and willed character.”72 Abstract right is posited as positive law, known by all, and applicable to specific cases. Hegel strongly advocates codified law (as opposed, for instance, to common law) and sees that his conceptualization of abstract rights is congenial to a sound codification.73 Because of the generality and breadth of his definition of property, Hegel can insist that “[objectively considered, a right arising from a contract is never a right over a person, but only a right over something external to a person or something which he can alienate, always a right over a thing.”74 Hegel rejects the inconsistencies and the misleading categorizations that he believes permeate Roman law and Kantian thought. A sound Hegelian codification would treat all matters of “abstract personality,” of the rights of persons to things, under one heading.75 Hegel’s broad definition of property produces powerful implications for codified law and a coherent administration of justice.
Whereas the system of needs focuses on the alienation or exchange of properties and their use to satisfy needs, the administration of justice concentrates on the (contractual) manner by which they were occupied, particularly the terms of the contract or the marking of the property. “In civil society, property rests on contract and on the formalities which make ownership capable of proof and valid in law.”76 The central definitional characteristics of property (and its alienation through contract) exist in concrete, institutionalized form in both the system of needs and the administration of justice.
In other words, Hegel connects intimately property and contract in abstract rights with the system of needs and the administration of justice. Three important connections exist. First, for Hegel, the arbitrary free will that characterizes the person of abstract rights is reproduced in the “concrete person” of civil society,77 who is a mixture of caprice and natural need. Although a minimal element of freedom, this voluntariness or capricious choosing is an essential dimension of full subjective freedom for Hegel and the crowning achievement of modern civil society, “which has for the first time given all determinations of the Idea their due.”78 Hegel values free choice because it encourages individual “particularities,” it activates individual energy,79 it leads to variety,80 and it inclines individuals to think about their own selves, interests, and private ends81 and to act in pursuit of these private ends. Concurrent with these “particularities,” Hegel thinks the choosing man of civil society will come to see the interdependence of men on each other,82 their common project of developing civilizing needs83 and work,84 and the education that each must undergo to comprehend and live in civilized interdependence in civil society and the state.85 The freedom of the marketplace and the law courts, the actualized freedom of private property and contract, is a minimal but essential moment of freedom.
The second important connection between abstract right and civil society is that private property and free contract serve as the theoretical basis and justification for the free exchange of the system of needs and the jurisprudence of public, codified law in the administration of justice. Whereas social contract theorists like Locke use property and contract as the bases of the state, Hegel sees that any modern concept of property and contract cannot properly serve as a metaphor for the state.86 “If contract is understood in its specifically modern sense as ‘the exchange of equivalents’ in the market place, then it cannot be used as a norm to define the grounds of political authority in the modern state.”87 But property and contract can properly “fulfill a double function of legitimation: they serve as the philosophical foundation of modern positive law, and they justify modem relations of exchange in the market place.”88 What underlies, justifies, and legitimates modern law and modern market exchange is not any utilitarian consideration (like the wealth of the nation, value, economic efficiency, or GNP) but rather the rights of the person.
Third, however, freedom as choice and abstract right as legitimation of the law and the market both suggest the limits to the value of abstract rights. The capricious freedom of the man of civil society is, like the Willkür (arbitrary free will) of the person,89 limited, onesided, and partial, and thus incomplete and insufficient by itself.90 To consider freedom solely as the freedom to choose—voluntariness or Willkür—is inadequate because the focus on choice alone ignores the constrained alternatives available to be chosen, the ways in which the individual is dependent on forces beyond his control, and the coercion of the institutional setting, the market in which choice occurs.
For example, while the person of abstract right and the man of civil society can choose, the contents of their mind—that which is available for them to choose from—may well be severely limited or constrained. As Kant worries, they may be heteronomous;91 as Rousseau fears, they may be slaves to their passions;92 and, as concerns Hegel, they may not adequately reflect on their own choosing in order to become independent and self-determining.93 Equally, their freedom is mean if the alternative choices offered to them by external circumstances are all unpalatable. For Hobbes and his successors, “fear and liberty are consistent; as when a man throweth his goods into the sea for fear the ship should sink, he doth it nevertheless very willingly, and may refuse to do it he will: it is therefore the action of one that was free.”94 But for Hegel such circumstances produce at best a thin and constrained freedom.
Moreover, the competitive-contractual system of needs imposes on individuals limited and unappealing ways of thinking and acting. Every man “becomes in some measure a merchant,”95 caught up in getting and spending, in the quest for mere life; equally, every burgher spends much of his time following the habits of the Smiths, keeping up with the Joneses, or buying goods and services to satisfy a need newly created “by those who hope to make a profit from its creation.”96 Human relations are reified and instrumentalized, mediated by money in calculated and utilitarian contracts.97 Men are thrown into positions of subservience and dependence. As Hegel lectured, the individual man “must frequently make himself a means to others, must subserve their limited aims, and must likewise reduce others to mere means in order to satisfy his own interests.”98 Finally, the men of civil society are subservient to the system as a whole. Membership in civil society is not a matter of choice. “[C]ivil society … draws men into itself and claims from them that they work for it, owe everything to it, and do everything by its means.”99
The freedom of the system of needs is partial and limited, and abstract rights’ legitimating civil society shows up the partiality and limits of both abstract rights and civil society. Because abstract rights legitimate civil society, they cannot for Hegel legitimate the state and the family. The legitimating influence of property and contract is defined and confined to parts of civil society and excluded from other central sittlich institutions. Moreover, just as abstract rights are not sufficient on their own but require both normative presuppositions (such as rights and the free will100) as well as other institutions (such as morality and Sittlichkeit) because they break down on their own (in Hegel’s equivalent of Locke’s state of war101), so too civil society (especially the system of needs) is not sufficient on its own. Most obviously in Hegel’s presentation, formally equal contracts in civil society produce highly inegalitarian results in an “inner dialectic of civil society” that leads it to generate a class of poverty-stricken rabble whose distress civil society itself cannot heal.102 Hegel’s study of Sir James Steuart’s Principles of Political Economy,103 and of the English economy generally, convinced him that the modern exchange economy has a constant tendency to fall into disequilibrium and disorder. So the system of needs in particular and civil society in general require institutions outside of themselves to regulate and order them. Their own insufficiencies show that they (and the freedom they instantiate) cannot be the final and sufficient institutions of Sittlichkeit nor the locus of full freedom.
Property, alienation, and contract are treated differently in the other two major institutions of civil society, the police (or public authority) and the corporations, whose functions are “[provision against contingencies still lurking in [the system of needs and the administration of justice], and care for particular interests as a common interest.”104 Some essential functions of the public authority are to uphold property, alienation, and contract. Like contemporary police, Hegel’s institutions enforce the law; like contemporary governmental agencies, they also superintend education.105 But other important functions of the public authority impinge upon free alienation and contract. They are charged with keeping economic order in domestic trade, minimizing dislocations resulting from foreign trade, maintaining welfare for the needy, and assuring that everyone is able effectively to exercise rights and participate in the system of needs.
The public authority intervenes in the domestic economy to adjust, adjudicate, and balance the “differing interests of producers and consumers” by, for instance, fixing prices of necessities such as bread.106 If circumstances abroad threaten the country’s economy, the public authority also intervenes in international trade by, for instance, setting tariffs. “[P]ublic care and direction are most of all necessary in the case of the larger branches of industry, because these are dependent on conditions abroad and on combinations of distant circumstances which cannot be grasped as a whole by the individuals tied to these industries for their living.”107 Traders may not know enough to act wisely, and the results of sudden imbalances in trade can be “tensions”108 which should be abbreviated by judicious action by the public authority.
Finally, the public authority is charged with the double task of maintaining the welfare of impoverished members of civil society and ensuring that they can participate fully in the system of needs. The public authority uses tax money to act as trustee to some poor persons, to provide public charity for others, and to “take[ ] the place of the family where the poor are concerned in respect not only of their immediate want but also of laziness of disposition, malignity, and the other vices which arise out of their plight and their sense of wrong.”109 The public authority also acts to assure that the poor still engage in the socializing activities of the system of needs, that is, that they work, develop needs in interaction with others, and exchange goods and services by contract.
In the instances of trade, where Hegel advocates intervention and active oversight by the public authority, because he thinks that the claims of the public are more weighty than the right of free alienation and contract, Hegel is directly at odds with many whose thought involves a single-minded or blunt use of property rights, such as David Ricardo, who insists that such “distress” from trade dislocations “is an evil to which a rich nation must submit.”110 Similarly, in terms of welfare, Hegel and Ricardo disagree. Ricardo insists that regardless of level of wages and the incidence of poverty, “like all other contracts, wages should be left to the fair and free competition of the market, and should never be controlled by the interference of the government.”111
Hegel’s differences with Ricardo about the role of the public authority have three roots. One is (probably) that Hegel held Sir James Steuart’s idea that market transactions, to result in contracts not overly skewed by market-created duress and inequality of power, required “double competition”—competition among both buyers and sellers—if the market were to function smoothly and fairly, and therefore not in need of governmental intervention.112 For Steuart, “single competition,” for example, where one seller is negotiating with a plurality of buyers (that is, a company offering to establish a facility de sired by a dozen cities), puts the seller in a monopoly position and results in a contract that is imbalanced in favor of the monopolist, and thus not conducive to overall order or fairness in the economy. For Hegel, in the sale of “the commonest necessities of life” such as wheat or corn, the “public” is in effect a single purchaser or buyer113 and so “double competition” does not exist. As a consequence, without governmental regulation the single purchaser can, when necessities are abundant, drive down the price by refusing to buy at all from those who do not sharply lower their prices. Conversely, when necessities are scarce, the single purchaser can be forced by the sellers to pay almost any price to obtain what it needs. In short, for Sir James Steuart and for Hegel, the lack of “double competition” in basic necessities means that governmental intervention is essential.
A second reason exists for Hegel’s advocating intervention of public authority where Ricardo, for instance, does not: the person of abstract right, that unity of free will with natural needs and characteristics, when made concrete, is still a mixture of needs and will, of welfare and right, and so should have both his welfare and his right satisfied. Because for Hegel the system of needs or the economic market does not function smoothly and automatically, the public authority frequently has to intervene, either to remind men in the system of needs to recognize the rights of others (and not take their property by theft rather than contract) or to assure welfare. Whereas Ricardo does not suggest governmental intervention for trade dislocations, for the upsets resulting from the Napoleonic wars, or for deviations of the actual or market price of commodities from “their primary and natural price,”114 Hegel wishes to assure the welfare of those affected by such economic problems. Hegel also wishes to assure the welfare of those who have become impoverished by economic difficulties or the regular workings of the economic system. Whereas Ricardo stresses formal freedom to the general exclusion of welfare in economic society,115 Hegel stresses rights and formal freedom to the exclusion of welfare only in abstract right and sees that in civil society both welfare and rights must be recognized and realized.
A third reason Hegel favors public intervention is the ethical welfare of the members of civil society, especially the poor. Their rights must be upheld and their participation in the social benefits of civil society assured if they are to remain full and active members of their own Sittlichkeit. Hegel sees that their mental disposition bears importantly on the functioning and legitimacy of the state itself, which exists mediately in the self-consciousness of its members.116 Because the economic order on its own does not produce (or even tend to produce) an equilibrium, especially not a full employment equilibrium, the public authorities must act where the economy falters.
The free use and alienation of property is also limited in corporations. Although not legally required, membership in a corporation is important for those in the business class. Owning “moveable” property or engaging in the “business of exchange,” as do some businessmen, tends to make their relations with their fellow citizens abstract or dissociated.117 Through their membership in a corporation they can obtain stable recognition and respect for their contribution to civil society and a sense that they are “somebody” working valuably in the social order.118 Corporations require that individuals work together and that cooperation includes the duty of charity—as wealthy corporation members assist their fellow associates who are poor or impoverished—and the duty of self-imposed restrictions on maximizing income. “The so-called ‘natural’ right of exercising one’s skill and thereby earning what there is to be earned is restricted within the Corporation only in so far as it is therein made rational instead of natural.”119 In both cases, the corporation member loses the free use and alienation of his property, practices the virtues of liberality and rectitude in the place of (the person’s) arbitrary will, and enters into long-term relations, not only discrete and transltory contracts,120
In his discussion of the family, which along with civil society and the state is one of the major institutions of Sittlichkeit, Hegel characterizes marriage and family as a small community based on love, and the participating individuals as family members, not as formal persons.121 He conceptualizes the human relations among family members not in terms of private property or free contract, but in terms relevant to his characterization of the family as an intimate and loving community. He redefines property, its use, and alienation.
Hegel argues that marriage is not in essence a contract deriving from mutual alienation of property because it involves not “single external things” that can be alienated but rather each party’s full personality, which no one can rightly alienate once he or she has claimed it, and in which no other person can rightly claim a property right. Hence, Hegel’s vehement and famous complaint that “to subsume marriage under the concept of contract is thus quite impossible” and to talk of marriage as such a contract is “shameful.”122 Rather, “though marriage begins in contract,” including the free consents and inclinations of the partners, “it is precisely a contract to transcend the standpoint of contract,” because both parties “consent to make themselves one person, to renounce their natural and individual personality to this unity of one with the other” and thereby find in this union “their liberation, because in it they attain their substantive self-consciousness” in a full and intimate community of “love, trust, and common sharing of their entire existence as individuals.”123 Because marriage cannot be conceptualized and interpreted in the terms and confines of Hegel’s discussion of the abstract rights of property and contract,124 it must be seen in other terms.
Marriage does not involve the assertion of personal rights by the two parties and cannot be a relation of property where one party owns the other, or of contract, about a “single external thing.” Instead, marriage requires the surrender of separate personality by each and a relation of love; thus, the property of the marriage-partners should be viewed not as the private property (Eigentum)125 of each, to be used and alienated by each separately according to the arbitrary will of each, as is property (Eigentum) in “Abstract Right.” Rather, the property (Eigentum) of each becomes, with marriage, the resources (Vermogen)126 of both, and when children exist, of the family as a whole. And, as the family resources, Vermögen extend to include everything that can provide for the subsistence and enjoyment of the family, such as the particular (marketable) skills and labor of the father. The family resources are “common property so that, while no member of the family has property of his own [qua family member], each has his right to the common stock.”127 Based on a type of human relation unrelated to (and indeed excluded from) property-based relations, marriage involves a principle of property that is different from—indeed, as common property, contradictory to—the property of “Abstract Right.”
Although the family resources are in principle shared, Hegel thinks that the administration of this wealth of the family must be given to one individual, the head of the family. His administration should follow the principles of shared resources but, as Hegel notes, since the family is based on feeling and the laws cannot effectively regulate within the family, no legal assurances can exist that the father will administer as he should.128 Hegel imports directly from “Abstract Right” the notion that property has a single administrator, who can always dispose of it by his arbitrary will, even if he ought not. Or, in different terms, the ethical principle of family resources is not backed up by legal enforcement. The law regards the family resources as the private property of the father. Hegel’s strong disapproval of wills that break the ethical principle129 suggests that he saw the issue of family resources as one where, although an important ethical distinction needed to be made (namely, Vermögen, not Eigen-tum) the law, nevertheless, could not be brought in to enforce the distinction. Hegel must remain content to characterize the family as necessarily at the level of contingency.
Hegel’s discussion of children derives from distinctions about property that he already made in “Abstract Right.” There, he sharply distinguishes between property in a thing and property in one’s self, so that the latter property is different from the paradigmatic case of property in things because property in one’s self always requires that others recognize it (even when it does not exist) and because it is inalienable. Consequently, children, as future adults, “are potentially free and their life directly embodies nothing save potential freedom.”130 Consequently, they are not things [Sachen] and cannot be the property either of their parents or others,131 such as the state. Their parents are charged with educating them into the principles of ethical life, “raising” them out of their natural instinctive level, and disciplining them to correct and educate them so that they can attain “self-subsistence and freedom of personality,”132 The parents’ role of educating their children is not, however, to enforce retribution, as is the purpose of the legalistic punishment of abstract right and the administration of justice. Such purpose is not appropriate to the non-property-based, feeling community of the family.133
For Hegel, then, the principles and practices of abstract right find little scope in the community of the family. Marriage is not about single external things and so not essentially a contract. The upbringing of the children is not a matter of single external things either, and so not a property relation. Since the family is characterized as a community, its property is transformed to communal resources. The only remnants of abstract right are the bride’s and groom’s free consent and the father’s administration of the family resources, where he can exercise his arbitrary will—but ethically should not.
Like the family, the state is not a sphere of social life where the full use and alienation of property and free contract predominate. Like marriage, the state cannot be conceptualized as property or contract, because the state does not own its citizens and because individuals do not own or alienate “single external things” when they grow up to become members of a state. Rather, like the family, the state is a living community of which the citizens are parts; a community whose norms, ideals, and modes of action shape the citizens’ habits, knowledge, activity, and goals—their personality or individuality.134 Similiarly, the purpose of the state is not the security and protection of property and personal freedom, or of life, liberty, and estates. The state does not exist as the means by which to assure property, which is assured by the system of needs and the administration of justice. Indeed, the state—whether Lockean, Kantian, Rawl-sian, or Hegelian—sometimes finds itself compelled (by taxes and war) to take citizens’ property, liberties, and lives.
Hegel asserts and assumes the state’s right and power to tax.135 He does not condition such a power on any particular requisite, such as representation, nor does he see taxes as a gift by citizens to state or as a quid pro quo (for example, for protection from others). Ultimately, I think, taxes are for Hegel legitimate claims made by the state for its own purposes and maintenance.136 These state claims are made on a percentage of the property (regardless of wealth, income, or expenditures) of the citizens, and, in terms of Hegel’s treatment of private property, that amount is citizens’ property that cannot be freely marked, used, or alienated but is properly available to the state.
Abstract rights and the freedoms of choice and particularities that derive from them do, however, enter the state because of the form (taxes) in which the state exacts services from the citizen. The modern state sets taxes not in terms of personal services but in terms of money. Monetary taxes are consistent with the formal equality of abstract right: “[o]nly by being translated into terms of this extreme culmination of externality can services exacted by the state be fixed quantitatively and so justly and equitably.”137 Monetary taxes are also consistent with free choice—the arbitrary will of abstract right. When the state requires particular services, for example, five weeks of corvée labor or building roads, then the citizen’s activity is set by the state, regardless of the citizen’s choice. When the state exacts monetary taxes, then the individual can choose how to earn the money to pay the tax, so that his taxpaying is “mediated through his own arbitrary will” and his “subjective freedom” is respected.138
Hegel also asserts the state’s right to call on its citizens in case of war, which puts at risk their lives and properties—the sole remaining exaction of services that is personal, not monetary. “War is the state of affairs which deals in earnest with the vanity of temporal goods and concerns—a vanity at other times a common theme of edifying sermonizing.”139 The individual citizen’s duty is to uphold “the independence and sovereignty of the state, at the risk and the sacrifice of property and life, as well as of opinion and everything else naturally comprised in the compass of life.”140
In his discussion of the major powers of the state—the monarch, executive, and legislative—Hegel does not assimilate any political relation to his abstract right statements of freely usable and alienable property in things. State positions cannot be private property, much less alienable private property. In the lower house of the legislature, Hegel minimizes any direct or formal role for private property. The legislators gain their seats by election, not by purchase, and retain them by reelection, not property right.141 They are enjoined by Hegel to “vindicate the universal interest, not the particular interest of a society or Corporation in preference to that interest.”142 They are elected by vote of members in a corporation; no formal property qualification determines who votes. Hegel finds any state-wide system of property requirements as external to and abstract from the core issue, political competence, although each corporation may well impose its own minimal standards of property and earnings on prospective members.143
In the executive and the army, Hegel also minimizes the scope for private property. Members of the executive and the army do not hold their offices as private property. “[T]he work imposed on [a civil servant] and entrusted to him is not merely a particular thing, external in character…. The work of a civil servant… is as such a value in and of itself,” the work of furthering the rational and universal that the state embodies.144 Public offices are not to be regarded as a “single external thing” but as requiring a commitment to the core values of the state. They cannot become private property, as was the case under feudalism (and, as Hegel carps, in the contemporary English army) but must be open to those who have the needed “ability, skill, [and] character,”145 Political knowledge and competence, not money and saleability, determine office holders in the executive; military competence and courage determine them in the army. In other words, in the face of what the state requires, private property in offices—regarding governmental offices as single external things that can be alienated and appropriated—must give way.
For the members of the upper house and, by implication, the monarch himself, private property, as alienable private property, must give way—it becomes inalienable wealth. Inalienable property in land for aristocracy and monarch is required, Hegel thinks, by the political needs of the state. In the case of the upper house, the mediations (the communications, convincings, and compromises) among the three powers of government require an upper house whose members’ wills are independent—especially independent of the results of state activity—of the imperious demands and fluctuations of civil society, and of election campaigns.146 Hegel finds such “independence” in the large landowners or landed aristocracy. To assure their politically necessary independence and service, he insists that “their wealth becomes inalienable, entailed, and burdened by primogeniture.”147 Similarly, Hegel’s hereditary constitutional monarch—whose independent “I will” is so essential to the modern state that has actualized subjective freedom—has his politically necessary independence and service assured because his family’s wealth is not freely alienable.148
Throughout the state as throughout the family, then, the practices and principles of abstract right are transformed to fulfill the requirements of the political community. The state is not about single external things and so not a contract; the relations of state offices and officers to each other and to the citizens are neither contractual nor relations of ownership. Private property is redefined and transformed to meet the requisites of the political order. About the only remnant of abstract rights is the formal freedom of taxation. Otherwise, the personal rights of abstract rights, actualized in the system of needs and the administration of justice, are subordinated to the demands of proper political order and action.
In opening stages of his discussion of property in “Abstract Right,” Hegel presents what seems to be an extensive, comprehensive, and powerful statement of the person’s right to property. Property seems as influential for Hegel as for many other modern political philosophers, since the right to property is bound up with freedom, personal equality, and the human control of nature. Indeed, at the beginning of his presentation, property seems in Hegel’s thought to take on a role more determining than in many other modern political philosophies, because for Hegel, the person’s rights to life and liberty derive from (or are modes of the exercise of) his right to property— private property and possessive individualism at their most extreme.
But what appears true for the first few paragraphs in Hegel’s presentation of property does not hold true at the end of the Philosophy of Right, or even in many cases at the end of “Abstract Right” or the section on “Property.” Hegel does start with a broad and powerful definition of property, but he does so because he thinks that the distinctions and limitations within property and contract will then become clear—made translucent by his logic, his attention to relevant contextual considerations, and his awareness of the theoretical issues that have surrounded past discussions of property and that would surround post-1821 discussions.
Generally, what allows and requires Hegel to limit the scope of paradigmatic private property (the will in the thing, full and complete, with free use, alienation, and contract) and to introduce other forms of owning are three concerns! First is his sense that property, primary in logical order, is therefore primitive and less developed than later attitudes and institutions in contributing to mature human freedom.149 Second is his idea of the person as dynamic and developmental, acting in and learning from the world.150 Third is the careful, logical, and contextual distinctions Hegel draws in his analysis, especially of alienation and contract abstract right,151 and the attention to circumstances (of things, individuals, and institutions) throughout all of ethical life.152 Here, Hegel focuses on the matters that are the media of human relations for different institutions of Sittlichkeit; the social roles that the individuals play in the different institutional settings, the demands and purposes of the institutions themselves, and the relation between individual and institution—between what is required for the full development of individuals and the rational ordering of institutions.
Because of his first concern, the primitiveness of property, contract, and abstract right generally, Hegel does not wish to impose images, metaphors, or models of private property and free contract throughout all social life. Nor does he wish to follow economistic theorists in asserting, without much argument or context, that free alienating and contracting are always desirable. Nor does he follow out the implications in Locke, for instance, that because (abstracted) man in the state of nature relates through property, free alienation, and contract, fully developed and social man can or should relate through them.153 Rather—because of his second concern, about the dynamic and development character of individuality—at the same time that Hegel sees private property as essential to the development of individual personality and rational institutions, he also sees that abstract right is limited in its contribution to such development and that nonproperty- and noncontract-based modes of personality development and rational institutions exist and are necessary to a full individuality and to a full political rationality.
Hegel’s third concern—his care, in “Abstract Right,” in defining property clearly and in discussing the distinctions of use and alienation, as well as his attention to the specific characteristics and goals of different social structures—allows him to differentiate among types of relations between human beings and nonhuman objects. Or in plain language, the third concern allows him to differentiate among types of property. When combined with his first concern, the primitiveness of full and complete private property, the result is that in the major institutions of Sittlichkeit, only the system of needs and the administration of justice directly actualize private property; in civil society, public authority and corporations limit private property; and the crucial institutions of family and state contain very little of private property and free contract. As the person is transformed into a member of a community, property is transformed into community resources and contract is replaced by different forms of obligation.
Hegel’s three concerns, taken together, indicate how he can begin his presentation of his political philosophy with a single person in a presocial condition. From that start, Hegel can derive free and complete private property, and then—because of property’s relative primitiveness and because of the logical distinctions (in the subsection on “Property” especially) and the contextual distinctions in ethical life— end up with social structures in ethical life some of which concretize and embody abstract property fully and others of which modify it or are based on altogether different foundations from property and contract.
Similarly, Hegel’s three concerns, taken together, indicate how he can begin his political philosophy with the right to property, have the individual claim his life and liberty as inalienable property, and yet claim things as alienable property; and how he can link property and personality, show the limits of the linkage, and construct the non-property-based institutions which continue the Bildung of personality or individuality, begun in property and still requiring private property. The dynamic and developmental character of personality both requires and is limited by property;154 and the transcending of property is built on the existence, in Sittlichkeit, of social structures some of which concretize abstract right, others of which do so partially, and still others of which manifest completely different principles. For Hegel, individual development and Bildung require that the individual be involved in a variety of institutions that allow more or less scope for the arbitrary will of property and for the universal will of community. The coincidence or concrete unity of individual and Sittlichkeit requires that individual Bildung develop to the level of universality; and the state, to be a logical and experiential unity, requires a variety of social structures that both encourage individual Bildung and produce institutional coherence.
Hegel’s treatment of property also has implications for theories of property and society. Most important, perhaps, (and unlike many other modern political philosophers and economists who aim to interpret and enclose as many dimensions of human life in terms of individual private property with free and full use, alienation, and contract) Hegel’s treatment serves to open, not to close, the question of the scope of application in society of the practices and principles of abstract right, formal freedom, and arbitrary free choice. In what types of social structures and individual interactions should private property and free contract be given full scope, and in what kinds of social structures and individual interactions should property (that may be fully usable and alienable in the system of needs or the economists’ marketplace) be limited or replaced by norms and goals not based on property, contract, or abstract right?
Moreover, Hegel’s treatment suggests certain criteria that may be called into play to decide whether the norms and goals of private property should predominate or should give way. Property norms seem more likely to be valid—or to have a good argument for being valid—the more that the issue under consideration can be treated as a “single external thing,” and thus freely alienable. Conversely, when the issue is not definable in terms of a “single external thing,” then free and complete private property seems likely to be less relevant and less legitimate. Property norms seem more likely to be valid when the actors are single independent concrete persons not in any long-term relations with each other. The more that the relation takes on the characteristics of a community, the less it seems appropriate to regulation and determination by the norms of free alienation and private property.
Finally, Hegel’s treatment leads to two definite conclusions. One is that personal rights and freedoms cannot be alienable—free will is constitutive of personality, not merely an inessential attribute, and so cannot be alienated by the person nor appropriated by another. The second is that any rational modern political order requires some scope both for actualized abstract rights and for social practices not based on abstract rights. Private property—the first rights of the person— does need to have some definite scope in social life, so that those essential rights can be actualized. But the scope today need not be identical with Hegel’s own system of needs. Those who wish to modify the scope might note that Hegel does not justify capital separately from property and that the public authority’s duties can lead it to extensive intervention and cannot be limited by a clear, sharp, or bright line.155 Equally with private property, however, welfare—the satisfaction of needs and participation in civil society—requires realization. Moreover, human development—individual Bildung—necessarily requires that there be some scope in social life where the norms and practices of abstract right do not predominate. Consequently, when a lawyer or a politician analyzes a social practice to determine whether it should be considered as property-based, then property rules (or liability rules) should not be considered as the presumptive standard and all other instances as exceptions. Again, Hegel’s treatment serves to open the issue and to suggest the alternatives.156
About some specific social issues, such as the family, Hegel’s insights are relevant to the present. Except for his giving trusteeship (and hence ultimate choice of disposal) to the father of the family, Hegel suggests insightful understandings of certain relations in the family. First, children are not property but rather are potential adults who are to be educated to maturity and freedom, and every action taken toward a minor by a parent, public administrator, or the state must have those goals in mind. In most contemporary thought, of course, children are not property either in the literal and extensive Roman law sense or in any other significant sense. Certainly, children should not be the property of the parents in the sense that a parent can do with his child as he wishes. Nor are children to be seen as automatically the property of (or under the charge of) the mother (or, as it was in nineteenth-century Britain, the father) in divorce proceedings. Finally, of course, children are not the property of (or under the detailed control of) the state. Conversely, children are not adults with full rights because they do not yet will and possess themselves as their own inalienable property. They need to be brought up to be able effectively to do so, although the state by positive law and others will recognize them as adults at some society-wide age of majority (such as twenty-one).157 Although they cannot claim the rights of adults, they can claim “the right to maintenance and education at the expense of the family’s common” resources.158
Because Hegel emphasizes that marriage is not a property-like contract, but rather an intimate community, he concurrently sees that divorce cannot be conceptualized as a (discrete) contract. Marriage breakdown occurs not because the partners disagree about “single external things” (although, of course, lots of disagreements are phrased in terms of such specifics), but because the parties’ “dispositions and actions have become hostile and contrary.”159 Such problems of disposition are not susceptible to “legal or positive bond” and contractual remedies, such as assessing monetary damages or requiring specific performance, seem hardly efficacious. Love, as the sacrifice of personality, cannot be compelled. On the other hand, Hegal did not regard the waning or breakdown of love alone as sufficient to warrant divorce, because for him the family as an ethical institution needed to be upheld, especially against the transltoriness of feeling, the caprice of passion, and other romantic and subjective shibboleths. So, in the midst of an intelligent conceptualization of parriage breakdown—one not open to rigorously property-based theorists—Hegel also opens the question of the relation between the parties’ wishes and the requisites of the broader social interactions of which the parties are parts.
Hegel also emphasizes that the family property is communal, to which all contribute and from which all have a right to draw. Hegel’s argument about communal property seems strong. Because marriage is an intimate community in which each surrenders separate personality in love and attains self-consciousness in mutual recognition, each party’s property, like each party’s personality, should be surrendered to the whole, and each should be able to draw on the communal property to fulfill the goals of the institution. Regardless of what might be Hegel’s own position in 1821 on how property should be divided in cases of divorce, and despite his giving the husband control over the property during the marriage and in making a will, Hegel’s argument about communal property implies that in cases of divorce communal property should be exactly that—communal—and not subjected to analyses that try to determine whose private property it is. It should be divided in terms of the separate needs of each member of the (former) community, not as the private property of whichever parent’s name it is in. Interestingly, because Hegel seems to include “skills” in the family’s “resources,”160 the Philosophy of Right can be found to include, for example, an M.D. degree earned during marriage as part of the family’s resources—even though Hegel himself would probably never have dreamed of such a thing!
In terms of the institutions of civil society, Hegel does emphasize that there should be some sphere of life that actualizes abstract right, in which concrete persons are able freely to choose, to determine how they wish to live their lives within the confines set by market structures and other social institutions. Equally, rights need to be embodied in an administration of justice. In his discussion of the public authorities, Hegel thinks that the free market does not work smoothly to satisfy needs and that police intervention is necessary, even if it means limiting the use and alienation of property. To some extent, Hegel is trying to limit the “poverty and distress” that may derive from the external workings of the market or from chance events at home or abroad. He is willing to override explicit contracts to mitigate the suffering and exclusion from social interactions that pure market forces, impersonal and objective, would allow, and he wishes to lessen the suffering caused by unpredictable upsets at home or abroad. Human welfare, in other words, can override property or contract—but can do so, for Hegel, in part only because the abstract (and concrete) person is a mixture of both needs and rights, welfare and liberty, both of which must be realized.161
The public authorities have another rule, tied less directly to material need and more to attitudes and actions. Hegel notes that individuals do not freely choose membership in civil society:
Civil society tears the individual from his family ties, estranges the members of the family from one another, and recognizes them as self-subsistent persons …. Thus the individual becomes a son of civil society which has as many claims upon him as he has rights against it … [A]gainst nature man can claim no right, but once society is established, poverty immediately takes the form of a wrong done to one class by another.162
So the public authority has a responsibility to each of the “sons” of civil society—for their subsistence, education, and general moral and ethical attitudes. If there is a “rabble of paupers,” the problem is not that the poor are naturally lazy individuals; rather, a major part of the problem is that the structure of society allows or generates such poverty and the consequent feelings of alienation, shame, and loss of self-respect, that is, the culture of poverty.
Three further points, whose exploration would take this Article too far afield, are worth mention. Two relate to the state. First is the treatment of taxes, not so much as a levy on an individual’s private property but as a portion of that property that the state can rightly claim as its property. Second is the noncontractual idea of political obligation, where citizens are obligated to follow the government because they perceive an identity between their goals and the state’s goals, not because the state is a means to their private ends, such as the maintenance of their lives, liberties, and estates. The third relates to corporation membership. Corporations encourage long-term relational contracts among their members and, as Hegel implies, by making the corporation one of the two “ethical roots of the state,”163 long-term relational contracts are probably best understood (by both the contracting parties and political analysts) as very different from abstract contracts because they are about single external things, and are made between two persons who recognize each other as persons but otherwise need have no interaction.164 Long-term relational contracts generate in the parties ongoing relations, shared concerns, and even senses of obligation or duty to the other. Therefore, they tend away from the model of the marketplace as the “war of all against all” and toward a model of an informal community.
Finally, it may be that on the issues surrounding property, personality, freedom, and social life, one of Hegel’s main points for contemporary legal and political thought is to force attention to the specific definitions and implications of property and contract. From these specifics, it is necessary to think about how private property and free contract generate or ignore the various dimensions of freedom and Bildung (or maturity) that human beings need, and to consider that different social practices, interactions, and norms may or may not be significantly constituted by rights of property and contract. By thinking with Hegel about the rights to property, life, and liberty, we can see that private property and the transcending of it are both required for a developed individuality and a rich social and political order.
* Professor of Political Science, Vassar College. I am grateful to Professors David Bleich and Peter Tillers for their thoughtful comments, and to everyone who participated in this symposium. Copyright © 1989 by Peter G. Stillman.
1 G. Hegel, Philosophy of Right (T. Knox trans. 1952) (1821) [hereinafter Philosophy of Right]; G. Hegel, Grundlinien der Philosophie des Rechts (J. Hoffmeister ed. 5th ed. 1955) (1821). Citations to the Philosophy of Right are to paragraph number. Where the material cited is from the main text of the paragraph, the number alone is given. Where it is from the “Remarks” Hegel added to the text, the paragraph number is followed by R. Where it is from the “Additions” that later editors appended to posthumous editions by collating student lecture notes, the paragraph number is followed by A. The material in Philosophy of Right is presented in briefer compass in G. Hegel, Philosophy of Mind (W. Wallace trans. 1894), which is Part III of G. Hegel, Enzyklopädie der philosophischen Wissenschaften (F. Nicolin & O. Poggeler eds. 1969) [hereinafter Enzyklopädie], cited by reference to section number.
In this Article, “property” means “private property” (except where the context makes clear otherwise). I use “man” and “men” as the generic terms for human beings, partly because Hegel’s translators do so, but primarily because Hegel’s political philosophy sees men (i.e., males) as the major actors in civil society and state—regardless of Hegel’s terminology— and so the generic term quietly takes on a strongly masculine identity.
I have treated Hegel’s views on property in Stillman, Person, Property and Civil Society in the Philosophy of Right, in Hegel’s Social and Political Thought 103 (D. Verene ed. 1980) [hereinafter Stillman, Person]; and in Stillman, Property, Freedom, and Individuality in Hegel’s and Marx’s Political Thought, in Property 130 (J. Pennock & J. Chapman eds. 1980) [hereinafter Stillman, Property].
2 See, e.g., S. Avineri, Hegel’s Theory of the Modern State (1972); G. Kelly, Hegel’s Retreat from Eleusis (1978); K. Marx, Critique of Hegel’s ‘Philosophy of Right’ (J. O’Malley trans. 1970); R. Plant, Hegel (1973).
3 Even the best specialized studies do not attend to the full scope of Sittlichkeit. See J. Ritter, Metaphysik und Politik 256 (1969); Benhabib, Obligation, Contract, and Exchange: On the Significance of Hegel’s Abstract Right, in The State and Civil Society: Studies in Hegel’s Political Philosophy 159 (Z. Pelczynski ed. 1984) [hereinafter State and Civil Society]; Ryan, Hegel on Work, Ownership, and Citizenship, in State and Civil Society, supra, at 178; Salter, Justifying Private Property Rights: A Message from Hegel’s Jurisprudential Writings, 7 Legal Stud. 245 (1987).
4 C.B. Macpherson, The Political Theory of Possessive Individualism (1962); Demsetz, Professor Michelman’s Unnecessary and Futile Search for the Philosopher’s Touchstone, in Ethics, Economics, and The Law 41, 46 (J. Pennock & J. Chapman eds. 1982).
5 G. Becker, A Treatise on the Family (1981); R. Posner, Economic Analysis of the Law (1977).
6 Epstein, Why Restrain Alienation?, 85 Colum. L. Rev. 970 (1985).
7 Rose-Ackerman, Inalienability and the Theory of Property Rights, 85 Colum. L. Rev. 931 (1985).
8 Radin, Property and Personhood, 34 Stan. L. Rev. 957 (1982).
9 Macneil, Relational Contracts: What We Do and Do Not Know, 1985 Wis. L. Rev. 483.
10 For a provocative look at these problems, see Radin, Residential Rent Control, 15 Phil. & Pub. Aff. 350 (1986); Ryan, supra note 3. My interest in the relation between property, contract, and sociopolitical life in Hegel’s work was piqued by these articles.
11 J. Locke, An Essay Concerning Human Understanding 240-41 (P. Nidditch ed. 1975). See also T. Hobbes, Leviathan 54 (M. Oakeshott ed. 1962) (1651) (defining will as “the last appetite in deliberating”).
12 Philosophy of Right, supra note 1, paras. 35, 36, 38.
13 Id. para. 42, 42R, 42A.
14 Id. para. 39.
15 Id. para. 44,
16 Id. paras. 51, 54.
17 Id. paras. 57, 67.
18 Id. para. 65.
19 Id. paras. 75, 77.
20 The term “enchantment” in this context is Weber’s. See M. Weber, Science as a Vocation, in From Max Weber 148-55 (H. Gerth & C. Mills eds. 1958).
21 In this characterization, I mean to be descriptive, not to set up a straw man, and to indicate the continuing and contemporary relevance of important aspects of Hegel’s abstract right. For the accuracy of this characterization in contract, see Benhabib, supra note 3, at 160-66. At the same time, important dissimilarities exist between Hegel’s portrayal and many that can be legitimately labeled “modern” or “liberal.” For Hegel, property as a right presupposes the rights of the free will, i.e., norms and practices outside of property. See Philosophy of Right, supra note 1, para. 29. Property as a right cannot originate from the activities of appropriating and exchanging, but requires the (prior) mutual respect and recognition of persons. Similarly, property derives from the will (or mind or spirit), not from something natural (such as labor or first possession). Specifically, property derives from the externalization of the person’s will, involving the person in more than physically laboring in nature and appropriating the fruits. Property is a matter of right and thus intrinsic to freedom. Hegel thus rejects consequentialist arguments for (or against) property and insists on private property regardless of its relation to happiness, to the satisfaction of needs, to efficiency or an increase in value, and to utility in any sense. See id. paras. 45, 45R, 191A, 241-46. For Hegel, private property is built up within a context of mutual recognition of persons and so has a social moment from the beginning. Id. para. 50. Other persons are not primarily restrictions or limitations on my holding and using my property but are essential to it, and property cannot be seen as atomistic, asocial, or presocial.
22 Philosophy of Right, supra note 1, paras. 157, 258R.
23 G. Hegel, Enzyklopädie, supra note 1, §§ 480-81.
24 See Philosophy of Right, supra note 1, paras. 45, 45R.
25 Id. para. 10A.
26 Id. para. 44.
27 The assertions in this section abbreviate my two book chapters. See P. Stillman, Person, supra note 1; P. Stillman, Property, supra note 1.
28 G. Hegel, Enzyklopädie, supra note 1, § 513, “Immediate” is for Hegel a technical term, meaning “direct” or “not mediated.” Consequently, the first relating—“first” logically or temporally—is an immediate relation.
29 Philosophy of Right, supra note 1, para 37A.
30 Id. para. 187R.
31 “Aufgehoben” is for Hegel a technical term (and for translators a particularly recalcitrant one). It “has a twofold meaning … on the one hand it means to preserve, to maintain, and equally it also means to cause to cease, to put an end to. … Thus what is sublated [aufgehoben] is at the same time preserved; it has only lost its immediacy but is not on that account annihilated.” G. Hegel, Science of Logic 107 (A. Miller trans. 1969).
32 J. Locke, Second Treatise of Government ch. 5 (C.B. Macpherson ed. 1980); I. Kant, Metaphysical Elements of Justice 76 (J. Ladd trans. 1965) (1797); J. Rawls, A Theory of Justice ch. 3, at 118(1971).
33 See R. Dworkin, Taking Rights Seriously 240-58 (1977).
34 Philosophy of Right, supra note 1, para. 75R.
35 See Westphal, Hegel, Human Rights, and the Hungry, in Hegel on Economics and Freedom 209, 218-28 (W. Maker ed. 1987).
36 Id. at 224.
37 “Bildung” is a nearly untranslatable term but a central concept for Hegel’s political philosophy. It means education in the broadest sense, formation, acculturation, cultivation, formative development, and maturation to a cultured and liberal state of mind. See G. Kelly, Idealism, Politics and History 341-48 (1969). Knox translates it as “education.” See Philosophy of Right, supra note 1, para. 187. I frequently leave the term untranslated or use “cultivation” and “development” as limited English equivalents.
38 This argument is more fully presented in Stillman, Person, supra note 1, at 140-41.
39 J. Locke, supra note 32, ch. 5, § 27.
40 Philosophy of Right, supra note 1, para. 57.
41 Many Anglo-American theorists follow Locke and Hobbes in not regarding the development of intelligent, informed, and psychologically integrated mature adults as a problem for political thinking. Among contemporaries, for instance, Richard Posner and Robert Nozick do not explore what constitutes a mature individual who is able sensibly to choose for himself or herself, i.e., to formulate a viable life plan and to make the choices needed to carry it out. Posner builds his economic analysis of the law on the “assumption that man is a rational maximizer of his ends in life, his satisfactions … ‘his self-interest.’” R. Posner, supra note 5, at 1. Although he sees that contracts should not be enforced “against people deemed incapable of judging their self-interest, such as children and insane people,” he presents no criteria of sane maturity nor any discussion of how it is attained. Id. at 49. Nozick plays out the implications of taking seriously the protection of the “full rights that a human being has.” See R. Nozick, Anarchy, State, and Utopia 299 (1974). Nozick asserts that rights are valuable because they allow a person to shape “his life in accordance with some overall plan” and thereby to give “meaning to his life.” Id. at 50. He raises a brief series of questions about what a meaningful life might involve, but then concludes that “I hope to grapple with these and related issues on another occasion,” indicating his lack of satisfactory answers or even beginnings of answers. Id. at 51. Someone from a different field but with similar paucity of analysis and answers is the libertarian and psychiatrist Thomas Szasz. See Stillman, Szasz on Contract, Liberty, and Autonomy, 42 Am. J. Econ. & Soc. 93 (1983).
42 Philosophy of Right, supra note 1, para. 42.
43 Id, para. 75.
44 Id. paras. 65, 53.
45 Id. paras. 73-74.
46 Indeed, Hegel’s ability to see alienation as part of the definition or concept of property displays his care and the power of his logic. See id. para. 53. Lacking alienation, the will can become entrapped in its property. See J. Rousseau, The First and Second Discourses 31 (R. Masters trans. 1964); Ryan, supra note 3, at 178, 187.
47 Philosophy of Right, supra note 1, paras. 65-66.
48 Id. para. 66R.
49 See Kronman, Paternalism and the Law of Contracts, 92 Yale L.J. 763 (1983). Kronman seems to think that restrictions on contractual freedom must be paternalistic. See id. at 765. I suspect that “paternalism” as applied to contractual freedom is part of the discourse—persuasive (if conscious) or ideological (when not conscious)—of those who favor “negative liberty” or “freedom from.” See I. Berlin, Four Essays on Liberty 122 (1969); Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1898 n.186 (1987). I also suspect that it carries strong perforative overtones (as being suited only to minors and to barbarians, see J. S. Mill, On Liberty (1859)); and that it serves as a red flag to mark interference (most likely illegitimate) in that negative liberty. Contractual freedom is to be seen as the rule and “paternalism” as the exception, requiring justification. Calabresi & Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972); Kronman, supra, at 765. Kronman also treats the term “restrictions” as the exception. Id.
50 Without the inalienability of life and liberty, Hegel could not assert that in the modern world: “All are free.” G. Hegel, Philosophy of History 104 (J. Sibree trans. 1955) [hereinafter Philosophy of History]. The modern world witnesses freedom in “its purely universal form— man as such is free.” G, Hegel, Lectures on the Philosophy of World History: Introduction 130 (H. Nisbet trans. 1975) [hereinafter Philosophy of World History].
51 See Philosophy of Right, supra note 1, para. 35. Whereas Hegel bases inalienability of freedom in the constitution of personality, John Stuart Mill may anchor it in his “principle of freedom,” which requires that individuals always be free agents, i.e., always retain their freedom, and so may not alienate it. See LaSelva, Selling Oneself into Slavery: Mill and Paternalism, 35 Pol. Stud. 211, 217-20 (1987). Hegel, Mill, and Kronman all reject unlimited contractual freedom. Their conclusions are in some ways strikingly similar but the language in which they phrase their arguments differs; neither Mill nor Hegel use “paternalism” or “restrictions” as central terms. See supra note 49.
52 Economistic theorists, who reason deductively from such standard neoclassical economic assumptions as atomistic individuals voluntarily pursuing their self-interest (i.e., with Willkür) in a condition of formal freedom, or “freedom from,” see supra note 49, and who in effect apply the economic paradigm to law, philosophy, or politics, assert that individuals may alienate their liberty. These theorists ignore the temporal dimension of freedom; they in effect assert that individuals are free, now, to do anything (including alienating their freedom); they do not care about maintaining individuals in a continuing condition of freedom (a goal that prohibits certain current actions, such as selling oneself into slavery). See R. Nozick, supra note 41, at 331. They also portray the (bizarre) good society or utopia as one in which not all but only some are free, and others are or may be slaves. See Philosophy of History, supra note 50; Philosophy of World History, supra note 50.
53 Philosophy of Right, supra note 1, para. 57R.
54 Id. para. 45R.
55 Id. paras. 66-69.
56 Id. para. 67 (footnote omitted). By “external” Hegel seems to mean externality not in a physical sense but in a psychological or personal sense. For Hegel himself, the line is not sharp, because the “modem domestic servant or day-labourer” who alienates limited blocks of time undertakes, in those formally limited blocs, labor that is frequently drudgery with little intellectual content. Id. para. 67A. For a critical reading of Hegel here, see Radin, supra note 49, at 1892-94. See also infra note 57 (comparing wage labor in Marxist theory versus capitalist economic theory).
57 For Marx, the wage-laborer, contracting away his labor-power by the hour or week, clearly sold himself, his whole life and being. In capitalism, “it is self-evident that the labourer is nothing else, his whole life through, than labour-power, that therefore all his disposable time is by nature and law labour-time, to be devoted to the self-expansion of capital.” 1 K. Marx, Capital 271 (F. Engels ed. 1967) (1867). Marx then shows how capitalism does not allow the laborers time for freedom, Bildung, or health. He argues that it puts workers in a position worse than slavery, and concludes that “the ‘free’ labourer … agrees, i.e., is compelled by social conditions, to sell the whole of his active life, his very capacity for work, for the price of the necessaries of life, his birthright for a mess of pottage.” Id. at 264-71.
58 Philosophy of Right, supra note 1, para. 69R. On many issues, Hegel thinks that philosophy of law cannot determine the content of positive law. On some, such as here, philosophy cannot even determine the principle with adequate specificity. See also infra note 73 (discussing relation of philosophy of law to positive law).
59 Philosophy of Right, supra note 1, paras. 75, 75R.
60 Id. para. 75R.
61 Id.
62 Private property is discussed briefly in “Morality.” In that section, morality is presented as based on neither private property nor free contract, indeed as based not on the relation of will to thing (which permeates abstract right) but on the relation of the particular will to the universal or moral will. See Philosophy of Right, supra note 1, para. 106R. Morality does, however, attempt to solve problems that are beyond the ken of private property. The relation of particular to universal will is not solvable within abstract right. See id, para, 102. Nor is it solvable, for example, within Locke’s state of nature, where an individual may always act against the laws of nature. See J. Locke, supra note 32. Finally, property must give way when morality demands; when “in extreme danger” and even though “in conflict with the rightful property of someone else,” an individual “may claim (as a right, not a mercy) a right of distress,” a right to appropriate another’s property in order to live. Philosophy of Right, supra note 1, para. 127.
63 Corporations are not solely or even primarily business corporations. More like Toc-quevillian associations, they are voluntarily organized groups that meet for shared purposes; business corporations, churches, interest groups, charitable societies, etc. See 1 A. de Toc-queville, Democracy in America 191-98 (P. Bradley ed. 1945). In his translation, Knox consistently capitalizes “corporation.” Philosophy of Right, supra note 1. Except when quoting, I do not.
64 See Philosophy of Right, supra note 1, para. 190.
65 Id. para. 189.
66 Id. para. 189R.
67 id. para. 201.
68 Id. paras. 203-05.
69 Id. para. 206.
70 Id. para. 181.
71 Id. para. 208.
72 Id. para. 209.
73 For Hegel, the relation of philosophy of law to positive law is complex. Very briefly, philosophy of law contains the guiding philosophical principles (in abstract right) of law including the principle that the law should be codified, because in a proper code the law is expressed and apprehended as determinate and with universality of thought. See id. paras. 40R, 211R. Positive law is the specification in statutes of these guiding principles. Id. paras. 211-14. Some slippage always exists between philosophy of law and positive law. Because legislation is part of the spirit of the people, specific statutes will vary from one country to another. Id. paras. 3R, 218R. Because the positive laws of different countries are in different stages of codification and in different stages of historical development (from feudal principles to modern ones), different countries will differ in the degree to which their positive law reflects the philosophy of law. Id. paras. 62R, 211R. Finally, positive laws will vary because of the necessary contingency involved in moving from universal principles to specific instances: “Reason itself requires us to recognize that contingency, contradiction, and show have a sphere and a right of their own … and it is irrational to strive to resolve and rectify contradictions within that sphere.” Id. para. 214R. So, regardless of the clarity with which the principles of abstract right may be known, contingencies and inadequacies exist in all codes of positive law. A legal code can never be complete, despite the “morbid craving” for completion by “German scholars chiefly.” Id. para. 216R. The penalty for a criminal offense cannot be settled unambiguously by principle; “[r]eason cannot determine, nor can the concept provide any principle whose application could decide” specific monetary fines or specific length of imprisonment. Id. para. 214R. Frequently the legal principles may not be settled unambiguously. Plagiarism is such a case where the issue is quite specific (compared to abstract rights generally), many steps removed from the universal principles of abstract right, and subject to all sorts of cross-cutting considerations. Are laws against plagiarism more effective than the feeling of honor. Would laws undercut honor? Given what we would like in the best possible world, what is possible in this one? See id. para. 69R; supra note 58. Nonetheless, plagiarism is a significant issue and needs a legal resolution. Indeed, I think that many issues that produce long, learned, and frequently excellent articles in law reviews are like plagiarism for Hegel; they are too specific, too distant from abstract rights, and too much cases of balancing and rebalancing for Hegelian philosophy to provide an answer, even though they require an answer and therefore need to be subjected to legal reasoning.
Positive laws—with its contingencies, shortcomings, and ambiguities—are then applied by judges. To emphasize the universality of the codified law as well as the legislating process of the state that enacts the law, Hegel wishes to limit the scope of judicial interpretation. Judges should be bound by the law code and not by precedents, so that judges—as they follow and especially as they make precedents—will not be legislators. Id. para. 211R. Judges’ discretion should be minimized, limited to matters that the rational principles of law cannot reach; for example, length of sentence and matters where the code’s imperfections or incompleteness raise conflicts and problems. Id. paras. 211R, 225-26. As members of the class of civil servants, judges can make suggestions about needed reforms in the law code to their superiors in the state bureaucracy. See id. para. 287.
In the application of positive law in a court of law, questions of fact are determined by juries. Id. para. 227. It may be worth noting that Hegel advocates juries regardless of whether they be inefficient in an economic sense. Even if everyone agreed that the administration of justice was without doubt managed better by professional lawyers and without lay institutions like juries, “it still does not matter for on the other side there is always the right of self-consciousness,” insisting that the accused be tried by a jury of peers. Id. para. 228R.
74 Id. para. 40R.
75 Id.
76 Id. para. 217.
77 Id. para. 182.
78 Id. para. 182A. See id. para. 206R.
79 Id.
80 Id. para. 182A.
81 Id. para. 181.
82 Id. para. 183.
83 Id, para. 190.
84 Id. para. 197.
85 id. para. 187R.
86 Id. para. 75R.
87 Benhabib, supra note 3, at 164.
88 Id. at 167.
89 See supra notes 23-61 and accompanying text.
90 For this assertion defended more extensively than is possible in the next couple of paragraphs, see Stillman, Partiality and Wholeness: Economic Freedom, Individual Development, and Ethical Institutions in Hegel’s Political Thought, in Hegel on Economics and Freedom, supra note 35, at 65, 70-77; see also Hegel on Economics and Freedom, supra note 35 (other chapters in this volume with similar interpretations of Hegel); Baker, Property and Its Relation to Constitutionally Protected Liberty, 134 U. Pa. L. Rev, 741 (1986) (similar interpretations of voluntary or arbitrary freedom).
91 I. Kant, Groundwork of the Metaphysics of Morals 69-71, 87-95 (H. Paton trans. 1964).
92 1 J. Rousseau, The Social Contract (J. Masters trans. 1978).
93 Philosophy of Right, supra note 1, para. 187R. Kant, Rousseau, and Hegel—and Baker, supra note 90, at 788—would probably agree with Thorstein Veblen’s sardonic portrayal of hedonistic man as
a lightning calculator of pleasures and pains, who oscillates like a homogenous globule of desire of happiness under the impulse of stimuli that shift him about the area, but leave him intact…. Self-imposed in elemental space, he spins symmetrically about his own spiritual axis until the parallelogram of forces bears down upon him, whereupon he follows the line of the resultant.
T. Veblen, Why Is Economics Not an Evolutionary Science?, in The Place of Science in Modern Civilization and Other Essays 73*74 (1942).
94 T. Hobbes, supra note 11, ch. 21. Comedian Jack Benny played humorously on the meanness of a similar choice when a robber’s threat, “Your money or your life!” produced in the miser extended and deep contemplation.
95 1A. Smith, The Wealth of Nations (Dublin 1776).
96 Philosophy of Right, supra note 1, paras, 191A, 192A.
97 Id. paras. 75, 80.
98 G. Hegel, Aesthetics 149 (T. Knox trans. 1975).
99 Philosophy of Right, supra note 1, para. 238.
100 Id. paras. 4-33.
101 Id. para. 102.
102 Id. paras. 185, 195, 241-48.
103 J. Steuart, Principles of Political Economy (London 1767).
104 Philosophy of Right, supra note 1, para. 188.
105 Id. paras. 233, 239.
106 Id. para. 236.
107 Id.
108 Id. para, 236R.
109 Id. paras. 240-45.
110 D. Ricardo, Principles of Political Economy and Taxation 177 (3d ed. 1821).
111 Id. at 61.
112 2 J. Steuart, An Inquiry into the Principles of Political Oeconomy (1767). Steuart admits to difficulty in finding language helpful in expressing his idea. In connection with voluntariness, note that Steuart is attempting to describe the circumstances necessary for voluntary exchange to be just or equitable and not mean, as it can be with Hobbes, Benny, and many economistic thinkers. See supra notes 90-94 and accompanying text; R. Nozick, supra note 41, at 262; Stillman, supra note 41, at 97-98, 100 n.8.
113 Philosophy of Right, supra note 1, para. 236.
114 D. Ricardo, supra note 110, at 148.
115 Contemporary economistic thinkers have continued and intensified Ricardo’s tendency.
116 Philosophy of Right, supra note 1, paras. 244, 257.
117 Compare Philosophy of Right, supra note 1, para. 204 (the “business class,” through craftsmanship, manufacture, and trade, has the task of mediating one laborer’s needs and work with those of others) with D. Ricardo, supra note 110, at 48-51 (asserting a “natural” value of wages from which temporary deviation is adjusted through competition).
118 Philosophy of Right, supra note 1, para. 253.
119 Id. para. 254.
120 Macneil, The Many Futures of Contract, 47 S. Cal. L. Rev. 691 (1974).
121 Philosphy of Right, supra note 1, para. 158.
122 Id. para. 75R.
123 Id. paras. 162, 162R, 163.
124 Contemporary economistic thinking continues to see marriage in terms of contract, and from Hegel’s perspective continues to ignore love and individual development in marriage. For instance, for Posner, marriage contracts resemble other contracts: “a voluntary arrangement in which services are exchanged presumably to the mutual benefit of the parties.” R. Posner, supra note 5, at 62. “[M]arriages not undertaken for mutual advantage create inefficiency.” Id. at 63. Whether love can be defined as a “service” and can be commodified and calculated like any other economic good or service, these two points at least distinguish Posner and Hegel. For Hegel, in economic behavior, the person acts to maintain his independence and autonomy. In love, the “first moment” or aspect is “that I do not wish to be a self-subsistent and independent person and that, if I were, then I would feel defective and incomplete. The second moment is that I find myself in another” and gain completion and self-subsistence. Hegel thinks love is therefore “the most tremendous contradiction” and not susceptible to comprehension through standard modes of deductive logic. See Philosphy of Right, supra note 1, para. 158A.
125 “Eigentum” is Hegel’s technical term for “property” in “Abstract Right.”
126 “Vermögen” translated by Knox as “capital” and by me as “resources” (partly to avoid any ambiguity with capitalist capital), is different from Eigentum. “It is not merely property [Eigentum] which a family possesses; as a universal and enduring person, it requires possessions specifically determined as permanent and secure, i.e. it requires Vermögen,” resources. Philosphy of Right, supra note 1, para. 170.
127 Id. para. 171.
128 Id. paras. 171, 179, 179R, 180R.
129 Id. paras. 179R, 180R, 180A.
130 Id. para. 175.
131 Id. “Sache” is Hegel’s technical term for “thing” in “Abstract Right.” Only Sachen can be claimed as property and exchanged in contract. Id. paras. 42, 75.
132 Id. paras. 174-75.
133 Hegel’s conceptualization of the family allows him to conceptualize clearly the status of children and their treatment as potential adults. Economistic thinking, perhaps because of its lack of concern with individual development or because it takes voluntariness (Willkür) as the full definition of freedom or free will, has difficulty treating children. See Baker, supra note 90, at 773; Stillman, supra note 90, at 77-93. For instance, when Posner considers children in cases of divorce, he notes two standard economistic ways of thinking about children: that the parents can be depended on to represent the children’s interests and that children should be regarded as the property of their parents. He rightly rejects both, the first on sound empirical observation, the second on oddly uneconomistic, unempirical grounds: “the view of children as chattels does not accord with modern sensibilities.” R. Posner, supra note 5, at 64. These “modern sensibilities” justify extensive “interventions in market processes” to protect the welfare of children. Note that Posner does not have an economistic way of conceptualizing children. Note too, as Hegel would have noted, that Posner’s formal (and, for Hegel, abstract) thinking, when faced with a dilemma insoluble on its own terms, seems perfectly willing to appeal to some (unrigorously derived) empirical content, such as “modern sensibilities,” an empirical content that it would be entirely unwilling to appeal to in other circumstances, i.e., if the issue were the welfare of workers subject to being fired at will by management or laid off suddenly in plant closings.
134 Philosophy of Right, supra note 1, para. 257.
135 Id. para. 299.
136 Enzyklopädie, supra note 1, § 544R.
137 Philosophy of Right, supra note 1, para 299R.
138 Id. paras. 299, 299R.
139 Id, para. 324R.
140 Id. para. 324.
141 Id. para. 308.
142 Id. para. 309.
143 Id. paras. 310R, 255R.
144 Id. paras. 277A, 294R.
145 Id. para 277A.
146 Id. paras. 305-07.
147 Id. para. 306.
148 Id. paras. 279-81.
149 See supra notes 32-37 and accompanying text.
150 See supra notes 38-41 and accompanying text,
151 See supra notes 42-61 and accompanying text.
152 See supra notes 62-149 and accompanying text.
153 See Radin, supra note 49, at 1877-87; see also supra note 52 (definition of “economistic”).
154 See supra notes 23-31 and accompanying text.
155 Philosophy of Right, supra note 1, para. 239.
156 The determination is particularly difficult, from Hegel’s perspective, when the dilemma involves crossing social structures. For example, when a family—an intimate community with all that implies about the downgrading of the claims of arbitrary free contract—confronts a commercial landlord whose own concerns, values, and locus of action are in the economic marketplace, the system of needs, it is not clear that the market should always predominate. See Radin, supra note 10.
157 See supra notes 41 and 133 (difficulties of economistic thinkers with conceptualizing when an individual’s will is mature).
158 Philosophy of Right, supra note 1, para. 174.
159 Id. para. 176.
160 Id. paras. 177, 200.
161 Id. para. 35.
162 Id. paras. 238, 244A.
163 Id. para. 255.
164 See Macneil, supra note 9; Macneil, supra note 120.