Whereas much of Hegel’s doctrine of abstract right and law has given rise to a substantial body of literature, his theory of contract, which is central to that doctrine, has been more or less neglected, especially in comparison to the thousands of pages dedicated to his theory of the state or civil society. Of course, aspects of Hegel’s theory of contract are often discussed, but only negatively, in order to point out what contracts are not and in which domains they cannot serve as models: neither marriage nor the political bond, both of which belong to the ethical sphere, can, according to Hegel, be subsumed under the legal framework of contract.1 These aspects of contract are of course important, especially for situating Hegel with respect to the school of natural law, but they do not indicate—or at least not directly—what contracts are in the properly legal sense. Only a few works deal with contracts as relations constitutive of the sphere of private law. Of these we must mention Julius Binder’s lecture on obligatory contracts,2 an excellent text though one burdened by the questionable (racializing) overtones of Weimar-era neo-Hegelianism. We should also cite the legal historian Peter Landau’s precise study of Hegel’s justification of contractual law. Though this study focuses less on the internal architecture of Hegel’s argument and more on its relation to the legal culture of the nineteenth century,3 it has the great merit of emphasizing the decisive role of the concept of value within this theory of contract.
Commentators’ general lack of interest in the Hegelian theory of contract stems from the fact that it appears to lack originality. For the most part, Hegel limits himself to essentially repeating the main features of imperial Roman law—obligationes ex contractu—as presented in the manuals written by Heineccius and G. Hugo from which he drew his information.4 In a way, Hegel himself emphasizes this lack of originality by indicating, for example, that his classification of contracts “coincides on the whole with that of Kant’s,” which, in contrast to certain classical divisions within Roman law (real, consensual, named, and unnamed contracts), Hegel considers a “rational classification.”5 This praise is surprising given that elsewhere Hegel severely criticizes Kant’s Rechtslehre as well as classical Roman law for having introduced into the sphere of private law elements belonging to other spheres—in this case, the sphere of Sittlichkeit. His reproach is particularly directed at Kant’s three-part classification of rights:
The chief characteristic of this division [into the law of persons, things, and actions] is the confused way in which it jumbles together rights which presuppose substantial relations, such as family and state, with those which refer only to abstract personality. Kant’s division of rights, which has since found favour with others, into the right to things and the right of persons, and personal right of a real [dinglich] kind is an example of this confusion.6
Regardless of the validity of this statement, it points us in the direction of what is undoubtedly most remarkable and specific about Hegel’s doctrine of contract: it attempts both to identify the properly legal element of contract—that is, to establish why and how they belong to the sphere of abstract law—and to elucidate in what way this abstractness of the contractual relation requires a principle of actualization or realization that must be sought in the ethical sphere, for the function of that sphere is, in general, to actualize the two abstractions of law and morality. More specifically, this principle of actualization is to be found at the heart of the ethical sphere, where its most modern and conflictual aspects are concentrated: in civil society. In contrast to reductive interpretations that would see Hegel’s theory of contract as merely indicating the internal limitations of a conception of private law that ignores its own social and ethical-political conditions, we will see that in Hegel’s perspective, contracts have uncontestable richness both in themselves—because of their function within the economy of abstract law—and in relation to what appears to be their true realm of actualization, civil society.
Insofar as contracts belong to abstract law (and we now know that the qualification “abstract” must not be understood in a solely negative manner) and, in general, emerge from a speculative idea of law, they must be understood not as limitations or restrictions but rather as objective manifestations, Verwirklichungen, of freedom. This effort to think of law, even abstract law, as a realization rather than a restriction of freedom explains the fact that unlike theories of positive law, Hegel’s theory of contract does not leave room for the specifically legal obligations that arise ex contractu7—or, at least, he does not pay much attention to the question, essential to jurists, of the “actions” to be taken if one party does not respect his or her contractual obligations. The explanation for this lack of attention lies in the fact that for Hegel, such actions do not concern “the nature of contract itself.”8 But then what is this nature?
We have seen that the property relation provides the structure of abstract law. At that level, a person relates exclusively to the thing she appropriates and merges with it in a kind of objectification of freedom that leaves no remainder: “Subjective will is only actual will insofar as it is [the will of] an owner.”9 This reification of the person is a perfect, adequate expression of “abstract will in general,” that is, legal will.10 The person, a “perfectly abstract self,”11 only has actuality for herself and other persons by being materially inscribed in the things whose legally guaranteed possession she has secured. So then what about contracts, and how does Hegel’s analysis of them affect his concept of law? The paragraph in the Philosophy of Right that presents the transition from property to contracts indicates that the essential contribution of the latter is to introduce the mediation of another will into the relationship between a will and an object:
As the existence of the will, [property’s] existence for another can only be for the will of another person. This mediation whereby I no longer own property merely by means of a thing and my subjective will, but also by means of another will, and hence within the context of a common will, constitutes the sphere of contract.12
It is a truism to say that a contract implies a relationship between the wills of the contracting parties, but this obvious truth contains something more profound if we take into account what results from the theory of subjective spirit: a will is not immediately or naturally itself, that is, a free will; it is so only in the mediation it establishes between self and self, or in wanting its own freedom. The doctrine of abstract law shows that the subject’s will for his or her own freedom, if it is not to remain mere beatific contemplation of the self, implies mediation first by the world of things, where the self indefinitely inscribes its animus domini (this is the constitutive moment of the legal, the objectification of willing), and second and above all by mediation through other wills that recognize this will and posit it as free. Recognition—that is, each person’s assumption of the other’s humanity and only thereby of one’s own humanity—requires that consciousness break with the singularity and immediacy of desire and satisfaction. In The Phenomenology of Spirit, this occurs through the painful experience of negativity, the loss of self that submission to a master represents for servile consciousness. But we know that beyond the fight to the death and subordination, it is work, “desire held in check” that plays the decisive role in this process, allowing self-consciousness to accede to universality:
Although the fear of the lord is indeed the beginning of wisdom, consciousness is not therein aware that it is a being-for-self. However, by means of work this servile consciousness comes round to itself. . . . Work is desire held in check, it is vanishing staved off, that is, work cultivates and educates.13
All else being equal, the universal is similarly constituted in and through the confrontation of particular wills that occurs in the transition from property to contract. It has not been sufficiently emphasized that contract—in a less explosive but just as fertile a manner as the fight to the death between two consciousnesses—sheds light on the crucial role of recognition in constituting freedom:
Contract presupposes that the contracting parties recognize each other as persons and owners of property; and since it is a relationship of objective spirit, the moment of recognition is already contained and presupposed within it.14
Indeed, the conclusion and execution of a contract confirm that mutual recognition of persons—recognition that cannot be coerced once a political and social order is in place15—is the presupposition of, and in a sense the milieu for, any legal relation. It seems that once humanity has left the state of nature and reached its true place—which is political, familial, and social—recognition by contract takes the place of recognition by combat16; in this respect, a contract is a remarkable manifestation of rational freedom in the process of its objectivization.
In general, any process of recognition is oriented toward the creation of a space of universality that, in retrospect, confers meaning on that process: this is the space of “universal self-consciousness” in the Phenomenology, and Sittlichkeit and the state as the genuine foundation (if not the empirical origin) of law in the broad sense within the economy of objective spirit. Here, thanks to contract, property is “posited in general as an abstract, universal thing”17 because legal persons mutually recognize one another as such. This formulation also suggests that the recognition at work from the very first dialectics of abstract law remains incomplete in that sphere: fully ethical recognition of humans by humans cannot function with the resources of abstract law alone and on the limited terrain of legal personhood. The 1824–1825 lectures, while underscoring the universality of contract, also point to its limitations:
In the contract, there is a common will; such a will is universal, although not yet true universality but rather a universality that still contains contingency. Moreover, the universal as such, the law itself is this; the will is bound by contract—it can only be so bound by the concept of law, not by its own contingency or by another will. In contract, the moment of being bound, that is the law as law, is present.18
A contract generates obligation (“the moment of being bound,” Hegel says) because it is a vector of universality, but this universality is not “true” because it is still tainted by contingency.
Why is it that the law is present “as law” in contracts but not yet in the relationship between persons and things? The answer, according to another passage from the 1824–1825 lectures, is that the contractual relationship creates “an extension of my immediate will” and even an extension “to the universal.”19 The act of contracting, by instituting a relationship between one will and another, between one person and another, reveals a potential for universality within objective legal willing that it at first appears to lack when, as the will of one person, it is totally invested in indeterminate externality and atomized into particular things. From the moment I enter into a contract, and despite the fact that the object of the contract is always a particular thing—the reason why the “relation of will to will is the true distinctive ground in which freedom has its existence”—I am no longer only the owner of a given object; I become for others, and thus for myself, a legal person or owner in general.20 This is not a change of ground but rather a kind of strengthening of the determinations of objective spirit as they are manifested in the sphere of abstract law: even more than the person-thing relation, contract disassociates will “as such” from the empirical subject of willing and, in so doing, reveals the objectivity of the will. With contracts, the will is no longer essentially the will of one, two, or several persons; it is a formally universal, and thus legal, will. Three dimensions of the analysis of contract emphasize this legalization of the will, which in this way is sundered from the subjective and particular figure of its immediate expression.
First, in contracts, the legal relationship between persons and things is always mediated by legally formalized acts of will. In other words, right always presupposes law, since, for there to be contracts, each res in commercio must have an identifiable owner, and this requires a constituted, stable order of property. The fundamental structure of property (the appropriation of things by persons) could lend credence to the idea that the legal sphere is rooted in the contingency of empirical acts of appropriation, as if having always resulted from an original act of taking that would then form the structure of law. We can find an example of this point of view, which is based on a radicalization of the Hobbesian thematic of jus in omnia, in the work of Carl Schmitt, who argues that of the “three meanings” of the word nomos (to take, to divide, and to produce), the first is the original, definitive meaning: all legal order presupposes a Landnahme, a “taking,” a first appropriation of territory and resources.21 This is not Hegel’s position; for Hegel, original appropriation arises out of what has been called “pre-law”22 and thus must be considered as a sort of nonlegal prerequisite to the establishment of the legal order. But this marginal condition is far from insignificant: if it is not met, there is no legal order, for the regularity of transactions can only be guaranteed if it is in principle possible to identify the legitimate owner of any alienable good. Of course, within a constituted legal order and the social order that rests on it as well as the political-state order, the fiction of a state of nature in which everything is up for grabs no longer applies. To the contrary, the cohesiveness of this order supposes that the process of primitive legal accumulation through immediate appropriation of res nullius be considered complete, finished (insofar as this process has any historical or protohistorical reality, but that is not the question here):
In the state of affairs in which this standpoint of mediation is realized, immediate seizure (§488) of external objects as means to satisfaction no longer occurs, or very rarely; the objects are property.23
Nevertheless, there is some plausibility to this fiction if we consider property on its own, in isolation from its complex social and historical actualizations:
That a thing [Sache] belongs to the person who happens to be the first to take possession of it is an immediately self-evident and superfluous determination, because a second party cannot take possession of what is already the property of someone else.24
Indeed, if we accept that appropriation is not one phenomenon among others that could illustrate the nature of the property relation but rather the prelegal condition of property, we must then consider that the jus in omnia expresses the fundamental or original structure of all legal relations:
A person has the right to place his will in any thing [Sache]. The thing thereby becomes mine and acquires my will as its substantial end (since it has no such end within itself), its determination, and its soul—the absolute right of appropriation which human beings have over all things [Sachen].25
However, for two reasons this structure of occupatio primaeva cannot be the last word. First, even if we restrict ourselves to the register of property alone, abstract law cannot be reduced to the figure of immediate appropriation. This is why in listing the criteria of ownership Hegel gives less value to possession than to usage and, within the former, valorizes “giving form to” and, to a lesser extent “marking” property rather than mere “immediate corporeal seizure,” for these procedures are already a step removed from the immediacy of the original act of appropriation. Thus, because when I give form to something “its determinate character as mine receives an independently [für sich] existing [bestehende] externality and ceases to be limited to my presence in this time and space and to my present knowledge and volition,” this is “the mode of taking possession most in keeping with the Idea, inasmuch as it combines the subjective and the objective.”26 Second, and above all, the contractual transfer of property, insofar as it is a relationship between persons who “only as owners of property . . . have existence [Dasein] for each other,”27 shows that there is a circularity of the law, or more precisely, a structure of self-presupposition. Thus, law cannot be conceived according to the decisionist model of the emergence of order out of “normative nothingness” and “concrete disorder”28 but rather must be understood as a contradictory process in which the transfer of a good is the objective verification—even the establishment—of the rights of its (former) owner. Legally, I possess at the moment when I cease possessing, and I can only cede insofar as I am an owner. It is by relinquishing my property or by acquiring it through an act of will carried out in common with another person—an act that has objective legal existence—that I am effectively an owner both for others and for myself. Thus, contract exposes a “contradiction . . . I am and remain an owner of property, having being for myself and excluding the will of another, only in so far as, in identifying my will with that of another, I cease to be an owner of property.”29
A second dimension in the analysis of contract shows the objectivization and (formal) universalization of the will proper to it: this is the role played by value. Within contracts properly speaking—for Hegel, this means “real” or synallagmatic contracts whose goal, unlike “formal” or unilateral contracts, is the exchange of good or services (buying/selling, renting, salary contracts)30—what is at stake is less the thing in its unique, particular identity (such and such material good, a certain type of work) and more the element of abstract universality by which qualitatively diverse things find common measure: value, which “is their universal.”31 However, the value in question here is not the labor-value conceptualized by classical economists, in particular Ricardo (which is somewhat surprising given Hegel’s constant attention to political economy, the “interesting science that makes an honor out of finding laws in a mass of contingencies”32); it is, rather, the universalized expression of the specific need to which it corresponds and thus the abstract measure of its “specific utility.”33 Peter Landau rightly emphasizes that the concept of value used here is Aristotelian34 and thus stands in contrast to the Ricardian doctrine according to which although the condition for the “exchangeable value” of objects is some form of utility, that value ultimately “depends on the relative quantity of labour which is necessary for its production.”35 According to Aristotle, monetary value “has become, by agreement, a kind of exchangeable representation of need.”36 A handwritten note in the Philosophy of Right indicates that value is the “possibility to satisfy a need.”37 Perhaps Hegel, the first philosopher to have registered the profound changes that political economy implies for social philosophy, ignores the Ricardian theory of value here because according to him this theory applies only to modern civil society, whose reality is historically situated and cannot have any direct effect on the atemporal terrain of abstract legal relations. In this sense, labor-value is the particular form taken by value within the context of the conditions of production and the commercial exchange of goods created by the system of needs—this is certainly not Ricardo’s point of view, but it presages Marx’s critiques of the “Robinsonades” of political economy:
Each individual’s production is dependent of the production of all others; and the transformation of his product into the necessaries of his own life is [similarly] dependent on the consumption of all others. Prices are old; exchange also; but the increasing determination of the former by costs of production, as well as the increasing dominance of the latter over all relations of production, only develop fully, and continue to develop ever more completely, in bourgeois society, the society of free competition. What Adam Smith, in the true eighteenth-century manner, puts in the prehistoric period, is rather a product of history.
This reciprocal dependence is expressed in the constant necessity for exchange, and in exchange value as the all-sided mediation. . . . The reciprocal and all-sided dependence of individuals who are indifferent to one another forms their social connection. This social bond is expressed in exchange value, by means of which alone each individual’s own activity or his product becomes an activity and a product for him; he must produce a general product, exchange value, or, the latter isolated for itself and individualized, money.38
The fact that in his analysis of contract, Hegel considers value not the expression of a particular need but rather a measure of “need in general”39 illustrates the universalizing function of legal actions in the very abstraction of their structure. It is here, even more so than in the study of the formal characteristics of property, that the true fecundity of abstract law is revealed: abstract law outlines the formal schemata presupposed by any society of exchange, especially (bourgeois) modern civil society, which is both subject to the rule of the law of value and exposed to all forms of “commodity fetishism.”
The third and final element of Hegel’s study of contract that I would like to focus on here is the place it gives to procedures of stipulation, which Hegel says contain “the aspect of will, and hence the substantial legal element in a contract.”40 We may wonder why Hegel gives so much space (two of the ten paragraphs in the section on contract) to a specific, archaic procedure from Roman law that “serves to make all manner of agreements obligatory through a simple ceremony” involving uttering set questions and answers.41 The reason is that stipulation, as a symbolic and codified procedure, is a remarkable example of the use of the performative function in legal language. In his own personal copy of The Philosophy of Right, Hegel noted that “such words [those that contracting parties pronounce following an intangible procedure] are deeds and actions.”42 Hegel’s focus in describing this ceremony is the fact that words—more specifically, the exchange of ritualized phrases—is the unique vector of the objective legal value of an action independent of the physical object of the agreement and the reality of its execution:
The existence which the will has in the formality of gesture or in language which is determinate for itself is already the complete existence of the will, as intellectual [intellektuellen] will, and the performance [of the agreement] is merely its selfless consequence.43
This illocutionary aspect of legal formalism sheds light on two fundamental dimensions of contract, which have already been alluded to here though in a general way. First, it emphasizes the “intentional” nature of contracts, which in legal terms are nothing more than agreements between objective wills, that is, wills embodied in procedures. Unlike Fichte, who claimed that a pact only becomes mutually binding from the moment of its execution,44 Hegel emphasizes that the formalities of law (here, stipulation) give body to the “decision of my will” in such a way that the property I commit to ceding to another “has now ceased to be my property” and “I already recognize it as the property of the other party,”45 which implies “recognition [of the other party] not only because they possess [some property], but recognition of their will as such.”46 Second, stipulation highlights the universalizing vocation of legal formalism; just as language allows subjective representations to become both objective and universal,47 stipulation separates the legal action from its empirical particularity (this person, owner of this good, gives it to this other person on such and such conditions), giving it a high degree of generality. As the Philosophy of Right emphasizes regarding stipulation, language is “the most appropriate medium of intellectual representation”;48 thanks to language, the common will that is established in the contractual act is truly an “intellectual will.”49 In stipulation, it becomes clear that abstract law has a formal power to universalize, a power comparable in certain respects to that of the “hard sciences” in their richest aspects.
The contractual relationship takes the fundamental structure of abstract law (the property relation) into the domain that is truly its own: the domain of universality. Thanks to this transfer, objective freedom, which is first expressed in the mode of abstract singularity (a person is the owner of a thing), finds its true dimension. But the universality of personality as it is manifested in the contractual relations between persons, has certain limits: these are, in general, the limits of abstract universality. They are revealed in the fact that the objective will posited by contracts and symbolized in formalities remains “a common will, not a will which is universal in and for itself.”50 In Hegel’s presentation, contracts, which are shared elements of particular wills that remain attached to their particularity at the same time that they overcome it objectively, have a structure akin to Rousseau’s “will of all.”51 The will of all is an approximation of the general will and can become an illusion if it is conflated with the general will, which is characterized by the double universality of its essence and its object.52 Similarly, in Hegel, the egalitarian formalism of law, which is illustrated by contractual procedures, provides an abstract harbinger of the ethical-political realization of the universal. But in both cases, the approximation is imperfect and creates confusion, since it gives the universal (the general will in Rousseau, the state in Hegel) a derivative, secondary position in relation to the particular, whereas—at least in Hegel—the universal is the condition of actuality of the particular. In contract, the “inner universality” of law is but a “common factor in the arbitrariness and particular wills of those concerned”:53 this is the limit of the kind of universality that is built on the ground of abstract law. Confirmation of this limitation can be found in (unsuccessful) attempts to export the contractual schema out of its sphere of origin, the sphere of private law.
Hegel repeatedly reaffirms that the state, in particular the modern state, is not the result of a “social” contract (which in certain German translations of Rousseau is rendered Staatsvertrag!). His constant critique of contractualism, beginning with the 1802 article on natural law, resulted in his being generally categorized as an adversary of natural law. But, as we saw in the previous chapter, it is the expression “natural law” that Hegel contests on the grounds of its ambiguous reference to nature, not the theoretical project behind it. Let us simply recall that the second title of the text known as Elements of the Philosophy of Right is Natural Law (Recht) and Political Science, and that Hegel himself sometimes speaks of “natural law.”54 However, he takes every opportunity to remind us that he subscribes (while rethinking its terms) to the problematic of rational law hidden beneath that unfortunate expression; it is just that the type of rationality mobilized by natural law (the rationality of the understanding) cannot meet its own requirements. A striking illustration of Hegel’s fidelity to natural law can be found in his article on the Diet of Württemberg, where he contrasts “good old law” with “the eternal law of reason,”55 going so far as to enthusiastically approve of the 1789 revolutionary expression of it. We may note in passing, and with a grain of salt, how strange it is to attribute the notion that “all that is real is rational” to a thinker who incessantly criticized the conservative argument that “good old law” is good because it is old.
What specific reasons explain Hegel’s refusal of social and political contractualism? As we know, Hegel rejects all attempts to apply the model of the contract to the ethical institutions of the family and the state:
Marriage is not a contractual relationship as far as its essential basis is concerned. For the precise nature of marriage is to begin from the point of view of contract—i.e. that of individual personality as a self-sufficient unit—in order to supersede it [ihn aufzuheben].56
Rousseau considered the will only in the determinate form of the individual [einzelnen] will (as Fichte subsequently also did) and regarded the universal will not as the will’s rationality in and for itself, but only as the common element arising out of this individual [einzelnen] will as a conscious will. The union of individuals [der Einzelnen] within the state thus becomes a contract, which is accordingly based on their arbitrary will and opinions, and on their express consent given at their own discretion.57
The fundamental reason for this assessment is the same in both cases: the nature of contracts, which are actions of private law as it has just been analyzed, makes them unsuitable to account for the constitution of an ethical relationship such as matrimonial union or political union; they are unfit for thinking “union as such.”58 Hence, contracts reduce the universal will to common will, or, in Rousseau’s terms, the general will to the will of all, and they maintain wills in their individuality and separation. Marriage and the state, on the other hand, set into motion a type of universality that, far from hypostatizing a particular will, rectifies it and carries it beyond itself—in different ways in the two cases of marriage and the state. The concrete universality of the ethical sphere cannot be reduced to the abstract universality of legal relations, which makes any transposition of legal schemata into it inoperative. However, though the contract model cannot account for the ethical within ethicality, it does adequately apply to what is nonethical within it: we will see that it plays an important role in Hegel’s conceptualization of civil society, where ethicality risks its downfall.
The argument takes on particular depth when applied to the state. Let us turn to the 1817 article, whose general aim is to denounce the resistance of the “states” (Stände) convoked by the King of Württemberg after Napoleon’s fall to the creation of a constitutional system similar to the French code. In the article, Hegel does not only criticize, as he does in the Philosophy of Right, “the intrusion of this [contractual] relationship, and of relationships concerning private property in general” into “a sphere of a totally different and higher nature.”59 He goes further, indicating the reason why applying this concept of private law to the state is fundamentally erroneous. It is worth citing a passage from the article at length:
It should be added that the qualitative difference between a fief and a state entails a radical alteration in the precise form of the relation between prince and vassals in the former. Since prince and country, as property-owners and possessors of special prerogatives, confronted one another as privileged individuals and so stood under a third party, the power of Emperor and Empire, they were subject to a Praetor, and this made it possible for them to conclude contracts with one another and have relations with one another on the footing of private law. Even in more recent times, when truer concepts have taken the place of the old idea, adopted thoughtlessly and irrationally, that governments and princes had a divine authority, the expression “contract of the state” appeared to contain even yet the false thought that the concept of contract was applicable in the state to the relation of prince and subjects, government and people, and that the legal specifications of private law, which flow from the nature of a contract, could and even should find their employment in this context. It takes only a little reflection to realize that the connection of prince and subject, government and people, has an original and substantial unity as its very basis, while in a contract almost the opposite is the case, since it proceeds from the mutual independence and indifference of the two parties. An association which they enter in relation to some matter is a casual tie arising from the subjective need and choice of the parties. A contract of that kind is essentially distinct from a political bond which is a tie objective, necessary, and independent of choice or whim.60
A contract is an agreement between legal persons, that is, “a casual tie arising from the subjective need and choice of the parties.” The political bond, on the other hand, is “a tie objective, necessary and independent of choice or whim”; it presupposes “an original and substantial unity” that is at the foundation of both the unequal relation between rulers and the ruled (Herrschaft) and the relation between the ruled themselves, which is a relation of equality in subordination not to any person or group of persons but rather to the state as the idea of a shared life, of a living together. In this regard, modern contractualism represents a regression with respect to classical political philosophy, which maintained the ethical dimension of the political bond, as the article on natural law reiterates:
Of late, however, in the internal economy of natural law, this external justice (infinity reflected in the persistent finite, and for this reason formal infinity) that constitutes the principle of civil law has secured a special predominance over constitutional and international law. The form of such an inferior relation as the contractual one has forced its way into the absolute majesty of the ethical totality . . . and by relations of this kind which are wholly in the sphere of the finite, the Idea and the absolute majesty of the ethical totality are destroyed.61
Thus, the major flaw of contractualism is that it makes the political bond contingent—according to Locke, the consequences of this are, for example, that it is possible to proclaim a right of secession or emigration62—thereby depriving the state of its own necessity and politics of its intrinsic dignity. From the Hegelian point of view, there is thus no contradiction between rejecting the doctrine of the social contract—which is generally considered to have reached its culmination with the principles of 178963—and adhering to the “elementary catechism”64 those principles express. For “the famous Droits de l’homme et du citoyen” cannot possibly stand in place of a political constitution: at the very most, they are “stable regulators” of the state’s operation.65 On this point Hegel is less radical than the American constitutionalists, who refused to preface the United States Constitution with a Declaration of Rights on the grounds that “the constitution is itself, in every rational sense, and to every useful purpose, a Bill of Rights.”66 For Hegel, the value of a Declaration like the French one is that it solemnly proclaims the raison d’être of the social order—that is, individual rights, principles that are eternal because they are based on reason or at least on understanding. But even if such a declaration were to be a “preamble,” it could not possibly act as a foundation for public law (Staatsrecht). The principles of the political order cannot be reduced to those of the legal order, which is the abstract underpinning of civil society.
But Hegel does not reject contractualism on principle alone. Behind the theoretical attempt to derive the principles of public law from those of private law he senses the risk of the public sphere being subordinated to private interests. The requirement of a strong state, the trademark of Hegelianism, is rooted in his observation of the powerlessness of the imperial state, a powerlessness that had been established in the name of princes and cities, that is, in the name of the law tout court. The 1817 article sees the invocation of “good old law” by the Stände deputies as the specter of anarchy, legalized in the name of respect of rights and freedoms. These freedoms are not individual liberties but rather exemptions and privileges accorded to various corporations (i.e., to Zünfte, the traditional “guilds” and “confraternities,” not the modern Korporationen Hegel calls for). These bodies see the strength of a modern state as a danger to their independence, which is why Hegel denounces their “guild mind” (Zunftgeist).67 In short, the Diet’s distrust of “French” institutions—that is, those based on a strict distinction between the public sphere and private law—expresses the neofeudal temptation of a society that is not yet a “civil society” and that does not want to be a political society.
This battle for the state and what Hegel calls “rational public law,” both of which are exposed to the risk of the hegemony of private law, shows that of the two major constructions that emerged from the contractualist problematic, the contract of submission is the most revealing and most dangerous. The contract of association, understood in Hobbes’s or Rousseau’s sense, implies “the total alienation to the whole community of each associate with all his rights”68 and consequently maintains the supremacy of the public sphere; on the other hand, the pact of submission (which may be combined with the pact of association as in Pufendorf)69 leads to limiting sovereignty on principle and reserving certain rights or privileges for certain individuals or social groups. A paradox appears: neofeudalism (Ständestaat70 is the German expression) is a correct consequence of the contractualist view, which is usually associated with the Enlightenment and the Revolution, for it completes the privatization of the public sphere that results from the total juridification of the state. The postfeudal structuring of the political bond through Herrschaftsverträge (“contracts of domination”) rests on a view of the political orders that is not essentially different from the one presupposed by liberal, revolution-inspired contract theories. In both, the private contract, as an agreement between preexisting individual wills, is the model, casting doubt on the modernity of modern natural law. Thus, we should not be surprised to find that in the Philosophy of Right, Hegel’s critique of Karl Ludwig von Haller’s retrograde views comes immediately after his critique of Rousseau’s contractualism and its revolutionary consequences. Each of these views reduces power to property, thus showing a fundamental misunderstanding of the specificity of the political bond. Hegel emphasizes the theoretical proximity of these politically opposed options:
Just as in earlier times [but this also applies to Hegel’s contemporary Haller] political rights and duties were regarded as, and declared to be, the immediate private property of particular individuals in opposition to the rights of the sovereign and the state, so also in more recent times have the rights of sovereign and the state been regarded as objects of contract and based on a contract. . . . However different these two points of view may be in one respect, they do have this in common: they have transferred the determinations of private property to a sphere of a totally different and higher nature.71
From the moment the general will is considered to derive from the particular will or to be logically secondary to it, one is inevitably, though perhaps unwillingly, led to subordinate public law to private law, the universal to the particular, rational concepts to arbitrary opinions. The immense contribution of the French Revolution was to have established the autonomy of the principles of public law: “One must regard the start of the French Revolution as the struggle of rational constitutional law against the mass of positive law and privileges by which it had been stifled.”72 The mistake its actors made was not to have drawn all the consequences and to have maintained an inadequate perspective by believing that an abstract definition of freedom—the definition that corresponds to the program of the rights of man—could provide a foundation for the public sphere. The article on the English Reform Bill repeats this criticism of the politics of human rights: it states that “For men of principles, national legislation is in essence more or less exhausted by the droits de l’homme et du citoyen, framed by La Fayette [sic] and the model for the earlier French constitutions.”73 Hegel’s conviction is precisely that one does not govern with legal principles, for otherwise one will fall into the dangerous abstraction of revolutionary utopia and the “fury of destruction”’; this is what happened in France. The Terror was of course not the consequence of the law but of a politics of law (and of “natural and inalienable” rights)—a politics that reinforces the constitutive abstraction of the law. And contractualism is what makes this derivation theoretically possible.
The positivity of contracts (they are the first objectivization of a legal person’s particular will in relation to another particular will) and their limits (their universality remains tributary to the particularity of the wills they bring together)—in short, the contradictory nature of the act of contracting—explains the function and situation specific to it no longer within abstract law itself but within the architecture of Sittlichkeit. Indeed, one cannot stop at a radical critique of political contractualism: the critique of the abstraction of abstract law on the one hand and of contractualist representations of the political bond on the other hand leads most commentators to maintain that for Hegel the contractual scheme has no value outside the narrow sphere of relations of private law. Though Hegel does refuse to base the state on contracts for the reasons that I have just pointed out, contracts are not absent from the sphere of Sittlichkeit. Quite to the contrary, they play a fundamental role in structuring its median moment, which Hegel initially analyzes as the negative moment of the externalization of ethical essence,74 that is, civil society (bürgerliche Gesellschaft).
Indeed, Hegelian civil society is not a pure market society; it is also a legal society: “The substantial basis for all of this is the right to ownership. The system of needs and its intricacy cannot exist without law.”75 The existence of a legal order is even the presupposition not only of civil society in general but also of its most dynamic and modern component:
When you make industry the purpose, and law the means, one can say [too] there is an industry in a state only when law is there. Law is the absolute means; there can be no industry, and no trade . . . if administration of justice varies arbitrarily, is bad, slow; the more powerful the trade, the swifter the administration of justice must be.76
The actualization of the universal in the competitive play between particular interests cannot merely be the result of the invisible hand; the relationship between these interests must be “consciously regulated”77 both legally and administratively. Or rather, because civil society is a market society based in large part on the self-regulation of the system of needs, its proper functioning presupposes what Hegel calls a “legal constitution [Rechtsverfassung]”78 of civil society, which he examines in a passage titled “The Administration of Justice” (die Rechtspflege). The location of this passage, between the analysis of the economic and social structures of civil society (the system of needs) and the analysis of its institutional configurations (police and corporations), indicates that what is discussed here is something more and in part something other than the legal organization of procedures. Moreover, the fact that this analysis has no place in either the study of abstract law or the study of the state (although the administration of justice is clearly part of what Hegel calls governmental power)79 indicates that the expression of the law plays a specific role in the complex workings of civil society. In a word, the market, (private) law, and the institutional nodes represented by “corporations” are the three levels from which the complexity of the modern social world in its differences from the political-state sphere is organized (in part spontaneously and in part following regulated procedures).
The model of the contract, which Hegel constantly reminds us is unsuitable for conceptualizing the state, plays a crucial role in constituting civil society in accordance with legal relations. Civil society, as a market society—and this is one of the reasons why its development was necessarily historically belated—presupposes what I have called a primitive legal accumulation. In other words, commercial society presupposes a legal order and a distribution of property that conforms to it. Thus, within civil society, unlike in the domain of abstract law understood ahistorically, property does not precede contract but instead results from it: what is mine is what I have acquired in conformity with the prescriptions of current legislation:
Just as law in itself becomes statute-law in civil society, so too does my individual [einzelne] right, whose existence [Dasein] was previously immediate and abstract, acquire a new significance when its existence is recognized as a part of the existent [existierenden] universal will and knowledge. Acquisitions of property and transactions relating to it must therefore be undertaken and expressed in the form which that existence gives to them. Property is accordingly based on contract and on those formalities which make it capable of proof and confer upon it legal validity.
The original, i.e. immediate, modes of acquisition and titles (see §§54 ff.) are in fact abandoned in civil society, and occur only as individual accidents or limited moments.80
The proclamation that within civil society (as a society of commercial production and exchange) “property is based on contract” (and not on the exercise of jus in omnia) can seem trivial in certain respects. However, from another point of view, the remark is far from inconsequential. It indicates that contracts, the central figure of abstract law, find their specific effectiveness and function only with the constitution of a “civil” society (specific to modernity) that is distinct from the state, though still subordinate to it, with modes of structuration and regulation that are not political: the market, the administration of civil and penal law, and (also) the intervention of the administration (the police).
However, it cannot be said that bourgeois civil society (instead of the state as construed by natural law) is based on contracts in the sense that they are its origin and foundation; if this were the case, Hegel would have done no more than shift the field of application of the contractual scheme from the political sphere toward the economic and social sphere. Instead, we must understand that civil society, which as a market society is “structurally depoliticized,” as Jürgen Habermas put it,81 can only function properly if there is a seamless legal order, an order whose coherence is based on a generalization of the contractual relation. From this point of view, one must observe the irreversible march of civil society “from status to contract”82 and recognize that in the very abstraction of their determinations, contracts are the legal condition of the social, and to this extent they represent a pillar of “the freedom of the Moderns.” However, if the contractualization of the social bond is an essential component in constituting a market society, it cannot on its own structure it sufficiently: the market needs not just a legal basis but also institutional and dispositional conditions (habitus) that are studied in the third moment of the analysis of civil society: police and corporations. This is why, ultimately, Hegelian civil society is no more a purely contractual society than it is a pure market society, though it is both of those things.
1. See RPh, § 75 Anmerkung, GW 14.1, pp. 157–58 (Elements, 105–6; see Outlines, 85).
2. Julius Binder, “Der obligatorische Vertrag im System der Hegelschen Rechtsphilosophie,” in Verhandlungen des dritten Hegel-Kongresses, ed. B. Wigersma (Tübingen: Mohr, 1934), 37–59.
3. Peter Landau, “Hegels Begründung Des Vertragsrechts,” ARSP: Archiv für Rechts-und Sozialphilosophie/Archives for Philosophy of Law and Social Philosophy 59 (1973): 117–38.
4. Heineccius was the author of several very popular books in the late eighteenth century. Hegel uses the tenth edition of his Antiquitatum romanarum jurisprudentiam illustrantum syntagma secundum ordinem institutionum justiniani digestum (Frankfurt, 1771), Elementa juris civilis secundum ordinem institutionum (Berlin, 1765), and the fifth edition of Elementa juris civilis secundum ordinem pandectarum (Frankfurt, 1747). With Hugo, with whom he has a debate in the note of section 3 of the Philosophy of Right, Hegel uses the sixth edition of the Lehrbuch der Geschichte des römischen Rechts bis auf Justinian (Berlin, 1818), the third of seven volumes of Lehrbuch eines civilistischen Cursus.
5. RPh, § 80, GW 14.1, p. 82 (Elements, 111; see Outlines, 90).
6. RPh, § 40 Anmerkung, GW 14.1, p. 53 (Elements, 71, modified; see Outlines, 56).
7. Binder, “Der Obligatorische Vertrag,” 45.
8. RPh, § 77 Anmerkung, GW 14.1, p. 79 (Elements, 108; see Outlines, 87).
9. RPh, margin note to § 46, GW 14.2, p. 411.
10. RPh, § 40, GW 14.1, p. 53 (Elements, 70; see Outlines, 56).
11. RPh, § 35 Anmerkung, GW 14.1, p. 51 (Elements, 68; see Outlines, 54).
12. RPh, § 71, GW 14.1, p. 76 (Elements, 102; see Outlines, 83).
13. PhG, GGW 20, p. 114 (Phenomenology, ¶ 195). See Enzykl, § 435, GW 20, p. 224 (Encyclopedia 161): “The bondsman, works off his individual will and self-will in the service of the master, sublates the inner immediacy of desire and in this alienation and in the fear of the master he makes a beginning of wisdom—the transition to universal self-consciousness.”
14. RPh, § 71 Anmerkung, GW 14.1, p. 76 (Elements, 103; see Outlines, 83–84).
15. RPh, § 57 Anmerkung, GW 14.1, pp. 64–65 (Elements, 87; see Outlines, 70): “The point of view of the free will, with which law and the science of law begin, is already beyond that false point of view whereby the human being exists as a natural being and as a concept which has being only in itself, and is therefore capable of enslavement.”
16. See RPh, § 349 Anmerkung, GW 14.1, p. 277 (Elements, 375; see Outlines, 318); Enzykl, § 433 Anmerkung, GW 20, p. 431 (Encyclopedia 160).
17. Enzykl, § 494, GW 20, p. 484 (Encyclopedia 221).
18. Hegel, Vorlesungen über Rechtsphilosophie, 4:263.
19. Ibid., 179.
20. RPh, § 71, GW 14.1, p. 76 (Elements, 102; see Outlines, 83).
21. Carl Schmitt, “Nehmen, Teilen, Weiden: Ein Versuch der Grundfrage jeder Sozial-und Wirtschaftsordnung vom Nomos her richtig zu Stellen,” in Verfassungsrechtliche Aufsätze aus den Jahren 1924–1954: Materialien zu einer Verfassungslehre (Berlin: Duncker und Humbolt, 1953), 489–504.
22. Louis Gernet, “Droit et société dans la Grèce ancienne,” in Droit et institutions en Grèce antique (Paris: Champs Flammarion, 1982), 7–119.
23. Enzykl, § 524, GW 20, p. 499 (Encyclopedia 230–31).
24. RPh, § 50, GW 14.1, p. 61 (Elements, 81; see Outlines, 65).
25. RPh, § 44, GW 14.1, p. 57 (Elements, 75; see Outlines, 60).
26. RPh, § 56 and Anmerkung, GW 14.1, 64 (Elements, 85–86; see Outlines, 68–69).
27. RPh, § 40, GW 14.1, p. 53 (Elements, 70; see Outlines, 56).
28. Carl Schmitt illustrated what distinguishes “decisionist thinking” from “normativism” and “concrete-order thinking.” See Carl Schmitt, On the Three Types of Juristic Thought, trans. Joseph W. Bendersky (Westport: Praeger, 2004), 43 ff. The claim that Hobbes represents the “purest type” of this thought obviously faces strong objections.
29. RPh, § 72, GW 14.1, p. 77 (Elements, 104; see Outlines, 84).
30. The Hegelian typology of contracts (wrongly) treats as overlapping two distinctions that are on different levels: one between formal and real contracts and the other between unilateral and bilateral contracts. Classical Roman law distinguishes formal contracts (which involve the fulfillment of certain formalities; they are the oldest and most rigid) and actual contracts (mutuum [deposit], commodatum [pledge]), which assume, “in addition to the formal element, convention, a material element, the res, the delivery of a tangible thing.” See Paul Frédéric Girard, Manuel élémentaire de droit romain (Paris: A. Rousseau, 1929), 538. Unilateral contracts, which include most formal contracts but also mutuum, produce obligations for only one party. On the other hand, synallagmatic or bilateral contracts entail reciprocal obligations: in sales or rentals, each party is both creditor and debtor. See Girard, Manuel, 468–69. That is why here they take on paradigmatic value.
31. RPh, § 77, GW 14.1, p. 79 (Elements, 107; see Outlines, 86).
32. Hegel, Vorlesungen über Rechtsphilosophie, 4:487.
33. RPh, § 63, GW 14.1, p. 69 (Elements, 92; see Outlines, 74).
34. Landau, “Hegels Begründung des Vertragsrechts,” 182.
35. David Ricardo, On the Principles of Political Economy and Taxation (London: Penguin, 1971), 55.
36. Aristotle, Aristotle’s Nicomachean Ethics, trans. Robert C. Bartlett and Susan D. Collins (Chicago: University of Chicago Press, 2011), 5.1133a28.
37. RPh, margin note to § 63, GW 14.2, p. 455.
38. Karl Marx, Grundrisse: Foundations of the Critique of Political Economy (Rough Draft), trans. Martin Nicolaus (London: Penguin, 1973), 156–57. I quote this passage rather than the corresponding one in Capital (bk. I, chap. 1, § 1) because its very expressions evoke phrasing from the Philosophy of Right, as for example, when Hegel calls civil society “a system of all-round interdependence.” See RPh, § 183, GW 14.1, p. 160 (Elements, 221; see Outlines, 181).
39. RPh, § 63, GW 14.1, p. 69 (Elements, 92; see Outlines, 75).
40. RPh, § 79, GW 14.1, p. 80 (Elements, 109, modified; see Outlines, 88).
41. Girard, Manuel, 515.
42. RPh, marginal note to § 79, GW 14.2, p. 497.
43. RPh, § 79 Anmerkung, GW 14.1, p. 81 (Elements, 110; see Outlines, 89).
44. This claim is part of an argumentative strategy that aims to legitimize the people’s right to rise up when a sovereign violates the social compact. See Fichte, Beitrag, Werke, 6:112–15.
45. RPh, § 79 Anmerkung, GW 14.1, p. 80 (Elements, 109; see Outlines, 88).
46. RPh, margin note to § 81, GW 14.1, p. 511.
47. Enzykl, § 459 Anmerkung, GW 20, p. 454 (Encyclopedia 195): “But the formal element of language is the work of the intellect which impresses its categories on language; this logical instinct gives rise to the grammar of language.”
48. RPh, § 78, GW 14.1, p. 80 (Elements, 108; see Outlines, 88).
49. RPh, § 79 Anmerkung, GW 14.1, p. 81 (Outlines, 89; Elements, 110).
50. RPh, § 75, GW 14.1, p. 78 (Elements, 105; see Outlines, 85).
51. See Rousseau, Oeuvres complètes, 3:371; Social Contract 2:2, 172. “There is often a great deal of difference between the will of all and the general will; the latter regards only the common interest, while the former has regard to private interests, and is merely a sum of particular wills.”
52. See Rousseau, Oeuvres complètes, 3:306. “The general will, to be truly such, must be general in its object and essence.”
53. RPh, § 82, GW 14.1, p. 85 (Elements, 115; see Outlines, 93).
54. See Hegel’s letter to Niethammer dated March 26, 1819, in Hegel, The Letters, 441–44; Hoffmeister, Briefe von und an Hegel, 2:262. See also the letter to Daub from May 9, 1821, in Hegel, The Letters, 460; Hoffmeister, Briefe von und an Hegel, 2:213. On the same page, Hegel writes of “my philosophy of law.”
55. Wurtemberg, W 4, p. 496; Proceedings, in Hegel’s Political Writings, 274.
56. RPh, § 163 Anmerkung, GW 14.1, p. 146 (Elements, 203; see Outlines, 165).
57. RPh, § 258 Anmerkung, GW 14.1, p. 202 (Elements, 277; see Outlines, 230). See RPh, § 75 Anmerkung, GW 14.1, p. 78 (Elements, 105; see Outlines, 85): “the nature of the state has just as little to do with the relationship of contract, whether it is assumed that the state is contract of all with all, or a contract of all with the sovereign and the government.”
58. RPh, § 258 Anmerkung, GW 14.1, p. 201 (Elements, 276; see Outlines, 229). Similarly, marriage is above all “consent to constitute a single person” (RPh, § 162, GW 14.1, p. 145 [Elements, 201; see Outlines, 164]).
59. RPh, § 75 Anmerkung, GW 14.1, p. 78 (Elements, 106; see Outlines, 85).
60. Wurtemberg, W 4, pp. 504–5; Proceedings, in Hegel’s Political Writings, 280–81, modified.
61. Naturrecht, W 2, p. 518 (Natural Law, 123–24).
62. See chapter 8, section 121 of John Locke, The Second Treatise of Government (London: J. M. Dent, 1993), 177.
63. Ernst Bloch, Natural Law and Human Dignity (Cambridge, MA: MIT Press, 1986), 120–30; Jürgen Habermas, “Natural Law and Revolution,” in Theory and Practice (Boston: Beacon, 1973).
64. Wurtemberg, W 4, p. 492; Proceedings, in Hegel’s Political Writings, 270.
65. Wurtemberg, W 4, p. 492; Proceedings, in Hegel’s Political Writings, 270.
66. The Federalist Papers (London: Oxford University Press, 2008), no. 84, p. 422.
67. See Wurtemberg, W 4, p. 483; Proceedings, in Hegel’s Political Writings, 263. The theme of this piece is the denunciation of the “estates’” desire to restrict public law (which for Hegel was born in 1791) to “good old law” and to privileges.
68. Rousseau, Oeuvres complètes, 3:360; Social Contract, 1:6, 163.
69. On the “double contract” see VII/2, section 7–8, in Samuel von Pufendorf, De jure naturae et gentium libri octo vol. 2: The Translation of the Edition of 1688, trans. C. A. Oldfather (Oxford: Oxford University Press, 1934), 974–77. In the abridged version of the treatise, De officio hominis et civis juxta legem naturalem, he summarizes “that any Society may grow together after a regular Manner, there are required Two Covenants, and One Decree, or Constitution.” According to the first covenant, the social compact, “of all those many, who are supposed to be in a Natural Liberty, when they are joined together for the forming and constituting any Civil Society, every Person enters into Covenant with each other, That they are willing to come into one and the same lasting Alliance and Fellowship.” The constitution determines “what Form of Government is to be pitched upon.” The second covenant establishes the respective rights and duties of rulers and the ruled: “when he or they are nominated and constituted upon whom the Government of this Rising Society is conferr’d; by which Covenant the Persons that are to govern, do oblige themselves to take Care of the Common Safety, and the other Members do in like manner oblige themselves to yield Obedience to them” (Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature, trans. Andrew Tooke [Indianapolis: Liberty Fund, 2003], 195).
70. This expression refers to the Holy Roman Empire of the German Nation where, between the sixteenth and the end of the eighteenth century, imperial power, which had always been limited, gradually lost all substance as the major Stände, such as Prussia and Bavaria, constituted themselves as sovereign states.
71. RPh, § 75 Anmerkung, GW 14.1, p. 78 (Elements, 105–6; see Outlines, 85).
72. Wurtemberg, W 4, pp. 506–7; Proceedings, in Hegel’s Political Writings, 282.
73. Reformbill, W 11, p. 127; Reform Bill, in Hegel’s Political Writings, 329.
74. “This relation of reflection accordingly represents in the first instance the loss of ethicality; or, since the latter, as the essence, necessarily appears, this relation constitutes the world of appearance of the ethical, i.e., civil society” (RPh, § 181, GW 14.1, p. 159; Elements, 219; see Outlines, 180).
75. Hegel, Philosophie des Rechts, 168.
76. Hegel, Vorlesungen über Rechtsphilosophie, 4:528–29.
77. RPh, § 236, GW 14.1, p. 190 (Elements, 262; see Outlines, 217).
78. RPh, § 157, GW 14.1, p. 143 (Elements, 198; see Outlines, 162).
79. See RPh, § 287, GW 14.1, p. 241 (Elements, 328–29; see Outlines, 278): “the powers of the judiciary and the police . . . have more immediate reference to the particular affairs of civil society, and they assert the universal interest within these [particular] ends.”
80. RPh, § 217 and Anmerkung, GW 14.1, p. 181 (Elements, 249, modified; see Outlines, 206).
81. Jürgen Habermas, Legitimation Crisis (London: Heinemann, 1976), 37; Legitimationsprobleme im Spätkapitalismus (Frankfurt am Main: Suhrkamp, 1973), 55.
82. Henry S. Maine presented the history of legal culture as an evolution “from Status to Contract”: see Henry S. Maine, The Ancient Law (Boston: Beacon, 1963), 172–74. Max Weber objected to this analysis on the grounds that contracts are present in ancient legal forms; he proposes that it would be better to speak of an evolution of the contractual form itself from “status-contract” to the “function-contract” (Zweckkontrakt) of market societies. See Max Weber, Economy and Society: An Outline of Interpretive Sociology (Berkeley: University of California Press, 1978), 672.