What are we to understand by “institutionalism”? With some reservations, let us begin with Carl Schmitt’s characterization of it—though Schmitt himself prefers the name “concrete-order thinking” in order to distinguish it from the “decisionism” he first adopted and from “normativism,” which he consistently rejects:
Every jurisprudential thought works with rules, as well as with decisions, and with orders and formations . . . the three kinds of thinking—rules and statutes, decision, and concrete order and formation—are distinguished according to the various ranks each confers . . . on the three types of jurisprudential thought.1
I do not intend to assess the relevance of this classification, which can easily be labeled simplistic; I am merely borrowing a definition of institutionalism from Schmitt. Whereas normativism (illustrated by Kelsen’s pure theory of law) postulates that every order is based on a norm, and decisionism considers that “every order is based on a decision”2 that cannot be reduced to a rational basis: “institutional legal thinking unfolds in institutions and organizations that transcend the personal sphere.”3 Institutional legal thinking subordinates norms and decisions to an order (an institution or a complex of institutions) that establishes their coherences and gives them vitality and duration: from this perspective, institutions are identified with the legal order itself, of which they are the objective manifestation and the “concrete and real unity.”4 As Maurice Hauriou, the major French representative of the institutionalist school, writes, the institution understood as the realization of an “arch-idea” “possesses an objective existence,” a “proper and autonomous life.”5 It thereby demonstrates the “objective nature of the idea,”6 forming a kind of “objective soul”7 that is refracted in every individual, as if “incorporated into the things around us.” It is in a sense an idea-made thing, a quasi nature that offers individuals a clear framework for their actions: to use Rudolf Smend’s vocabulary,8 this “block of incontestable ideas” guarantees their “integration” into a suprapersonal totality that is a “totality of life,” that is, both living and lived.
We see that the idea-made thing, the institution in the sense of Hauriou, Romano, or Smend, or the concrete order in Schmitt’s sense, have traits that undeniably bring them close to what Hegel calls objective spirit: that is, to use one of his definitions, spirit “in the form of reality, as a world produced and to be produced by it; in this world freedom is present as necessity.”9 Thus. it is not surprising that these jurists willingly refer to Hegelian objective spirit or to certain of its supposed properties when they present their doctrines as well as when they describe the “cunning of reason” at work in processes of institutional integration.10 The question then becomes whether the Hegelian doctrine of objective spirit can be called institutionalist, and if so, in what sense.
In Dieter Heinrich’s introduction to a Nachschrift from the 1819 to 1820 lectures, he maintains that the doctrine of objective spirit is strong institutionalism. I quote:
The doctrine animating Hegel’s Philosophy of Right ought to be understood as an “institutionalism.” The minimum conditions for calling something an institutionalism are met when it is accepted that a theory of law that is based on the principle of the autonomous will also has to recognize its conditions of possibility and its origin in an order of things that allows for the realization of any such principle. But Hegel’s theory is a strong institutionalism: it teaches that the freedom of the individual cannot be realized in an order where the objective itself does not possess the form of the rational will, where the will is not encapsulated entirely within its conditions, albeit without alienation. The individual will, which Hegel calls “subjective,” is wholly integrated into the order of institutions and is justified only insofar as they are themselves.11
In what follows, Heinrich asks whether—given that strong institutionalism has consequences unacceptable to contemporary consciousness, in particular at the ethical and political levels (since it implies the unilateral subordination of individuals, their choices, and their behavior to the institutional conditions of their existence)—it is possible to add a corrective while still maintaining the general framework of the Hegelian system and giving relevance to the theme of objective spirit.12 His answer is a cautious yes: it should be possible to replace strong institutionalism with a moderate institutionalism that gives more room to individual rights on the condition that the connection between objective spirit, subjective spirit, and absolute spirit be emphasized better and more strongly than it was by Hegel himself.13
As for myself, I contest the observation at the basis of this analysis and therefore would like to modify the conclusion. Does the acknowledgment of a “right of the world” restrict the “right of the subjective will,”14 or is it rather the condition of its actuality (weak institutionalism)? In my opinion, Hegel’s philosophy of law and right does not fall under strong institutionalism as defined by Heinrich, meaning that it does not necessarily imply a unilateral subordination of the subjective will to the objective will embodied in institutions, and equally, it undoubtedly excludes any inversion of the priority of objective ethical institutions. To convince oneself of this, one must study how the doctrine of objective spirit transforms, or at least modifies, the conception of subjectivity developed in the doctrine of subjective spirit, notably by developing a theory of moral subjectivity that is distinct from Kantianism yet shares its fundamental intention, and a theory of subjectivity that involves complex interactions between subjects, norms, and institutions.
1. Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens (Berlin: Duncker und Humbolt, 2006), 7; On the Three Types of Juristic Thought, 43 (modified).
2. Schmitt, Politische Theologie, 16; Political Theology, 10. The English translation erroneously has “every legal order.”
3. Politische Theologie, 8; Political Theology, 3. This is the preface added by Schmitt in November 1933, thus, after he had rallied to National Socialism.
4. Santi Romano, L’ordre juridique (Paris: Dalloz, 2002), 7, 29–31.
5. Maurice Hauriou, “L’ordre social, la justice et le droit,” in Aux sources du droit: Le pouvoir, l’ordre et la liberté, ed. Maurice Hauriou (Caen: Centre de philosophie politique et juridique, 1986), 76.
6. Maurice Hauriou, “La théorie de l’institution et de la foundation,” in Hauriou, Aux Sources Du Droit, 101.
7. Ibid., 108.
8. Schmitt’s contemporary, Smend, is the author of the “theory of integration,” which attempts to define the process by which the incorporation of individuals into a unified whole is ensured in such a way that “the unity that is achieved is more than the sum of the parts together.” See Smend, “Integration,” in Smend, Staatsrechtliche Abhandlungen, 482. Along with Hauriou and Romano, Smend is one of the major representatives of the legal institutionalism that developed in the interwar period in response to positivism and its normativist variant (Kelsen, Pure Theory of Law).
9. Enzykl, § 385, GW 20, p. 383 (Encyclopedia 20).
10. See Smend, “Integrationslehre,” in Smend, Staatsrechtliche Abhandlungen, 476: “the integration process takes place through unpremeditated legality, through a ‘cunning of reason.’” Schmitt explains that the classic parliamentary system implements a “cunning of the idea or the institution” that elevates the representative of a particular interest for the purposes of general interest. See Carl Schmitt, Die Hüter der Verfassung (Berlin: Duncker und Humboldt, 1985), 88. Schmitt also stresses that Smend’s (institutionalist) theory of integration has its roots in Hegel’s thought, with Lorenz von Stein’s distinction between “constitution” and “order” of the state serving to connect the two. Schmitt, Verfassungslehre, 6; Constitutional Theory, 62.
11. See Dieter Henrich, “Vernunft in Verwirklichung,” in Hegel, Philosophie des Rechts, 31.
12. Henrich’s approach is therefore similar to that of Vincent Descombes, who, starting from an analytical standpoint, legitimizes some of the premises of Hegelian institutionalism—those summed up in the concept of objective spirit. See Vincent Descombes, “Y at-il un esprit objectif?,” Les Etudes Philosophiques (1999): 347–67; Institutions of Meaning, passim.
13. Henrich, “Vernunft in Verwirklichung,” in Hegel, Philosophie Des Rechts, 33.
14. RPh, § 33, GW 14.1, p. 48 (Elements, 62; see Outlines, 50).