The Politics of German Idealism
Law and Social Change at the Turn of the 19th Century
CHRISTOPHER YEOMANS
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DOI: 10.1093/oso/9780197667309.001.0001
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For my wife Simone.
I:
PART II: PRIVATE LAW
6.
6.1
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7.1
7.2
7.3
7.4
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PART III: PUBLIC LAW
Acknowledgments
This work originates in a historical turn in my work on German philosophy that began with a simple question: what are the estates (die Stände)? I had envisioned a brief stroll through a garden of historical description but quickly fell down the rabbit hole of German historiography and philosophy of history. My first attempts to right myself were supported by the Provost’s Office at Purdue University through the Faculty Fellowship for Study in a Second Discipline (History). I used that time to work through background material with help from Whitney Walton and Charles Ingrao of Purdue’s Department of History. The most intensive period of research came during a year’s sabbatical in 2016–2017 from Purdue University as an Alexander von Humboldt Fellow at LMU-München where Günter Zöller kindly agreed to be my host. Finally, Purdue’s College of Liberal Arts supported a book scrub on the full manuscript and I benefited greatly from comments and discussions with Terry Pinkard, Lydia Moland, Keven Harrelson, Clinton Tolley, and Günter Zöller. The Department of Philosophy at Purdue has been a wonderful place to do this work, and I am grateful to my colleagues and students for their contributions to its stimulating atmosphere.
I have been presenting material from this work since 2015 at various conferences, talks, and workshops. I am grateful to organizers and audiences at Purdue, UC San Diego, Northwestern, University of Chicago, LMU-München, Münster, the New York German Idealism Workshop, Humboldt-Universität zu Berlin, Padova, Valencia, Heidelberg, and TU Dresden. Earlier versions of material that made it into the book have been published by the Hegel Bulletin, Journal of the History of Philosophy, and in collections from Routledge and Palgrave Macmillan. I am grateful to these publishers for their support; specific prior publications are indicated at the beginning of each of the relevant chapters.
This is now my third book with Oxford University Press, and I am greatly appreciative of that continuing relationship. I couldn’t hope for a better editor than Peter Ohlin, and I got tremendously useful and timely feedback from three anonymous referees. Paloma Escovedo and Imogene Haslam shepherded the manuscript through the production process and helped with the design.
Finally, my family has now also seen me through three books! This book is dedicated to my wife Simone, and I thank my children Miranda, Gemma, and Noelia for keeping me grounded in my own historical present.
Abbreviations
Works of J. G. Fichte
A Addresses to the German Nation. Edited and translated by Gregory Moore. Cambridge: Cambridge University Press, 2008. Citations are first to the English translations and then to volume 1/10 of GA
CCS The Closed Commercial State. Edited and translated by Anthony Curtis Adler. Albany: State University of New York Press, 2012. Citations are first to the English translation and then to volume III of SW.
FNR Foundations of Natural Right. Edited by F. Neuhouser. Cambridge: Cambridge University Press, 2000. Citations are first to the English translation and then to volume III of SW.
GA Johann Gottlieb Fichte. Gesamtausgabe der Bayerischen Akademie der Wissenschaften. Edited by Reinhard Lauth, Hans Gliwitzky, and Eric Fuchs. Stuttgart: Frommann-Holboog, 1964–.
SE The System of Ethics. Edited by D. Brezeale and G. Zöller. Cambridge: Cambridge University Press, 2005. Citations are first to the English translation and then to volume IV of SW.
SW Johann Gottlieb Fichtes sämmtliche Werke. Edited by I. H. Fichte. Berlin: Veit und Co., 1845–1846. Cited by volume and page number.
Works of G. W. F. Hegel
EL Part I of the Enzyklopädie der philosophischen Wissenschaften im Grundrisse. Edited by U. Rameil, W. Bonsiepen, and H. C. Lucas. Vol. 20 in GW. Hamburg: Meriner Verlag, 1992. References are by section number, with ‘R’ indicating the remark following the section, and ‘Z’ the addition from Hegel’s lectures. English quotations are from The Encyclopedia Logic. Translated by T. F. Geraets, W. A. Suchting, and H. S. Harris. Indianapolis: Hackett Publishing, 1991.
GW Gesammelte Werke. Hamburg: Meriner Verlag, 1992.
PR Grundlinien der Philosophie des Rechts. Edited by J. Hoffmeister. Hamburg: Meiner Verlag, 1995. English quotations are from Elements of the Philosophy of Right. Translated by H. B. Nisbet. New York: Cambridge University Press, 1991. Citations are by section number. ‘R’ refers to the Remark or Anmerkung, ‘Z’ to the Addition or Zusatz.
VPR Vorlesungen über Rechtsphilosophie. Edited by K.-H. Ilting. Stuttgart: Fromman Verlag, 1974. Cited by volume and page number.
Abbreviations
Works of Immanuel Kant
All citations to Kant are by volume and page number to Kant’s Gesammelte Schriften Berlin: Königlich-Preussischen Akademie der Wissenschaften, 1910–. English quotations are modified versions of those found in Practical Philosophy. Edited by M. J. Gregor. New York: Cambridge University Press, 1996; and Political Writings. 2nd ed. Edited by H. S. Reiss. Translated by H. B. Nisbet. Cambridge University Press, 1991.
CF Conflict of the Faculties
IUH Idea for a Universal History with a Cosmopolitan Purpose. Translations from Kant’s Politics
MM Metaphysik der Sitten (Metaphysics of Morals).
TP On the Common Saying: That May Be Correct in Theory, but It Is of No Use in Practice
TPP Towards Perpetual Peace.
WIE What Is Enlightenment?
1 Introduction
1.1 German Idealism in and of the Sattelzeit
The simple guiding thought of this study is to understand German Idealist political philosophy as political, that is, as a set of policy options and institutional designs aimed at a broadly but distinctively German set of social problems.1 ‘Political’ here refers to use of the state’s power to enforce law, and ‘social’ to the norms and groups that are regulated by that enforcement but which also antedate or exceed that enforcement.2 Because the power to enforce law is very much still being actualized by state-building in the period at issue, ‘political’ refers quite narrowly to a certain kind of practical legal project rather than to a perennial set of problems from the history of philosophy. By way of method, I claim that to reveal the political nature of German Idealist political philosophy requires understanding German Idealism as both taking place in and conceptualizing its own historical present—this is the sense in which it is not only political, but political philosophy. Throughout I make use of the tight connection between concepts, institutions and history noted by Reinhart Koselleck: “Without social formations, including their concepts, by means of which they determine (whether reflexively or self-reflexively) their challenges and seek to meet them, there is no history, it cannot be experienced nor interpreted, not presented nor told.”3
1 I should note at the outset that I won’t be using the term ‘German Idealism’ as anything more than a shorthand for ‘Kant, Fichte & Hegel,’ and I use ‘classical German philosophy’ interchangeably. The former term is controversial, and both my inclusion of Kant and my exclusion of Schelling could certainly be challenged. More radically, the whole notion of German Idealism as a constrained episode could be challenged (see Beiser, “Hegel and the History of Idealism”). Again, I don’t take much to turn on this terminological point, and except for Fichte, the topic of idealism as such won’t make much of an appearance in this work. I am particularly interested in political philosophy—or philosophy of law, broadly construed—which is why Schelling doesn’t make an appearance. I do feel a bit guilty about the exclusion of figures such as Wilhelm von Humboldt and Georg Forster, who were important contributors to this kind of political philosophy. But my aim in this work has been to induce contemporary philosophers to see with new eyes figures whom they have already taken to be important political philosophers, rather than to encourage them to see new figures as important. For the latter program, Beiser’s work remains central (see Beiser, Enlightenment, Revolution, and Romanticism).
2 Both of these terms are to be contrasted with ‘inter-subjective.’ I mean by ‘social’ and ‘political’ to describe historically specific forms of relations among persons, rather than any a priori form of interpersonal recognition. On the various levels between abstract inter-subjectivity and concrete sociality, see Yeomans, “Hegel’s Pluralism as a Comedy of Action.”
3 Begriffsgeschichten, 12. Unless otherwise noted, all translations from Koselleck in this monograph are my own.
The Politics of German Idealism. Christopher Yeomans, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780197667309.003.0001
The most important general feature of the historical present of the German Idealists is the way in which the period from 1770 to 1830 was one of transition between early and late modernity, a so-called saddle period (Sattelzeit) in which the metaphor is of a Bergsattel or shallow valley between two mountain peaks. This is a strange sort of historical present, of course, since it is a present that is conscious of both its difference from the past and its anticipation of the future. The notion of such a Sattelzeit comes originally from the German historian Reinhart Koselleck, and is worked out in great detail in the Geschichtliche Grundbegriffe (Foundational Historical Concepts), a collaborative project in mid-20th-century Germany that produced an eight-volume encyclopedia tracking the changes in political concepts over the period. The Geschichtliche Grundbegriffe and Koselleck’s own landmark study, Prussia between Reform and Revolution, will be frequent sources throughout the study, but I will explore this historical context in a way that is not narrowly restricted to Koselleck and his collaborators. The Sattelzeit theme is still current among German historians who do not share the details of Koselleck’s approach. For example, Jürgen Osterhammel has recently made the case for a global Sattelzeit from 1770 to 1830, with the true or truncated 19th century coming between 1830 and 1890, overlapping another transitional period starting in the 1880s.4
I tell a historical story of the German Idealists that draws on conceptual resources which they developed, yet which differs in fundamental respects from the historical story told by any of the Idealists themselves, as well as from some commonly told stories about the origins of modern philosophy generally.5 The key to the difference between the account offered here and that told by the German Idealists themselves is my attribution to them of a form of historicism that only came to be explicitly distinguished a century later—namely a historicism that describes the synchronic experience of historicity at a time (in the present), whereas their own philosophies of history tended to emphasize a historicism that described diachronic change over time (indeed, progress over time). The terms ‘synchronic’ and ‘diachronic’ originate in linguistics, but I do not here mean to use them in a way that refers exclusively to language. I simply mean to indicate the difference between looking at a phenomenon primarily as it as at a given time as opposed to how it has changed over time. Here, the phenomenon is political relations, and the German Idealists have separate works in
4 Osterhammel, Transformation of the World, 58–63.
5 In this way, I try to present a history of the German Idealists that is neither assimilative nor reception-historical, in Harrelson’s use of those terms. It is not assimilative because it attempts precisely to understand them in their own context, even when that seems archaic to modern ears (e.g., my emphasis on patrimonial courts and corporate society more generally). But it is not receptioncritical, since I have precious little to say about the way in which these figures have been handed down to us. See Harrelson, “Hegel in the Americas: Interpretive Assimilation and the Anticolonial Argument.”
which they try to describe the change in such relations over time. In Hegel’s version (his Lectures on the Philosophy of World History), for example, that story begins in China and ends in 19th-century Europe. But there is also an important sense in which the possibility and even necessity of change is embedded in the German Idealist’s non-developmental accounts of political relations in their philosophies of right (Recht)—it is this synchronic historicity whose presence I attempt to make visible here.
This attribution to the German Idealists of a form of what later (in the 20th century) became known as Historik in addition to their own Geschichtsphilosophie is a key hermeneutic device of this study, and I contend that it allows us to see aspects of contemporary relevance in their work that are obscured by the singlestrand interpretations that see only their progressive, diachronic philosophies of history. The synchronic historicism (Historik) is to be found in fascinating but obscure aspects of their political philosophy, such as Kant’s claim that our rights prior to the final institution of an ideal state are provisional, that is, both valid and revisable, defensible and yet inconclusive. One set of hermeneutic tasks of this study, then, is to raise these synchronically historical doctrines to visibility and to reveal their historicity.
But in another way, the story here begins from a historical development that was more apparent to the German Idealists than it is to us. In this way, the story told here is closer to that told by the German Idealists themselves than it is to most of our own contemporary ways of telling the history of modernity. The specific question at issue is, What fundamental change induces modernity? Whereas common contemporary stories—particularly in philosophy—emphasize the rise of science or the European religious wars, or even the much later explosion of industrial capitalism, this study starts from a more immediately relevant social change, namely the separation between state and society. This separation was thematized by Kant in his distinction between private and public law, by Fichte in his understanding of the discontinuity between economic and political relations, and by Hegel in his theorization of a new social sphere, civil society (bürgerliche Gesellschaft).
Among historians, the separation between state and society is recognized to be a central development of the modern era. In fact, this separation can serve as a criterion for the transition into modernity, which then begins in England in the 17th century, in France in the early 18th century, but in Germany first toward the end of the 18th century.6 An interpretation of modern European history along these lines then takes the following general shape: originally the state counted as the highest and most general estate (Stand), and thus was characterized by the
6 See, e.g., Conze, “Das Spannungsfeld von Staat und Gesellschaft im Vormärz,” 207–269; and Skinner, “The State.”
same form and kind of unity as the other estates, that is, as society (or, better, as the various overlapping societies clustered together in a geographical region). In the corporate society or Ständegesellschaft, the state counted as one estate among others, first among equals (or second to the church).7 Law-making was occasional at best, and most social and political relations were simply determined by local customs and traditional privileges. But in Germany there is a break in the late 18th century. Increasingly, traditional practices were supplanted by abstractly rational criteria developed for the planning and evaluation of state action, and then different rational criteria were developed within and for society. As Jerrold Seigel puts it:
The general notion of civil society as an organized form of social life governed by laws made it seem natural to consider political authority as part of it; but rulers and administrators in Germany sowed the seeds of their separation by taking bürgerliche Gesellschaft as an object of state action and policy, focusing on social relations and private behavior as targets of their efforts to improve and develop their territories.8
The state built a professional administrative corps and promulgated both general laws and particular regulations, whereas in civil society new forms of association and modes of production outside the church, guilds, manorial farms, and other traditional estates were deployed. And this difference was only magnified by the way in which that professional administrative corps took that society as an object of intervention. Out of this break grew a tension: the goals of the state and of the new civil society partially corresponded to each other but were not entirely congruent. Furthermore, the remaining corporate society did not recognize itself as goal-oriented at all, and thus found itself in fundamental tension with both state and civil society.
So on the one hand we have a dualistic phenomenon—a split between state and society. But the nature of that split introduces a second split within society itself, which comes to have two different variants—a more traditional corporate society (Ständegesellschaft) and a more voluntary and contractual civil society (bürgerliche Gesellschaft). Prior to this split, economic discourse in Germany consisted of treatises primarily about householding—that is, about the maintenance and proper management of household enterprises such as farms, rather than descriptions of laws of profit or prices. This is an economics in the classical
7 This had a linguistic representation as well: “Up to the mid-17th century, the Latin status was generally translated into German not as Stat, but as Stand denoting thereby not a condition, relation, or institution associated with a ruler, but the hierarchical estate groupings which controlled and limited his power” (Tribe, Governing Economy, 28).
8 Seigel, Modernity and Bourgeois Life, 115.
Aristotelian sense, an economics for corporate society. Only once the state splits from society and generates the new civil society do we have the economics we know today, oriented toward ensuring returns on investment and economic growth.9 The two dualistic splits together thus produce a triangular split between civil society, state, and corporate society.10
Though using slightly different language, Fernand Braudel has an evocative presentation of this split between two forms of society:
In drawing up this inventory of the possible, we shall often meet what I have called . . . ‘material civilization.’ For the possible does not only have an upper limit; it also has a lower limit set by the mass of that ‘other half’ of production which refuses to enter fully into the movement of exchange. Ever-present, all-pervasive, repetitive, material life is run according to routine: people go on sowing wheat as they always have done, planting maize as they always have done, terracing the paddy-fields as they always have done, sailing in the Red Sea as they always have done. The obstinate presence of the past greedily and steadily swallows up the fragile lifetime of men. And this layer of stagnant history is enormous: all rural life, that is 80 to 90% of the world’s population, belongs to it for the most part. . . . And material civilization has to be portrayed, as I intend to portray it, alongside that economic civilization, if I may so call it, which co-exists with it, disturbs it and explains it a contrario 11
In this work, I try to interpret classical German philosophy within the space of what Braudel here calls “this inventory of the possible.”
Classical German philosophy from Kant to Hegel is situated in the historical field of tension defined by that triangle, and the political concepts developed by those philosophers take up much of their content from it. This history of the emergence of this field of tension shows that it has three corners: an older corporate society that was composed of the innumerable particularities of each estate and region; a new civil society that was stamped by universal conceptions of personal freedom; and a state that served as the increasingly powerful individual in
9 Tribe, Governing Economy, 24.
10 In some respects my approach is similar to the recent work of Christoph Asmuth. Asmuth is himself keen to interpret the German Idealists in terms of their reflecting their historical context, and to emphasize the constellation of different positions with German Idealism rather than arguing for or against any particular position, much less presenting one figure as the completion of a development. Furthermore, the German Idealists as he reconstructs their (primarily theoretical) philosophy are pluralists, or philosophers of difference. But the thoughts pursued in this paragraph indicate some of the differences as well, and to my mind he tends to emphasize exclusively the progressive elements to the neglect of more traditional and inertial elements (though he does seem to see the importance of their connection for contemporary philosophy). In a slogan, if Asmuth sees German Idealism as Wissen im Aufbruch, I see it as Wissen im Spannungsfeld. See Asmuth, Wissen im Aufbruch
11 Braudel, The Structures of Everyday Life, 28.
the social field as a whole. This field of tension is not only to be understood as the field of contest on which the German Idealists meet each other in disputation, but also as a subject area that is itself conceptualized by the German Idealists.
Importantly, corporate society, civil society, and the state must themselves be understood not so much as institutions which are objects of contemporary observation and philosophical perception, but rather as perspectives from which different dimensions of such institutional objects as the family, law, and property can be observed. In this way, the political philosophies of the German Idealists should be understood as ways of conceptualizing social reality that are philosophical expressions of the way society conceptualizes itself (i.e., from these three basic and different social perspectives).12 Though the way society conceptualizes itself is often put in an objective register of functions and causes, the philosophical conceptualization brings out the way these same relations can be put in a subjective register of judgments and values. It thus brings out the way that these relations are justificatory and normative in addition to being explanatory and functional.
Furthermore, these social perspectives have a temporal form: the true corporate society always lies in the past, the true civil society in the (far) future, and the true state in the (near) future. They are never present in the present, as it were, and thus cannot be directly perceived.13 In Koselleck’s terms, the present is the temporal field of tensions of these “futures past,” and the actual social objects are institutions in that present which are illuminated from these different temporal perspectives simultaneously. Though Koselleck is perhaps best known for taking up these perspectives, recognition of their importance for understanding the history of Sattelzeit Germany extends beyond Koselleck and beyond Prussia to other German states as well. (In fact, in many respects the paradigmatic examples of these splits are in Baden and Bavaria.14) Let’s look briefly at two phenomena that exemplify this breadth before moving on to some contrasts with other approaches to the historicity of political philosophy.
The first example is from Isabel Hull, who describes the pattern of sexual behavior and the changes in this pattern in relation to the more general changes of the state and society in the 18th century. Though Hull uses other terms, this network can be conceived using the triangular field of tension described above.
12 I use ‘society’ and ‘society itself’ here as placeholders for describing corporate society, civil society, and the state collectively. It is actually an entailment of the methodological perspective taken up in this work that there is no truly neutral conception of all three combined to be had; there are only three different substantive conceptions, that is, the collection of the three viewed sequentially from the perspective of each of the three. Though a crucial result for the overall project of which this book is a part, it introduces expository difficulties that are best left to the side here.
13 For a contrasting view of the meaning of ‘civil society’ in this period, see Dipper, “Übergangsgesellschaft: Die ländliche Sozialordnung in Mitteleuropa um 1800,” 68.
14 Conze, “Das Spannungsfeld von Staat und Gesellschaft im Vormärz,” 215–17.
The following passage from Hull contains both a specific example as well as the general form of this network:
In the course of the eighteenth and into the nineteenth century, Sittlichkeit became more and more identified with matters exclusively sexual. . . . The Grimms’ examples of this shift in usage toward the narrowly sexual are literary sources from the late eighteenth century (Wieland, Schiller, Goethe). Had the Grimms included more legal sources, they would have seen that the ‘older examples’ of the more sexual usage are typical of legal discourse and that this usage was then, in the late eighteenth century, taken over by the literary shapers of civil society, who developed the sexual accent even further and, by the nineteenth century, had surpassed official usage, which still continued to retain some of the diffuseness characteristic of earlier times. In the following pages we will see this pattern again, whereby the state shaped and accentuated a way of interpreting or using sexual behavior, passed this along to nascent civil society, which in its turn developed this interpretation or usage independently of the state. This incomplete dialectic describes the formation of our modern conception of ‘sexuality.’15
Here the term ‘Sittlichkeit’ and its change in meaning from a general concept of social uprightness to a narrower conception of sexual mores is the specific topic. Naturally this thesis has interesting consequences for our understanding of Hegel’s doctrine of Sittlichkeit (‘ethical life’), but here I want to focus on the conceptual form of the dialectic Hull describes. In order to see this form more clearly we must first ask: from what source is this form of interpretation of sexual behavior taken over by the state and “shaped and accentuated”? Clearly this way of regarding sexual behavior cannot originate in the same society—civil society—that later takes this form of interpretation over from the state and generalizes it. Rather the state took over this form of interpretation from corporate society (Ständegesellschaft), here understood as the customs and traditions (Sitten und Gebräuche) of the majority of the population. The process of taking over these meanings ran primarily through the attempted regulation of sexual behavior, since the attempt to manage and direct the sexual activity of the population by means of laws required sufficient contact between the laws and the activity to be regulated by them, and thus the state was forced to familiarize itself at least with these customs and traditions of the population.16 Thus we have a circuit, which leads from corporate society through the state to civil society.
15 Hull, Sexuality, State, and Civil Society in Germany, 1700–1815, 95.
16 Ibid., 92.
Each position is something like an electronic component in an electrical circuit: it influences the circulating meaning (here, that of ‘Sittlichkeit’) in regular ways, similar to the way the electronic components influence the circulating current. This regular influence of the social stations in our circuit could certainly be described in a variety of registers, but here I want to remain at the logical level: the corporate customs normally push toward particularity (“the diffuseness characteristic of earlier times”), the governmental intervention toward individuality (“shaping and accentuating” through a legal system), and the civilsocial17 opinions toward universality (the same sexual system for all citizens). But a misunderstanding suggested by the analogy should be avoided, which would be to think that the cycle runs from one institution to another to another. When we understand by ‘institution’ a goal-oriented and integrated set of norms, then Sittlichkeit is the institution in this example, and the societies and the state are perspectives from which this institution is observed and regulated.
The different authors writing on sexuality had the norms of Sittlichkeit in common and these norms reflected governmental, corporate, and civil-social interests, but the perspectives defined by those interests were complicated. For example, Hull points out that the unique social position of the supporters of the civil-social interests played a role in their observations, since many if not most of these writers and advocates were, in fact, government officials of one sort or another. Due to his corporate status as a civil servant, such an official could have a kind of family that would have been unimaginable for an innkeeper or farmer or guild master, and it was precisely this very particular and unusual kind of family that formed the universal image of the nuclear family that he then advocated for all.18
Partially in order to dispel a second misunderstanding—that the meanings here are exclusively linguistic—our second example deals with the changes in the political representation of social interests in Bavaria. In the so-called Vormärz period (i.e., the period leading up to the March 1848 revolutions), the primary goal of the Bavarian state was to build a unified individual state out of the many lands that were first brought together in 1806/1815. This process of state-building was pursued in the face of resistance by the corporate estates, who wanted to protect their previous prerogatives and privileges. But it was also simultaneously subject to the civil-social criticism that the proposed constitution didn’t push fast enough toward this future unity.
17 I have adopted the somewhat cumbersome neologism ‘civil-social’ to describe this perspective, rather than the usual ‘bourgeois.’ In my view, ‘bourgeois’ has come to mean so many things that it is now unsuitable as a term of art to describe a particular social position. For similar reasons, I will use ‘governmental’ to describe the perspective of the state, though in many respects ‘administrative’ might have served just as well.
18 Hull, Sexuality, State, and Civil Society, 183–84.
In Vormärz Bavaria, the corporate perspective is easiest to recognize in the nobility and clergy. Both groups opposed the growing power of the state and in particular the power of the bureaucracy. In addition, a civil-social opposition set itself against the state, in particular against the estates-system of the new constitution. Following the promise of the Vienna Congress, in 1818 Bavaria had promulgated a constitution with a bicameral legislature (a chamber of councilors (Reichsräte) and a chamber of deputies (Abgeordneten)). The members of the chambers were corporately determined: roughly speaking, members of the high nobility and clergy belonged to the chamber of councilors, whereas representatives of the universities, towns, markets, and other corporations to the deputies. Though in principle the second chamber was to represent the interests of civil society, its membership was constituted in a way that corresponded to no contemporary social actuality, since that membership was derived instead from precisely the traditional prerogatives that were anathema to the new civil society. In the chamber of councilors, the nobility and clergy remained even more tightly tied to their traditional, pre-political order, and thus also had no relation to the newly arising liberal, civil-social opposition. In the estates assembly, then, the civil-social perspective was primarily represented by deputies who were civil servants (either as professors at the university or bureaucrats in the towns), and who were therefore also servants of the state.
In this context, the civil-social critique of the constitution was that it concerned only artificial or state-estates, whereas in reality there were only two estates: those with traditional privileges and prerogatives taken together on the one side, and the general estate on the other side (which was therefore entirely without representation in the assembly). Even though this form of privilege was soon to be abolished, Wolfgang Zorn’s view is that these artificial states nonetheless played an important role precisely in that abolition:
These state-estates may be understood as an element of corporate stabilization in the middle of modern constitutionalism. Their institution built, as it were, a bridge between the political freedom which was further-advanced in Bavaria since 1818 in comparison with Prussia and the even stronger social bond as compared with Prussia.19
This bridge then made it possible for Bavaria in 1848 to move into modernity with political equality whereas at that time Prussia regressed to the so-called Dreiklassenwahlrecht (three-class voting franchise), in which voting rights were apportioned by income (tax status). Here I just want to point out the temporal dimension: the corporate recourse to traditional (i.e., past) particularities
19 Zorn, “Gesellschaft und Staat im Bayern des Vormärz,” 141.
stabilized the near future because it enabled an equilibrium, and in that equilibrium the development into the further future could take place.
The circuit described here also does not run from one institution to another: as noted, the legislative advocates of the civil-social critique of the state-estates were primarily servants of the state, that is, civil servants (as were roughly half of the chamber of deputies). In this debate over the proper structure of the legislature, the institution ‘representation’ is exchanged and shared between these different temporal perspectives.
Three points ought to be made here before going on, all of which go to distinguish my own historiographical approach from some prominent others. First of all, it is essential to my way of viewing the material that the relevant historical context is primarily social. This separates my view from prominent historians of philosophy such as Beiser, Pinkard, Pocock, and Skinner, for whom the relevant historical context is primarily intellectual. 20 It draws my work closer to that of scholars such as Comay, Buck-Morss, Maliks, and even Dickey. But here it may also be helpful to point out that the relevant context for Comay, BuckMorss, and Maliks is political and takes the form of an event (the French and Haitian Revolutions), whereas I am primarily interested in structural context.21 Even when it comes to structural context, however, I am more interested in medium-term changes than in the longue durée to which eventual history is usually contrasted. Dickey’s account is extraordinarily rich, making use of both a general intellectual context of religious debates and a very specific political and religious context of Württemberg.22 I make no claim to the inherent superiority of my method, but I do think that it is both original and that it reveals a depth and interconnectedness of German Idealist political philosophy that shows it to be itself an understanding of the Idealists’ own historical experience. It also brings into relief the significance of certain aspects of their doctrines that might have seemed hopelessly archaic (such as Hegel’s estates structure and Kant’s “thinglike right to a person [auf dingliche Art persönliches Recht]”). In the conclusion, I will argue that it is precisely through revealing the historicity of German Idealist political philosophy in this way that we can see what might be of value to contemporary debates. Once we get down to the historical specifics—the socialhistorical specifics—we find surprising ways in which some of the contexts that are relevant for the German Idealists have reappeared in different form in our
20 Beiser, Enlightenment, Revolution, and Romanticism; Pinkard, German Philosophy; Pocock, Politics, Language, and Time; Skinner, “The State.” Similarly, I have nothing to say about the role of these figures in the development of the modern canon of philosophy along the lines argued in Harrelson, “Hegel and the Modern Canon”; and Park, Africa, Asia, and the History of Philosophy
21 Comay, Mourning Sickness; Buck-Morss, Hegel, Haiti, and Universal History; Maliks, Kant’s Politics in Context
22 Dickey, Hegel
own time. More than anything else, we will see our contemporaries in their attempt to formulate philosophies of legal, political, and social institutions that were new and yet nonetheless already undergoing fundamental change.
Second, and despite the difference noted above between my approach and the Cambridge school of Pocock and Skinner, one feature of their work is deeply important to my own and is shared with Koselleck. That feature is their attention to the plurality of political languages and their interaction within a historical period. As Pocock nicely puts it:
A complex plural society will speak a complex plural language; or rather, a plurality of specialized languages, each carrying its own biases as to the definition and distribution of authority, will be seen converging to form a highly complex language, in which many paradigmatic structures exist simultaneously, debate goes on as between them, individual terms and concepts migrate from one structure to another, altering some of their implications and retaining others, and the process of change within language considered as a social instrument can be imagined as beginning.23
In this work, I have taken Kant, Fichte, and Hegel to be speaking such different languages, and I have tried to trace their interconnections as a way of illuminating the way that conversation reconstructs the political reality of their historical present. As Pocock notes, we are always tempted to overgeneralize or otherwise extend the meaning of historical texts beyond the meanings they can bear when they are considered to be historically significant, in part because the authors themselves are so rarely in full control of their own vocabulary and see their own time through a glass darkly. We need a kind of historical key that reveals the linguistic paradigm of the period in question, or as, I would put it, a lens to bring the complexity of the plural society into focus.24 Burke provides that key for much of Pocock’s analysis, and Hegel for my own. I thus hold that the lens that brings the German Idealist debate into focus was provided by a contributor to that debate. Put another way, I hold that one of the positions in the debate has an advantage in bringing the others into relief. I thus take on a particular burden of proof to show that this key is not tendentious and does not make Hegel into the inevitable outcome of a teleological process of philosophical development. This is not my view, but a natural suspicion on the part of the reader is certainly justified and can only be allayed in the course of the work. In advance, I will merely point to the crucial
23 Pocock, Politics, Language, and Time, 22.
24 Ibid., 32–33.
importance which I attach to Kant’s doctrine of provisionality as announcing the theme of synchronic historicism in German Idealism.
Third, the social background that I bring to bear in interpreting these figures is more narrowly focused on Germany itself than many other current approaches, for example, that of Buck-Morss. To use a contemporary term, one might be tempted to say that this background comprises domestic affairs rather than international ones. For similar reasons one might take my understanding of the political philosophies at issue to make them out to be philosophies of law rather than political philosophies per se. There is something right about both suggestions. On the former point, I will have almost nothing to say about cosmopolitanism, race, or colonialism. In trying to interpret the semantics of the terms, claims, and principles used by the German writers to articulate their views on political matters, I look to an “inventory of the possible” that is structured by the tectonic shifts in social structure in the ground right under their feet, rather than to more spatially or temporally distant relations.25 On the latter point, the central problem that animates these philosophies on my account is a very practical version of the ‘What is law?’ question, but in German: ‘Was ist Recht?’ ‘Recht’ is, of course, a very difficult term to translate into modern philosophical English, and ‘right’ is more a transliteration than a translation. But many earlier translations rendered it as ‘law,’ and one can read my study as inclining in that direction. In my view, the focus on law—on norms enforced by sanctions through adjudication by authoritative processes—reveals the distinctive set of social problems to which the formulations of Kant, Fichte and Hegel respond. But in another sense the notion that the subject matter is domestic and legal can easily lead the reader astray. The latter formulation can do so because ‘law’ easily brings to mind the sorts of 21st-century legal systems we all inhabit, with perhaps some federalism but otherwise a clear hierarchy of authority and narrow scope of what counts as law. This, however, is not at all the situation in late 18th-century Germany, where many different forms of legal authorities and norms coexisted. The former formulation can mislead because prior to effective state-building, the clear line between the domestic and the international was not to be found, particularly in economic matters. In fact, precisely this problem animates Fichte’s most practical political work, The Closed Commercial State. But bearing those caveats in mind, the emphasis on the local and the legal is a distinctive feature that the reader will see played out in this study.
25 In this respect it is worth noting the different position of the various German states with respect to colonialism as opposed to England, France, or the Netherlands. Though there are scattered colonial claims prior to German unification in 1871, they are unsuccessful and marginal to economic and political life in the German states. The situation changes quite dramatically with the Berlin Conference of 1884.
1.2 The Shape of the Work to Come
1.2.1 Part I: Legal Standing Historicized
One of the crucial but hidden themes of German Idealist political philosophies is the way that legal standing—specifically the modern notion of equal standing before the law—is a work in progress. The legal individual and their rights claims, combined with their access and subjection to legal proceedings for securing those claims and adjudicating disputes with others about them, is a social persona that is just as much being created as presupposed by the new forms of governmental and civil-social institutions. In Part I, we start with the two most basic thematizations of this process in German Idealism: Kant’s doctrine of the provisionality of private law, and Hegel’s theory of the plurality of forms of legal responsibility.
Chapter 2 concerns a specific feature of Kant’s political philosophy that is of fundamental significance, namely the notion of provisional right. In this idea, Kant has formulated an essential aspect of the historicity of German Idealism and it deserves sustained discussion on its own. I connect this notion with two important features of ownership relations in the Sattelzeit. First, the practical problem of ownership rights is not that of determining the boundaries of exclusive titles, but rather of disentangling and reweaving a complex set of ownership relations. Second, the relevant contrast to which the state of nature vs. civil condition distinction refers is not a contrast between a situation of no political authority and one with political authority. It is, rather, a contrast between a society that had many different political authorities and one in which only the state had political authority. Then, I show how understanding Kant against this background puts the scholarly debate on the issue in a new light. Kant’s doctrine of provisionality is not a theory of a precursor stage to the final civil condition, but rather a theory of practical judgment under interminable conditions of uncertainty. It is a response to the historicity of politics that resonates throughout German Idealism and is one of its signature achievements. Furthermore, this is one of the cases in which we are not forced to choose between antiquarianism and anachronism, because these two features of the Sattelzeit that are crucial to interpreting Kant on provisionality are also features of our own world. In our time, political authority is much more widely distributed than is usually recognized (see, e.g., McMahon 2012 and Anderson 2017), and any unified conception of property relations has long since been unraveled by the actual practice of law in the context of capitalism. With this doctrine, Kant in his own way articulates the co-presence of the particular investments of the past, the universal demands of the future, and the individual plans of the present. I end this chapter with a specific example of Kant’s provisional theory that has gone largely unrecognized, namely Kant’s
notion of a thing-like right to a person (auf dingliche Art persönliches Recht). This is the kind of right held by spouses and children against each other, and masters against servants. On my view, Kant’s inclusion of such a right within the domain of private law, which must be taken up into the civil condition and enforced by the state, is ipso facto a claim that private legal jurisdiction must coexist with the jurisdiction of state courts in the just republic. There is, if you like, a kind of meta-provisionality built into Kant’s conception of law, according to which the tension between private and public legal jurisdiction is not a relic of the past to be got beyond but rather a continuing problem to be managed even in republics. If this is right, then the political and the social cannot be as cleanly split as contemporary political philosophy has assumed, since there are forms of enforcement authority within the social realm as well.
In Chapter 2, we have our first key to the synchronic historicism of the German Idealists in Kant’s doctrine of the provisionality of private law. In Chapter 3, we explore a second key, which is found in Hegel’s account of the coexistence of different forms of legal responsibility in the Sattelzeit. This key is historicist in two senses. First, the different forms of responsibility and their characteristic successes and failures are related to epochal shifts in the evaluation of action. And second, this account of the coexistence of different forms of responsibility is related to the great German legal reforms of the late 18th and early 19th centuries, including the paradigmatic Prussian Allgemeines Landrecht (ALR). This chapter takes up Hegel’s theories of legal responsibility against the background of the ALR and other German legal reforms. The ALR was one of the great Enlightenment reform efforts, and had as one of its primary goals the systematization of the different regimes of law extant in the Prussian states. Philosophical theories of moral responsibility have always traded heavily in legal analogies, and the German Idealists are no exception. This chapter shows Hegel’s multiple accounts of agency to be attempts to manage a distinctive tension of the ALR, which is that it grasped the members of the various estates (Stände) on the one hand as equal agents before the law, but on the other hand assigned them to different legal venues with different rules and thus different ways of holding them responsible. One way to see these different ways is to consider the different forms of exculpation that attach to them. Most fundamentally, these different forms of exculpation are grounded in difficulties in figuring out which conception of the socially objective world is the right framework for determining the moral valence of the action, or even if the action is subject to moral evaluation at all. Here we have a feature that is apparently archaic—and is certainly pursued by Hegel in terms of social conditions that are now quite distant from us—and yet continues to appear in new guises in our own time. For example, should what we eat be understood morally in terms of its climate impacts, its source in ethnic traditions, or simply as a biological process without any great moral import?
The answer to this question depends on the proper conception of the objective world in which the agent acts. This chapter first reconstructs the form of such difficulties for Hegel’s three “rights” of agency: the right of knowledge, the right of intention, and the right of insight into the good. These three rights correspond to three different normative competences that the ALR and reform movements attempted both to demand of and develop in agents: competence in determining whether a specific action is a proper object of normative evaluation, competence in evaluating the social impact of an action, and competence in making all-things-considered judgments about actions. The distinction between these forms of normative competence is then interpreted as a philosophical reflection of the historical shift induced by the ALR and continued into the reform period that first turned noble privileges into negative property rights, and then within a generation turned those same negative property rights into positive, fungible economic rights. In this process, the social landscape of those rights transformed sequentially from something physical into something a priori and universal, and then again into something social and thus value-laden, but also contingent and enormously complicated. The transitional, non-ideal nature of Hegel’s political theory is most revealed in the fact that the normative competences he identifies are essentially abilities to cope with these shifts in meaning.
1.2.2 Part II: Private Law
With these foundations in hand, we turn to the study of the particular social institutions that were described and justified by the German Idealists.
Chapter 4 focuses on the institution of the family as it was understood by the German Idealists. I reconstruct the debate between the Idealists as a debate between representatives of the different social perspectives first laid out in Section 1.1 and then given more conceptual and action-theoretical structure in Chapters 2 and 3. I begin with another brief historical introduction of both intellectual and social context. The intellectual context is primarily the development of Cameralist thinking in the 18th century in opposition to Aristotelian understandings, which then interacts in complex ways with the social changes brought on by war and modernization in the Sattelzeit. This involves reconstructing the historical context a bit more specifically than already done in Chapter 1, and in general I try to introduce historical context sequentially (i.e., as it illuminates particular features of the Idealists’ doctrines and shows them to be representatives of a particular social perspective). This is a tactic that I use quite a lot in the book, so it might be worth saying a bit about this methodological choice. It is a bit like just-in-time lectures in the classroom, where the thought is that rather than providing all of the background and setup at the beginning,
potentially weeks before the class tackles an issue that makes use of some particular piece of that background, it is best to provide the background information right when it is needed. Outside of the general sketch of the Sattelzeit and its field of tension in Section 1.1, I have adopted a similar strategy for the historical context. In part, that is because the features of historical context to which I appeal are features of social context and thus likely unknown to the philosophers who are the primary target audience of the book. But in part this is because the particularity and specificity of that context matters, and so an exhaustive background treatment would be too long. Then I offer an interpretation according to which Kant presents the family from the corporate perspective, Fichte from the civilsocial perspective, and Hegel from the governmental perspective.
But in order immediately to distinguish my approach from Marxist historiography of philosophy, I also argue that all of the three social perspectives are present in each of the philosophers. By doing so, I hope both to push back against any reductionism that would portray the Idealists as merely mouthpieces for social interests, and also to show that the Hegelian framework that is employed here to reconstruct the Idealists is neither tendentious nor anachronistic. To my mind, the best way to fight the reductionism is to show that the great value of the Idealists as philosophers lies in the way that they each present all three perspectives, even though one must be prioritized—and Hegel is no exception here. The choice between the Idealists is, in an important sense, like the choice between forms of agency themselves—it must be a matter of Willkür rather than Wille because we are forced to choose a prioritization that is, contrastively speaking, arbitrary. In particular, I try to get at the way in which the unity of the perspectives produced by each prioritization is contrastive—that is, the way in which there are really three unities involved, one from each of the three perspectives.
Chapter 5 takes on German Idealist theories of property. In particular, it takes up the issue of the relation between reason and politics. Of course, the proximate source of concern about this relation for the German Idealists is the French Revolution and the Theory-Practice debate that it sparked.26 In Chapter 5, I connect the issue to a contemporary metaethical debate with historical roots in the German Idealists, namely the debate over the nature of and prospects for constructivism. All of the German Idealists are constructivists in some sense— that is, all of them see free self-consciousness as the source of norms—and comparing the different advantages and disadvantages of each of their forms of constructivism helps us make a start at seeing what is promising and what is dangerous about each of their perspectives. More specifically, the dilemma for constructivists as set out by Arto Laitinen is a nice way to frame the historical
26 See Maliks, Kant’s Politics in Context, chap. 2.
options philosophically, and to locate the German Idealists in our triangular field of tension. In addition, Chapter 5 extends the perspectival analysis thus far developed by characterizing views of property by reference to the function of property that comes to the fore in their analyses: the personal, the economic, or the political. These terms will help us add another connection between the projects of agency and the social perspectives, as well as profiling the Idealists against the background of the broader modern debate over property rights. Perhaps most important, this chapter helps to fill out the way in which each of the philosophers take up multiple perspectives by showing that each has a different perspective on property than they had on the family. Whereas Kant took a corporate-social perspective on the family, he takes a civil-social perspective on property that focuses on its economic role. Whereas Fichte took a civil-social perspective on the family, he has an essentially governmental perspective on property that focuses on its political role. And whereas Hegel took a predominately governmental perspective on the family, he takes a surprisingly corporate-social perspective on property that focuses on its personal role. Again, I want to distinguish my historiographical approach from any sort of social reductionism—whether Marxist or of any other sort. These figures are not mere mouthpieces of any one social class, but construct social reality from multiple perspectives.27 They contrast, however, because of the different perspectives they take on different institutions and the predominant perspectives from which the perspectives are unified into a systematic political philosophy. The debate between them can be reconstructed as philosophical precisely because they present different ways of unifying these perspectives.
In Chapter 6, I take up an issue in which both of the institutions we have seen so far—property and the family—are related to each other: inheritance. The issue of the legitimacy of inheritance is one of the crucial social questions of the late 18th and 19th centuries.28 In contrast with our own contemporary reflections on inheritance, which is spurred by the enormous inequality of capital wealth produced by multi-generational inheritance, the distinctiveness of the issue in the Sattelzeit comes from its reaction to feudal inheritance structures before the advent of capitalist industrialization.29 This chapter focuses on Hegel, since he most explicitly grasped different social forces and values involved. Indeed, it is partially under the pressure of the tension between those forces that Hegel distinguishes between two different forms of property, and puts that distinction to use in striking a balance between those forces. But it should be remembered
27 For a good review of modern historiographical research that has put paid to the notion of the bourgeoisie as a historical agent, see Seigel, Modernity and Bourgeois Life, chap. 1.
28 See Beckert, Inherited Wealth.
29 On the contemporary context, see Piketty, Capital in the Twenty-First Century; and Halliday, Inheritance of Wealth.
