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The development of Hegel’s later philosophy of law must be situated in the context of Prussia’s ‘revolution from above’. After a crushing defeat at Jena in 1806, a group of loyalist officers and bureaucrats initiated a project of sweeping administrative reforms, establishing a new military order, a new university system, an opening for modernist currents in Protestant theology, and beginning the transformation of Junker squires into capitalist landlords. Little more than a decade later, Hegel was inducted into a loose coterie of reformist officials that included Wilhelm von Humboldt and Carl von Clausewitz. In the era of reform, Prussia acquired an enigmatic, dual nature as a self-modernizing old regime, and Hegel’s Philosophy of Right offered philosophical rationales for this German Sonderweg. The project of state promoted modernization continued after victory over Napoleon, but came to confront ever more determined opposition from two quarters: romantic nationalists who had expected their restored rulers to grant the people more liberties in recognition of their supporting role in driving out the French, and evangelical traditionalists aiming to restore the status quo ante. The argument of The Philosophy of Right was directed at both. After his death in 1831, the fifteen-year heyday of the relationship of the Hegel School to the Prussian State began to break down, as its opponents began to prevail in the struggle for academic placement and official patronage. Hegel’s supporters still had a powerful patron in the Minister for Culture, Karl vom Stein zum Altenstein, but with his death a decade later, their fortunes rapidly began to sink.
What was the appeal of Hegel’s philosophy to its official sponsors in the post-Napoleonic decade of the Reform era? Speaking of the era of censorship from 1819-1830, the heyday of the Hegelians, Marx explained the context of the explosive impact of this strange new language:
“The sole literary field in which at that time the pulse of a living spirit could still be felt, the philosophical field, ceased to speak German, for German had ceased to be the language of thought. The spirit spoke in incomprehensible, mysterious words because comprehensible words were no longer allowed to be comprehended.”
Except for an inner circle of academic initiates, Hegelian philosophy was as unintelligible then as it remains to most educated people today, but its message was clear: what is real—the prosaic, individualistic modern age around us—was not a fall from some other condition—the beautiful Greek polis, the organic, pious Middle Ages—but was rational, having a raison d’etre that it was the business of philosophy to expound.
Conservative Hegelians tended to portray the gap between rational norms and the uninspiring realities of a half-modern, bureaucratic monarchy as itself rational, if in a higher, more mysterious sense. The milieu of the so-called Young Hegelians not only rejected these apologias but went on to conclude that philosophy was complicit in the perpetuation of a form of state that simply could not recognize its subjects as rational and free beings. As serene contemplation of the rationality of what exists, Hegel’s system remained a traditional philosophy and could not provide the adequate language for the criticism and denunciation of these infamous conditions. The downfall of theology would be a prelude to the end of philosophy, and the emergence of a new kind of intellectual practice: the ruthless critique of all that exists.
1. Jonathan Toews, The Path Towards Dialectical Humanism 1805-1841, Cambridge 1980. Warren Breckman, Marx, The Young Hegelians, and the Origins of Radical Social Theory, Cambridge 2001. Stathis Kouvelakis, Philosophy and Revolution: From Kant to Marx, London 2003.
2. Karl Marx, ‘Debates on Freedom of the Press and Publication of the Proceedings of the Assembly of the Estates’, Rheinische Zeitung, no. 128, 8 May 1842, Supplement, in mecw, vol. 1, New York 1975, p. 140.
For the milieu of university graduates who came to be known as the Young or Left Hegelians, the critique of the Christian religion- the Augustinian duality of an earthly vale of tears and a promised, otherworldly salvation- formed the template of this new practice. A European world undergoing secularization was still in thrall to the ghostly remnants of religious consciousness, in philistine Germany above all. The critique of theology was intended to awaken the nation from its voluntary servitude and set in motion the dissolution of the old order in Germany. But in denouncing the Christian religion, these young scholars confronted the authority of Hegel, who held that a comprehensive scientific world view would not abolish but rather preserve this superseded form of consciousness, neutralizing the radical potentials of secularization.
In this boisterous politico-theological scene, contentions soon broke out over the essence of Christianity, the historically final form of religion, now supposedly in its death throes: for Bruno Bauer- its world view was an expression of the European world’s long journey through an abject, otherworldly self-hatred, whereas for Ludwig Feuerbach it stemmed, on the contrary, from a salutary impetus to transcend our mortal finitude by worshipping ourselves in the other. Across such oppositions, a later formulation from Marx captured the common premise of this ephemeral current.
“The criticism of religion ends with the teaching that man is the highest being for man, hence with the categorical imperative to overthrow all relations in which man is a debased, enslaved, forsaken, despicable being”
For the Young Hegelians, the mid-19th century was the last phase of the Christian era during which man was subject to alien powers of his own making. In their theological preoccupations, it could be said that these disciples of the philosopher fell behind the level of his conception of modern times. The latter had sought to explain how the separation of church and state- the establishment of the latter as a power recognizing no superior- prepared the way for the differentiation of the state from an emerging civil society. The Young Hegelians’ initial lack of interest in civil society was rooted in
3. Karl Marx, ‘Contribution to a Critique of Hegel’s philosophy of Law’ [1843, published 1844] in mecw vol. 3, New York 1975, p. 182.
their militant civic republicanism. The claim that the modern spirit of commerce ruled out any return to the austere republicanism of the ancients- a judgement usually attributed to the founder of European liberalism, Benjamin Constant- was regarded with suspicion by the radicals who refused to accept the dilatory constitutional settlements of the Restoration era as in any way historically definitive. Young Hegelian Jacobinism, still lacking its own conception of the direction of history and unsure of the stature of the present within it, tended to drape its republicanism in classical attire. In conformity with this outlook, the post-graduate Marx refused to recognize any unbridgeable distance separating ancient and modern times.
“Only this freedom, which vanished from the world with the Greeks and under Christianity disappeared into the blue mist of the heavens, can again transform society into a community of human beings united for their highest aims, into a democratic state.”
When still a follower of Hegel, Marx tended to think of the atomistic individualism of bourgeois society not in the light of Hegel’s reading of modern political economy, but rather in terms of his account of the history of Roman law. Hegel’s impassioned denunciation of the inhuman formalism of Roman law, which in its classical form permitted nearly everything, including life and limb- to be contractually alienable, could easily be turned towards contemporary conditions. After all, Roman law did not seem to any of them to be an artifact from the past, for over the centuries it had become the basis of modern European jurisprudence, although progressively modified to the needs of bourgeois society. This imbrication of ancient and modern law made it possible for early
4. Karl Marx, Letter to Ruge, September 1843, in mecw vol. 3, New York 1975, p. 137.
5. Controversies between proponents of Roman and German law went back several centuries and assumed a new significance in the ideological context of Restoration era conflicts over the principles behind legal codification. In the Philosophy of Right Hegel had denied that Roman law possessed even the minimal criteria of rationality, as its one-sided development of absolute property rights made it unable to distinguish persons from things. While Hegel came to understand modern times as in some sense a German age, in contrast to Montesquieu he advocated the removal of all vestiges of feudal law, including the dissolution of the various forms of common property that had always existed in the interstices of the old order. For Marx, it was precisely the harsh, one-sided development of legal relations capable of accommodating both slavery and despotism characteristic of Roman jurisprudence that was ‘rational’ while the characteristically ‘Germanic’ dualism of public and private upheld by Hegel was held to be ‘mystical’. This way of conceiving the opposition between the two arguably lacked historical justification since Roman jurisprudence was surely the first to make a clear distinction between public and private law, and had a clearly developed conception of the first – ‘publicum jus est quod statum rei Romanae’ – that was obscured in the feudal order of the Middle Ages.
19th-century German academics to conceive of bourgeois society on the pattern of the Pandects. In the Hegelian philosophy of history, Rome had arisen out of the dissolution of the classical polis, unleashing a world of unbridled subjective atoms subject only to the laws of war and contracts, one which achieved its universal scope under the despotism of the Caesars. Roman universalism was for Hegel and the Young Hegelians the crucible of Christianity, a spiritual movement falsely promising deliverance from misery, despair, and humiliating servitude.
The Young Hegelians foresaw that the coming age of emancipation would involve both a repetition and a transcendence of the Enlightenment, which they understood to be the intellectual prelude to a revolution. In a narrow sense of the term, the Young Hegelian scene lasted from the late 1830s to 1842, when its most active writers split into warring groupuscules after having lost all prospect of academic employment. But its characteristic dialectical conceptuality and polemical methods had an afterlife over this whole period, saturating the writings of both Marx and Engels, up to the early 1850s when the age of revolution seemed to have come to an end.