This begins a series of posts based on French scholar Sylvie Hürstel's important book Au Nom de Hegel (2010) that addresses the use of Hegelian ideas in German legal circles during the Weimar Republic and Third Reich. To the best of my knowledge, this marks a very significant advance in scholarship on the reception of Hegelian ideas in Germany during a critical era. This particular post concerns her contextualizing introduction.
In the Name of Hegel
Sylvie Hürstel's Au Nom de Hegel: les juristes néo-hégéliens et la philosophie du droit de la République de Weimar au Troisième Reich (Presses universitaires de Rennes, 2010) can be purchased on Amazon.fr in paperback and was reviewed in 2012 here by Catherine Colliot-Thélène, who has written on Hegel and Max Weber. In English it is: "In the Name of Hegel: neo-hegelian Legal Theorists and the Philosophy of Right from the Weimar Republic to the Third Reich".
Preface (Olivier Jouanjan)
Introduction [Sylvie Hürstel]
In German universities, Hürstel writes, neo-hegelianism has long [she is writing in 2010] been rejected because of its associations with the Third Reich. [The current situation of philosophy in Germany, described in a 2015 article in FAZ, may be partly an effect of this.] The Hegelian ideas of constitutionalism in the workings of the state and individual rights in civil society were seen to be subverted in the collapse of the Weimar republic. The Third Reich abolished citizenship for ideas of Führer and followers, of service to an all-embracing community for which the individual was of no account.
She summarizes the current state of knowledge initially via historians (and sociologists) of philosophy and then looks at the reaction of the legal profession to neo-hegelianism.
The history of philosophyErnst Topisch (1919-2003), in The Social Philosophy of Hegel (1970) [an important short book untranslated into English as far as I know], saw neo-hegelianism as a pure expression of Nazism, whose character was brought to light in the 1960s. Hubert Kiesewetter, in From Hegel to Hitler (1974 & later edition), extended this attack to the whole Hegelian tradition of the German universities. [This is also untranslated.]
|Ernst Topisch in 1986|
All remained in post after 1945, save Julius Binder who died in 1939 and Martin Busse who died in February 1945 [on military service]. They might thus be a means of understanding Nazism, she thinks.
The term “neo-hegelian” arose in the course of a long-standing debate. After WW2, Hegel was understood to be at the root of 20th century totalitarianism. This view was initiated by Karl Popper in The Open Society and its Enemies (1945), who identified a “Prusso-platonic worship of the state”. [Hürstel pays no heed to Hannah Arendt, with whom the term is also associated.] Ernst Cassirer, in The Myth of the State (1946, German translation 1949) took a similar line. Hegel’s view of history is a “cult of success” and the dialectic is an open door to intellectual dishonesty, as is “historicism”.
This marks a distinct step in the history of Hegel’s reception in Germany since 1831, as Domenico Losurdo has shown. She cites two of Losurdo’s books, Hegel and the German Inheritance [available in German] and Hegel and the German Catastrophe [available in Italian, French and recently German], the latter of which I reviewed here. Losurdo shows that this reception has always had a political significance for Germany. It has been related successively to the Prussia of the Restoration, Bismarck’s authoritarianism and Hitler’s totalitarianism. One classic text in the history of opposition to Hegel is Rudolf Haym’s Hegel and his Time (1857), which Karl Rosenkranz, Hegel’s first biographer, tried to correct. Haym’s views have been perpetuated by Hermann Heller, Friedrich Meinecke and Franz Rosenzweig, whilst Walter Kaufmann disputed Popper’s scholarship.
In Germany, this led between 1960 and 1974 to the books of Ernst Topisch and [his student] Hubert Kiesewetter already cited and related essays. These writers sought to purge German universities of neo-hegelian elements and traditions. This was the intent of their studies of “neo-hegelianism” as such.
University professors responded to this with silence about neo-hegelianism. This marked a contrast with previous eras. Rosenkranz had responded to Haym, for example. In France, Charles Andler’s The Origins of Pangermanism had provoked Victor Basch’s book The Political Doctrines of the Classical Philosophers of Germany. In Britain, T.M. Knox had responded to E.F. Carritt in an exchange in Mind. After WW2 though, it was mostly Marxists who defended Hegel. In particular Herbert Marcuse’s Reason and Revolution and Georgy Lukács’ The Destruction of Reason. These were political books, but also addressed the Third Reich’s response to Hegel.
Marcuse drew an opposition between the Nazism of Alfred Rosenberg, Ernst Krieck and Carl Schmitt and Hegel, but does not mention neo-hegelianism. He sees a transition rather from romantic philosophers and Comte to modern irrationalism, by which he means existentialism and unsystematic Lebensphilosophie (philosophy of life).
Lukács on the other hand devotes a chapter to neo-hegelianism, but dismisses it as political opportunism. Far from being Hegelian, it presented itself as a “synthesis” of divergent current trends of thought. It abandoned dialectic for Lebensphilosophie, but was in the end merely tolerated by the regime it supported.
Both Marcuse and Lukács deny any genuine intellectual interest to neo-hegelianism, so as to deny any connection between Hegel and the Third Reich and its totalitarianism. Domenico Losurdo simply repeats Marcuse’s silence in his Hegel und das Deutsche Erbe (1989). He mentions only the Hegel-renaissance, which he situates during WW1 and considers only as an “instrumentalization” of Hegel’s name, when in fact it was in full flow at the start of the 1930s. This continues in his Hegel and the German Catastrophe. [I noted this gap in my review of this book.]
An exceptional work though is H. Ottmann’s Individual and Community – Hegel in the Mirror of Interpretations (1977). Ottmann tries to revise the distinction of left, right and center Hegelians. He typifies the neo-hegelians as “universalist” and sees value in Theodor Haering’s Hegel: sein Wollen und sein Werke (1929-38) and Hermann Glockner’s two volume Hegel biography, (1929-40). [I agree with this as regards Glockner, who is known outside Germany only for a bombastic wartime essay on Germany philosophy and for his edition of Hegel, but may be one of the major philosophical interpreters of the last two centuries.] As with Karl Larenz, these writers are still cited. Ottmann characterizes the evolution of their politics as a “going astray”, as “inexplicable” (177). In an insightful passage, Hürstel summarizes:
“At the end of the day, his [Ottmann’s] philosophical interest in the works of the neo-hegelians is confined to the Weimar period alone, as if the philosophical project and the political project of this movement could be analyzed independently of each other, when it is perhaps precisely in the interconnection of these two aspects that the intellectual dimension of a compromise lies.” (20)In addition, Ottmann’s work has remained little known.
The Legal profession
Legal experts on the other hand, have been quite happy to make Hegel’s philosophy and its dialectic responsible for the misdirections of the German legal profession in the 3rd Reich. Sometimes they blame natural law theory, sometimes positivism: there is no consensus. Serious evaluations of the era began in the 1960s. Relevant works are:
Bernd Ruthers – Die unbegrenzte Auslegung / The unlimited interpretation (1968)
Joachim Gernhuber – Das völkische Rechtsdenken / Nationalist legal thought (1988, essay)
Hubert Rottleuthner – essay in O. Negt’s collection on Hegel (1970)
Michael Stolleis – Gemeinwohlformen in Nationalsozialitischen Recht / Forms of Commonwealth in NS Law (1974)
Klaus Anderbrugge – Völkisches Rechtsdenken / Nationalist Legal Thought (1978)
Bernd Ruthers – Entartetes Recht / Degenerate Law (1988)
These works are not solely about neo-hegelianism though, about which there is no monograph. Some see it as an inexplicable "going astray", others as opportunistic from the outset. Still others follow Topisch and Kiesewetter in seeing Hegelian ideas as easily aligned with totalitarianism; others again see it as powerless. Ruthers latest work (above) treats Karl Larenz’s “concrete universal concept” in parallel with Carl Schmitt’s “thought of the concrete order”. Both, he thinks, lead to a mixing of Sein and Sollen (is and ought). What is becomes the criterion of what ought to be. However, Ruthers does not establish any relation between Larenz and Schmitt’s ideas or their relation to Hegel. He lets it be understood, like Popper, that the dialectic is an “empty formula” that facilitates the transition from "is" to "ought". Both Larenz and Schmitt are thus classed by him as “neo-hegelian legal theorists".
Rottleuthner takes a similar “functionalist” view of neo-hegelianism. Juridical gaps arose through a crisis of legitimacy and changes in science in the 20th century. The neo-hegelians responded by “projecting” ethical concepts (e.g. “Sittlichkeit”) back onto the abstract concepts of formal law. Yet Rottleuthner too neglects the philosophical arguments and indeed the history of neo-hegelianism under Weimar.
Since 1980, interest in the neo-hegelian jurists has increased, particularly after Karl Larenz’s death in 1993. Resultant publications include Ralf Dreier’s biographical essay on Julius Binder (1987) and theses, books or essays by Massime La Torre. Jakob Eckart (on Binder), Ralf Frassek, Oliver Lepsius, Christoph Mährlein and Olivier Jouanjan. Mährlein’s National Spirit and Law: Hegel’s Philosophy of Unity and its Significance in Legal Science (2000) is the most recent. Jouanjan notes an ambiguity in NS responses to Hegel: some attacked him, others saw him as opening a German, national path beyond natural law and legal positivism. Oliver Lepsius, in Die gegensatzaufhebende Begriffsbildung / The Formation of Concepts that overcome Opposition (1994), despite the title, confines himself to seeing parallels between the transition to the 3rd Reich and the reception of Hegel. Lepsius writes:
“The identification of neo-hegelianism with national-socialist ideology, as it was propounded after 1933 particularly by Larenz, was also favoured by the evolution parallel in time of neo-hegelianism and national socialism. Appearing in the 1920s, neo-hegelianism saw its completion as a theory only after the seizure of power in 1933, so much so that the seizure of power cannot be presented as a break, but on the contrary as the culmination of a process that corresponds to neo-hegelianism from the standpoint of method and content.“ (24n, Lepsius, 283)He instances this particularly in the case of Binder.
ConclusionsLooking back on the state of scholarship, we see (1) the question of the hegelian affiliation of neo-hegelianism. This is denied by some in order to starve the latter movement of intellectual credentials and interest. (2) the question of continuity or rupture before and after 1933. A discourse of continuity gives a didactic interest; one of rupture lends philosophical interest to the Weimar era, but leaves later developments unexplained.
Hürstel wishes to examine neo-hegelianism’s place in philosophical and jurisprudential debates in Weimar and the function and manner of its references back to Hegel. One may on reflection wonder if “legal neo-hegelianism” is not in fact simply a name for a fairly disparate group of people of limited cohesion, whose “hegelianism” is only part of their thinking.
She accepts the distinction of philosophical and legal neo-hegelianism – the former originating in the universities, the latter more in the legal profession. There is some debate as to who is part of these movements. Some seek to dismiss particular authors as “epigones”. Self-identification and self-image play a part. She uses the term for convenience, though it gives rise to questions in the history of ideas. Hürstel look at its:
- discursive coherence and interpretative strategy;
- institutional cohesion;
- the permanence of the adhesion.
Without raising the legitimacy of hegelian affiliations at the outset, she:
“will consider as “neo-hegelian” every jurist who, in the given intellectual field and historical period, explicitly adopts the title of “Hegelian” as well as the philosophical heritage of Hegel and who was enduringly seen by his contemporaries as Hegelian.” (26)This criterion leads her to focus on Julius Binder and the “Göttingen school” which he headed. It excludes Carl Schmitt, though he was influenced by the “hegelian ambiance” of the times. Binder invented the public figure of the “philosophical lawyer”. Next to him, Karl Larenz, Gerhard Dulckheit, Martin Busse and Walter Schönfeld are discussed.
The presentation is mostly chronological, in line with the developmental, evolutionary standpoint adopted, but the conclusion again is interrogative. [We turn to the general context in our next post on Hürstel's first chapter.]