This post completes our summary of the Introduction to Sylvie Hürstel's Au Nom de Hegel (2010) on German juridical neo-hegelianism, with some selections from her conclusion.
We turn from Hürstel's general description of relevant Hegel scholarship (Part One) and the idea of a "Hegel-renaissance" (Part Two) to consider developments in legal philosophy (in particular, the "philosophy of right") and then the post-1933 context.
The Philosophy of Right in Question
Positivism and historicism were dominant trends in German philosophy in general at the end of the 19th century, according to Herbert Schnädelbach in German Philosophy 1831-1933 (1983). [available in English.] These trends apply particularly to the philosophy of right in German universities. [In broad terms, legal positivism is the view that law is what is enforced by a state authority and is hence that what the law is, is a matter of fact. It is opposed to the view that the question of what law is involves moral judgments prior to or independent of state authority, known as "natural law" theory. - SC] The philosophy of right was a province of the law faculties in Germany. Natural law theory was in retreat here before historical inquiry. This trend can be traced back to Gustav Hugo’s Textbook of Natural Law as a Philosophy of Positive Law (1798). Hegel had been aware of Hugo and of the same trend as exemplified by Carl von Savigny. Contesting the idea of natural law helped to displace the philosophy of law from general philosophy into the Law faculties of the German universities. [This sounds like an instance of the quarrel of generalism and specialization in higher education.]
a) Positivism and historicism in the work of Emil Lask and his critique of neo-Kantianism;
b) the reception of political philosophy and Hegelian philosophy of right around the turn of the century; and
c) the foundation of the important journal Archiv für Rechts- und Wirtschaftsphilosophie by Kohler and Berolzheimer, two neo-Hegelian jurists.
The heritage of historicism and positivism
Hürstel examines legal historicism and positivism through the article “Rechtsphilosophie” by Emil Lask in Wilhelm Windelband (ed.) Festschrift für Kuno Fischer, Band II, Philosophie im Beginn des XX Jahrhunderts (1905). [Hürstel calls this a “famous article”, without providing any account of its fame or of Lask.]
Lask first notes the common rejection of “natural law”, whether conceived materially-ontologically or in neo-Kantian terms. There is a general atmosphere of rejection of supra-empirical truth claims. The “18th century” struggled for the recognition of the individual as an end in himself; whilst the “19th century” saw absolute meaning in social relationships. The neo-Kantians had clearly distinguished Sein and Sollen (is and ought) and theorists of social philosophy (Sozialphilosophie) often accepted this distinction. However, the neo-Kantians often confined the sphere of moral reasoning thus won to considerations of epistemology or methodology. Proponents of social philosophy sought to co-opt the results of the historical school of law, which Lask considers unduly conservative.
Hegel’s political philosophy at the start of the 20th century
“Hegel calls for a saviour of Germany who would bring about by force, with all the energy of a conqueror, a German state and a German army.” (48, Einleitung in Schriften, XXI)
|Otto von Bismarck (1815-98)|
Lasson had trained as a theologian as well as studying philosophy. In his introduction to the Natural Law essay, he criticizes Hegel’s identification of “absolute ethical life” with a community that forms a state. Lasson extends this critique in his introduction to the Philosophy of Right (1913) to the status of ethical life (Sittlichkeit) in general as well as its relation to religion. He attributes Hegel’s view to a wish to oppose the subjectivism of his day. There is no need to oppose morality and ethical life, according to Lasson – the Phenomenology gives a better view of how they develop, in which morality can itself lead to religion.
“In this separate treatment of private law, which Hegel calls abstract law, as a specific sphere of ethical reality, one can see a residue of the concepts of natural law, which Hegel elsewhere surpassed and combatted.” (50)
“This is why it scarcely corresponds to the true spirit of the Hegelian system to construct, through “abstract law” and the law of the person as such a sort of rational law valid for all time. In his desire to give law a logical content, Hegel gave himself over to an abstraction that contradicts his otherwise so living conception of the state and history.” (50)
“One cannot speak of a rational law that would be identical in each era, but on the contrary of a law that is reasonable in the way specific to each era and each people. Hegel, in the third part of his work (the sphere of ethical life) raised himself to this thought, which takes him close to the historical school of law.” (50)
Friedrich Meinecke was an eminent historian and follower of Leopold von Ranke. In 1907, in his work on Cosmopolitanism (chapter 11), he ranks Hegel, Ranke and Bismarck as three liberators of the state. He sees an ambiguity in Hegel’s idea of the state as “individual”, writing:
“Hegel’s concept led logically to depriving historical individuals of their particular right and reduced them to being only simple unconscious instruments and simple place holders of the world spirit.” (52)
“There seems to be no link here, leading from the “people of poets and thinkers” to that of “blood and iron”. However, this link exists right enough! One can even say that the national ideology of the authoritarian state is surely the offshoot of the idealist philosophy and that its father is no other than Hegel.” (54)
“To this [Kantian?] ideal of peaceful co-existence between states, Hegel opposes the succession of nations struggling for world domination, not only as a political theory, but as an ideal.” (54)
|Franz Rosenzweig (1886-1929)|
The Founders of the Archiv für Rechts- und Wirtschaftsphilosophie
“That is our unforgettable debt to Hegel, for without this idea, we would not have history, and the whole historical conception of the world as a whole we owe to Hegel - truly, that is a sufficient merit to place him alongside the greatest thinkers of all time.” (57, ARWP I, 229)
“Philosophy can surely develop a priori the laws that govern the world of phenomena; it can equally render probable some of the goals and final causes of becoming, but for the rest, a priori reasoning ceases immediately to be fruitful, and it is only observation that can take us further. That is the viewpoint of neo-Hegelianism.” (58, Ibid.)
“Although we are not in agreement with Croce on all points, we share with him the conviction that there is an ever-present kernel in Hegel’s philosophy that it is simply a matter of developing, but also the conviction that such a development is necessary to keep philosophy at the level to which Hegel carried it, and to prevent it from falling into the Kantian doctrine which, if it is applied rigorously, leads to the self-destruction of philosophy.” (58)
“There is no philosophy of law without legal history [...] A philosophy of law without legal history is like a philosophy of nature with no knowledge of natural phenomena. “ (59)
“The philosophy of law is not possible without history, but history is not possible without metaphysics and a theory of knowledge.” (61)
A New Context: the “Ideas of 1933”
She cites examples of views expressed about Hegel, for example in Alfred Rosenberg's Myth of the 20th Century. This book first appeared in 1930. In Hürstel’s view, it typifies the “ideas of 1933”. She covers it only briefly. Rosenberg calls the Philosophy of Right a "blutfremde Machtlehre". Hürstel translates this as a “theory of power foreign to our blood” – though the word “our” is an insertion on her part. Rosenberg thought that Hegel’s theories facilitated Marxism. Rosenberg juxtaposes the histories of different races rather than perceiving a universal history and a rationally understandable evolution of ideas and institutions. Hence his hostility to Hegel has ideological roots.
Philosophy and Philosophers after 1933
“Only a century become historicist through and through could take pleasure in the dead monumentality of the Hegelian system. The belated return to honor of Hegel at the start of our century is perhaps the surest sign of the lasting “end” that Hegel has signified for more than a century for German philosophy. In this renewal, Hegel becomes the symbol of a philosophical historicism that, after having turned away from every future, could take care of the past with a good conscience. By enthroning Hegel, the philosophy of the 20th century in its academic form made a definitive renunciation of all activity and active shaping of the future.” (64)
“It is not because we can contradict Hegel that we fall anew on the reality from which he withdrew us, but the other way around: because the völkisch and political reality of our German life is again present [to us], we fall at every moment on the artificial barriers that Hegelian universalism has placed between ourselves and our roots. [...] Thus it is that Hegel has become for us the symbol of a secular past [that is overcome]. Insofar as he was an end and wished to be so, he is in all points contrary to the philosophical will of our time.” (64)
Strategies of adaptation of Hegelian authors
Hürstel considers Theodor Haering and Hermann Glockner noteworthy as Hegelian authors of the period. [I concur with this in the case of Glockner, whose wide ranging interpretations of European history through aesthetics are remarkable in scope and require to be evaluated. Haering (son of a theologian of the same name) wrote a biography of Hegel applying Diltheyan ideas that may be less significant.] Both had public reputations and so had to respond to the new situation to justify their position. She says that this was in response to Böhm and Baeumler, though without evidence. In such works as:
“ Whilst a majority of English and French philosophers were of high station, of aristocratic birth for the most part, the German philosopher grew up, almost without exception immediately in the fertile heart of the common people” (67)
“Have socialism and nationalism not passed up to now for mutually exclusive opposites between which one had to choose? [...] And have the German people not been led by a genial German to achieve a synthesis, which is certainly not to be confused with a mean compromise or a middle path, but which represents a global and energetic new project.” (68)
“When the traits of the elders appear again in so evident a manner on the face of the descendants, no doubt can remain that here is spirit that comes from the German spirit and blood of German blood.” (69)
“It is not only our blood that springs from our ancestors, but also our spirit. A true community of people includes not only contemporaries, but also ancestors.” (69)
“because, misapprehending his own nature and his own value, and through false modesty, the German has almost always been convinced that he owed more to others than the other way around.” (70)
“Our thoughts are turned to the future. In the name of this future, we must observe that the image of Hegel in Germany is no longer wholly given over to uncertainty.” (71)
The take home points of the opening chapter are that there was a significant revival of Hegelian ideas in Germany in the first half of the 20th century that has been neglected by scholarship and that the omission of this from our understanding of German and European politics is unsustainable.
The historicity of law recognised by Hegel was held to be in opposition to both legal positivism and the natural law tradition and the hope was to supersede this opposition and that of is/ought (Sein/Sollen in German), associated with both legal positivism and neo-kantianism, by placing the origin of value in the achievement or fact of community. For example, Karl Larenz wrote in 1935:
“It is the Hegelian doctrine of “objective spirit”, the doctrine of objective idealism, that allows us to consider right [...] as an autonomous field of value, finding the basis and criterion of its validity in itself, that is to say, in its Idea, and whose ethical character does not rest on its agreement with the positive morality and with the ethical convictions of individuals, but in its agreement with its own Idea.” (324n)
The opaqueness of the “Idea” is filled in by references to the history of community. However, these thinkers were also influenced by the (German) natural law tradition of Pufendorf and this was the main influence that outlived the war.
In biographical terms, their influence increased after the fall from power of Carl Schmitt in 1936 and the rise of Hans Frank, editor of Deutsche Rechtswissenschaft. They were associated with a project of renewal of German law on a basis independent of the Roman law tradition (hence of natural law) that drew instead from the analysis of German communal tradition found in Otto von Gierke. To the extent that Frank fell from favor, so did the neo-hegelians. Hürstel’s own summary is as follows:
“This work has made it clear that, amongst the diverse, heterogeneous and sometimes contradictory references cultivated by the “neo-hegelian” jurists in their contributions to völkisch ideology, the reference to Hegel became, starting from 1933, if not secondary, at least not exclusive in their discursive strategy. We have been able effectively to follow the way in which the thought of Sittlichkeit was taken up outside its properly hegelian context to be reattached to a larger tradition, encompassing successively the historical school of law and the thought of German natural law. The “missing link of the chain” (to take up an expression of Karl Popper) which would relate Hegel to Nazi totalitarianism, would not at the end of the day be a “neo-hegelianism” associated with the figure of Hegel, but associated with a Hegel mediated by the historical school of law and by his being written into a German line of “natural law”, that was interrupted in Germany by the introduction of a foreign codification and that played out through the debate between Thibaut and Savigny.” (335)
“The reference to Hegel was doubtlessly not the one to prioritize in the structure of an ideology hostile to all universalism. But even in their attempts at völkisch adaptation, the “neo-hegelians” could not present a consistent line, nor a united front, and their Nazi commitment waned each time for specific reasons. This failure to constitute themselves as a movement reveals a fundamentally untenable position. It illustrates not only the antagonistic and disparate nature of the Nazi ideology, but also its deep incompatibility with hegelian rationality.” (341)
As for the main individuals, Julius Binder died shortly before the war in 1939, Adam von Trott zu Solz was executed for his part in the July 1944 attempted coup d’état, Martin Busse died before Königsberg in east Prussia in 1945 and Hans Frank was executed as a war criminal at Nuremberg in 1946. Of those who survived the war and its aftermath, Walter Schönfeld went on to be a minister and Karl Larenz returned to university teaching, both publishing material in the natural law tradition.
I have not gone in detail through the hundreds of pages of citations and Hegel interpretation in Hürstel’s book, partly as it might raise questions of copyright. In my view, the book as a whole supersedes the work of German scholars such as Ernst Topisch and Hubert Kiesewetter for its period, though its scope is narrower. As far as I know, there is nothing like it in English.
My own conclusion is that, whilst the period of the German Reich (1871-1945) is of interest for Hegel interpretation and as an outdated exemplar of the political ideas of nation and power politics, we need to focus also on the period prior to German unification as the original context of Hegelian thought and its decline and on the post-1945 era as the present field of reflection for political theory.