A Sidenote on the Idea of Property

Someone on the Facebook page of hegelcourses.wordpress.com stated an opinion: “I do not think there is any connection between property and freedom”. Hegel is then also wrong in making property the first category of Abstract Right. Now Hegel is of course discussing the foundations of modern society that is ultimately concerned with the free individual. The first appearance of freedom as an explicit concept, in the history of Western societies, is the Roman concept of the individual as an owner, who is distinguished from objects and therefore cannot be a property himself. That Roman legal distinction between free people – owners – and people that can be property – slaves – developed into the more modern concept of the (universal) free individual in the form of a Natural Law thesis. Roman Law is still the foundation for many law codes that developed since then, e.g. the Code Civil in France and later also the Civil Law of the Netherlands.

Audio version of the text. (AI)

To use property as the most immediate concept of personhood is therefore legitimate because it is surely the case that Hegel was describing one of he main foundations of the modern state by using that category. That doesn’t mean however that he agreed with the notion that in modern societies this category is the only and universal principle, or similarly, that he agreed with the naturalist view by Hobbes and Rousseau that somehow the whole of society can be explained with the concept of “contract”.

There are contemporary philosophers that would disagree with the importance of this concept in a Philosophy of Law that do not want to merely explain the immanent rationality of modern society but want to express the moral foundations of sociality more forcefully and more directly. They want to talk about what should be, more than about what actually is. Such a philosopher might be someone like Emmanuel Levinas. What can we glean from him?

Emmanuel Levinas, a French philosopher known for his work on ethics and responsibility, does not address the concept of property directly in the same way that economic or legal theorists might. However, his philosophy has implications for understanding property in the context of ethics and human relations.

Levinas’s philosophy is centered on the ethical relationship between the self and the Other, where the face-to-face encounter with another person is the foundational experience of ethical responsibility. This encounter with the Other demands a response from the self, which Levinas sees as the essence of ethical behavior.

In terms of property, one could infer from Levinas’s work that the ownership of property would be secondary to the ethical obligations we have towards others. Property, like any material possession, could be seen as an extension of the self that enters into the ethical sphere once it affects the relationship with the Other. The ethical question would not be about the right to own property, but about how the ownership and use of property impact the well-being and dignity of others.

Levinas’s critique of identity and his emphasis on the primacy of ethics over law suggest that legal definitions of property and ownership might be challenged by ethical considerations. He signals an essential contradiction between the primordial ethical orientation and the legal order, indicating that justice, which includes the legal frameworks governing property, places limitations on responsibility, which at the same time it presupposes as its very condition of possibility.

For Hegel, a social philosophy that would start with this personal responsibility as the foundational category would no longer “stick to the facts.” It would have a utopian quality that belongs to the realm of ethical discourse about what should be. It would not be an analysis of what really is.

That does not mean that there is not some ground to argue that Hegel did not take into full account how the principles of property and contract might lead to injustice precisely by observing and guarding them in modern law. Property can be “theft”, a contract can be a deprivation of rights when people are in a position that does not really allow them to act freely. The implications of the needs of human beings might outweigh the rational institutions and practices of society. The Jewish approach to property, exemplified in the Talmoed tractates of the First, Middle, and Final “Gate”, is first and foremost concerned with “torts”, that is abuse of property, damages, and the area of deception in everyday commerce. In principle, all of these are also dealt with in Hegel’s chapter on injustice, which closes the first section of Abstract Right – Property, Contract, and Injustice. But one might consider this too late and too little in the face of the historical experiences of the impoverished masses of factory workers in the 19th century.

NOTE – Hegel does apply moral principles in his treatment of property. An example is his critique of Gustav Hugo who defended the immoral property laws of the Romans on historical grounds. Here is a summary:

Hegel critiques Gustav Hugo’s approach to the history of Roman law for its attempt to rationalize laws and regulations that are fundamentally unjust and inhumane, such as the right to execute creditors, slavery, and the treatment of women and children as property. Hugo justifies these on historical grounds, seeking explanations in the context of the times rather than assessing them against the standards of reason. In stark contrast, Hegel seeks to engage with Roman civil law in a way that acknowledges its influence on contemporary legal systems and addresses the foundations of legal rights in a society undergoing political and social transformation. He argues that the upheaval of historical events has infused Roman legal concepts with new intellectual substance, relevant to the modern world. This reformation has redefined the concept of a “person” in law, expanding the rights and freedoms to all human beings, making freedom a core principle of legal rights. Thus, Hegel’s perspective moves beyond historical justification to a critical engagement with law in the context of human rights and societal progress.

The Transition from Property to Contract

We should now discuss the transition from property to contract. We have already produced a series of videos and articles on Hegel’s concept of property and a video on the concept of contract. But how does the transition between the two take place?

First of all, this transition is not external. That is, the concept of contract does not add anything new to the concept of property. On the contrary, the concept of contract is already contained in the concept of property. Property implies the idea of contract. This is not true of positive law or of the historical development of property and contract, but it is true from a philosophical perspective.

The category of contract is the explicit form of what is already contained in the category of property a its presupposition.

There is a conceptual connection between property and contract; they are not merely juxtaposed as two different forms of law. More importantly, in modern times, the concept of contract has become crucial to understanding the modern state. Contract is a central category in contemporary thinking about law and the state.

Hegel wants to clarify the meaning of the concept of contract in terms of the guiding perspective of the whole philosophy of law: the realization of freedom. We should note, however, that with property and contract there are simultaneously limits or restrictions to this realization.

Returning to property, we are concerned with the relationship between the will and an object. In contract, this relationship between will and thing seems to have another presupposition: there is also a relationship between different freedoms. If I am a rightful owner, it means that others recognize me as such. Freedom manifests itself in an external object, but this is only real if it is recognized by other persons.

There must be a common will that forms the basis of my will, which becomes concrete in ownership. The contract, as an exchange of things on which different freedoms agree, is in fact the basis of this recognition of each other’s freedom.

The establishment of a common will is essential. The contract expresses this common will and is the basis for the concept of property; without recognition, there is no property. The relationship between freedoms is implied in the relationship between will and object.

The object in which I place my will is external and has no existence of its own, but exists only for something else. This being for something else implies more than a mere external thing, for it expresses that I am an individual free person who places his will in a thing. The relation to other freedoms belongs structurally to property and is made explicit in the contract.

Property, then, involves not only the involvement of my will in an external thing without a will, but also the involvement of my will in the will of others. My freedom is involved in other freedoms, which makes the contract a new form of law at the same time. “Right “contains the concrete conditions for the realization of freedom.

In the contract, freedom acquires a specific existence. It is not only embodied in an external thing, but also expressed in a common will: the mutual recognition of owners. Through the contract, I acquire property by also giving up property. Through agreements with other owners, we acquire new property.

I have property because we want it. I acquire property by giving up someone else’s property, for example, by buying something. A contract is a process of mediating opposites. I own this thing and you own the other thing, but through the contract, the opposites become involved with each other and their common basis becomes visible.

As an independent owner, I am connected to the will, freedom, and recognition of the other. This shows the importance of contracts and mutual recognition for the concept of ownership and freedom in our society.
The freedom of others is not excluded. This is because in the contract I identify myself with the will of others, recognize it, and thus cease to be an owner. So the contract is a better realization of the idea of freedom. Freedom no longer exists only in the external thing that I own, but in free will: the collective will, the we-will.

The objective form of will that we get here is no longer a foreign and external thing, but another will: the common will that operates in the making of agreements. This will is less abstract or separate than property because it is rooted in the common will. The self thus becomes a self through the recognition of others.

The result of this exchange or mediation leads to selfhood. In this, selfhood is the result and also the interest of the mind. In the contract, the subjective will is raised to a higher level of generality; no longer the individual will toward the thing, but toward another individual will with which it corresponds.

So this is not an economic category, because the fact that parties make contracts because they need them, or because they pursue private interests and thus establish a common will, does not matter. Something more fundamental is at work: the interest of reason. For a contract is the realization of something general. In the contract, the partners recognize each other as owners, as free persons.

In fact, psychological and economic processes are only possible on the basis of a more fundamental dynamic: the realization of freedom. It is not that I want to recognize someone as a legal person by making a contract with him. It is not about my intentions and purposes. What matters is that the reality of the contract is actually a recognition of the personhood of another.

But even the contract is only a limited mode of existence of freedom. It is not yet the idea of freedom, the moment when understanding and reality converge.

This will become clear from further analysis of the contract or agreement. We will find that the contract does not fully explain political reality and that there is an element of arbitrariness. Finally, contracts are contested and violated. More on this in a future post.

Hegel’s Social Philosophy – History #1

Though Hegel’s 1820 Philosophy of Right faced undue criticism during and after his life, being labeled an apology for Prussian absolutism, it was in fact an effort by Hegel to express the rational form of a reformed, modern European state and society. This vision was shared by individuals such as Baron von Stein and Prince von Hardenburg in Prussia, and was well-understood by Hegel’s friends and students.

At the heart of Hegel’s work is the notion that what constitutes right is essential for the realization of freedom. In this aspect, he stayed true to his Kantian roots while simultaneously breaking away from Kant. A key difference between the two philosophers lies in Hegel’s rejection of Kant’s assertion that freedom necessitates exercising a non-natural causality upon ourselves, one that exists outside the natural order and can initiate events without being affected by prior causal chains.

Hegel, on the other hand, saw freedom not as a form of causality, but rather as our ability to adopt a negative stance towards our inclinations, desires, and impulses. While both philosophers agreed that the will is fundamentally a form of practical reason guided by norms, Hegel disputed the notion that a special form of causality was required for such a will to be free.

According to Hegel, our freedom lies in our approach to our actions; we are truly free when we act based on reasons we can consider our own – those with which we identify ourselves. An individual’s preferences, desires, and impulses hold normative status only if they align with their overall life plan and contribute to their sense of identity.

Hegel believed that while there may be an empirical explanation for how our decisions ultimately move us, this would not be crucial for understanding why an action is considered one’s own or expresses one’s acknowledgment of their reasons for acting. The need for a special doctrine of transcendental causality would only arise if reasons were viewed as separate entities.

In the realm of human nature, the ability to possess a will signifies, foremost, the capacity for one’s actions to embody one’s practical commitments – emerging from and integrating within the grand design of one’s existence. Such actions are executed not due to extraneous reasons, but precisely because of these commitments.

Secondly, it entails the aptitude for introspection regarding these practical engagements, evaluating their relevance in relation to other objectives and principles an individual may contemplate. Lastly, it requires the comprehension that these obligations are self-imposed and not dictated by external forces.
To possess a will is to exhibit intentionality in our actions and adhere to established norms.

As Hegel discerned, the will is a manifestation of thought. Conversely, the absence of such liberty would entail acting based on factors one cannot rationally support or validate – ultimately succumbing to external influences such as unbridled desires or arbitrary societal customs.

Based on Pinkard, “Hegel”

Alienation as the Transition to Contract – part 2

As we delve into the latter portion of our discourse on alienation and the shift toward contract, allow me to first remark that within Hegel’s philosophy, the notion of property extends beyond a mere ideological endorsement of the ruling class – those who amass the lion’s share of possessions or dominate land ownership within a nation. Hegel’s interest lies not in championing the cause of the so-called Junkers or landowners; rather, his concept of property law serves a critical function.

Consider this fundamental truth: every individual possesses the right to own something. Property law encompasses all, excluding none. Consequently, no person may be deemed an object, a slave, or a mere vessel for another’s will or control. This principle emerges clearly in our examination of property alienation.

Returning to the idea of alienation, it signifies the withdrawal of one’s will from a specific object or possession. In both acquisition and relinquishment – or alienation – of property, the will reflects upon itself. Even as it surrenders its property to others, it remains connected to itself. Through alienation, it becomes evident that objects possess no rights; only persons bear such rights. Given that things lack volition, we hold dominion over their fate.

Yet this authority to alienate property applies solely to items appropriately classified as property – those inherently external in nature. Property concerns only that which exists outside of an individual’s being. Aspects not entirely external but intrinsic to one’s essence are exempt from property law and thus cannot undergo alienation. One’s personality and the core of one’s existence remain inviolable; they cannot be demoted to mere objects subject to another’s ownership rights.

The rationale behind this limitation is readily apparent: the very purpose of rights is to manifest freedom. No right exists for negating that freedom; otherwise, rights would become fundamentally ambiguous – simultaneously representing freedom and obliterating it. There can be no right to nullify one’s own personhood, for such an act would constitute a contradiction in terms.
In considering the matter of personhood, one must inevitably confront the absolute injustice of slavery. Within the confines of slavery, a person ceases to exist, replaced by an alienated being who no longer belongs to himself but to another. The slave’s will resides not within himself, but in the hands of his master, who degrades the individual to the status of property or mere thing.

Whether slavery is voluntary or forced becomes an inconsequential distinction. According to Hegel, voluntary slavery represents a contradiction, an act in opposition to one’s very nature. The free will cannot exist in attempting not to be free will; such a notion is inherently contradictory. One may not suspend their own rationality, conscience, or religious faith – these are not external factors but rather constitutive elements of one’s essence and personality.

When others dictate our beliefs or actions on our behalf, we surrender our own personalities. The matter becomes more complex when considering physical and spiritual aptitudes – while they are part of our being as individuals, they are not synonymous with our identities. In a limited capacity, one may renounce the right of property regarding labor and production.

Our activities do not wholly define us; we cannot be reduced solely to the tasks we perform. However, this does not extend to the totality of our time for labor and production. To alienate all available time for labor equates to enslavement, for the totality of expression is power itself.

A person is not merely the owner of his own life; life is not an external aspect of one’s personality. Rather, life encompasses the totality of all external activities and is an intrinsic part of being oneself. As such, Hegel contends that a person has no right to take his own life – doing so would imply standing above oneself in contradiction.

In conclusion, personhood stands as a bastion against the injustice of slavery and serves as a reminder that we are more than the sum of our actions, beliefs, and abilities. To preserve the sanctity of personhood, we must resist any form of enslavement that seeks to strip us of our inherent rights and freedoms.
Essential characteristics of alienation, a concept critical in comprehending the forthcoming discussion on the transition to contractual agreements.

Alienation as the Transition to Contract – part 1

We need to take a look at the concept of property in Hegel’s philosophy of right a bit closer. Hegel speaks about the usage of a thing, which is a consequence of property. But the most important idea perhaps is alienation, what he calls alienation.

The essence of the right to property or property law is most apparent in the idea of alienation. What is happening in alienation requires first a condition, which he expresses in his philosophy of right as follows, paragraph 65. It is possible for me to alienate my property, for it is mine only in so far as I embody my will in it. But I may abandon a thing and then that thing becomes ownerless. Anything that belongs to me I can make ownerless. Or, and that is the most important thing, I can make it over to the will of someone else.

I can make it his possession and because I am the real owner, that possession would be rightful, legitimate. So someone else will become the owner of my possession. Now that is only possible in so far as the thing is external. It has to be some external material thing. Then I can alienate my property to become someone else’s possession.

Now, true alienation is a declaration by the will that I no longer wish to regard the thing as mine. That is true alienation. Sometimes alienation occurs without an express act of my will, but true alienation requires a special act of my will. So alienation can actually be regarded as a true mode of taking possession. But taking possession not by me, but by the other.

So we have several moments now in the concept of property. The first moment in property is to take possession of something immediately. Something that I find in nature, for instance. Now usage or use is a further means of acquiring property. If I use something for a specific length of time and my possession of it is not contested, then I acquire that possession as a property. And the third element is the unity of to take possession, the first moment, and usage, the second moment. And that is taking possession of something by alienating it.

So to take possession means that someone else has alienated it so that I can now become the owner. In this idea that belongs to the characteristics of property, it’s obvious that another will, another person is actually involved. And that is one of the basic elements of the transformation of property into the idea of contract, about which we need to speak further.