Law and Critique Vol.VII no.

2 [1996]

PERSONS AND AVAILABLE IDENTITIES: GENDER IN HEGEL'S PHILOSOPHY OF LAW

by
VALERIE KERRUISH*

Introduction

This paper argues that Hegel's concept of the person, both in its internal complexity and in its relation to other forms of subjectivity which figure in his philosophy of law, gives a point of departure for a critique of modern normative thought. This critique extends past the legal and into the ethical. It is opposed to the idea that philosophy of law should begin from a conception of justice or goodness. It takes up from Hegel the idea t h a t philosophy is an apprehension of its own times in thought and proceeds from a belief in the necessity of confronting the historical cul de sac into which the spirit of Europe has run. There is little I can say to prevent readers associating this belief with recent talk of the end of history. On the one hand there is a certain hysteria abroad as the Western or Gregorian calendar approaches a millennium. On the other, that talk grounds itself in Koj~ve's reading of Hegel. 1 However my reading of Hegel departs from Koj~ve's in a fundamental way. I do not think it to be at all curious that the downfall of the Greek form of ethical life is presaged in Hegel's Phenomenology reading of Antigone in the act of a woman. 2 Nor is this dimension of Hegel's thought sufficiently explained by taking Woman as representative of the family principle, or the principle of particularity. 3 Not only work

* 1 2

School of Law, Macquarie University, Sydney, NSW 2109, Australia. Alexandre Koj~ve, Introduction to the Reading of Hegel: Lectures on the Phenomenology of Spirit (Ithaca and London: Cornell University Press, 1969). A.V.Miller, trans., Phenomenology of Spirit (Oxford: Oxford University Press, 1970), 266-294. Page references in the text in round brackets in the form (PS 266-294) are to this edition. Citation of Hegel's works follows the style of the Bibliography in Frederick C. Beiser, ed., The Cambridge Companion to Hegel (Cambridge: Cambridge University Press, 1993). Supra n.1, at 62.

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but also love are part of Hegel's dialectic of self-consciousness. Hegel does, finally, exclude love from the state where its place is taken by law. But this exclusion in no way makes love irrelevant to the philosophy of law. In the fate filled collapse of the Greek potis, the active affirmation of love for the individual who is one's equal must, in Hegel's orchestration, be the act of a woman for more reasons than one. What has intrigued me here however, is Hegel's further development of this theme. The descendant of the resplendent, the divine Antigone is femina domestica, the plant-like creature of a notorious Addition in The Philosophy of Right whose destiny is to ensure that bourgeois man, her husband, remains in touch with a capacity of feeling for others. 4 This diminution of woman is quite widely considered to be unremarkable: a mere expression of regrettably prevalent nineteenth century attitudes to women. That it is an expression, perhaps indeed an active contribution, to such attitudes, I do not doubt. But I also think that those who would prefer to pass over or excise it, or indeed those who succumb to indignation at it, fail to observe the place and significance of sex/gender relations in Hegel's philosophy of law. Such failures cost us the radical potential of Hegel's thought: they deprive us of an insight, and with that a further hope, that might enable us to reverse out of the cul de sac we are in. In order so to do however, it will be necessary to navigate a twist of reason's cunning: a twist I will locate in the argument that Hegel could not have done what he set out to do in The Philosophy of Right without himself suppressing that radical potential. Close, on this point, to the H a r t m a n n school of Hegel interpretation, ~ I take Hegel's aim to have been a logical reconstruction of

Allen Wood, ed., Hegel's Philosophy of Right, trans. H.B. Nisbet (Cambridge: Cambridge University Press, 1991), 166A. Unless otherwise indicated references in the text are to this edition and are to a Paragraph e.g. (PR 166), a Remark e.g. (PR 166R) or an Addition e.g. (PR 166A). References to the Preface are to page numbers e.g. (PR, Preface, 9). For notes on the text, see Translator's Preface to the edition cited. Klaus Hartmann, "Hegel: A Non-Metaphysical View", in A, MacIntyre, ed., Hegel: A Collection of Critical Essays (South Bend, IN: University of Notre Dame Press, 1976), 101-124; H. Tristram Englehardt and Terry Pinkard, eds.,

Hegel Reconsidered: Beyond Metaphysics and the Authoritarian State

(Dordrecht, Boston, London: Kluwer, 1994); Terry Pinkard, "The Successor to Metaphysics: Absolute Idea and Absolute Spirit", The Monist 74 (1991), 295 328; "Hegel's Idealism and Hegel's Logic", Zeitschrift fi~r philosophische Forschung 33 (1979), 210-226.

G e n d e r in Hegel's P h i l o s o p h y o f L a w
t h e m o d e r n E u r o p e a n i d e a of right.

155

His success in t h i s e n d e a v o u r is

u n p a r a l l e l e d in t h e p h i l o s o p h y of law. The closure on t h e dialectic of f r e e d o m t h a t r e s u l t s is n o t s e p a r a b l e from t h a t success: it is j u s t i f i e d because it is t r u e to the constitutionalist s t a t e and its law. 6 G e n d e r e d i d e n t i t i e s a r e a p a r t of t h a t t r u t h , t h r o u g h which t h e law m a i n t a i n s its spurious peace. Not i m m u t a b l y , b u t s t u b b o r n l y a n d i n t e r c h a n g e a b l y w i t h o t h e r m a n i p u l a t i o n s of s u b j e c t i v i t y

II

Women's Law and Men's Law

A n o t h e r w o m a n s t a n d s in b e t w e e n Antigone a n d femina domestica.

S e p a r a t e , powerful a n d ironical, she is w o m a n constructed as t h e e n e m y w i t h i n b y t h e m a l e c o m m u n i t y of the polis a t t h e point of its dissolution

(PS 288). 7 H e r c o n s t r u c t i o n / s u p p r e s s i o n is a t once t h e decease of t h a t

c o m m u n i t y a n d t h e p a s s i n g of a n ideal u n i t y of b e a u t y a n d t r u t h in t h e e t h i c a l life (Sittlichkeit) of Greece. W h i l e t e x t u a l l y a n d p h i l o s o p h i c a l l y d i s t i n c t from The Philosophy of Right a n d its t h i r d i m a g e of w o m a n as femina domestica, I t a k e the Phenomenology r e a d i n g of Antigone a n d t h e two i m a g e s of w o m a n in it, as a p r e l u d e to Hegel's m a t u r e t h o u g h t on law a n d as c o m p l e m e n t a r y to Hegel's p r e s e n t a t i o n of t h e p e r s o n as t h e m o s t basic category of A b s t r a c t Right (Legality) in The Philosophy of Right. s H e g e l ' s r e a d i n g of Antigone is a c o n t r o v e r s i a l w a t e r s h e d in i n t e r p r e t a t i o n of t h e p l a y itself. I t s t a n d s a t t h e h e a d of a t r a d i t i o n of h a r m o n i s i n g i n t e r p r e t a t i o n s which t a k e account of t h e deep s t r u c t u r e of

The closure on the dialectic of freedom is the assumption that all are included within the class of individuals who freely assent to the content and enforcement of the laws. The inclusive/exclusive functions of closure become apparent in the reflection that no one can be heard to say that they do not assent to, are not within the ambit of a law. As a consequence contradictions, and with that the possibility of transformation, are excluded. In separating this image of Womankind from the earlier image personified by Antigone, I depart from some other readings. See e.g. Costas Douzinas and Ronnie Warrington, "Antigone's law: a genealogy of jurisprudence', in Costas Douzinas, Peter Goodrich and Yifat Hachamovitch, eds., Politics, Postmodernity and Critical Legal Studies (London and New York: Routledge, 1994), 205. I recognise that there are difficulties in the relation between the two texts; see Robert Bernasconi, "Persons and Masks: The Phenornenology of Spirit and its Laws", in Drucilla Cornell, Michel Rosenfeld and David Gray Carlson, eds., Hegel and Legal Theory (New York and London: Routledge, 1991), 78.

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oppositions and transformations within the interconnected cosmology of Greek hfe2 This tradition stands opposed to the orthodox interpretation which takes a notion of justice as the play's p r i m a r y subject matter. Antigone, in the orthodox reading, represents absolute goodness, Creon total baseness, and the play becomes a moral tragedy in which problems of justice and injustice dominate all other categories, and in which there is no doubt about the possibility of separating the sphere of justice from that of injustice.I Contemporary revisionist readings within which Antigone is "the bad w o m a n "11 acknowledge the hermeneutic and philological shortcomings of the orthodox tradition. But the characterisation of Antigone as "bad" continues the emphasis on justice and misses Hegel's perception that modern moral categories and concepts of law are inappropriate to the play. In Hegel's reading, Antigone acts on the side of divine law. But the ethical disposition she embodies, "sticking steadfastly to what is right, and abstaining from all attempts to move or shake it, or to derive it" (PS 262), is no conscious defence of rational principles of justice or absolute right. In the section preceding his Antigone reading, Hegel has argued, against Fichte and Kant, that while principles of practical reason are universal, this formal requirement allows for any content. It cannot therefore provide the individual with a guide to right action. Law, as the simple being of right, is and is valid: a tautologous form of a content given by ways of social life. For Hegel, Antigone's (and Creon's) tragedy is their fate as participants in a parochial state the known law of which -- men's law -- lacks universality. Universality, at this time, is stilllocked up in the divine, unknown law as the obligation of the family to bury its dead. This is also women's law and its principle is that of individuality. But as unknown and, within this historical social formation, unknowable, it cannot be a principle of rational action. Nor, given the contradiction between the universality of its form and the particularity of its expression, can men's law provide such a principle. Hegel's idea here, is that the contradiction between the universality of the 9 G.W. Oudemans and A.P.M.H. Lardinois, Tragic Ambiguity: Anthropology, Philosophy and Sophocles' Antigone (Leiden, New York, Kobenhavn, KSln: E J Brill, 1987); G. Steiner, Antigones: The Antigone Myth in Western Literature, Art and Thought (Oxford: Clarendon Press, 1986). 10 Oudemans and Lardinois, supra n.9, at 106-111. 11 C. Souvinou-Inwood, "Assumptions and the Creation of Meaning: Reading Sophocles'Antigone", Journal of Hellenic Studies cix (1989), 134-148.

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form of law and the particular content of laws, must be mediated by the emergence of a form of life within which individuality (or subjective freedom) is recognised and valued. Where the content of the laws is what a free and rational individual would w a n t for him or herself, the contradiction of form and content is resolved. This development however, cannot take place in Greece where, at the institutional level, the contradiction between universal (the polis) and particular (the family) has its social expression in men's law and women's law. Within this setup, Antigone is family member, sister, guardian of the divine law, and woman. As family member, she is the organic unity of individual and community (PS 269). As sister, she is participant in the purely ethical relationship of recognition of the self in an other who is one's equal (PS 273-4). As guardian of the divine law, she has her essence and her end in staying within and maintaining the family (PS 275). This last is the ethical significance of sexual difference and will become, for Hegel, the gender identity of women in modernity. But as woman at this time, she is the "upward movement of the law of the nether world to the actuality of the light of day and to conscious existence" (PS 278) - - which is to say, t h a t her feeling for ethical knowledge, and her action in accordance with it, brings what lies in the unconscious up and out into social life. She is also unique, she is Antigone, and this uniqueness lies in her action and in the perfection of her guilt. TM In one way she is in no different a position to Creon. Both are committed to action in accordance with the laws of their sexual kind, and both kinds of law are one-sided and incomplete. Both Antigone and Creon, in the circumstances t h a t have brought them into conflict, are bound to break the law of the other and be destroyed by it. The difference is that Antigone knows the content and power of the law she opposes, something Creon cannot know. It thus falls to her as a woman to "knowingly commit[s] the crime" (PS 284). If the figure of Eve within the fable of the Fall is present here, and I think it is, ~ it is radically reworked. Before her act, men's law could only seem violent and wrong to Antigone because her ethical consciousness is 12 I suggest that Hegel uses the notion of guilt rather than responsibility here, because the latter is a modern moral concept that is tied to ideas of intentional individual action in a community in which rights of subjectivity are acknowledged and valued (PR 117). 13 See William Wallace, Hegel'sLogic (Oxford: Oxford University Press, 1973), 42ff.

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an unmediated knowledge of the right of women's law. The action, demanded by that law and undertaken with the full knowledge that it is a crime according to the men's law, changes her point of view: Because we suffer, we acknowledge we have erred (PS 284). Ethical consciousness (unreasoned knowledge of right) now experiences its opposite, the force and violence of punishment imposed according to a known law, as the result of its act. In acknowledging the right in this law, Antigone affirms that the ethical must be actual. If her act was ethical, as it was, and if it achieved its purpose, as it did, then its consequences, her punishment, must be ethical too. Nothing now counts for her but right. Since this now appears as the right of men's law, Antigone's character as a woman, her being as belonging to women's law, is destroyed. Creon undergoes the same reversal and destruction of character. But his act was less ethical, his guilt less perfect, because he did not know the law and power he opposed. The "absolute right" t h a t is presaged here is the downfall of both women's law and men's law as laws of the sexes. It is, for Hegel, the passing of the community which has its individuality in nature, in sex, and so of social conditions within which tragic conflict, conflict between equally valid forms of right, can occur. Men's right and women's right m u s t each give way to a form of right which is of neither and for both. This can only be a form of right tied to an ethically dis-located person. The action shifts to war; according to Koj~ve, to Alexander's conquest of Thebes. But this is prefigured, in Hegel's reading of Antigone, centuries beforehand, in the action of the carrion birds which pollute neighbouring altars with pieces of Polynices' body, causing them to rise against Thebes. The wars are the action of men and are fought by the young men of the different communities, but their dynamic is conflict between woman/family and man/political community. Since the community only gets an existence through its interference with the happiness of the Family, and by dissolving [individual] self-consciousness into the universal, it creates for itself in what it suppresses and what is at the same time essential to it an internal enemy - - womankind in general (PS 288). The downfall of women's law comes as men's law, h u m a n law, asserts its universality - the principle of community. It is, moves and maintains itself by consuming and absorbing into itself the separatism of the Penates or the separation into independent families presided over by womankind ... (PS 287-8).

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Men repress the spirit of individuality for which women stand and in so doing, recognise it. They appropriate too women's knowledge of the power of youth. In taking the young men from the family and putting them to fight, individuality is transferred from the body to the nation. But men's law too is destroyed. For now that the continued existence of the political community depends only on strength and luck,

the decision is already made that its downfall has come ... the living Spirits of the nation succumb through their own individuality and perish in a universal community, whose simple universality is soulless and dead, and is alive only in the single individual, qua single. The ethical shape of Spirit has vanished and another takes its place (PS 289).
The new shape is Rome, a formally universal community of soulless atoms, a "mere multiplicity of individuals" whose "lifeless Spirit is an equality, in which all count the same, ie. as persons" (PS 290). It is a cold dawning, but a dawning nonetheless, of forms of social life within which nature, more specifically biology, no longer has determining power. This is a f u r t h e r stage in the phenomenological dialectic of recognition. Self-consciousness now emerges as the person that is free of all natural and ethical determination, and therefore equal. [W]hat counts as absolute, essential being is self-consciousness as the sheer empty unit of the person (PS 291). Hegel's person is the "I" t h a t is aware of its self or, in the later formulation of The Philosophy of Right, the individual will that has only itself for its content, and is thus purely self-referential (PR 34, 35). Its positive value is to convert possession to property. For when this "I" can recognise its self, not only in another self, but in a thing t h a t can be predicated as owned by right, as "mine", a more concrete, albeit alienated, sense of identity emerges. In this succeeding form of life, Roman legalism and Christian moralism will open a movement that closes in Hegel's state under the rule of law. Looking forward to The Philosophy of Right, we can see the beginning of its systematic portrayal of modern n o r m a t i v e thought. Abstract right, the principle of personality, developed as property, contract and crime (wrongful taking), and mediated by the moral ideas of purpose and responsibility, intention and welfare, and good and conscience, yields the basic normative concepts embodied in modern ethical life: life, t h a t is, in the family and in civil society, but also and above all as member of the constitutional state.

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HI Law and Gender Hegel's striking narrative of a sexual politics involving the suppression of women by men is constitutive of womankind as a natural class in opposition to mankind. It can be read as an affirmation of the thesis that the oppression of women is grounded in sex and to find here too, in the transfer of individuality from the body to the nation, a movement which will allow human beings only so much control over their own bodies as is consistent with the disciplinary needs of patriarchy, capital, and professionalised health and welfare. Hegel's intention however, is to portray a civilising process, involving a transcendence of natural determination of men's and women's character. The identity ascribed to women in the third image of woman as femina domestica is a gender identity, a cultural construct contextualised by "second nature" - the social world as humans have made it. ~ This world and its text, The Philosophy of Right, are certainly and securely patriarchal. Nonetheless in the normative thought of modernity, which is Hegel's subject matter in The Philosophy of Right, the principle of abstract right, "be a person and respect the personhood of others", as an abstract and negative principle seems to bear no trace of the conditions of its emergence. Its negative prescription applies to actions of both individuals and the state so as to make slavery and the denial of personhood to women wrong. Neither in the positive development of abstract right, through property, contract and crime, nor in the development of the categories of subjectivity and their contingent ends, good and evil, in the section on morality, is any such trace apparent. The "simple positive value" of the person in converting possession to property, is embodied in a form of property ownership which is free from feudal constraints and complete insofar as control and benefit can be vested in the one person (PR 62). If unmarried, that person might be a woman. The trace becomes evident in the section on ethical life. It takes the 14 Some contemporary feminist theorists question the sex-gender distinction, arguing that it occludes the social construction of sex. See e.g. Elizabeth Grosz, Volatile Bodies: Towards a Corporeal Feminism (Sydney: Allen & Unwin, 1994), 17-19. Grosz comments: "It is ... not clear how one eliminates the effects of (social) gender to see the contributions of (biological) sex." I agree with this point and with the need to question the distinction. Interpreting Hegel's constructions in terms of a sex-gender distinction is, in my view, hermeneutieally required. It should serve to question, not further embed, the distinction.

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form of a theory of gender in Hegel's treatment of the family, and flows on into the exclusion of women from civil society and the state. Equally persons, women's vocation is in the family. [A] girl loses her honour in [the act off physical surrender, which is not so much the case with a man who has another field of ethical activity apart from the family. A girl's vocation consists essentially only in the marital relationship; what is therefore required is that love should assume the shape of marriage ... (PR 164A). Here, like Antigone, the woman of modernity remains guardian of an essential moment of ethical life: knowledge of the requirements of sociality. This, for Hegel, is the rational basis of sexual difference. Man's essence and end is to leave the confinement of family life and enter the atomised and atomising world of civil society. Against the corrosion of sociality which such activity brings, women must sustain the bonds of love and trust. Thus one sex is mind in its self-diremption into explicit personal selfsubsistence and the knowledge and volition of free universality i.e. the selfconsciousness of conceptual thought and the volition of the objective final end. The other sex is mind maintaining itself in unity as knowledge and volition of the substantive, but knowledge and volition in the form of concrete individuality and feeling ... (PR 166). In other words, men and women embody different kinds of selfconsciousness, the one reverential or pious, the other liberatory. Woman finds her essence and end in love and the family; man finds his essence and end in law and the state. Men must struggle to hold themselves together against the constant sundering of the idea of the self and its expressive externalisation in the acquisition of property. Man's participation in civil society, his experience of working, acquiring and judging, gives him a self-consciousness which is divided between selfsufficiency, and understanding and wanting an identity that is given by community. This life of work, this liberty to pursue the satisfaction of multiplying wants and needs, this exercise of the intellect in judging and choosing is man's identity as bi~rger. Woman, peacefully maintaining the soul of human sociability, knows nothing of this internal struggle. She is not led on, like man, to find in Reason the resolution of the antinomies into which thought, at the level of Understanding, inevitably falls. ~ Her thought remains intuitive, representational, at one with her feelings for 15 Supra n.13, at 72ff.

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self and others. She is a m a n ' s anchor, she holds him to w h a t is substantial in ethical life, feeling for others. Without her he might lose his grip on the soul of h u m a n sociability: his own soul too? divine Antigone? No. Antigone stands now, as then, for the virtue of family piety. But given a form of life which, in Hegel's view, is adequate to h u m a n freedom, her force and power is spent. In that sense, Antigone is now merely an insubstantial ghost of the hard struggle between feeling and thought which, for Hegel, has found its true reconciliation in life in the state under the rule of law (PR 257, 360). To exhort a return to Antigone's stance in the modern world would be to exhort fanaticism: a one-sided, partial commitment in a world without further need of heroes. Virtue, in this world, has become mere rectitude: a disposition to "do what is prescribed, expressly stated and known...within [the] situation" (PR 150R). The union of men and women is necessary - - a duty indeed. It is so necessary t h a t it cannot be left, unregulated by reason, in its natural form of sexual affinity and the feeling of love. It must take the cultural form of marriage and in this form (as ceremony), marriage begins from the point of view of contract in order to supersede t h a t point of view. Love, ethical love, follows it (PR 163, R and A). Love as feeling is an "immense contradiction" for Hegel, a contradiction with which the understanding cannot cope. In general, it is the natural form of ethical life because it is an experience of self in unity with another and a transcendence of personal isolation. Yet the negation of self involved is incompatible with the affirmation of self t h a t is an imperative of self-determined activity (PR 158A). Love as feeling is therefore doubly transcended in Hegel's state. Firstly, its ethical aspect is formalised and institutionalised as marriage and the family. Yet even in its institutional form, as marriage, the element of feeling that remains threatens an instability which, for Hegel, must not enter the state. Thus and secondly, as a medium of social unity, love is replaced in the state by law (PR 158A). Woman is tied into this double transcendence. Marriage is her duty and vocation. But she can have no political presence in the state. The family must be represented there by others: indeed by the fully patriarchal class of landed gentry. 16

16 In order to incorporate the family within the state Hegel justifies primogeniture for the landed property of the aristocracy (PR 180R, 305-6). The exception constitutes primogeniture as a structural principle of the form of constitution which Hegel elaborates - - Joseph O'Malley, Editor's Introduction

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Hegel's conviction, a shared premise of the school of German idealism, 17 that now, in the social world of modernity, in the "second nature" which humans had constructed for themselves, social life could be ordered by reason, is central and foundational. Given his views on the nature of philosophy and on the pretentious vanity of prescriptions as to how the state ought to be (PR, Preface, esp. 21if), it would not otherwise have been open to Hegel to arrive, at the speculative level, at Freedom as the concept of the concept of right. The question that emerges here is how, given an idea of freedom which while not confined to individual h u m a n freedom (PR 258R) certainly encompasses it (PR 124R), Hegel could have thought that a woman's right to subjective freedom was satisfied despite her exclusion from civil society. Certainly Hegel's ideas matched the social conditions of his time and place. Equally certainly, the gendered identities of women and men are a justification for these conditions. But neither of these considerations sufficiently answers the question posed. Existent social conditions could be merely existent rather than actual: contingent and fortuitous rather than an embodiment of some essential aspect of human social life that has become existent. TM Hegel recognises that social regulations or conditions, while of great relative importance "for a certain time and special circles", may nonetheless be merely external and transitory. ~9 As such they cannot yield a justificatory ground. Of course it is possible that it simply did not cross Hegel's mind that this was the case here. But as an explanation of the theory of gender this both leaves textual remainders and dissociates femina domestica from the two earlier images of woman. 20 One textual point is that Hegel is of the view that the legal condition of women in modern Europe, in contrast to that of Rome, accords them the

17 18

19 20

in K. Marx, Critique of Hegel's Philosophy of Right (Cambridge: Cambridge University Press, 1970), xlix ft. H. Marcuse, Reason and Revolution: Hegel and the Rise of Social Theory (London: Routledge & Kegan Paul, 1986, 2rid ed.), 3ft. Hegel clearly distinguishes the actual from the merely existent. The latter is contingent and fortuitous. It exists, but there is no necessity that it should: it may or may not. The actual is some essential aspect of human social life that has become existent. Supra n.13, at 8ft., 200ft. Supra n.13, at 10. I have dealt here only with what seemed to me to be the most common response by Hegel scholars to the theory of gender. There is a wide variety of other responses, particularly within feminist literature.

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respect to which they are entitled. If that, in Hegel's estimation, constructs t h e m as a lower form of life, as having a valuable and necessary, but against the standard of Reason, inferior place in the m a i n t e n a n c e of ethical life, it also illustrates another i m p o r t a n t parameter of his theory of gender. Hegel is not arguing that woman's selfconsciousness is determined by nature (biology). His argument is that there is reason in sexual difference and that it is this reason which, now, in the conditions of modern Europe, has emerged as different forms of male and female spirituality and social practice (PR 165). It might be said that in making the assumption that there is reason in sexual difference, Hegel merely sophisticates or idealises a biologistic ground for his argument. But, and given that men too retain such a link (PR 190R, 200R), this still fails to explain his estimation of women as inferior to men. What must be added here is that in locating woman within the family, Hegel ties her to the n a t u r a l form of h u m a n association, a form which it has been reason's accomplishment to subdue to the s t a t e u n d e r the rule of law. The modern family is now characterised by civility to all its members, or to put that another way, the civilising process of men's work in civil society'has now fed back to civilise the family. Even so, like the feeling of love, the family retains the traces of unfreedom and instability. Woman's transcendence of this through the formalisation of her love in marriage involves a loss of her separate personhood in coverture: a loss which, while suffered by men too, is recuperated for them both in their representation of the family and in their life outside the family in civil society. As p a r t of a dialectic of freedom, such transcendence must be premised on the assumption that this is woman's ethical desire. In short, this dialectic involves no subjection of woman, because it is a realisation of her will. All of this can of course be indignantly dismissed. Alternatively, an ambient interpretation of Hegel might endorse his perception of love as an ethical principle of modern life and attempt to read out the hierarchical relation between this principle and that of reflective reason for which men stand. 21 A revalorisation of the ethic of love for which woman stands might be attempted; or the linkage between sex and the two ethical principles might be broken so t h a t either p a r t y to a p a r t n e r s h i p whether homo- or heterosexual - - might embody it in their social practice. Any such response, in my view, misses a point t h a t has ongoing 21 Compare Allen Wood, Hegel's Ethical Thought (Cambridge: Cambridge University Press, 1990), 244ff.

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significance in ways of life inherited from Hegel's Europe. The content of the justificatory ground for Hegel's confinement of woman to the family is the assumption that this is her ethical desire. But the ethics in question are premised on the idea of right that has taken the form, in modern Europe, of the positive law of the nation state. Hegel's accomplishment here is a logical reconstruction of that idea. Its neglect, in Anglophone j u r i s p r u d e n c e is only more notable t h a n its a c h i e v e m e n t : an acknowledgement of the truth in theories of natural law, of common law theory and of legal positivism. 2~ The truth of natural law theory is the negative foundation of modern law that is to be found in the absolute right of the downfall of men's law and women's law. The truth of common law theory is found in his insistence that ideas of right are in the world: The truth concerning right, ethics and the state is at any rate as old as its exposition and promulgation in public laws and in public morality and in religion (PR, Preface i1). Both r e t a i n t h e i r presence in the only reasons which the s t a t e acknowledges in the exercise of its authority over the liberty, property and lives of those resident within it, namely reasons "derived from the forms of right that are valid within the state" (PR 258R): positive laws which are universal in form, known, and rational in the sense of sustaining those social practices and institutions from which the constitution itself has emerged. The "bracket" t h a t holds all of this together is the logicism of the tautologous form of right. But the interest of Hegel's logic is the ambiguity of tautology. Right is right but this is an empty formalism, an identity without content which, far from yielding universal precepts for action, m a y be instantiated in the world as wrong (PR 57A). Such, from the s t a n d p o i n t of freedom, was Antigone's and Creon's world where personality was not yet free. And such were the Roman and Christian worlds within which the principle of freedom of personality, while apparent, was not yet instantiated in the world (PR 62, 62R). What Hegel sets out to do in The Philosophy of Right, the point of his logical reconstruction of modernity's idea of right, is to prove the rationality of the modern European way of life, by showing its unity with the universal form of right. What more does this truth require, inasmuch as the thinking mind is not 22 See also Andrew Arato, "A Reconstruction of Hegel's Theory of Civil Society", in Hegel and Legal Theory, supra n.8, at 301 at 307.

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content to possess it in this proximate manner? What it needs is to be comprehended as well so that the content which is already rational in itself may also gain a rational form and thereby appear justified to free thinking (PR, Preface 11).

The gendered identities of women and men are constructed within that effort of comprehension. I am suggesting that this is necessarily so because gender is, in a significant part, of the taw's doing. I am further suggesting that Hegel's theory of gender can aid our understanding of how that is so - - even now, when the law has the appearance of having been rid of gendered doctrines. It is a suggestion that travels beyond gendered to other social and cultural identities which as self-determining people we would not choose. That, on an assumption of the value of self-determination, raises a practical question of how we might act toward the realisation of that value. I do not offer answers to that question. I think only that it is not yet squarely raised in the philosophy of law. Indeed, that it is occluded by justificatory reasoning that would have us believe in the necessity of accepting the authority of law without understanding how it alienates us from ourselves and others.

IV The Constitution of Unfreedom Central to any such understanding is the concept of the person. In legal reasoning, persons are free of all determination and therefore equal. They become specific legal personae only as clothed by law with sets of rights, duties, powers and immunities. Hegel's person is selfconsciousness at a particular stage of development. It becomes the person of legal reasoning in becoming the object of law. With this, as we have seen, law that is universal in content as well as in form becomes possible; and when each sane adult within a state is accorded the status of person, this possibility is actualised (PR 66, 66R). Yet, for all that it promises, the person is shadowed. The chief glory of the human being (Das H(~chste des Menschen) is to be a person, and yet in spite of that the bare abstraction "person", is somewhat contemptuous in its very expression (PR 35A) (Modified Knox translation. ~) 23 I have used the translation of T.M. Knox, The Philosophy of Right (Oxford: Oxford University Press, 1942), modified by translating "Mensch" as "human" rather than "man", because the newer translation obscures the contradiction Hegel is pointing to between concept and its expression. It is not even but

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To be a person, Hegel is saying, is an essential aspect of our individual identity and yet it involves something contemptuous. The r e m a r k is puzzling and only the more so in t h a t it seems, in the context of the paragraph, its R e m a r k and Addition, to be an aside. Three other, and apparently more significant, points are made there. The first, referring back to The Phenomenology, distinguishes personality in its appearance as self-consciousness from its further actualisation as the person t h a t is the object of a universal law. The second explains this latter person as both infinitely free and fully determined. As this person, I know myself to be free in myself. I can abstract from everything, since nothing confronts me save pure personality, and yet as this person I am something wholly determinate. For example, I am of a certain age, a certain stature, I occupy this space, and so on through whatever other details you like. And thirdly the Addition concludes: The supreme achievement of the person is to support this contradiction, which nothing in the natural realm contains or could endure (PR 35A (Knox)). Hegel is not here, obfuscatingly and gratuitously, confusing a form of self-knowledge and the self-knower. The assertion of the first of these three points is t h a t this "confusion" is part and parcel of the dialectical movement of thought. Self-knowledge and self-knower are in a m u t u a l l y constitutive relation - - personality. As merely an abstract self-awareness it is only a condition of t h o u g h t and is a product of the natural, unfree, desiring will. Free will, as simple, contentless self-reference m u s t await a social world in which h u m a n beings are unburdened by ethical bonds which deny t h e m the possibility of being their own object and end. 24 This (Roman) world is spiritless and dead in its very lack of ethical life. But in the person as the subject t h a t is aware of its own subjectivity, a further step in the dialectic of self-consciousness has been taken. The most basic a b s t r a c t notion of m o d e r n n o r m a t i v e t h o u g h t takes its place as the foundation of legal status. The second point encompasses the ambiguity, touched on above, t h a t is involved in Hegel's location of women in the family - - a location which, in differing aspects, is not and yet is in nature. ~ Hegel's a r g u m e n t is t h a t

already (schon) in its expression that the concept of person is contemptuous. 24 Robert Bernasconi, "Persons and Masks", supra n.8, at 81ft. While I disagree with the conclusions of this essay I have been assisted by it. 25 Carole Pateman's arguments in The Sexual Contract, (Oxford: Polity Press,

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sexual difference is given cultural significance by h u m a n beings. As infinitely free, the person has no sexual determination. Women, in this respect, therefore enter modern marriage as persons (quite possibly as propertied persons) from the same standpoint as men, namely, the standpoint of contract, and for the same purpose, the overcoming of that standpoint (PR 163R). Yet while formal equality is maintained in that the separate personhood of both parties merges into the legal person of the family, substantial equality is not. It is also wholly determinate beings, a particular man and a particular woman, who marry and one, the husband, "must" be the representative of this legal person: his vocation is to move out of the family and realise his particularity through work in civil society (PR 169, 171). The third point draws out the specificity of the person: to contain and sustain the contradiction between the infinite freedom of pure selfreference and the full determination of embodied existence. In this, Hegel comments, the person is entirely unnatural (PR 35A). Nothing in nature could sustain the contradiction between a form of consciousness and embodied existence. The person is a construction of culture. In the sphere of juridical thought, it functions to negate difference and establish a sphere of abstract equality. But as containing also the wholly determinate, fully particular person (as "this" person) it encompasses life. It is tempting to stop here. To point out that it is not all or any "culture" that has produced this "person" but Western European culture. And to say that this encompassing of life is, for women, an enclosure within narrow bounds, where she will be constrained by her husband and her duties to lead a life determined by them, rather than herself and her own judgements. We need however, to press on a little further and consider the relation of the person to other forms of subjectivity that figure in Hegel's normative thought. The living being of the person, the subject, is dealt with in the ensuing categories of normativity - - morality and ethical life. 26

1987), 173ff., have the virtue of highlighting this ambiguity. However, her explanatory idea of an assumed sexual contract turns us away from the ambiguity and complexity of the person. For the internal life Of the human subject, conscience is the focus of the 26 succeeding category of morality. The person and the moral subject, as the respective objects of legality and morality, are both abstractions, Further, still abstract, identities emerge within the institutions of ethical life: the ethical subject who is the member of a family or people (PR 152-6), and the human

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W i t h t h i s f u r t h e r d e v e l o p m e n t in m i n d and, c o m b i n i n g p o i n t a n d c o u n t e r p o i n t of c r i t i q u e a n d j u s t i f i c a t i o n w i t h i n t h e t e x t s , 27 t h e significance of Hegel's o p e n i n g r e m a r k emerges. The chief glory of t h e h u m a n b e i n g is to be a person because this i d e n t i t y allows "us" to t h i n k of o u r s e l v e s a s free w i t h o u t s t o i c a l l y or s c e p t i c a l l y n e g a t i n g o u r f u l l y d e t e r m i n e d embodied existence. The supreme a c h i e v e m e n t of t h e p e r s o n is t h u s to a l l o w "us" to r e s o l v e t h e d i l e m m a o f W e s t e r n t h o u g h t e n c a p s u l a t e d b y K a n t in t h e a n t i n o m y of freedom. E a c h p e r s o n in t h i s s e n s e counts t h e s a m e as e v e r y o t h e r a n d becomes a n object of law. The divorce of t h i s object - - t h e '%are a b s t r a c t i o n " - - from t h e living b e i n g o f t h e person accounts for t h e contemptuous expression. The p a r t i c u l a r i t y of a n i n d i v i d u a l as developed by the exercise of his or h e r subjectivity is left out of account. Not o n l y does t h i s exercise of s u b j e c t i v i t y a c t u a l i s e t h e good - - as d i s t i n c t from r i g h t - - in m o r a l i t y (PR 138), it is also, in t h e case of t h e biirger m a k i n g the most of h i m s e l f in civil society, the a c t i v i t y on which civil society rests. This c o n t e m p t of t h e living person m u s t t h e r e f o r e be c o m m e n t e d upon, it cannot be overlooked. But nor can it be left hanging. I t is a w r o n g a g a i n s t life i t s e l f t h a t is e m b e d d e d a t t h e c o n c e p t u a l f o u n d a t i o n of law. If law is to be justified in t e r m s of absolute right, this wrong m u s t be redeemed. R e d e m p t i o n comes not, in t h i s world, from God, b u t f r o m t h e c o n s t i t u t i o n which, w h i l e e m e r g i n g in t i m e is n o t to be s e e n as m a n u f a c t u r e d , b u t as t h a t which h a s being in a n d for itself. It is, for t h a t r e a s o n , to be considered as divine a n d e n d u r i n g (PR 273R). 2s I n s e c u l a r

being as biirger in (his) fully developed particularity (PR 190R). In these spheres of life, it is not persons who love and work and acquire unequal amounts of private property - - except of course in the eyes of the law. It is particular individuals, whose crowning and complete identity will be as wife/mother or citizen (PR 261R). 27 For the idea of contrapuntal readings see Edward Said, Culture and Imperialism (London: Chatto & Windus, 1993), 59ff. 28 Both English translations impose a "should" here that could be mistaken for a subjunctive form of sollen which Hegel does not use. The point is no doubt a tricky one for translation, but I think it important that the counterfactual that Hegel indicates as necessary here be kept away from connotations of "ought to be". Hegel's thought here relies on his account of the internal aspect of subjectivity in the section on morality: its capacity to choose good or evil in the lack of objective standards of right embodied in the ethical life of a family or people and a disposition to accept those standards as definitive of virtue (PR

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terms it is the objective form of"the Idea" - - that which is, and is actual, and which can be known as such because it is its own ground. ~ As a return of the divine to the secular world, it is a return not to Antigone's law, but to Athene's, the spirit of the nation (PR 257R) - - chthonic, until raised to the heavens by medieval Christendom, then brought down to earth by the French Revolution (PR 359, 360). Here now, as the secular world built up through man's activity in civil society raises itself to the rationality of right and law, the opposition between feeling and thought "fade[s] in itself and becomes an insubstantial shape" (PR 360). If Spirit is interpreted in all this as an independent demiurgos of the world, or as God, then the young Marx's exclamations of mysticism are warranted. 3 If it is not, if it is understood as the linguistic and cultural community within which individuals are constituted as thinkers; 31 or better, if it is just an x which, in the logical realm, stands in the place of Kant's transcendental unity of apperception as that subject which our grammar requires, 32 then we will look more closely at this redemptive constitution. It has much less mystery than a virgin birth and, because it is backed by the coercive power of the state, much more power than that which merely "ought" to be. The constitution demands counterfactuality. It is made but speaks to its subjects only on condition that it be regarded as not made. To ensure that condition is met, it authorises a law which will speak for those subjects. This is more than robbing us "of language in the very name of language". 33 For this law human subjects are objects, bare abstractions, persons who have given over their powers of self-determination to the law in return for security. They are assumed to consent to further, more concrete, identities furbished by law: husband and wife, trustee and beneficiary, vendor and purchaser. These identities construct classes of legal personae, persons not in their freedom and abstract equality, but as 139ff). 29 In Pinkard's terms it is that which is "self grounding and self justifying" and which, by exclusion of all other circles of knowledge, "explains itself as the one true system". "The Successor to Metaphysics", supra n.5, at 297. 30 See, e.g. Marx, supra n.16, at 38-40, 83-84. 31 See Pinkard, supra n.5; see also Alex Callinicos, Marxism and Philosophy (Oxford: Oxford University Press, 1985), ch.1. 32 I owe this formulation to discussions with Uwe Petersen. 33 R. Barthes, "Dominici, or the Triumph of Literature", in Mythologies (London: Paladin Books, 1973), 48 at 52.

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clothed and distinguished by the law. And law, owing its authority to the constitution, makes such determinations only from the premise t h a t the constitution is unquestionably valid. Obedience to that authority, if not given voluntarily or at least in exchange for a fine set of clothes, is taken care of by force. Hegel valued equality only in its thinnest and most abstract form and only insofar as it allows for a law that is universal in content as well as in form. He thus had no quarrel with the law's discriminatory or coercive aspects. The individual is always, for Hegel, located within social relations and it is only appropriate that legal identities are constructed in terms of such relations. Nor, provided t h a t the rights of subjectivity (knowledge of the law and public curial proceedings) are met, should he be read as beginning a critique of law for its objectification of subjects and for its potential to alienate them from themselves. ~ But he does perceive a systemic threat to those rights in an endless particularisation of laws and fragmentation of actions, which could lead to legal knowledge becoming the esoteric and exclusive property of a class (PR 216, 223, 228R). And this disturbing t h o u g h t recurs w h e n he contemplates the endless multiplication of wants and needs within industrialising m a r k e t society (PR 243, 244). It might be said, reading Hegel as Hegel read Plato (PR, Preface, 20), that he repressed these doubts in order to maintain faith with the present. Marx commented that Hegel was not to be blamed for representing the state as it is, but "for presenting what is as the essence of the state". 35 My point is t h a t Hegel would not have represented the state as it is without reproducing the justificatory mumbo jumbo that surrounds it: its law, its idea of morality based on (fallen) individual subjectivity, and their concretisation in private property, the market and the institutions of law, corporate life and government. But, like Antigone, once Hegel has understood this right and resolved that he cannot or will not stand against it, his character as a philosopher of freedom is destroyed. Against any such utterly self-corrosive thought, Hegel's distinctive contribution is to conceptualise the institutional and constitutional arrangements of Europe 34 Bernasconi, supra n.8, suggests that such a reading of Hegel catches some, but misses rather more of his meaning. He seems to suggest that on a second reading, the critique falls away. Against that, I am suggesting that a contrapuntal reading is important here because it enables us to hang on to both parts of Hegel's meaning. 35 Marx, supra n.16, at 64.

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as ethical life: as a mediated harmony of universal and particular, state and family, thought and feeling, man and woman. It is an inspired and consistent move but the inspiration, his belief in the progressive externalisation of freedom in the social forms of modern Europe, is flawed by the very closure on the dialectic of freedom that justifies his claims for the constitution. This flaw is revealed in his gendered identities. It is also revealed in his attitude to people from other cultures whose ideas of subjectivity and identity do not include that of personhood in its European sense: it justified European nation states according them minimal r i g h t s - perhaps only not to be taken into slavery, and to be, like children, "pedagogically coerced" or moulded to a European conception of personhood (PR 93R). It justified colonisation of the lands of those who lack this know-how (PR 246, 248) and remain, lazy and stupid, within the governance of drives, customs and feelings (PR 197A, 211, R and A). All are included, by force or consent, as persons in the enclosed sphere of this universal concept of right. They must accept such further determinations of their identity as the law makes available to them.
Conclusion

There is certainly a paradox in all this but it is not t h a t of the constitution and the counterfactual beliefs it demands of us. It is rather that in the absence of Hegel's inspiration and of the actual closure on the dialectic of freedom that justifies his claims, his accomplishment, the logical reconstruction of modern Western ideas of right, would not have been possible. Some will cry irony in the face of this paradox and well they might. My argument, v i s a vis Hegel is ad h o m i n e m . But it is not made for the purpose of irony. It is made in the hope of recovering Hegel's sense of the ambiguity of tautology from the straitjacket of our legal and ethical thought. I would hope then to use this paradox to subvert an iclde fixe - - that right is right - - and develop, from the lives of those whom the constitution has stripped bare, our understanding of its wrong.