Hegel’s reception is usually told as a history of philosophy: Left Hegelians and Marx, Kierkegaard, Kojève, the Anglophone renaissance. For an edition of the Groundlines, however, another strand is the nearest one, and it seldom appears in the surveys — the reception of Hegel by German legal scholarship. It is no side chapter. It is the place where Hegel’s philosophy of right stopped being a book and began to have consequences — the best and the worst.
The first generation: Hegel among lawyers
Eduard Gans
Hegel’s most important legal pupil, and the man to whom this edition owes its Additions. Gans (1797–1839) was professor of law in Berlin, edited the philosophy of right in the Friends’ Edition of 1833, and for it assembled from lecture transcripts those explanatory passages that have stood behind the paragraphs ever since. Whoever today quotes the sentence about soul and body at § 1 — „The concept and its existence are two sides, separate and united, like soul and body“ — is quoting Gans’s compilation; the wording is in the glossary under The Idea.
More important still: Gans carried Hegel’s position into the great methodological controversy of the day. Against Savigny’s historical school of law, which derived law from the organically grown spirit of a people and held a code of law premature, he set comparative and philosophical legal history — Das Erbrecht in weltgeschichtlicher Entwicklung (1824–1835). The enmity between Gans and Savigny was personal and institutional; it damaged Gans’s career and is one reason why the Hegelian line in jurisprudence went early onto the defensive.
Sources: Eduard Gans, Das Erbrecht in weltgeschichtlicher Entwicklung, 4 vols., 1824–1835 · Norbert Waszek (ed.), Eduard Gans (1797–1839): Politischer Professor zwischen Restauration und Vormärz, 1991 · Hans-Christian Lucas / Otto Pöggeler (eds.), Hegels Rechtsphilosophie im Zusammenhang der europäischen Verfassungsgeschichte, 1986
Karl Rosenkranz and Adolf Lasson
Rosenkranz wrote in 1844 the first and still indispensable biography, Georg Wilhelm Friedrich Hegels Leben, and rescued in it material that would otherwise be lost. Lasson produced the critical edition of the philosophy of right in the Philosophische Bibliothek (1911) and thereby kept the text in circulation at a time when hardly anyone in Germany was still interested in it.
Rudolf Haym and the legend of the Prussian state philosopher
In 1857 Hegel und seine Zeit appeared — the most consequential criticism of all. Haym read the sentence „What is rational is actual“ as a justification of the Prussian restoration state, and Hegel as its appointed thinker. The formula of the „Prussian state philosopher“ comes from this book, and it has held, although scholarship has dismantled it piece by piece since Rosenzweig. One has to know it in order to understand why German legal scholarship did not touch Hegel for half a century.
Sources: Rudolf Haym, Hegel und seine Zeit, 1857 · against it Franz Rosenzweig, Hegel und der Staat, 1920, and Joachim Ritter, Hegel und die Französische Revolution, 1957
The break: Hegel disappears from jurisprudence
After 1848 the Hegelian school fell apart, and in legal scholarship what prevailed was precisely what Hegel had disputed: statutory positivism, which no longer asks after the concept of right, and neo-Kantianism, which moves the question back into the realm of the ought. Bergbohm’s programme of removing everything non-positive from legal science is the exact opposite of § 1 of the Groundlines. Marx’s word about the „dead dog“ as which Hegel was being treated describes, for lawyers, the situation well into the twentieth century.
The return around 1920 — and its reversal
Franz Rosenzweig
Hegel und der Staat (1920) is the beginning of the modern engagement and at the same time a book with a tragic history. Rosenzweig traces the development of Hegel’s thinking about the state out of the early writings and shows how little the philosophy of right fits the legend of the philosopher of restoration. He himself later distanced himself from the work; the print run was destroyed in 1938.
Neo-Hegelianism in legal philosophy
In the twenties Hegel became central again for German legal philosophy — as an antidote to a positivism felt to be empty. Julius Binder (Göttingen) built on it a philosophy of right that sought to win the concept of right back out of objective spirit; his pupil Karl Larenz carried the line further, and Walther Schönfeld belonged to it. Hegel’s ethical life was invoked against individualism, the concrete universal against the abstract norm.
The programme was not without philosophical grounds. What became of it is the test case of the question Hegel’s system raises.
1933: the short circuit
After 1933 Binder and Larenz equated the reality they found with the concept. The „concrete universal“ became the racial community, ethical life became the ethnic order, the person became the national comrade. In 1935 Larenz wrote the sentence that shows what was happening here: only he is a legal comrade who is a national comrade — with which abstract right, Hegel’s foundation, was expressly abolished. Hegel’s commandment of right runs „be a person and respect the others as persons“ (§ 36) and admits of no condition. Neo-Hegelianism turned it into its opposite.
This is not merely a falsification from outside. It is the realization of a risk that lies in the system itself: if the task of philosophy consists in recognizing reason in actuality, then everything hangs on whether the shape one has before one really corresponds to its concept. That examination is laborious. To skip it and declare the shape presently at hand to be the actualized one is the standing temptation of Hegelianism — and Hegel has only one remedy against it, namely his own concept of actuality: that what merely exists is not thereby actual.
The most precise diagnosis of this process comes from legal scholarship itself, and it strikes Hegel harder than talk of misuse does. If one asks what made the methodologies of the Weimar period open to the later ideologization, it is not a particular content but a form of concept-formation: one that does not hold out oppositions but sublates them — being and ought, individual and community, norm and actuality. Such concepts are no longer refutable, because they have already melted down the contradiction against which one might test them; they can be filled at will. That is a description of neo-Hegelianism, but it aims at the figure of thought itself.
The objection has to be taken seriously, for the sublating of oppositions is Hegel’s very own movement. The answer his text permits lies in what sublation and determinate negation mean in him: what is sublated is something preserved, it „does not thereby become nothing“. The opposition must still be legible in the result — as a moment. Where it vanishes without trace, nothing has been sublated but something covered over. With that one has a criterion, and a workable one: ask of every concept that dissolves a tension where the two sides are still to be found in it. In the racial community of 1935 they are not.
Carl Schmitt sealed the process with a sentence that hits the matter more exactly than he probably meant. With 30 January 1933, he wrote in Staat, Bewegung, Volk, one could say: „Hegel is dead.“ The civil-service state for which Hegel stood had been superseded by the movement. Whoever takes the neo-Hegelianism of those years for Hegel should set this sentence of his sharpest contemporary beside it.
Part of the aftermath is that Larenz became after 1945 the most influential German teacher of private law; his Methodenlehre der Rechtswissenschaft (from 1960) and his textbook on the law of obligations trained generations of lawyers. The argument about how this relates to the writings of the thirties is not closed to this day.
Sources: Julius Binder, Philosophie des Rechts, 1925, and Grundlegung zur Rechtsphilosophie, 1935 · Karl Larenz, Deutsche Rechtserneuerung und Rechtsphilosophie, 1934, and Rechtsperson und subjektives Recht, 1935 · Carl Schmitt, Staat, Bewegung, Volk, 1933 · on the reckoning: Oliver Lepsius, Die gegensatzaufhebende Begriffsbildung. Methodenentwicklungen in der Weimarer Republik und ihr Verhältnis zur Ideologisierung der Rechtswissenschaft im Nationalsozialismus, Munich 1994 · Bernd Rüthers, Die unbegrenzte Auslegung, 1968 · Ralf Dreier, „Zur Problematik und Situation der Verfassungsinterpretation“, in: Recht – Moral – Ideologie, 1981
The fresh start after 1945
Joachim Ritter
Hegel und die Französische Revolution (1957) turned German Hegel interpretation around. Ritter’s thesis: Hegel’s philosophy is the philosophy of the Revolution — not a thinking of restoration but the attempt to comprehend the principle of modern freedom, which came into the world in 1789, in a constitution that does not destroy it again. With that Haym’s legend was settled on the merits and the way was clear to read the philosophy of right again as an analysis of modernity. From Ritter’s circle in Münster comes a whole generation — Manfred Riedel, Hermann Lübbe, Odo Marquard, Ernst-Wolfgang Böckenförde.
Manfred Riedel
Riedel worked out what Hegel’s real conceptual achievement is: the separation of civil society and state. Until then societas civilis had meant both at once; only in Hegel do they come apart, and only with that does the modern constitutional situation become describable at all. Whoever today says „civil society“ is using a distinction that was made in the Groundlines.
Sources: Joachim Ritter, Hegel und die Französische Revolution, 1957 · Manfred Riedel, Studien zu Hegels Rechtsphilosophie, 1969, and Bürgerliche Gesellschaft und Staat bei Hegel, 1970 · id. (ed.), Materialien zu Hegels Rechtsphilosophie, 2 vols., 1975
Karl-Heinz Ilting
The most consequential editorial intervention of recent Hegel scholarship. In 1973/74 Ilting published the lectures on the philosophy of right 1818–1831 in four volumes, and thereby made visible for the first time how Hegel presented the material before and after 1820. His thesis: between the transcript of 1819/20 and the printed book there lies an accommodation to the Carlsbad Decrees and to censorship — Hegel dissembled, and the sharpest formulations of the Preface are protective statements.
The thesis has remained contested. Dieter Henrich countered it with his edition of the 1819/20 transcript (1983): the basic positions are throughout the same; the sharpening is Hegel’s own and not owed to the censor. For reading, the dispute is consequential whatever its outcome: it established the lectures as an independent textual layer — and that very layer lies beneath every paragraph in this edition.
Sources: Karl-Heinz Ilting (ed.), G. W. F. Hegel. Vorlesungen über Rechtsphilosophie 1818–1831, 4 vols., 1973–1974 · Dieter Henrich (ed.), Hegel. Philosophie des Rechts. Die Vorlesung von 1819/20 in einer Nachschrift, 1983 · authoritative today: Gesammelte Werke, vols. 26,1–26,3, Meiner 2014–2015
Hegel in legal scholarship today
Criminal law
Nowhere is Hegel so alive in German jurisprudence as in the grounding of punishment. The reason is § 100: punishment is the criminal’s own right, because it takes him as a rational being and not as a creature to be trained. Against all preventive theories of punishment — deterrence, improvement, incapacitation — there stands an argument that aims not at effects but at the status of the offender as a person. From E. A. Wolff through Michael Köhler and Rainer Zaczyk to Michael Pawlik and Kurt Seelmann, work proceeds on this basis.
Sources: Michael Köhler, Strafrecht. Allgemeiner Teil, 1997 · Rainer Zaczyk, Das Unrecht der versuchten Tat, 1989 · Michael Pawlik, Das Unrecht des Bürgers, 2012 · Kurt Seelmann, Anerkennungsverlust und Selbstsubsumtion. Hegels Straftheorien, 1995 · Wolfgang Schild, Die Aktualität des Hegelschen Strafbegriffes, 1984
Legal philosophy and constitutional law
In general legal philosophy Hegel is taken up today above all through the concept of recognition and through the concept of the person; in constitutional law through the question what a constitution is if it is to be more than a text — Böckenförde’s well-known dictum about the presuppositions which the free state cannot itself guarantee stands in recognizable proximity to Hegel’s determination of ethical life as that which the state finds and does not produce.
Sources: Ludwig Siep, Anerkennung als Prinzip der praktischen Philosophie, 1979, and Aktualität und Grenzen der praktischen Philosophie Hegels, 2010 · Michael Quante, Hegels Begriff der Handlung, 1993 · Klaus Vieweg, Das Denken der Freiheit, 2012 · Christoph Menke, Kritik der Rechte, 2015 · Thomas Khurana, Das Leben der Freiheit, 2017 · Ernst-Wolfgang Böckenförde, Staat, Gesellschaft, Freiheit, 1976
What is to be learned from it
The German reception of Hegel in legal philosophy is the only one in which both occur: the most precise appropriation and the complete misuse, and both appeal to the same sentences. That is no accident and no mere failure of individuals. It comes of the fact that Hegel’s programme — to recognize reason in what is — lives by the examination of whether what is corresponds to its concept. Whoever skips that examination still has Hegel’s sentences in hand and says the opposite with them.
For reading, a simple rule follows. Where a text uses Hegel to certify an existing order as rational without showing how that is to be recognized, it is working not with Hegel but against him. The touchstone stands in the Remark to § 1: only the concept has actuality, and what does not correspond to it is „transient existence, external contingency, opinion, inessential appearance, untruth, illusion“.
See also: For whom was Hegel relevant? (the general reception) · Why is Hegel still relevant today? (today’s readings) · Glossary of Hegel’s key concepts