A—
Radin's Misreading

Hegel's view of the person, Radin argues, was "the same as Kant's—simply an abstract autonomous entity capable of holding rights, a device for abstracting universal principles, and by definition, de-

[97] As Hegel discussed, expanding market relations may reduce the scope of the family from the clan to the nuclear family and diminish the role of the family as a political unit. See Allen W. Wood, Editor's Introduction to Hegel, The Philosophy of Right, supra note 76, at viii, xxii–xxiii.

As Ronald Coase has emphasized (defending Adam Smith's classical liberal conception of human nature),

[t]he great advantage of the market is that it is able to use the strength of self-interest to offset the weakness and partiality of benevolence, so that those who are unknown, unattractive, or unimportant, will have their wants served.

R.H. Coase, Adam Smith's View of Man , 19 J.L. & Econ. 529, 544 (1976).

[98] See Radin, Market-Inalienability, supra note 2, at 1892–96; Radin, Reinterpreting Property, supra note 2, at 437–48.

void of individuating characteristics."^[99] Radin recognizes that Hegel departed from Kantian liberalism in The Philosophy of Right when he argued that the abstract will and society eventually develop through higher forms until they reach the "final ideal unity of individuals and the state."^[100] Radin also recognized that Hegel "implicitly claims that personhood in the richer sense of self-development and differentiation presupposes the context of human community."^[101] And yet she declares that, like Kant, Hegel "treats [the Kantian abstract personality] as both logically and developmentally prior to any relationships of right arising from the person's interaction with others in society."^[102]

Radin claims that her theory of property is superior to Hegel's because she bases her theory on a richer notion of the individual than the autonomous, abstract will on which Hegel relies, ignoring Hegel's later notions of the individual in community.^[103] Radin argues that Hegel had a not-so-secret agenda of justifying market relations.^[104] She criticizes Hegel's theory of alienability of property as arising from a strict subject/object distinction.^[105] She claims that Hegel's definition of "object"

fall[s] back on the intuition that some things are "external" and some are "internal." This answer is unsatisfactory because the categories "external" and "internal" should be the conclusion of a moral evaluation and cannot be taken as obvious premises forming its basis. . . . Hegel's solution is also unsatisfactory because (at least from our present vantage point) we can see that the external/internal distinction is a continuum and not a brightline dichotomy.^[106]

[99] Radin, Reinterpreting Property, supra note 2, at 44. Radin notes that the Kantian person "is a free and rational agent whose existence is an end in itself." Id . at 39. Radin argues that Hegel accepted this Kantian view of the person as the completely abstract, autonomous, individual will. Id . at 44–45, 47.

[100] Id . at 46.

[101] Id . at 47.

[102] Id . at 46.

[103] Specifically, Radin states:

Hegel departs from classical liberalism in discussing these other kinds of property relationships. For Hegel, individuals could not become fully developed outside such relationships. They are important in comparing Hegel's theory to a theory of personal property, because the concept of person in the theory of personal property refers to the fully developed individual .

Id . at 46 (emphasis added).

[104] Radin, Property and Personhood, supra note 2, at 974; Radin, Market-Inalienability, supra note 2, at 1888–89, 1894. She calls his analysis a "troubled apology for the market." Radin, Contested Commodities, supra note 2, at 38.

[105] Radin, Market-Inalienability, supra note 2, at 1892–94.

[106] Id . at 1908–09.

Radin contrasts her flexible personal/fungible property spectrum with what she sees as a hard-edged, either/or Hegelian dichotomy.

Very briefly, what Radin claims to take from Hegel is, first, his insistence that the autonomous individual of classical liberalism is not a satisfactory account of the free human being and, second, his recognition that personhood requires both the ownership of property and a community for complete development. She takes Hegel's analysis of the internal logic of property as abstract right to be an empirical account of actual property practices.

By comparing her theory of property for personhood within community to the Hegelian person and Hegel's initial analysis of the subject and property, Radin compares apples to oranges. As I have said, because Radin locates people originally within community, her concept of personal property can only serve to remove her from community—precisely the opposite of her goal. Instead, Radin should compare her property for personhood theory to the Hegelian notion of the fully developed individual and the role of property in the fully developed community, as embodied by the state. In the circular Hegelian dialectic, however, these fully developed concepts cannot be understood without first understanding their logically prior, more abstract, and undeveloped manifestations.

Specifically, Radin claims to agree with Hegel that the complete individual does not exist naturally but must be developed.^[107] This is precisely why Radin explores the role that property plays in this development and claims to be analyzing the individual within community. But because she confuses Hegel's logical analysis of abstract personhood with an empirical account of the development of human beings, she assumes that a specific community already exists at the beginning of the analysis.^[108] This assumption is problematic if, as Radin agrees, personhood (subjectivity) is not a preexisting abstraction but is a human creation, and if, as I suspect Radin would agree, community is also a human creation. As human creations, personhood and community are likely to be mutually constituting. Radin concentrates on the aspect of Hegelian property theory that relates to the creation of personhood (as subjectivity), but she ignores the

[107] Radin, Reinterpreting Property, supra note 2, at 45.

[108] In the preface of her book compiling her articles on property, Radin makes a half-hearted attempt to defend herself from the charge that she is positing a narcissistic immediate relationship between subject and object. Radin, Reinterpreting Property, supra note 2, at 7–8. The quotation set forth in note 5, supra , reveals that, rather than having an account of society, she seems to assume that society already exists. She does not understand that Hegel's account of property is an account of how the individual enters society.

aspect of property that relates to the creation of community, which then relates back to the full development of personhood (as individuality). In chapter 1, I showed how Hegel's analysis started with the abstract, presocial person because he believed that the individual and the community were mutually constituting—developing together—and that primitive property relations were an important step in this development.

Radin presents Hegel as justifying the liberal market agenda and promoting separateness. This is a serious misstatement, in the sense of a halftruth. In fact, as I have shown, Hegel simultaneously explains, justifies, and subverts the simple, liberal market agenda;^[109] it is Radin who implicitly adopts the liberal understanding of the market. Radin and classical liberalism understand or justify the market in terms of the separateness of individuals. Radin understands the utilitarian branch of liberalism as interpreting all human relations in terms of market transactions.^[110] Radin argues that we should remove certain object relations from the market to prevent overseparateness,^[111] but this presupposes the existence of community from which the market separates individuals. She seeks to prevent the objectification and commodification of certain privileged things,^[112] but this assumes that some things start out as interrelated with subjectivity. In Radin's view, submission to the market regime inexorably leads to commodification of all human relations. Thus, despite her denials, Radin implicitly accepts the strength of the utilitarian argument that once the market is introduced, the market is the only form of analysis possible.

In other words, Radin is correct in her observation that property is the link between the concept of the autonomous individual of liberalism and the ideal of community. But because she imagines that the person starts out as an integrated member of a preexisting community, she wrongly concludes that it is property which breaks down the community into separate atomistic individuals. To Radin, person bound to object is no longer person bound to community. Hegel, in contradistinction, does not presuppose individuality or community. Rather, he explores the internal

[109] See Westphal, supra note 90, at 34–35.

[110] Radin, Market-Inalienability, supra note 2, at 1861–70, 1883–87.

[111] Id . at 1907–08. Although Radin does see separateness as one aspect of personhood and admits that the ownership of personal property can further this function, this is only one of many aspects of personhood. Overseparateness would be destructive of human flourishing because "self-constitution includes connectedness with other human beings and also with things in the world." Radin, Contested Commodities, supra note 2, at 57.

[112] See, e.g., id . at 118–28, 159–60.

logic of community itself. As we shall see, he abstracts the concept of the abstract person as a logically necessary element of the concept of community. He then asks, "If, as this suggests, autonomy is a true moment of human nature, how do autonomous persons become interdependent as members of a community?" The answer will be, through property, the link between individual and community which binds subject to subject rather than person to object.

Specifically, as Hegel believes that one can only understand the actualization of a concept retroactively at the end of an era, he analyzes the development of the modern liberal state of the early nineteenth century. He, in effect, asks why the enlightenment concepts of individual liberty and democracy^[113] only arose simultaneously with the development of the free capitalist market. According to this analysis, the market (i.e., abstract right and civil society) simultaneously recognizes separateness and creates differentiation, allowing us to develop as autonomous free individuals, while lessening separateness by making people interdependent and thereby binding them together. In a proper Hegelian analysis, it is the Radinian person who is bound up with her things and refuses to come out to the market, thus isolating and separating herself. Such chaste virginity, perhaps initially necessary for integrity, withers over time to lonely sterility. Radin's person is not free. Like Gollum in The Lord of the Rings , or the genie of the lamp, she is a slave to an object—bound by the chains of property. If Radin's person is bound up with objects, Hegel's subject owns objects only so that she may become bound up with other subjects. For Hegel, although the intersubjective relation of the market is logically prior to other relations, the experience changes the subjects and enables them to have more complex moral and ethical relations.

Consequently, Radin is correct that Hegel justified the existence of the market. But whereas the utilitarian justifies all human relations in terms of the market, Hegel would justify the primitive relations of the market only in terms of their role in the development of more fully developed personality and social relations. Market relations embody the sphere that Hegel calls "civil society,"^[114] but civil society does not constitute all of so-

[113] Of course, the fact that the specific manifestation of the liberal state discussed in The Philosophy of Right is a constitutional monarchy in which people vote by estates seems one of the most problematic aspects of the book when read at the end of the twentieth century.

[114] "Civil society" for Hegel includes the market, although it is not completely limited to the market. See Wood, supra note 97, at xviii–xix.

ciety, let alone the highest stage of society. Erotic relations reflect market relations, but only because market relations are themselves essentially, albeit primitively, erotic.

Before going any further, let us discuss terminology to avoid a potential source of confusion for the reader. As I have suggested, Radin and Hegel use the term "person" in two different ways that are not directly comparable.^[115] Radin uses the words "person" and "personhood" to describe her concept of the fully developed, integrated, and mature human being situated in a community—that is, empirical people. She contrasts this with Hegel's use of "person" in The Philosophy of Right , in which Hegel began with the most minimal, abstract, and immediate concept of what a person could be: self-consciousness as absolutely free will. Radin is correct that Hegel's starting point is essentially the same as the Kantian construct. To say, however, that Hegel initially develops an inadequate concept of property based on a primitive, abstract, negative, and inadequate concept of the person is not a critique of Hegel. It is precisely Hegel's point: the initial concepts of the abstract person and the later concepts of subjectivity and private property at the level of abstract right are necessary building blocks of the full individual and full human relationships. As building blocks, however, these concepts are both necessary and inadequate by definition .

This minimal concept of "personality," like its liberal cousin the autonomous individual, is totally negative. But the Hegelian "person" does not stand, as Radin implies, in quite the same normative position as the autonomous individual of Kant or other liberal philosophers. Radin is confused because she purports to set forth an empirical description of how actual individuals are born into a society and become attached to objects as they grow up. She, mistakenly, assumes that Hegel is involved in a similar project. Consequently, Radin describes Hegel as believing that the abstract person is both logically and developmentally prior to the more

[115] Radin states that "even though Hegel does not use the word person for the entity described as the person in the theory of personal property, Hegel's theory can be seen as consistent with the idea of personal property." Radin, Reinterpreting Property, supra note 2, at 45. This statement is inconsistent with both T.M. Knox's well-known English translation and H.B. Nisbet's more recent translation, which use the words "person" and "personality" to describe the abstract will as soon as it begins to interact with property. See G.W.F. Hegel, Hegel's Philosophy of Right 40 (T.M. Knox trans., 1952) and Hegel, The Philosophy of Right (Nisbet trans.), supra note 76, at 489.

Of course, Radin also criticizes Hegel's property theory because the Hegelian "person" is not fully developed. But Hegel presented the "person" as merely a logical step in the development of the "individual."

complex individual in society.^[116] This is misleading because, in Hegel's view, the abstract person is not developmentally prior in any empirical sense. The abstract person of Hegel and Kant is not the unformed baby who eventually matures into an adult personality, and Hegel is not trying to describe the empirical process by which actual human beings acquire and become sentimentally attached to specific items of property. He is discussing the logical process of how one gets from the Kantian concept of the abstract person to the concept of the legal subject.

Hegel would agree with Radin that the economic man posited by Law and Economics theory does not accurately describe a human being. It is a caricature that grossly overemphasizes one feature. In this case, the feature may be seen as a lowest common denominator of human relations. It should not be disparaged in its proper context in that it not only allows us to have formal relations with those who are distant from us but also serves as a building block in more complex relations. Of this view of human nature, Hegel remarked that the contentions that all human actions are economically instrumental "belittle and debase all great deeds and individuals."^[117] Consequently, Hegelian theory must be read as a rejection of liberal theories that see society as merely an aggregate of isolated individuals and utilitarianism that seeks merely to maximize the aggregated wealth of those individuals at the expense of the freedom of any one individual.^[118] Although Hegel introduced the Mensch (i.e., the abstract person) early in The Philosophy of Right , the rest of the book logically demonstrates the inadequacy of both the abstract person and abstract right (i.e., property) standing alone and presents a theory of society that

[116] According to Radin, Hegel "treats them [rights and abstract personality] as both logically and developmentally prior to any relationships of right arising from the person's interactions with others in society." Radin, Reinterpreting Property, supra note 2, at 46 (emphasis added). Radin's description of the way an individual puts her will into an object reveals that Radin actually believes Hegel's developmental priority is empirical. For example, Radin critiques Hegel for assuming that object relations development takes place "overnight," while her theory accounts for development over time. See id . at 111; see also id . at 107.

[117] Hegel, The Philosophy of Right, supra note 76, at 152. As Avineri explains, "Hegel is aware that this tendency of civil society concepts to arrogate to themselves all other spheres of life is very strong; but he speaks against it when civil society encroaches on the realm of the family as well as when it encroaches on that of the state." Avineri, supra note 86, at 139.

[118] See Wood, supra note 97, at xvi. Utilitarian justifications for private property are based on maximizing the happiness (or wealth) of society as a whole. Hegel, in contradistinction, based his argument solely on the logic of personhood without regard to its implications for the satisfaction of needs or the creation of happiness or wealth. See, e.g ., Hegel, The Philosophy of Right, supra note 76, at 73. As I have discussed, Hegel was well aware that the regime of abstract right in civil society may actually lead to impoverishment and alienation.

could enable the development of a full individual within community. According to Hegel, the market regime of civil society is necessary for the development of the state but is not itself the state. In other words, the Mensch encountered at the beginning of The Philosophy of Right is not what we in New York would call "a real mensch."^[119]

In her critique, Radin does not grasp the implication of the circular nature of the Hegelian dialectic. The order of the logical presentation is important but does not have the same normative import that it has in liberalism. In liberalism, the state must be justified given the normative priority of the autonomous individual. To Hegel, the individual is prior to the state only in the sense that the individual is more primitive in a logical sense.^[120] Hegel therefore discussed the individual as a temporary presupposition. Hegel expressly denied that the progression he presented, from abstract will to family to civil society to state and from abstract right to morality to ethics, is developmentally true as an empirical fact.^[121] Hegel

[119] This familiar Yiddishism captures Hegel's point that to be a fully developed human being is a great accomplishment. Neither the "abstract will" presented at the beginning of The Philosophy of Right nor the Hegelian person, the "legal subject" who is created by property and contract in the realm of Abstract Right, is yet an individual. Rather, they are merely moments in the creation of a full individual. As one scholar explained:

Just as the individual whose behavior and attitudes are defined entirely in terms of rights is pathetically less than a real person, so the society implicit in the meeting of legal persons is abstract, immediate, formal, and false, because it is "only as owners that these two persons exist for each other."

Westphal, supra note 90, at 30 (quoting Hegel, The Philosophy of Right ). Another scholar states:

The abstract person is not yet a full person as she is severed from, among other things, all concrete family relations, the attributes of citizenship, and all roots in historical reality. Nevertheless, the abstract person who possesses an individual will and is a bearer of rights displays a sufficient identity to count as a subject of recognition.

Michel Rosenfeld, Hegel and the Dialectics of Contract , 10 Cardozo L. Rev. 1199, 1230 (1989) (footnote omitted).

[120] As I discuss extensively in chapter 1, Hegel's procedure in each of his major works was to start with the simplest, most primitive concept and to work up to the most complex. As Westphal explains:

Now, because property is the first embodiment of freedom (in the Hegelian sense of logical priority), his theory is also a critique of liberalism's (formalist) tendency to define freedom without paying sufficient attention to questions of morality, the family, the political community, and severe poverty. When Locke makes property rights first, it is because they are the end to which everything else is means. When Hegel puts them first it is because in their immediate form as the minimal mode of human freedom they are in radical need of correction and completion through contextualizing.

Westphal, supra note 90, at 31.

[121] For example, Hegel wrote:But it should be noted that the moments, whose result is a further-determined form [of the concept], precede it as determinations of the concept in the scientific development of the Idea, but do not come before it as shares in its temporal development. Thus the Idea, in its determination as the family, presupposes those determinations of the concept from which in a later section of this work, it [i.e., the Idea] will be shown to result. But the other side of this development is that these inner presuppositions should also be present for themselves as shapes , such as the right of property, contract, morality, etc., and it is only at a more advanced stage of culture [Bildung ] that the moments of development attain this distinctive shape of existence.

Hegel, The Philosophy of Right, supra note 76, at 61.

said that the "logical order" was not the "time order."^[122] Thus, for example, he addressed property before the family even though we are born into the family before we encounter property.

This does not mean that the abstract, inadequate concepts that begin Hegel's analysis lack normative significance. I have only said that logical priority does not have the same normative import in Hegel's philosophy as it does in liberal philosophy.

To call a subject matter or discussion abstract rather than concrete, immediate rather than mediated, or formal rather than substantial is to say that it is part of a complex whole that has been isolated from its proper context. In its isolation it can neither be, nor be seen to be, what it in truth is; for "the truth is the whole." Only in the totality of their relations to the whole can any of the parts (moments) either be, or be understood to be, what they truly are.^[123]

Hegel purported to prove that the Kantian autonomous person is inadequate and contradictory and is always already becoming the individual within the state.^[124] Nonetheless, the earlier moments of the dialectic are true moments in, and necessary building blocks of, the latter. As such,

[122] Id . at 61–62.

[123] Westphal, supra note 90, at 29.

[124] Stillman observes:

For Locke, Kant, and Rawls, not only is the state of nature primary, in the sense of coming first in order either historically or conceptually, but conclusions derived from it are also primary, in the sense of coming first in predominance. Or, as Dworkin would have it, institutions, and ideas that come later in order than those derived from the abstract original condition are always to be tested against, subjected to, and vulnerable to being "trumped" by the principles derived from the abstract original condition.

Given the structure of Hegel's thought, his abstract right functions in exactly the opposite way. Abstract right, being first or primary in the logical order of the major parts of Hegel's political philosophy, is therefore the least adequate part of "objective spirit." Peter Stillman, Hegel's Analysis of Property in The Philosophy of Right , 10 Cardozo L. Rev. 1031, 1038–39 (1980).

Rosenfeld explains Hegel's view this way:Actually, Hegel's abstract person is very much like Hobbes's individual found in the state of nature. There is, however, an important difference between the two conceptions. Hegel calls his counterpart to the Hobbesian individual in the state of nature the "abstract person," indicating that this person is a construct who has been cut off from many of the diverse concrete determinations of the real historical person. Thus, whereas the free willing subject who is the protagonist of the Philosophy of Right may at first view herself as embodying the characteristics of the abstract person, Hegel is well aware that the abstract person provides only a partial representation of the subject of legal and political relations. Hobbes, on the other hand, presents the abstract atomistic individual of his state of nature as the true representative of a universal and ahistorical conception of the human nature.

Rosenfeld, supra note 119, at 1209 (footnotes omitted).

they deserve respect and preservation. In other words, although the abstract person will be sublated into the concrete individual located within society, separateness and the need for mediation always remain. Even though Hegel claimed to prove that the abstract person is inadequate and is destined to be superseded, it simultaneously retains a moment of validity to which the system continually returns.