A Return to Hegel's Theory of Property
Radin claims a debt to Hegel's theory of property while simultaneously distancing herself from it. I believe Radin's desire to distance herself from Hegel stems in large part from misreading him. By misreading Hegel, Radin has forced herself into a dilemma in which she must choose between humans as atomistic, autonomous, and individually subjective and humans as victims submitted to the oppression of the objectivity of society. I suggest that to avoid Radin's dilemma and to begin to conceptualize a proper role for property in the development of both subjectivity and community, we should return to Hegel to identify Radin's fundamental misreading and, with luck, avoid her errors.
Radin's characterization of The Philosophy of Right is frustrating because it is highly accurate in detail but incorrect in whole. Accordingly, her account is partial and decentered. By concentrating only on certain elements of a holistic theory, Radin unintentionally achieves what Marx intentionally strove for: she stands Hegel on his head.
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-
void of individuating characteristics." 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." Radin also recognized that Hegel "implicitly claims that personhood in the richer sense of self-development and differentiation presupposes the context of human community." 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."
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. Radin argues that Hegel had a not-so-secret agenda of justifying market relations. She criticizes Hegel's theory of alienability of property as arising from a strict subject/object distinction. 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.
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. 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. 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
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; 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. Radin argues that we should remove certain object relations from the market to prevent overseparateness, 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, 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
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 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," but civil society does not constitute all of so-
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. 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
complex individual in society. 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." 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. 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
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."
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. 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. Hegel
said that the "logical order" was not the "time order." 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.
Hegel purported to prove that the Kantian autonomous person is inadequate and contradictory and is always already becoming the individual within the state. Nonetheless, the earlier moments of the dialectic are true moments in, and necessary building blocks of, the latter. As such,
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.
Hegel and Community
Radin repeats another common and related misunderstanding of Hegel:
For Hegel, the properly developed state (in contrast to civil society) is an organic moral entity, "the actuality of the ethical Idea," and individuals within the state are subsumed into its community morality.
Hegel's theory of the state thus carries the seeds of destruction of all liberal rights attaching to individuals (because in the state particular arbitrary will passes over into willing the universal).
Radin's statement is once again incorrect because it is partial. The Hegelian concept of the state would crush the individual if Radin were correct that the dialectic "subsumed" all prior contradictions in the sense of obliterating them. But sublation preserves, as much as negates. The negative freedom of the arbitrary will and the primitive concept of property that Hegel introduced at the beginning of his political philosophy are elements of the more complex individual citizen of the state. In the dialectical logic of sublation, if the state supersedes civil society, it also preserves it. For individuals to exist who can be citizens of the state, there must be a moment when these individuals are separate from the
state. Thus, the state must preserve these liberal elements to some extent. In other words, although it is true that Hegel thought that the individual and the state would eventually attain unity, this is not the presymbolic, deadly lack of differentiation of the real, or the simple identity of the imaginary. Rather, like all Hegelian totalities, the union of individual and state will have a hole—a place of unbounded freedom—at its very heart.
As we have seen, Radin, the pragmatist, would grudgingly preserve some market relations for pragmatic and utilitarian reasons in an imperfect world. Hegel, the idealist, would preserve market relations, even in a perfect world, because they contain an important moment in the actualization of freedom.
Radin also misunderstands Hegel's theory of why it is necessary for private property to continue after the development of the state, and Hegel's thinking as to the possibility of collective property. Radin writes that "there is in Hegel's theory a foundation for the communitarian claim that each community is an organic entity in which private property ownership does not make sense. Hegel does not make this claim, perhaps because he is too firmly rooted in his own time."
I believe this reflects, once again, a conflation of Hegel's account of the logic of the development of the individual and the state with empirical accounts of human biography and European history. Abstract right (including property) is the subject of the first chapter of The Philosophy of Right , and the state is the subject of the last. Radin assumes from this that Hegel believes that the free market develops first temporally and that then, sometime in the future, a state will develop which could at least theoretically supplant private property. This is not correct. All but one of the types of intersubjective relations which Hegel identifies as being logically generated from the concept of the free individual have been around for an unspeakably long time—families of some sort (if not the monogamous nuclear family) have probably been around since man first started walk-
ing upright, governments have existed for thousands of years, corporations and other fraternal organizations for hundreds. What was missing was the free market regime of civil society with its related concepts of private property and freedom of contract (i.e., abstract right). That is, although abstract right is the most primitive form of intersubjectivity as a logical matter, it was the last to be actualized as a historic one. It was only when these logically necessary elements were actualized in the empirical world that the state and the individual could complete their self-actualization. If, at this stage, the government tried to abrogate these rights, it would stop the process of its own actualization dead in its tracks. Consequently, although the state is the sublation of abstract right, as is the case with all sublations, it cannot obliterate this earlier stage as unnecessary because the state only came into being at the moment that abstract right came into being. That is, as I shall explore in more detail in chapter 4, the necessity of sublation is retroactive. It is only now that we are starting to develop the state and individual freedom that we can retroactively understand that private property was necessary for this to happen.
Once the workings of sublation are understood, therefore, it is clear that there can be no communitarian claim for the total withering away of private property in Hegel's theory. A moment of private property must be preserved to allow for the constitution of intersubjective individuals as citizens. This moment of private property, however, does not preclude the possibility of collective property or limits on private property. Hegel mentioned in passing various types of collective ownership, including family and corporate ownership, throughout The Philosophy of Right . Hegel did not concentrate on collective ownership, however, presumably because he did not believe it serves the same logically necessary constitutive role for the family, corporation, or state that private property serves for the abstract person. This does not imply that collective property cannot or should not exist. Although collective property does not play a necessary constitutive role, collective property may be a contingent, empirical fact of life, a creature of positive law in any given society, so long as individuals hold some private property.
The Starting Presupposition of Personality
One of the central concerns of Hegel's theory is that the individual and society develop together, but Radin does not internalize the spiraling, retrospective nature of the dialectic. Specifically, Radin mistakenly describes the choice of the abstract will as a starting place for analy-
sis as "assuming away" the attributes of personhood. To Hegel, individual characteristics are "abstracted" away, not "assumed" away. The distinction is subtle, but crucial, as it reflects the retroactive nature of Hegel's reasoning. Abstraction is the breaking down of the complex into simple, essential components. Hegelian analysis retrospectively applies the dialectic to the individual human being in the state and abstracts to the most universal, only to circle back to show how individuating characteristics necessarily and logically develop from the abstraction. In other words, the initial abstraction does not assume away individuating characteristics but rather presupposes that individuating characteristics are always already imminent. Abstraction is an attempt to explain individuation and community. For example, when an engineer considers the characteristics of a brick, she does not "assume" away the building but rather presupposes the brick's eventual function in the finished building. As I shall develop at greater length in chapter 4, pursuant to Hegel's concepts of potentiality and actuality, the actualization of complex individuating characteris-
tics of personality at the highest level of development logically requires that they were already potential at the primal level of abstract personhood. We can never know what was possible until it is actualized—possibility is abstracted from actuality.
Most fundamentally, Radin never grasps that Hegel's point is that the abstract person cannot develop subjectivity in lonely isolation but only through recognition by other subjects. Property does not, as Radin thinks, help the abstract person develop her individual separateness. Rather, the separate individual uses property to achieve the differentiation necessary for the relationship of intersubjectivity through mediation. We, therefore, seek to acquire property only derivatively to achieve our true desire—the desire of the Other.
Radin tries to explain Hegel's analysis as follows:
Hegel also cast the argument against alienation of personhood as a "contradiction." To alienate personhood is itself contrary to personhood, in that if I can relinquish my personhood, then no "I" remains to have done the relinquishing. If I treat "the infinite embodiment of self-consciousness" as something external and try to alienate it, Hegel argued, one of two things results: if I really possess these substantive attributes, they are not external and hence not alienated; if they are alienated, I did not possess them in the first place. Hegel might have been trying to say that substantive personhood is simply not capable of objectification. The "contradiction" consists in supposing that one could give up that which, "so soon as I possess it, exists in essence as mine alone and not as something external." If this interpretation is correct, then the contradiction poses the same subject/object problems as Hegel's general view of property and alienation: Why is it that personhood cannot be objectified while at the same time person-
hood requires objectification (in things)? Exactly what items are permanently "inside" the subject and incapable of objectifications?
If the person/thing distinction is to be treated as a bright line that divides the commodifiable from the inalienable, we must know exactly which items are part of the person and which not. The person/thing distinction and its consequences seemed obvious to Kant and Hegel, but such is not the case for many modern philosophers.
Radin states further:
From the view that attributes and characteristics are separate possessions, it is an easy step to conceptualize them as lying on the object side of the subject/object divide. This eliminates inalienabilities based on things internal to the person, because nothing is internal to the person. . . . It is not difficult to see them as fungible and bearing implicit monetary value.
She thinks she identifies a dilemma in Hegel:
If the person/thing distinction is to be treated as a bright line that divides the commodifiable from the inalienable, we must know exactly which items are part of the person and which not. . . .
Without the bright line, arguments delineating the market realm on the basis of the subject/object distinction lose their force. If the person/thing distinction is not a sharp divide, neither is inalienability/alienability. There will be a gray area between the two.
She concludes from this that maintenance of the subject/object distinction combined with a defense of the market can only lead to universal commodification. That is, since one cannot maintain the subject/object, inalienable/alienable distinction, then everything must either fall in one category or the other. If one wants a market for some things, therefore, one must require a market for everything. "[T]here is no obvious stopping place short of that." This is a gross misreading of Hegel which totally ignores his insistence that the logic of philosophy could only be applied at the highest level of abstraction and that concrete empirical questions of the type which concern Radin can only be decided by pragmatic reasoning. In addition, perhaps because Radin bases here analysis of Hegel entirely on the first chapter of The Philosophy of Right , which cannot be understood without some grounding in his philosophical system,
she also does not understand Hegel's notion of the relationship between qualitative and quantitative differences, which I shall discuss at length in chapter 4. As we shall see, Hegel would say that it is not merely possible but necessary for categories such as subject/object and inalienable/alienable to be both logically separate and empirically continuous.
In other words, Radin assumes that Hegel started with a sharp subject/object distinction, and from this beginning it is an "easy step" to universal commodification. She thinks it is logically inconsistent with this starting point for Hegel to conclude that some "things" become "internal" to the person and inalienable.
Radin's reasoning is the reverse of Hegel's logic. As I have discussed, Hegel defined the will as that which is an end to itself and not a means to another's end. This starting definition implies a correlate: The thing that is a means to another's end—the object. At the level of abstract right, the subject/object distinction is a strictly logical truism: If the self is abstract self-consciousness as pure negation, all things not capable of self-consciousness and all things that have positive existence are objects in the sense of being other or separate from the subject. This truism would be completely banal but for its further development through the dialectic.
Radin is correct that Hegel started from a subject/object distinction and used an internal/external metaphor, but she wrongly states that Hegel's starting point is a simple intuitive sense of inner and outer. Instead, Hegel's distinction is completely anti -intuitive in that he claims that our bodies, opinions, and all other aspects of our personality and individuality, everything we feel to be our true selves, are logically external to ourselves as persons. This is because if the will is totally free from all contingency, all contingency is "other" with relation to the will. The will is its own end. Anything that does not have consciousness or can serve as the means to the will's end is an object. Individuating characteristics of personality start out as external to the "abstract person" by logical tautology. They are not merely "objectified," as Radin suggests, but rather are objects by definition.
Hegel's "internal/external" terminology is dictated by the German language. As H.B. Nisbet explains in a note to his translation of The Philosophy of Right , the English word "alienation" does not satisfactorily capture the connotations of the German equivalents Entaeusserung and Veraeusserung because these words also mean "externalization." In other words, when Hegel is translated into English as saying that one cannot "alienate" that which is "internal" by nature, he may merely be stating the truisms that one cannot alienate that which is inalienable by nature or externalize that which is internal by nature. Hegel may not have intended his internal/external distinction to carry the implications of mind/body that the English translation suggests to Radin.
The inalienability of minimum personality at this stage is, therefore, merely one of definition. If the minimum definition of the person is that which is left after everything is externalized, the free will cannot logically be externalized (i.e., alienated). This does not mean that one cannot alienate one's capacity for freedom as an empirical matter—one can be enslaved, sell oneself into indentured servitude, or commit suicide. But if the goal of the will is to actualize its freedom and to have this actualization verified through the recognition of other free subjects, Hegel describes any act that destroys the will's capacity for freedom as a wrong (Unrecht ). For the moment, it may be observed that any concrete individual empirically capable of such a wrong is far more developed than Hegel's starting point.
Of course, Hegel went beyond this logical truism that one cannot split the atom of personhood without destroying personhood. At the moment the abstract person begins to impose its will on objects, it begins to cease to be the abstract person and the subject/object distinction begins to dissolve. Among the objects that the will appropriates as part of its objectification are the individuating characteristics of personality. These characteristics started out as "objects" (i.e., external things) because they are contingent. Once these former objects are internalized, they become inalienable as a matter of abstract right, not as a matter of empirical fact, let alone morality or ethics. This conclusion is based on Hegel's theory of the rationality of property—recognition by other subjects. He was posit-
ing that, as a logical matter, in order to be recognizable as a specific identified person distinguishable from other persons, one must have some continuity over time. As the abstract person itself has no recognizable characteristics, this continuity must be supplied by the continued possession of specific objects of property. That is, since Radin recognizes that people start out as dependent and located in society as an empirical matter, she assumes that the continuity and individuality that comes from the inalienability of certain objects serves the function of creating separateness. Hegel's point, however, is that if one starts with the theoretical proposition that the most primitive notion of what a person could be is abstract self-consciousness as free will with no pathological characteristics, then the continuity of inalienability serves the function of lessening separateness and creating intersubjectivity by making the person identifiable as a unique individual.
This means that it is logically necessary that some "internalized" objects remain inalienable for the goal of recognition to be achieved. That is, Hegel is not positing (by intuition or otherwise) that specific objects exist a priori as either internal or external to the subject. Rather, he is arguing that the logic of property (recognizability) requires that the abstract person seek to internalize some objects. He calls those bare minimum objects which must be continually possessed so that a person can be described and identified "personality." Hegel makes pragmatic arguments as to why certain identifiable objects will likely fall within the category of personality. In other words, although Hegel does argue, as Radin claims, that
there is a bright line between the qualities of alienability and inalienability, he would absolutely agree that empirical objects lie along a continuum between these categories. It is logically mandated that we make the distinction between alienability and inalienability, and we can logically derive the principles by which alienability and inalienability should be determined, but the judgment as to whether any specific object should be entirely or partially inalienable can only be made through the application of practical reasoning. Hegelian idealism requires pragmatism. This means that only at the extremes can we agree that any specific object should be inalienable.
For example, in order to be recognizable as a person, a person needs a living body. An abstract person must, therefore, internalize a body—that is, treat it at least partially inalienable. Thus, suicide cannot generally be a right, which is defined as that which furthers the recognition necessary for subjectivity and the actualization of freedom. Slavery is wrong because it is the legal declaration that a human being is not a person but a thing, and thereby denies the slave the human goal of recognition. Any status higher than slavery that gives minimum recognition to the hu-
manity of a person, as miserable as it may be, satisfies the limited goals of abstract right. Hegel did not, however, purport to address the positive law of slavery or to answer the practical question as to what empirical institutions (such as, for example, serfdom, peonage, untouchability, forced prostitution) constitute slavery. Moreover, the proposition that lesser alienations of human beings that do not constitute slavery (such as exploitative employment) are permitted in abstract right does not necessarily imply that all such alienations should always be permitted. Even if one decides that they do not violate abstract right, they may not meet the higher standards of morality and ethics.
Thus, in contradistinction to Radin's assertion, Hegel started with, but did not maintain, a simple subject/object distinction based on intuitions of internality. Sublation overcomes and preserves the subject/object distinction in property. The distinction will continue to exist as an abstract logical moment that captures that experience of separateness and distinction which Charles Sanders Peirce calls secondness, but must break down as a logical and an empirical matter as the person becomes more determinate.
Hegel's subject/object distinction also does not lead to universal commodification, contrary to Radin's assertion, even at the level of abstract right. It is true that Hegel believed that alienability is a necessary element of a full property. It is also true that the development of the person—which is the internal rationality of property—requires that certain minimum characteristics of personality be inalienable. Consequently, the very rationality of abstract right necessitates that property analysis exclude
certain object relations. Property—commodification—is self-limiting by its own logic.
Despite her criticisms of Hegel, Radin bases her own theory on a presupposed internal/external distinction. Her very concern with universal commodification reflects an intuition that some objects are so internal to personhood that their market alienation is destructive. Conversely, her concern with fetishism reflects an intuition that some objects are so external to personhood that overattachment to them is destructive. Furthermore, Radin's whole analysis of expanded bodily integrity as "property"—as a form of ownership, possession, and use of objects—reflects a continuing subject/object relation. Whereas Hegel sees the subject/object distinction as a theoretical one, Radin sees it as a physical and empirical one based on literal internal/external distinctions and the empirical fact that individuals become "attached" to specific objects such as wedding rings or the old family homestead.
Indeed, Radin's argument for the affirmative role of personal property is based largely on a recognition of the need for continuity. She states:
A person cannot be fully a person without a sense of continuity of self over time. To maintain that sense of continuity over time and to exercise one's liberty or autonomy, one must have an ongoing relationship with the external environment, consisting of both "things" and other people. One perceives the ongoing relationship to the environment as a set of individual relationships, corresponding to the way our perception separates the world into distinct "things." . . . In order to lead a normal life, there must be some continuity in relating to "things."
Unfortunately, Radin attributes this longing for continuity to the person's own solipsistic sense of self and personal development, rather than to the desire for intersubjective recognition. Personal property is supposed to serve the goal of individual separateness. As a consequence, the personal property objects with which the Radinian person seeks continuity are not limited to the minimal elements of personality, such as beliefs, opinions, and, yes, the (female) body. Rather, she expands this class to include precisely those material objects which, as an empirical matter, serve as status symbols establishing one's place in the American social hierarchy—notably, the (big) house, the (fast) car, the (flashy) ring. I would argue that whether or not such object relations are relevant to eligibility for membership in a country club, they should be irrelevant to
recognizability as a member of the human race. Consequently, whether or not this type of object relations might be appropriately privileged in a premodern society—such as feudal Europe—in which people are defined by status, they should not be given priority in a modern (let alone postmodern) society which seeks to actualize human freedom through selfdefinition.
Limitations of Positive Law
Hegel does not stop his analysis of property law at the level of abstract right. For Radin to compare her theory of property for personhood to Hegel, she must consider the role that property plays not only at the level of abstract right but also in terms of the individual in the state. Positive law and the administration of justice, as opposed to abstract right, are developments associated with the level of civil society. Hegel adds affirmative rights, such as rights for the satisfaction of needs, at this level. Equity alleviates the harshness of strict application of the law. Shared ownership through the family and corporations is recognized. Limitations on property for the sake of the community may become appropriate. The Hegelian state, guided by ethics (Sittlichkeit ) rather than abstract right, will impose further limitations on property to alleviate the degradation of the poor, which is likely to result from the laissez-faire, abstract regime of civil society.
Hegel implied various limitations on rights and insisted on the development of positive freedoms and duties at the more complex levels of human interrelationships. Because he wrote at a general level, however, he did not specify precisely what these limitations would be or try to write the correct positive law of property. Hegel insisted that any philosophy is a creature of its own time because Geist and individuals are always manifest in specific, concrete situations. Each society must develop its own specific, positive law of property.
Even though Hegel derived what Radin calls the "liberal triad" of property rights (possession, enjoyment, and alienation), his theory is not
merely an apologia for the laissez-faire market. Hegel did not believe that the harsh, inhuman world of abstract right, in which he located his analysis of property and contract, is the be-all and end-all of human society. Morality and ethics are superior to right. It is not merely impossible to speak of higher stages of social life in terms of abstract right, it is disgraceful. In the family, civil society, and the state, which are fuller manifestations of social life, restrictions on full property rights are appropriate. Unlike the Lockean tradition of liberalism, the state in Hegel's view does not exist primarily to protect property rights. Rather, we protect property rights because they are necessary for the existence of the individual and the state. Nor do property rights serve the Hobbesian liberal function as the barrier that protects the individual from the state. Rather, property is the most primitive link between persons which helps to form both the individual and the state. Property is, therefore, necessary for human freedom and intersubjectivity.
Hegel did not consider the great disparity of wealth and the degradation of the lower classes an accidental aspect of the market (i.e., civil society) that we could easily adjust. Rather, he considered degradation of the
poor to be an inevitable result of laissez-faire capitalism. Hegel did not excuse this degradation but saw it as a reflection of internal contradictions within the market. To Hegel, market relations would logically develop to serve the internally rational goal of the development of human freedom but leave a section of society in a subhuman state. Moreover, although the market requires us to act as radical individualists, by coming to the market we become dependent on all others who trade in the market. Consequently, the civil society must eventually collapse and be superseded by the state, which will not replace but can harmonize the market.
Is Hegel Useful in a Feminist Challenge to Masculinism?
Radin nevertheless implicitly makes one powerful critique of traditional Hegelian theory. This critique, when combined with Lacan's psychoanalytic theory, can form a devastating feminist-Hegelian critique of patriarchy.
Hegel was empirically writing from the masculine position. At first blush, he seems the most psychoanalytically masculine of philosophers—emphasizing the symbolic order of exchange. Perhaps reflecting traditional European-Christian misogynist theology, which identifies the body and sexuality with the Feminine and the mind and personality with the Masculine, Hegel never attempted to account for sexuality per se. Specifically, he never reflected upon whether one's sexuality is so intrinsic to one's personality as to be inalienable even at the level of abstract right. One possible Hegelian argument might be that the very concept of "abstract right" deals with "abstract personality," stripped of all contingent, concrete characteristics, including sexuality. This would suggest that Hegel has postponed this issue to a later stage in the dialectic.
Indeed, Hegel did discuss sexual difference briefly in The Philosophy of Right and The Phenomenology of Spirit . Despite Hegel's claims to logic and his disdain for unsupported presuppositions, as is so often the case when men talk about women, logic flies out the window. Hegel's discussion of marriage consists largely of conclusory statements reflective of nineteenth-
century misogyny. He echoes nineteenth-century sexual stereotypes and then claims that these sexual differences are rational. He does not logically prove the existence of sexual difference as a theoretical necessity. He merely declares that because these differences could exist, they do and must exist. Moreover, he assumes, without proof, that these "rational" sexual positions are inevitably assigned to the two biological sexes.
A combination of Radin's legal theory and Lacan's psychoanalytic theory opens up the issue of whether the positions of sexuality are already logically necessitated, even at the levels of abstract personality and abstract right. Lacan characterizes the Hegelian theory of subjectivity as inter-subjective recognition (i.e., the desire of man is the desire of the Other) as hysterical. But hysteria is not a defect, it is the paradigmatic mode of desire. The hysteric's question is always one of sexual identity, "Am I a man or a woman?" This is the great question which Hegel, the most
hysterical (and, therefore, the most feminine) of all philosophers, refuses to confront directly. But because he represses it, this question pervades his entire philosophy.
Consequently, when Lacan psychoanalyzes the Hegelian dialectic and brings out what has been repressed, he shows that Hegelian recognition requires a sexuated position, with the Masculine taking on the subjective and the Feminine taking on the objective role. Sexuality would, therefore, seem to fall within that category of objects of personality minimally required for recognizability as a subject and, therefore, inalienable as a matter of abstract right. Sexuality, in this view, is not contingent, but is constitutive of subjectivity. The Lacanian insight supports the feminist insistence that the Hegelian system cannot fulfill its claim to being a theory of concrete human freedom in society unless it expands to include both a theory of sexuality, generally, and a theory of property that deals with the objectification of the female body, specifically. In light of Lacan's theory, Hegelians must address whether sexuality is essential to personality at the level of abstract right.