Please Note That This Is Work in Progress and That We Would Be Very Gratefull for Coments

PLEASE NOTE THAT THIS IS WORK IN PROGRESS AND THAT WE WOULD BE VERY GRATEFULL FOR COMENTS.

ALSO, WE APPOLOGIZE FOR THE GERMAN QUOTES. WE WERE NOT ABLE TO GET HOLD OF AN ENGLISH TRANSLATION OF DIE GESCHICHTE DER PHILOSOPHIE FROM THE LIBRARY BEFORE CIRCULATING THE PAPER.

BEST REGARDS

EMILY and PER

Subjective Freedom in the Medieval Ages?

A Hegelian informed discussion of the historical development of

the modern notion of rights.[1]

By Emily Hartz[2] and Per Andersen[3]

Hegel did not like the medieval ages. In The Philosophy of History he laments "[w]hile the first period of the German World ends brilliantly with a mighty empire, the second is commenced by the reaction resulting from the antithesis occasioned by that infinite falsehood which rules the destinies of the Middle Ages and constitutes their life and spirit" (PH: 366, 440).[4]

We will argue that Hegel's purely negative understanding of the medieval ages is largely misconceived.[5] However, the point of this paper is not simply to prove that Hegel's account of the medieval ages is out-dated. In and by itself that claim would be of minor interest. What is of interest however is how this claim affects a broader thesis that Hegel put forward about the Christian influence on the development of modern rights.

Hegel famously, but also controversially claimed that modern rights and the protection of subjective freedom, which they promote,are historically rooted in Christianity.[6] To prove this thesis he posited the emergence of a Christian notion of inwardness as a defining moment in history forming the ground on which the subsequent development of rights emerged (PH: 318 ff., 385 ff.). For Hegel the role of the medieval church in this narrative is the purely negative one of alienating the principle of spirituality to an extent where a countermovement became inevitable. According to Hegel, that counter-movement was the Reformation, which then translated the Christian notion of inwardness into political and legal claims that paved the way for a modern conception of right.

The purpose of this paper is to revisit Hegel's historical narrative about the emergence of the modern notion of right, using recent findings about medieval legal history to modify and qualify Hegel's thesis.Thus, rather than refuting Hegel, our purpose is to argue that his narrative continues to provides a helpful framework through which we can begin to understand how -or whether new research into legal history might affect our conceptions of the modern notion of right.[7]

In particular we will use Hegel's framework to interpret important findings concerning medieval developments of law provided by the legal historian Harold Berman. In 1983 Berman published the book Law and Revolution which argued that the formation of modern legal notions such as "act, intent or negligence, causation, duty and similar concepts" are not as modern as we think, but can be traced back to the institutional centralization of the Catholic church in the medieval ages (Berman 25). Berman was not the first to make this point, but his book synthesized a broad area of research in legal history.[8]

While we embrace Berman's findings, we also broaden his claims by arguing that Hegel's questions (concerning the Christian underpinning of the modern notion of right) help us better assess their wider philosophical implications. Thus, by relying on Hegelian informed questions we investigate whether the developments in medieval law, which Berman describes, points toward modern law in ways that are in fact much more radical than Berman himself was able to acknowledge given the historical framework that defined his investigation.

Relying on Hegel's questions and Berman's findings we will argue that developments in medieval canon law provide important instances in the political and legal transformation of Christian notions of inwardness which may help us understand better the development of the modern legal concept of right. Thus, although we refute Hegel's account of the medieval ages as misguided, we reaffirm his broader thesis about the significance of the Christian influence on the development of a modern notion of right and the importance of investigating the historical roots of the concepts and basic intuitions, which inform our modern conception of right.

In order to carry out this investigation we will, firstly, discus rise of the modern notion of rights in Hobbes and the question of what distinguishes the modern notion of rights from previous philosophical conceptions of the role of law.

Secondly we will discuss Hegel's claim, that this modern notion of right is underpinned in crucial ways by theChristian emphasis onthe inner spiritual life, which according to Hegel was articulated in the early Christian communities and later developed into a modern notion of subjective freedom.

In contradiction to Hegel (but in agreement with Berman) we will, thirdly, argue that theological discussions of criminal liability in the 12th Century integrated Christian notions of inner spirituality into law through a number of conceptual distinctions between crime and sin that carved out the notion of a private individual realm which was on the one hand of utmost normative importance, while on the other hand fundamentally external to law. Thus, in contradiction to Hegel, who saw the legal developments in the medieval ages as a mere digress and a perversion of the Christian notion of subjective freedom, we will argue that Berman's findings highlight the relation between the ecclesiastical attempt to map Christian notions of inner spirituality onto the development of aspecifically legal framework and the development of modern notions of right.

Our final claim will be that rather than weakening Hegel’s narrative of the development of modern subjectivity (by refuting Hegel’s assessment of the meaning of the medieval ages for this development) the conclusions of our analysis ultimately strengthens Hegel’s narrative by suggesting first when and how the spiritual concept of Christian subjectivity was integrated into the concrete legal structuring of the medieval papal state - namely through a number of legal innovations in medieval canonical criminal law - and then setting the frame for a discussion -on Hegelian terms- about how this comprehensive legal re-ordering subsequently paved the way for the development of the modern notion of rights.

Hobbes and the modern notion of right

Modern discussions of right take as their starting-point the question of how to reconcile individual freedom with the normative constraints imposed by astate. In the philosophical literature thetheoretical originof this question has been traced to many different authors. As a result the question of who was the first to articulate a specific modern notion of rights has been given many different answers.[9]However, in spite of persistent disagreement about origins there seems to be an overall agreement that Hobbes' Leviathan brings the question of individual freedom the fore in a way that that makes explicit- even if it does not initiate - a new emphasis on individuality characteristic of modern theories of right. In the following we therefore refer to Hobbes' Leviathan as a point of orientation for the emergence of a specifically modern notion of rights.

The answer Hobbes gaveto the above question of how to reconcile individual freedom with the normative constraints imposed by a stateis well known: without the state to posit and enforce a set of laws governing the conduct of its individual citizens the life of those individuals will be "solitary, poor, nasty, brutish, and short" (Hobbes: Chap. 13). Therefore it would be rational for such individuals to enter into a contract with a sovereign leader who could enforce law and thereby protect the private interests of the individuals. In other words: a strong leader is needed to protect individuals against each other and make their life less nasty, brutish and short. Thus, for Hobbes,the need to secure the conditions for the individual's self-preservation becomes the normative ground for justifying the sovereign state (Hobbes: Chap. 13).

What is interesting about Hobbes'argument is not so much his solution to the modern problem of freedombut the way in which he articulates the question itself. The question posed by the Hobbes in the contractual theory is: what reasons could free and equal individuals in a state of nature have for subduing to the force of the state? What is new is that the question is posed from the viewpoint of individuals: what matters according to the contractual theory of state is whether free and equal rational individuals have good reasons to enter a state. In this way the contract theory makes the individual absolutely central in the modern problem of legitimizing the legal order. Hegel points this out in HP and argues that what makes Hobbes' political philosophy modern is that it specifically aims at deducing the legitimacy of the state from principles that we, as individuals, "recognize as our own" (HP: 227, our translation).

The individual perspective implicit in the contractual theory of state marks a radical break away from traditional projects of legitimizing the given legal order. As Leo Strauss explains:

"Traditional natural law is primarily and mainly an objective 'rule and measure', a binding order prior to, and independent of, the human will, while modern natural law is, or tends to be, primarily and mainly a series of 'rights', of subjective claims, originating in the human will" (Strauss: vii)

Aquinas account of the divine origin of all human law, illustrates this point:

"Human law has the nature of law in so far as it partakes of right reason; and it is clear that, in this respect, it is derived from the eternal law. But in so far as it deviates from reason, it is called an unjust law, and has the nature, not of law but of violence. Nevertheless even an unjust law, in so far as it retains some appearance of law, through being framed by one who is in power, is derived from the eternal law; since all power is from the Lord God, according to Rm. 13:1" (Aquinas, Summa Theologiae, Q 93 A 3 Rp 2).

For Aquinas the litmus test of the legitimacy of a given order is the extent to which the worldly ordering reflects a divine ordering as given by the will of Good. In modern attempts at legitimizing the state this perspective is reversed. As noted by Strauss "Hobbes obviously starts, not, as the great tradition did, from natural 'law', i.e. from an objective order, but from natural 'right', i.e. from an absolutely justified subjective claim which,far from being dependent on any previous law, order, or obligation, is itself the origin of all law, order, or obligation" (Strauss: viii). In the modern tradition, the question is not what God thinks, but what would appear to be reasonable to rational, free individuals.

By discussing the justification of the state through the juxtaposition between individual will and the normative constraints of the state, Hobbes thematizes a new understanding of freedom: the freedom that is relevant in Hobbes' question is the kind of freedom that is potentially threatened by the state, namely the ability to do or abstain from doing what you, as an individual, wish to do. In other words the freedom that is at stake in his discussion of right is freedom understood as freedom from normative constraints; it is freedom understood purely in terms of choice.

The concept of freedom implicit in Hobbes' contractarian argument illustrates the decisiveness of Hobbes' shift away from medieval theological justifications. According to the Thomistic conception of freedom you, as an individual, are free to the extent that you are able to guide yourself by standards of goodness, if you are guided only by inclinations you are not free. Thus, in this tradition, freedom meant simply self-guidance according to standards of goodness. In Hobbes' discussion the individual freedom at stake is the freedom to preserve your own being. Contrary to conceptions of freedom preceding it, Hobbes' articulates a conception of freedom as something that precedes any normative order and hence cannot be understood through the framework of such an order. By its very question, the contract theory therefore makes the individual absolutely central in the modern problem of justifying the legal order, while at the same time positing the individual will as something separate from- and external to the legal order.Thus, in Hobbes argument it is crucial that the notion of freedom in and by itself is not normatively underpinned: to ground the normative order it must be shown to exists independently of that order. Thus contrary to traditional understandings of freedom the natural freedom from which Hobbes' theory starts is explicitly non-normative: it is a pre-legal conception of freedom, a conception of freedom as a space where you can do what you want without normative constraints.

As a consequence of Hobbes' approach rights are introduced in two steps. First (1) the natural condition is introduced as the space of natural freedom, that is a pre-legal freedom understood as freedom from legal constraints. Then (2) the legal order is introduced as a guarantee of the right to pursue your natural inclination, the second step incorporates the natural order into the legal order: Freedom is understood as negative freedom; as a pre-legal freedom from normative constraints.[10]

Whether this double turn is interpreted materialistically as resulting from the dominating interests of a new ruling class or idealistically as the development of a more enlightened conception of -and respect for individual freedom the turn signifies that the modern notion of right is simultaneouslytied in with a new emphasis on the individual and a new negative conception of freedom in terms of choice.

Thus, while reconciliation of the individual and the given normative order is the explicit focus of the contractarian theory, the terms of the problem articulated in the theory introduces a fundamental split between the individual on the one hand and the given normative order which the individual is submitted to on the other hand. Thereby the contractarian theory posits the individual will as outside of-and simultaneouslyas founding the normative order: what legitimizes a given order is the extent to which it is able to incorporate and preserve the natural will in terms of the right to be unconstrained by normative prescriptions in your choice to do what you will with what is rightly yours.

Christian underpinnings of the modern notion of right according to Hegel

As argued above, the central role on the individual in modern justifications of normative order constitutes a definite break away from previous theological justifications of order. Never the less Hegel famously -but also controversially- interpreted the modern notion of rights as deeply indebted to Christianity. More specifically he argued that the principle of subjective freedom which is realized in the modern notion of right "ist in der christlichen Welt aufgegangen. Im modernen Prinzip wird so das Subjekt für sich frei, der Mensch als Mensch frei; auf diese Bestimmung bezieht sich die Vorstellung, dass er die unendliche Bestimmung hat, substantiell zu werden durch seine Anlage, dass er Geist ist" (HP Volume I: 127).This formulation is from HO, but the claim is central to the argument of both HP and PH as well as to the discussion of right in PR.

Hegel establishes his claim concerning the Christian underpinning of the modern notion of rightsby relating Christianity to three central moments in the development of right: first, Hegel argues, the early Christian communities introduced a new emphasis on inwardness, secondly,he argues, this emphasis on inwardness was developed into a political principle in the Reformation finally,he argues, the political interpretation of Christian inwardness developed into a specific principle of right during the Enlightenment.[11]

As the above summary of Hegel's account of the Christian roots of the modern notion of rights illustrates, he does not award any significant role to the medieval age. Thus, in contradiction to Berman, Hegel is reluctant to view medieval ecclesiastical law as a significant step forward in the development of a concept of rights:

"So self-contradictory, so deceptive is this mediæval period; and the polemical zeal with which its excellence is contended for, is one of the absurdities of our time. Primitive barbarism, rudeness of manners, and childish fancy are not revolting; they simply excite our pity. But the highest purity of soul defiled by the most horrible barbarity; the Truth, of which knowledge has been acquired, degraded to a mere tool by falsehood and self-seeking; that which is most irrational, coarse and vile, established and strengthened by the religious sentiment - this is the most disgusting and revolting spectacle that was ever witnessed, and which only Philosophy can comprehend and so justify" (PH: 382)

Hegel's dismissive account of the medieval church obviously gives rise to the question of how -or rather if- Berman's historical research can be mapped onto Hegel's philosophical narrative at all. However, before we can begin to answer this question we need to develop a better understanding of how Hegel establishes the historical connection between Christianity and rights.We therefore turn first to the Hegel's interpretation of the significance of the Early Christian communities.

According to Hegel, the distinguishing mark of these early Christianity communitiesis that the individual human being comes to be perceived as having absolute and infinite worth and that the human will is thereby transformed into the primary locus of spiritual attention (HP Volume I: 127). Hegel argues that this transformation of the emphasis on individuality is brought into motion by the revelation of God as human in Christ. Thus with Christianity, so Hegel argues, spirit is posited as