Commentary on the Philosophy of Right, Chapter 28
Preliminary Remark: The Minimal Form as a General Determination
Before Hegel’s determination of the state as the actuality of the ethical idea is developed, an elementary determination must be brought out—one that is easily overlooked in Hegel’s presentation but that matters for the architecture developed here: it is the general determination of the state, valid for every developed state, not specific to the modern one. The state is first of all the instance that posits law and enforces law. What existed in abstract right as a formal claim, what was grasped in contract as the mutual recognition of equals as equals, what became conscious in civil society through the administration of justice—all of this presupposes an instance that makes right into right at all: by formulating it in laws and enforcing it with force. In this minimal form, ancient city-states, medieval feudal realms, and modern nation-states do not differ; all of them posit law and enforce it. The form in which this happens varies; that it happens is general.
This minimal form is not to be confused with the “night-watchman state” of classical liberalism, which wanted to limit the state to protecting property, contract, and security. Even this supposedly minimal state, if it takes its task seriously, would be a formidable apparatus—police, courts, penal institutions, administration. Even the enforcement of abstract right requires more than the liberal concept admits. But the point of Hegel’s position is different: the state is not the minimal form, but contains it as a moment. What Hegel develops as the “actuality of the ethical idea” (Philosophy of Right, § 257) has the minimal form within it as a necessary condition, but builds upon it toward a richer determination. Whoever thinks Hegel’s state without the minimal form idealizes it; whoever reduces it to the minimal form truncates it.
This determination is also the place where the structural asymmetry of right becomes an issue—an asymmetry already visible in Part III (Property) and in the section on the rabble (V.4). The right that the state enforces is not the formally neutral form in which economic substance would remain untouched. It is itself part of the shape in which certain relations persist. Whose property is protected more strictly, whose breaches of contract are pursued more sharply, which violations of law are systematically made visible and which are kept invisible—these are questions that the minimal form of the state does not resolve on its own, but which the state, in its full determination, must work through. This too is not a specifically modern observation: in every society with a state, the question must be asked which relations are stabilized by the prevailing law—though the specific answers vary historically.
Historical Variation in Forms of the State
Before proceeding to Hegel’s determination of the modern state, a brief sketch of the historical variation in forms of the state should be inserted. It is meant to make the structural generality of political generality visible, without lapsing into a miniature world history—the transitions between forms belong to world history as its own part (cf. Part VIII).
Following the geographical dimension developed in I.7 (with reference to Carl Ritter and Hegel’s introduction to the philosophy of world history), we can roughly distinguish: tribal societies without a permanent central authority. Among mountain peoples, among pastoral cultures, often also among desert and jungle peoples, a permanently established state power is lacking; the general is administered through tribal assembly, through elders, through ritualized procedures that become effective situationally. This form is not a preliminary stage of the state in a teleological sense, but its own solution, fulfilling its function under the corresponding natural-geographic conditions.
River-valley empires and their bureaucracies. Mesopotamia, Egypt, ancient China, later the Indus civilizations—these form centralized states with a capital, a developed bureaucracy, written administration, coordinated irrigation economies. The central authority here is substantial and continuous; it directs large infrastructures, coordinates storage and distribution, organizes irrigation. What Lewis Mumford called the “megamachine” is the highly coordinated bureaucracy of these states.
Ancient city-states as communities of citizens. The Greek polis and the Roman Republic in their early and middle form are city-states in which the citizenry itself is the bearer of political generality. The citizens assemble, deliberate, decide—the form of political generality is more immediate than in the river-valley empires, but limited to a small number of those entitled (free citizens, not slaves, not women). Port-city cultures—Athens, Corinth, Massilia, later Venice, Amsterdam—often display this form; it combines trade, political participation, and intellectual openness.
The ancient empire (Rome in its imperial phase). With the extension of the city-state form over a vast territory, a different solution emerges: provincial administration, a professional officialdom, a unified legal system (Roman law), which later becomes a central source for European legal history. Here the citizenry is no longer directly involved in decision-making, but is recognized as a citizenry—a form that structurally produces the tension between generality and representation.
Medieval feudal states. Here the form is different again: a personal association rather than a territorial state, staggered loyalties between liege lords and vassals, princes, bishops, kings. The central authority is weaker, law is heavily fragmented into local and estate-based units. What we today think of as the state is here scarcely clearly delineated; the political, the religious, the economic, and the familial are interwoven through the bond of vassalage.
The modern nation-state. Only since the late Middle Ages, and especially since the early modern period, does a specific form emerge: the territorial principle rather than personal association, unified citizenship rather than estate-based distinction, a developed bureaucracy, a unified legal system over a clearly bounded territory. It is this form on which Hegel develops his determination of the state—and it is important to hold onto this: Hegel’s state is the modern nation-state, not a timeless concept. The historical genesis of this state is closely interwoven with the development of the capitalist economy, as will become clear in the following section.
This sketch is a first, simplified one; it could be expanded and differentiated in many ways. Its function here is to make visible the structural generality of political generality (every developed society has a form in which the general asserts itself as general) and the diversity of forms in which this generality is made concrete. The transitions between the forms—how the river-valley empires became the ancient city-states, how the medieval feudal states gave rise to the modern nation-states—are not to be narrated here, but in world history as its own part.
Preliminary Remark: The Historical Constitutivity of the Modern State
A second determination must be brought out, one that is easily shortchanged in Hegel’s architecture—and one that, unlike the general minimal form, specifically concerns the modern state. Hegel develops the state from the concept—as the form in which the general consciously asserts itself. This conceptual development carries the argument, but it obscures the fact that the concrete modern state did not arise from the concept, but from a historical genesis that shaped it and that entered into its very conceptual determination.
Three historical lines are especially important. The first is the interweaving of state finance and money economy since the early modern period. Modern warfare became, in the fifteenth and sixteenth centuries, too expensive to be financed from traditional revenues drawn from landholding and payments in kind. Whoever wanted to wage war needed credit. Here financiers like the Fuggers stepped onto the stage, financing entire empires and royal elections. The public debt that arose from this became the basis of a lasting interweaving: the state needed capital for its wars, capital needed the state for secure investments and the enforcement of its claims. This interweaving did not merely influence the modern state externally; it entered into its very form. The state that governs with money instead of payments in kind and corvée labor is structurally different from the feudal state. It has itself become an actor within a monetary economy that simultaneously enables and limits its capacity to act.
The second line is the discovery of capital as a means of increasing productivity. The Venetian Arsenal—the state shipyard that in the fifteenth century could produce one warship per day—was an early form of systematic division of labor, standardized components, timed workflows. The model arose from military necessity, but it showed what organized production could achieve, and was later copied. The mercantilist princely states of the early modern period invested massively in canals, postal systems, harbors—and thereby created the infrastructure without which the industrial economy could not later have emerged. The modern state did not merely frame the economy legally; it created material preconditions that entered into its history and into its concept.
The third line is bureaucratization as a dynamic of its own. The modern state no longer operates through personal rule, but through institutionalized procedures, through files, rules, administrations. This bureaucratization was not added arbitrarily; it was the condition for the spatial and substantive reach the state has achieved today. It too has entered into its concept: what Hegel develops as the differentiation of three powers is unthinkable without the institutional depth that bureaucracy provides.
These three lines—state finance through credit, material infrastructure, bureaucratization—are not subsequent additions to a form of the state developed purely from the concept. They are historical constitutive elements that have entered into the concept itself. Whoever wants to think the modern state cannot go back behind them. Hegel saw this in substance, but his diction sometimes suggests that the state was developed out of the pure concept—a diction that misses the historical weight of the subject matter. A philosophy of right today must carry this weight along, without falling into the opposite error of reducing the state to its historical conditions and losing its own logic.
What the State Ought to Be — Hegel’s Conception as a Specifically Modern Form
Hegel’s determination of the state, unlike the minimal form, is specifically modern. It attempts to synthesize whatever determinations can be won from the historical variation of state forms, in a form possible only under the conditions of the modern world—developed bureaucracy, unified citizenship, the separation of civil society and state, the differentiation of powers. This marking matters because it prevents Hegel’s determination from being misunderstood as timelessly general; it is a determination of the modern state, in its claim and in its possibility.
For Hegel, the state is not the police (in the modern sense) and not the administrative apparatus. It is the actuality of the ethical idea—the political community that knows itself as rational and wills itself as rational. In it, family and civil society find their truth: what was immediate in family life and mediated in market life becomes conscious in the state.
Conceptually, the state is the place where the idea claims to realize itself in its highest form of ethical life: as the unity of knowing and willing. In morality, knowledge of the good was separated from its realization; conscience knew what ought to be good without being able, on its own, to do it. In civil society, realization was separated from knowledge; the cunning of reason produced a generality that no one had willed. In the state, the two are meant to come together: a political community that knows its generality and at the same time wills it—one that does not produce reason behind the backs of its members, but acts as the conscious self-shaping of the form of life.
This is the teleological core of the Hegelian state: it is not a means to ends lying outside it (as in liberalism, where it exists to protect property or maximize utility). It is internal purposiveness—an end in itself—because in it the subjects are for the first time fully recognized as what they are: rational beings whose freedom is realized only in a community that is itself rational.
Hegel develops the inner constitution of the state as the differentiation of three powers: the legislative (positing the general), the governmental power (subsuming the particular under the general), and the crown (the individual as the apex of the whole). The point is not the specific form of constitutional monarchy that he favors, but the conceptual requirement: the state must be internally articulated so that the general, the particular, and the individual function as moments of a whole. It is precisely at this point that Gans, without abandoning his status as a student of Hegel, made a tacit correction relevant to our reading: he treats the republican-representative constitution—taking the United States as his example—as the truly concept-adequate form of the modern state, whereas constitutional monarchy appears to him as a transitional form still bound to historical tradition.[1] This is interesting not only politically but methodologically: Gans applies Hegel’s own principle—“right itself is subject to historical development”—against precisely those places where Hegel did not follow this principle. The liberal consequences that Gans drew from Hegel’s philosophy of right are not a deviation but a consequence of the Hegelian principle. Here too the methodological line often buried in the history of reception becomes visible: criticizing Hegel with Hegelian means. The genesis-validity question hinted at here (the validity of constitutional monarchy versus the validity of the republican-representative constitution) was mentioned as an example in I.8; it cannot be decided by the Hegelian concept alone, but requires examining which form of political generality is the more adequate to its concept under modern conditions.
The Inner Constitution of the State
What was only briefly indicated in the previous section—the differentiation of three powers—deserves treatment in its own right, because an important conceptual architecture in Hegel’s theory of the state lies here, and because the historical variation of constitutional forms is indispensable for a concrete generality of the political form.
The conceptual architecture. Hegel does not develop the inner articulation of the state from the historical experience of the separation of powers (Locke, Montesquieu), which he knew and in some respects adopts, but from the logic of the concept. The state as the actuality of the ethical idea must be internally differentiated just as the concept is internally differentiated: as the unity of the general, the particular, and the individual. From this follow three moments—not three separate powers that check one another (that is the liberal form found in Montesquieu), but three aspects of a self-movement of the political general.
The legislative power is the moment of the general: it posits the general determinations by which political life orients itself—the laws, the constitution, the fundamental rules that apply to all. It deals with the general as such, without attending to the individual case.
The governmental power is the moment of the particular: it subsumes the individual case under the general law, it administers, it executes, it decides the concrete in light of the general. It encompasses what we today call the executive, but also the judiciary as the application of law to the case.
The princely power—in Hegel: the crown—is the moment of the individual: the final instance of decision, the point at which the general takes shape in a single will. Hegel sees this point embodied in the monarch, who authorizes decisions with his yes or no. The point here is less the specific principle of heredity or the monarchical form than the conceptual requirement that the general must in the end be bundled together in an individual and thereby become actuality. Whoever contests this point—as republican constitutions do with other constructions (election of a president, collective head of state, parliamentary majority)—does not contest the necessity of a moment of individuality, but finds a different form in which this moment is realized.
A finding regarding the exposition that belongs here. Hegel arranges the inner constitution such that the princely power forms the third stage—and then begins the exposition with it (§§ 273 ff.).
This is no small matter. Given the otherwise strict rigor of his procedure, the reversal is striking, and Wolfdietrich Schmied-Kowarzik calls it “completely inexplicable”: it “not only rearranges the following exposition in line with existing political conditions, but at bottom also runs counter to the preceding substantive determinations of the modern state.”
And he recalls that the Young Hegelians denounced this very inconsistency as an “accommodation” to the Prussian state.
Whether this is accurate cannot be decided. What can be said is: the reversal is not the only case of this kind. The same difference between the classificatory ordering and the actual exposition appears in the subjective spirit, in the case of the theoretical spirit—there memory occupies third place in the classification but is subordinated to representation [Vorstellung] in the exposition.
There a substantive reason can be given; here none can. This does not speak in favor of the political reading, but it removes from it the argument that the reversal is a unique occurrence in Hegel.
Cf. [[hegel-subjektiver-geist]] (optional), on the theoretical spirit.
In this architecture, the three powers are not primarily directed against one another, but stand in a relation of mutual mediation. This is the decisive difference from the classical doctrine of the separation of powers: for Locke and Montesquieu, the point is that the powers limit one another so that none can degenerate into tyranny (checks and balances); for Hegel, the point is that they must work into one another as moments of a whole, so that the general becomes concrete actuality. Both views have their validity: the liberal view grounds why the separation of powers matters as protection against the concentration of power; the Hegelian view grounds why the separated powers must nonetheless function as a unity of political life if the state is to fulfill its purpose.
Estates as mediation. Hegel gives its own place to the system of estates—as mediation between civil society and the state. The estates bring the particular interests of civil society (the substantial estate of landowners, the estate of trade and industry, the universal estate of civil servants) into legislation, and thereby mediate between private forms of life and political generality. The estates are not a mere representation of voter interests, but the institutionalized form in which the differentiated spheres of civil society assert themselves in the political process.
This conception is to be read historically today, for several reasons. The estate order to which Hegel connects has dissolved; in its place has come electoral democracy with parties, in which representation is organized no longer by estate but individually and egalitarianly. But the structural question that Hegel takes up with the system of estates—how the diversity of forms of life in civil society finds a voice in the political process—remains current. Modern answers are associations, organized interests, civil-society organizations that participate in politics; parliamentary diversity in a system with proportional representation has a similar function. The historical critique of Hegel’s form of estates does nothing to change the fact that the question of mediation between form of life and politics remains a lasting one.
The civil service. Hegel assigned a special status to the civil service, the “universal estate” (Philosophy of Right, § 205): it is that stratum which acts not out of particular interest but on behalf of the general—education, expertise, and loyalty to public service are its hallmarks. This conception has real historical substance in the Prussian reform bureaucracy, but it is not without relevance today either: the demand that a professional administration be committed to the common good and not serve the particular interests of individual actors is the normative foundation of the modern administrative state. That this demand is often undercut in reality—through political patronage, through lobbying, through economic dependencies—does nothing to change its conceptual necessity; it is the condition for the state being able to represent the general at all.
Public opinion. Finally, Hegel recognizes the sphere of public opinion as a form in which citizens participate in the political process—through discussion, through criticism, through participation in discourse. Hegel’s attitude toward it is ambivalent: he sees in public opinion both the truth of political participation and the danger of uneducated opinion that judges without expertise. Today, under the conditions of mass media and the internet, this ambivalence has sharpened—the public sphere is more comprehensive but also more fragmented; it is more informed but also more susceptible to manipulation. What Hegel described as the structural tension of public opinion has deepened under modern conditions, not dissolved.
Historical variation in constitutional forms. Hegel’s inner constitution of the state, as already said, is oriented to the modern form. But its point—differentiation as the unity of the general, the particular, and the individual—can be found again in various historical constitutional forms, in each case in a different concretion. Aristotle, in the Politics, distinguishes six constitutional forms, depending on whether one individual, a few, or the many rule, and depending on whether the rule is oriented to the common good or to self-interest—monarchy/tyranny, aristocracy/oligarchy, polity/democracy. What becomes visible here is the question of the relation of individual, particular, and general in the constitution, long before Hegel grasps it conceptually.
The Roman Republic had an elaborate constitution in which various magistracies (consuls, praetors, quaestors), the Senate (as the deliberative assembly of the patricians), and the popular assemblies (for the plebs) worked into one another—a system in which no single instance could decide alone and in which the estate conflicts between patricians and plebeians had a lastingly structuring effect. Polybius, in his Histories, described this constitution as a mixed constitution uniting monarchical, aristocratic, and democratic elements—a description that became a model for Montesquieu and for the American constitutional debate.
Medieval Europe had no centralized statehood, but a fabric of kings, liege lords, imperial estates, churches, cities—a relationship in which power was divided and staggered, with its own forms of mediation (imperial diets, court assemblies, estate assemblies). The modern idea of a unified state power had its limits here.
With Locke (1689) and Montesquieu (1748), the classical doctrine of the separation of powers arises—Locke still with two powers (legislative and executive plus a federative power), Montesquieu with three (legislative, executive, judicial). The point is liberal: the powers are meant to limit one another so that tyranny is prevented. The American Constitution of 1787 elaborated this idea institutionally and combined it with a complex mediation between the federal government and the individual states; Gans regarded this constitution as the truly concept-adequate form of the modern state.
Modern parliamentary democracy, as it developed in the nineteenth and twentieth centuries, is a different form: here the head of the executive is not elected directly, but emerges from parliament; the separation of powers between parliament and government is modified by the relation of confidence (majority relations); the judiciary remains an independent power; the head of state (monarch or president) has a predominantly representative function. This form has established itself as the widespread form in Europe and in many other parts of the world; it is a modification of the American model that partially softens its separation of powers in favor of a closer connection between legislature and executive.
In all these variations, Hegel’s conceptual requirement can be found again: political generality needs an inner differentiation in which the general, the particular, and the individual function as moments of a whole. How these moments are concretely realized—in which institutions, with which procedures, with what standing for individual citizens—is historically variable, and the question of the most adequate form under the respective conditions cannot be answered from the concept alone. Hegel’s architecture is a heuristic; its concretion is a matter of historical development and political contestation—a point at which the conception developed here asserts its genesis-validity distinction against all attempts to derive a particular constitutional form from the concept alone.
How a Power Binds Itself
This settles the conceptual side, but not the practical difficulty behind it: how does one bind a power over which no higher power stands? Hegel does not pose the question in this form, but he sees the problem. In the lecture of 1817/18, he reports Kant’s thesis that freedom is preserved only through the separation of powers, and he objects: if each of the three powers is to have the final decision within itself and none is subordinate to the others, then the whole would be “not organic,” and the powers would be “not moments of the concept.”[2] A year later, another set of lecture notes records the positive side: the division into estates and the separation of powers is “an essential condition in the actuality of the state,” one “of the guarantees of freedom”—and rests “in the idea of livingness.”[3] Hegel does not reject the separation of powers, then; he disputes only that mutual blockage is its principle.
What has since been developed in the way of safeguards can be read as an answer to the same question, and none of them suffices alone. [KF]
Power is divided. Whoever makes laws does not apply them; whoever applies them does not decide disputes. Thus no one can act alone, and each depends on the others.
Power is bound to procedure. Not what is decided, but how—and the procedure is public, reviewable, repeatable.
Power is time-limited. Whoever holds it holds it for a time, and the prospect of losing it is itself a binding.
And it is observed. What happens in secret cannot be examined—which is why publicity belongs to the constitution, even where it is not written into it.
All four have the same structure: power binds itself by arranging itself so that violations stand out and carry costs. There is no one above it to enforce this. It holds to these bindings as long as enough participants want to hold it to them—and that is a weaker safeguard than it sounds. Here lies the difference from the other two spheres of right: in civil society, a court stands above the disputants; above the state stands nothing but itself.[4]
The Point Where Marx Sets In
Hegel says: in the state, the contradictions of civil society are reconciled, because here the general appears as general. Marx replies: this is mystification. The real state reconciles nothing; it is the expression and instrument of the ruling class of civil society. What appears as the general interest is the particular interest of those who hold economic power.
This critique is serious—but it must be stated precisely. It does not hit Hegel’s method, nor does it hit the demand for an instance of reconciliation as such. It hits a particular reading of Hegel: the one in which mediation in the state appears already accomplished, as if it were enough to think the state in order to declare its task solved. It is at exactly this point that Hegel himself gave occasion for criticism—through a diction that oscillates between two readings. Read speculative-apologetically, Hegel’s sentences about the state sound like a description of a reconciliation of contradictions already achieved; read in terms of the logic of the concept, they designate the task of a mediating instance, without asserting its empirical-political fulfillment. Marx destroys the formulations that allowed for this ambiguity—and thereby frees the concern that lies beneath the speculative diction.
The sharpest formulation of this critique comes not from Marx himself but from Engels: the modern state, whatever its form, is essentially a capitalist machine, “the ideal collective capitalist.”[5] Three clarifications are needed so that the formula holds and does not become a slogan.
Ideal does not mean ideal in the sense of perfect, but: not as a real actor, but as a form. The state possesses no capital, produces nothing for profit, competes in no market. But it acts in a form that can be understood only from the perspective of capital as a whole.
Second, the formula does not mean steering from outside. It is not about puppets, and not about an elite that holds the state in its hand. The state’s own institutional form reproduces the conditions under which M-C-M′ can operate—no one has to direct it there.
And third, the determination is not identical with the charge that the state one-sidedly represents the capitalists. It structurally takes into account the interests of wage laborers as well—jobs, social security, education, infrastructure—because unlike the individual capitalist, it has a long horizon and is bound to the reproduction of the whole. It is precisely here that its difference from individual capital, which consumes its own foundations, lies.
Thus the formula is exactly what the critique of Hegel needs, and no more: a determination of the form in which the state is general. It is general—but as the generality of a particular mode of production. Hegel’s concept of the state is not thereby refuted, but historically situated. [KF]
The same holds for the unity of knowing and willing that the state is supposed to achieve. Hegel describes it as if it were actual in the state of his time; Marx shows that the economic conditions under which this state operates prevent precisely this unity: where the cunning of reason has structurally turned against its purpose, the state cannot, through mere reflection, bring back together what has fallen apart in civil society. What Hegel presents as the conscious willing of the general is, in fact, the recognition of a mediation that cannot be fulfilled under the given conditions. The theoretical idea—knowledge of what would be good—is clearer in the Hegelian state than the practical idea—the realization of this good.
What Remains to Be Saved Despite the Critique
Three points remain valid.
First: the insight that the individual human being is free only in a community with others, that the question of freedom is therefore necessarily the question of institutions, is irrefutable. Whoever thinks freedom as a merely individual capacity misses it. Marx shares this insight; it is not the point of difference.
Second: the insight that right, morality, and ethical life are not to be played off against one another, but become actual only in their mediation, is a lasting lesson. Whoever thinks right without the moral will has a dead letter; whoever thinks the moral will without right has a powerless inwardness; whoever thinks both without ethical life has no community.
Third: the insight that the reconciliation of contradictions must occur not through their elimination but through their conscious working-through in differentiated institutions is a methodological demand that even a post-bourgeois society cannot abandon. A society that does not fight out its contradictions in institutions fights them out in the street, and that rarely turns out better.
What a State Can Be Tested Against
If the state is neither the accomplished reconciliation nor a mere instrument of class rule, the question arises of what can be used to judge whether a particular state corresponds to its concept. Two tests are needed, and neither suffices alone. [KF]
One asks those involved. Can they regard this order as their own—not merely accept it, but endorse it? And can they say so without expecting disadvantages? The second half of the question is the more important one, for an assent that may not be refused is no assent at all.
The other asks the matter itself. Does the order actually fulfill what it exists for—regardless of what those involved think?
Why both are needed is shown by the counter-cases. There is an order in which everyone is content and which fails its task: people can become accustomed to conditions that harm them. And there is an order that fulfills its task and that no one wants: it may function, and it has no claim to assent.
A third question is added, and it is the sharpest one: who could change this arrangement, and who would need to be asked in order to do so? Where the answer is “everyone involved,” an order arises out of recognition. Where the answer is “those who live off it,” something else is present.
This also settles how the formula of the actuality of the ethical idea is to be read. It is not a finding about existing states, but the standard by which they are to be measured—and no assurance that any of them meets it.
The State as Contested Terrain
From the engagement with the Marxist critique follows a determination that Hegel did not make explicit but that is laid out in his position and that carries the argument for a reading today: the state is not a finished structure standing over against subjects, but contested terrain on which it is decided whether it becomes what it is conceptually supposed to be.
This determination holds generally, not specifically for the modern state. In every developed state there are struggles over the determination of the general—and these are not mere disturbances of an otherwise harmonious order, but constitutive of the state itself. In Athens, the struggles between democrats and aristocrats over the form of citizenship, over the participation of the poorer strata, over the question of wealth, were permanent; they shaped Athenian history. In Rome, the conflicts between patricians and plebeians, later between the Senate and the tribunes of the people, between the Optimates and the Populares, were the lifeblood of the Republic; their ossification in the late civil wars was at the same time the end of the Republic. In medieval Europe, the struggles between liege lords and vassals, between secular and spiritual powers, between cities and territorial rulers were the structuring conflicts in which the form of political generality was negotiated. In the estate conflicts of the early modern period, the issue was whether the estates had to consent to the prince, whether there were representative bodies representing the general. These examples show: the state is everywhere—wherever it is developed—terrain on which different forces struggle over the determination of the general. What Gans indicated in the doctrine of opposition as a necessary moment is a conceptually general determination: if the state has no dealings with oppositions, “it lapses into laziness” (Gans, op. cit.).
This determination wards off two symmetrical misreadings. The first misreading makes Hegel into an apologist for the existing state. It reads the Hegelian demand—the state as actuality of the ethical idea—as a description of whatever state happens to exist. Whoever reads this way idealizes: they presuppose that the state already is what it ought to be, and thereby close their eyes to the difference between concept and actuality on which every serious political practice must gain purchase. The second misreading draws resignation from this difference. It says: if the state structurally serves economic powers, it is pointless to engage politically; the state cannot be changed because its structure determines it. Whoever reads this way misses that the state is not a monolithic bloc, but a fabric of institutions, apparatuses, actors, rights, and practices that is open at every moment to change—against resistance, against unequal forces, but not against a law of nature.
In civil society, a specific difficulty is added to the general form of the terrain character: the structural tendencies pushing the state toward particular ends are not only the general tendencies of any political generality (stabilization, self-preservation, routine), but the specific tendencies that follow from its interweaving with the capitalist economy—from the dependence of state finance on capital markets, from the political power of the economically strong, from the structural asymmetry between capital and labor that enters into the state apparatus. Here too the truth is dialectical: the modern state has structural tendencies that push it toward particular ends—tendencies following from its historical constitutivity (in particular from its interweaving with capital), from the economic dependence of its financing, and from the political power of the economically strong. But these tendencies are not determinations. Within the structures there are latitudes; counter-forces can be mobilized against the tendencies; the structures themselves can shift if the struggles within them turn out differently. Three examples from the specifically capitalist constellation make this dialectic concrete. They are to be distinguished from the general examples above (Athens, Rome, the Middle Ages)—they show the specific form that the terrain character takes in the modern capitalist state.
Labor law in its present form did not arise from an insight on the part of the state, but through decades of struggle by the labor movement—struggles against the resistance of capital, which decried every protective provision as a ruinous burden. It protects real interests today—maximum working hours, minimum wage, protection against dismissal. It is at the same time an instrument that channels conflicts into legal forms and thereby pacifies them. Both are true; one does not exclude the other. What matters in this determination: labor law is an achievement, one that did not have to arise—and that can be taken back at any time, if the struggles that carried it slacken.
Environmental protection has a similar history. It arose from ecological movements and the experience of disasters, against the resistance of industry. It limits real harms today—emission limits, protected areas, recycling obligations. It has at the same time become a field of accumulation in its own right—green technology as a growth sector. Here too: the achievement is real, but it can be circumvented, weakened, or reinterpreted at any time if the forces that carried it slacken.
Antitrust law has a different logic. It was not primarily fought for by a movement, but arose from the insight that monopolies endanger the market order itself—an insight on the part of the state against individual large capitalists in the name of capital as a whole. But it is at the same time used by consumer movements and small businesses defending themselves against the power of corporations. Both are true: it is both system-preservation and power-limitation.
What these three examples show in common is this: the modern state is not a tool of capital that mechanically executes capital’s interests. Nor is it a neutral arbitrating instance standing above interests. It is terrain on which different forces struggle over the determination of what should count as general—with unequal means, with structural asymmetries favoring the economically strong, but without a predetermined outcome. The detailed analysis of the specifically capitalist form of this terrain belongs to the investigation of the capitalist state and is to be carried out there.
This determination refines the Hegelian position without abandoning it. Hegel grasped the state as the actuality of the ethical idea—but he often spoke as though this actuality were already given. The correction introduced here reads: the actuality of the ethical idea is neither identical with whatever state happens to exist, nor a mere ought. It is actual where institutions correspond to their concept of freedom—and is thus simultaneously the standard and the task of their continued self-correction. [KF] It is what the subjects make of the state by struggling on its terrain over its shape.
From this follows a practical consequence that pulls Hegel’s position out of the reconciliation-trap. Whoever wants the actuality of the ethical idea cannot wait for the state to produce it on its own—it does not produce it on its own, because its structural tendencies pull it elsewhere. Whoever wants it must contend on the terrain of the state—and at the same time know that this contention does not suffice, because the economic conditions that generate the structural tendencies can be changed only through a broader social movement. State politics is necessary but not sufficient. It needs the supplement of extra-state counter-power—unions, social movements, cooperatives, alternative institutions. Hegelian ethical life is not merely in the state, but also in the forms of its own self-working-through. These forms the subjects must fight for themselves, because no instance will give them.
VI. Three Stages of Ethical Life — A Systematic Extension
Cf. Gans, Naturrecht und Universalrechtsgeschichte, op. cit., pp. 117, 127; and Riedel, op. cit., pp. 243–248. Riedel emphasizes that Gans develops the doctrine of opposition as a necessary moment of the state: “Opposition is the true negation, which must contain the truly positive within itself” (Gans, ibid., p. 130; quoted after Riedel, op. cit., p. 247). If the state has no dealings with oppositions, “it lapses into laziness” (Gans, ibid.). ↩︎
Wannenmann transcript, lecture course 1817/18: GW 26.1, p. 157. ↩︎
Homeyer transcript, lecture course 1818/19, on § 118: GW 26.1, p. 311. Similarly the transcript of the 1819/20 lecture course (ibid., p. 532): in the separation of powers, more recent times have seen the guarantee of freedom, and this is “the idea of the modern age altogether.” ↩︎
The enumeration of the four safeguards is developed here. ↩︎
Friedrich Engels, Herr Eugen Dühring’s Revolution in Science [Anti-Dühring] (1878), MEW 20, p. 260. Elaborated in [[kapitalismus-einfuehrung:15]]. ↩︎