International Phenomenological Society

Aspects of the History of Theory of Alienated Consciousness

Author(s): Mitchell Franklin
Reviewed work(s):
Source: Philosophy and Phenomenological Research, Vol. 20, No. 1 (Sep., 1959), pp. 25-37
Published by: International Phenomenological Society
Stable URL: http://www.jstor.org/stable/2104951 .
Accessed: 15/08/2012 09:30

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.

International Phenomenological Society is collaborating with JSTOR to digitize, preserve and extend access to
Philosophy and Phenomenological Research.

http://www.jstor.org
 ASPECTS OF THE HISTORY OF THEORY OF
ALIENATED CONSCIOUSNESS

In his Rechtsphilosophie Hegel criticizesBecoaria,the Italian theorist

for eighteenth-centuryEncyclop~dimein regardto criminallaw. "As is
well known," Hegal writes, "Beecariadenied to the state the right of
inflictingcapitalpunishment.His reasonwas that it couldnot be presumed
that the readinessof.individualsto allow themselvesto be executed was
included in the social contract, and in fact the contrarywould have to
be assumed."AgainstBeccariaHegel says that "Theinjury [the penalty]
whichfalls on the criminalis not merelyimplictly just ... on the contrary,
it is also a right establishedwithin the criminalhimself, i.e., in his ob-
jectively embodiedwill, in his action." 1 Hegel goes on to writethat the
will of the criminalis both a particularand a generalwill, and that it is the
generalwill to punishcrime.Hegel says that what is involved is"... the
abstract rationalityof the individual'svolition.Since that is so, punish-
ment is regardedas containingthe criminal'sright and hence by being
punishedhe is honouredas a rationalbeing.He doesnot receivethis due of
honourunlessthe conceptand measureof his punishmentare derivedfrom
his own act. Still less does he receiveit if he is treated eitheras a harmful
animal who has to be made harmless,or with a view to deterringand
reforminghim."
Hegel'thus has directedattention to a most importantgeneralcharac-
teristic of all contemporarylaw. For instance, contractis the area of law
in which the human will, expressedthrough promise,is given effect in
order to realize the will. Unlike the criminallaw, which is designed to
repress,to punishthe will, the roleof contract(andof legal transactionsin
general)'is to give force to the will. Nevertheless,it is not necessarily
human will-for-self,as Kant assumes,2which is given effect in the law of
contract.What is given legal force,the force "of law," as the Frenchcivil
code describesit,3 is not necessarilythe real will, but what seemsto be the
real will. It is this manifestedor externalwill and not the real will of the
subjectof law whichmay becomedecisiveif thereis a discrepancybetween
the external and the internal will. Thus, Mr. Justice Holmes has said:
"Knowinglyto lead a personreasonablyto supposethat you offer,and to

1 Hegel's Philosophyof Riglt [Law] (Knox' tr., 1942)70.

2 Kant, Philoeophy of Law (Hastie's tr.), reprintedin Cohenand Cohen,Reading. in
Jurieprdenweand LegalPhilosophy,109 (1951).
3 Codecimil,article 1134.

25
26 PHILOSOPHY RESEARCH
ANDPHENOMENOLOGICAL

offer, are the same thing."4 A commentto Section20 of the Restatement

of Contracts of the American Law Institute says that "... if the mani-
festation is at variance with the mental intent,... it is the expression
which is controlling."Henceit may be said that it is the "objective"will,
will-for-other,instead of the "subjective"will, will-for-self,whichmay be
realizedin the law of contract.
This "objective"or alienated will which is given force in the law of
contract is the same "objectivelyembodiedwill," as Hegel describedit,
throughwhichthe criminalwillshis own punishment.Althoughthe role of
the "objective" or alienated will in contract is a relatively late develop-
ment in the history of moderncontractlaw, Hegel as early as 1807 said in
the Phenomenologythat ". . . we see Language to be form in which spirit
finds existence. Language is self-consciousnessexisting for others ...
Languageis self separatingitself fromitself, whichas the pureego becomes
an object to itself... ." 5
It is to be noticed that the subject of law must will. Theremust be an
original will-for-self.Hence, under the so-called "objective" theory or
theory of the "manifestedwill" the apparentpromiseof a somnambulist
has no force. Nevertheless,if there is a will what seems to be will-for-self
becomeswill-for-other.What had seemed to be the will of the subject of
law has becomethe will of another.As the subject of law seems to have
passed or transferredhis will to another, an alienation of his will has
occurred.The subject-of-lawis confrontedby his own will existing apart
from and confronting him as a strange will. Because of the estrangement or
alienation, this estranged or alienated will appears as an object to the
subject of law.
This is different from Kant's thought. Although he does conceive of
contract as alienation of will,6 the force of such alienation for Kant is not
determinedby another.His own will does not confrontthe subject of law
as an alien object or thing, as the will of another, as social will. Hence
Kant conceives of the willed alienation as an alienation-for-self,not as
alienation-for-other. But in truth the State is the unwilled party to the
willedcontract.
In the self-alienationof the will the will of the subject of law does not
vanish, as it may for a mentallyill or mentallyalienatedperson.But there
is a realtransferof will or of consciousnessto another,such as there may
be in a legal transaction,e.g., sale, lease, donation, testament, etc. The
Roman law idea of passingon, of delivery,of traditio,becomesimportant
here, because traditio also significantly connotes tradition or custom.

4 46 N.E. 617 (1897).

Brauerv. EShaw,
of Mind (Baillie'str. 1931)660.
5 Hegel, ThePhenomenology
6 Kant, Zoe.cit. supra, note 2.
ASPECTSOFTHEHISTORYOFTHEORYOFALIENATEDCONSCIOUSNESS 27

Feudal customis the formof alienationagainstwhichthe Enlightenment

of the eighteenthcenturywith its assertionof inalienablerights struggled.
Hence,the modernhistoryof the theoryof alienationbeginswith Encyclo-
pddisme.7
Indeed, the role of alienationin law is entirelya reflex of the alienation
in the world.In the periodafter Hegel Feuerbachsaid that ". . . the idea
of the speciesbecomesthe idea of God ... Hence, in religionman neces-
sarily places his nature out of himself, regardshis nature as a separate
nature ... God is his alter ego, his lost other half ..." 8 But Hegel himself
had made it possibleto say beforeFeuerbachthat alienationbeganin this
world:"Languageand labour,"he wrotein the Phenomenology, "areouter
expressionsin whichthe individualno longerretainspossessionof himself
per se, but lets the inner get right outside him, and surrendersit to
somethingelse ... into another,and thereby puts itself at the mercy of
the element of change, which transformsthe spoken word and the ac-
complishedact, and makes somethingelse out of them than they are in
and for themselvesas actionsof a particulardeterminateindividual."9
But there is an importantdifferencebetween the alienationtheory of
Hegel and that of Feuerbach.Feuerbachconceivedthat in religionthe
universalessenceof Natureand humanity ... is conceivedas another,a
miraculous and supernatural essence ..." 10 Thus, in religion Feuerbach
discoversthe alienationof an immutable,eternalhumannature,whereas
because of his historicalconceptionsHegel must be understoodas pre-
supposingan historicalconceptionof alienation,in which even human
nature or human essenceare an historicalhumannature or an historical
human essence.Indeed,Hegel'spresentationof laboras a decisiveformof
alienationis in effecthistorical.
In law alienation cannot be regarded otherwise than as historical
alienation. Attention again may be directedto the Anglo-Americanlaw
of contract. Anglo-Americancontractlaw requiresnot only promise,but
consideration.Underfeudal law this means that the contractis enforced
not becausethe humanwill, expressedthroughpromise,shouldbe realized
for its own sake, but because a delict or tort, similar to deceit, has been
sufferedthroughpromisefor which reparationshouldbe made. The con-
sideration thus is an alienation or a "detriment"incurred or injury
sufferedor sacrificemade whichjustifies or sanctionsthe enforcementof
promise,providingsuch alienationis justified as,a "legal detriment,"as
detriment-for-the-law,as detriment-for-other.Such delictal idea of
considerationor of alienationreflectsthe low productivelevel of English
7 Franklin,"Law, Moralsand Social Life," 31 Tulane Law Rev., 465, 474 (1957).
8 Feuerbach,The Essenceof (hriztianity (Evans' tr., 1881) 195.
9 Hegel, op. cit. 8upranote 5, at.p. 340.
10 Feuerbach,loc. cit. 8upranote 8.
28 PHILOSOPHYAND PHENOMENOLOGICAL
RESEARCH

feudalism. However, in modern law, the delictal idea of consideration has

been transformed.It is now requiredthat the promiseshave been "bar-
gained for" and that they be given in "exchange"for each other.'1Such
alienationreflects historicaldevelopmentin which productionbased on
sharp division of labor, for profit and for a vast market has come into
existence. Here again promisefor its own sake, abstract alienationas
abstractalienation,is not admittedas a basis for contractualresponsibil-
ity. Becauseof the modernhistoricalsituationthe alienatingpromisenow
must be not a depict,but a "bargain,"and speakinggenerallythere must
be an "exchange"of suchalienations.
The requirementof "bargain"seemsto excludethe validity of informal
promisesof donations.Therewas no interest in such alienationuntil the
accumulationof modernformsof wealthimposednew demands.Therefore
during the present periodinformalpromisesof gifts may indeed be en-
forced through formalistic conceptions of consideration as an alienating
"bargain."Indeed,Mr.Justice Cardozoconsecrateda theory of what may
be called "potential"consideration,that is, a "potential bargain"as a
justificationfor enforcinga gratuitouspromise,foundinghimself on the
thought of WilliamJames.'2As the conceptionof considerationhas been
veered about in history, it may be repeatedthat the theory of alienation
must be a theoryof historicalalienation.
Thisperhapsmay be shownby anothersituation.Duringthe nineteenth
centurylegal powerto declareunlimitedjudgmentsagainst strangersnot
present within the state was not admitted unless the defendant had
consentedto the exerciseof such power.Thus,if a citizenof Rhode Island
throughhis fault had injureda personin Massachusettswhile drivinghis
horse and carriagethere and had left Massachusettsbefore action for
damagescould be started against him there, a judgment against him by
the courts of Massachusettswould not have-legal effect. However, after
the appearanceof the automobilein the twentiethcentury,Massachusetts
enacted legislation which said in part: ".. . operation by a non-resident of
a motor vehicle on a public way of this commonwealth ... shall be
deemed equivalent to an appointment ... of the registrar ... [of motor
vehicles] ... to be his true and lawful attorney upon whom may be served
all lawful processes in any action . . ." The Supreme Court of the United
States in 1927 upheld the validity of a judgment against a nonresident
given underthis legislation,the court saying that "having the power so
to exclude, the State may declare that the use of the highway by the non-
residentis the equivalentof the appointmentof the registraras agent on
whom process may be served ... The difference between the formal and

11 AmericanLaw Institute, Re4t4tement of theLaw of Contracts,sec. 75 (1932).

12 De Ciccov. Schweizer,221 N.Y. 431, 437 (1917).
 OFTHEORY
OFTHEHISTORY
ASPECTS CONSCIOUSNESS29
OFALIENATED

implied appointment is not substantial, so far as concerns the application

of the due process clause of the Fourteenth Amendment." 13 What may
be perceivedhere is a new, historicallyappropriatealienation.The will of
the nonresident motorist to operate on the highways of Massachusetts
was transferred from him, and taken to mean that he had willed to appoint
the registrarof motor vehiclesof the Commonwealthof Massachusettsas
his representativeto entertain process against him. The motorist'swill.
was estrangedfromhim, and he confrontsit as somethingstandingoutside
himself,as an object, as a thing, as a res, as a fetish in which he beholds
his own will as the will of another.Throughforcedrepresentationhis will-
for-selfhas becomewill-for-another.
AlthoughHegel is the precursorof the alienationtheory of Feuerbach,
Marxand Kierkegaard,the FrenchEnlightenmentconfrontedthe problem
of alienationbefore Hegel. The Encyclopedistesdeserve special attention
because of their influence on the formation of basic Americanconsti-
tutional ideas. Encyclopddisme belongs to the history of the theory of
natural law, a natural law which was opposed to the natural law of
scholasticismbecauseit did not subordinatenaturallaw to the divine law,
the lex aeterna.The naturallaw of the Enlightenmentasked the question
why, if man is rational, did man live in an irrational or feudal or alienated
society. Rousseau, in effect, posed this problemwhen he wrote in the
famous first sentence of the first chapterof Contratsocial that "Manis
bornfree, and everywherehe is in chains."14 Jeffersonechoed this, when
he claimedfor the Americans"therightsof men, of expatriatedmen." 15
JeffersonechoedRousseauin his first InauguralAddressin 1801,speaking
of "the agonizingspasms of infuriatedman, seeking through blood and
slaughter his long-lost liberty." 16 Thus, from the point of view of the
Enlightenmentthe problem was, why was man alienated or estranged
fromhis reason,so that he lived irrationally.The answerof the Enlighten-
ment was that humanlife was irrationalbecauseof the feudalor irrational
circumstancesor customsor environmentof humanlife. It was necessary,
therefore,to change these irrationalcircumstancesthrough the force of
rational education. The feudal alienation must be swept away through
education.17
'However,becauseEncyclopddisme was mechanistic,it was involved in
real difficulty. If feudal or irrational circumstancesdictated feudal or
irrationalconsciousness,feudal circumstancescould not and would not

13 Hess v. Pawlawki, 274 U.S. 352, 356 (1927).

14 Rousseau,Du contract soca, 1.1 (1762).
16 The Writingsof Jefferson(Washington'sed., 1854)VI, 65.
16 Id., II, 2.
17 Franklin, >>c. cit. spra note 7, at p. 475.
30 PHILOSOPHY AND PHENOMENOLOGICALRESEARCH

seem irrational,and enlightenedconsciousnesscapableof overcomingthe

alienatingfeudalcircumstancescouldnot and wouldnot develop.
As the Enlightenmentcould not solve the problemof feudal alienation
historically,it becameinvolved in a contradiction.In his essay on Locke
in the Encyclopedie, Diderotsupportedthe Englishthinker'scondemnation
of "innatemorality."18 However,in his essay on naturallaw, loi naturelle,
which immediately followed his essay on Locke in the Encyclopdlie,
Diderot contradictedhimself, writing that "In a word, natural law is
written in our hearts in characters so beautiful, with expressions so
strongand traitsso luminous,that it is not possibleto misunderstand it." 19
Thus, the "innate" ideas which Diderot rejected in his essay on Locke
were,in his neighboringessay on loi naturelle,admittedas "innate"ideas
of natural law, "written in our hearts." Of course, Locke himself was
involved in the same contradiction,as Helvetius and Holbach pointed
out,20becausealthoughLockeadvancesan empiricaltheoryof knowledge
of the physical sciences,he neverthelessadvancesa rationalisticnatural
law in socialscience.
The eighteenthcentury thereforerequireda dogmatic rationalismto
overcome feudal alienation, even though there had been a traditio of
rationalismthroughfeudalism.Two such dogmaticrationalismsmay be
discussed.
The historicaldifficulty could be surmounted,if it could be assumed
that somehowor other there existed an enlightenededucatorwho was
freedof the historicalienatingor fetteringcircumstances,who was there-
fore rational,and who throughhis powerof educationand his laws would
overcome the feudal circumstances,feudal custom, and introduce into
social life the force of rational public opinion thus created. Education,
largelythroughlegislation,would enlightenman by changingthe circum-
stances, the custom-justified circumstances, in which man existed.
Diderotsaid: "If the laws are good, moralsare good; if the laws are bad,
moralsare bad ... v '21 The introductionof the Frenchcivil code reflects
this theory of the educationalmission of law. In turn, enlightenedman
would govern the legislator through his public opinion. Public opinion
was to rule the state. Hence, Jeffersonsaid that "The good opinion of
mankind,like the lever of Archimedes,with the given fulcrum,moves the
world."22At the end of his life Jeffersonwrote Lafayette that "Theforce

18 V, 196, 202 (1821).

Oeuvre8de Denis Dierot, Dictionnaireencyclop~dique,
19 Id. at pp. 228, 232.
20 Holbach, The Systemol Nature (Robinson'str., 1868), I, 79; Helv~tius, De l'e8prit
(Englishtr., 1810)7. See Grossman,ThePhilo8ophyof Helvetius,56, 58, 98-99.
21 Diderot, "Supplement to Bougainville's Voyage," translated in Stewart and
Kemp, DiderotInterpreterof Nature(1937) 146, 181.
22 Jefferson,op. cit. supra note 15, VI, 405.
ASPEOTSOFTHEHISTORYOFTHEORYOFALIENATEDCONSCIOUSNESS 31

of publicopinioncannotbe resisted,whenpermittedfreelyto be expressed.

The agitation it produces must be submitted to." 23 Indeed, Jefferson
conceived that rule through public opinion could make the State itself
superfluous,writing that "I am convinced that those societies (as the
Indians)which live without government,enjoy in their generalmass an
infinitelygreaterdegreeof happinessthan those who live.underthe Euro-
pean governments.Among the former,public opinionis in the place of
law, and restrainsmorals as powerfullyas laws ever did anywhere."24
Lewis Henry Morgan'sstudy of the democracyof the AmericanIndians
shouldbe regardedas a continuationof Jefferson'sthought.
The conception of the enlightened prince was indeed unhistorical,
because it forgets that the educator himself must be educated, and
becauseit divides society into two parts, the educatortoweringover and
directingthose to be educated.Thus,a new alienationis introduced.Thus,
if the Enqyclopddistes advanced the idea that the public opinion of the
people enlightenedand ruledthe State, the Nazis advancedthe idea that
the State enlightenedand ruledthe peoplethrough.theMinistryof Public
Enlightenmentof MinisterGoebbels.
Hence a differentsolutionwas requiredto overcomefeudal alienation.
The FirstAmendmentwas designedto surpassthe unhistoricalsolutionby
which. an unhistoricaleducator educates the historically alienated or
fettered or limited people. It is the theory of the First Amendmentthat
the determinationto educateor to createpublicopinionis a self-determi-
nation of a self-determinedrational person. Hence the Congressis for-
bidden to "abridge"the freedomof speech and of the press. If a. new
alienationto the State is to be prevented,the First Amendmentmust be
taken to have absolute force. Hence Jefferson,Madisonand Livingston
said that the guaranteesof the First Amendmentare as absolute as the
separationof churchand state, whichis declaredin the same sentenceof
the.First Amendmentwhich guaranteesthe forms of the Public Opinion
State.25
It is not Surprisin
that -theFirst Amendmentconsecratesthe theoryof
the self-determined.educator instead of a theory by which society is
dividedinto two parts, the dominantunhistoriceducator.andthe domi-
nated, historically alienated or fettered people. Enyiclopddismealso
advancedthe idea of the autonomyor self-determinationof the historic
individual consciences.Here the role of the unhistorical enlightening
princeis not admitted. Hegel's thought justifies the First Amendment:
23 Jefferson,op. cit. eupranote 15, VII, 325.
24 Jefferson,op. cit. eupranote 15, I, 100.
25 Jefferson'soriginaldraft of Kentuckyreolution of 1798 and 1799, Eliot's Debate,
IV, 540, 541 (1836); Madison's Reporton the Virginia Resolutions(1800), id. at pp. 546,
577; Livingstonin 1798 in AnnaU-oftheCongressof the UnitedStates,2154 (1851).
32 PHILOSOPHY AND PHENOMENOLOGICAL RESEARBQ

"French philosophy,"he wrote, "does away with the lay or outside

positionin regardalike to politics, religionand philosophy... What the
philosophersbroughtforwardand maintained... was, speakinggenerally
that men should no longer be in the position of laymen ... with regard ...
to law ... [There]shouldnot be in legal matters an exclusive caste and
society (not even a class of professionallawyers),in whom shouldreside,
and to whomshouldbe restricted,the knowledgeof whatis eternal,divnne,
true and right, and by whom other men should be commandedand
directed;but that human.reasonshouldhave the right of giving its assent
and its opinion.To treat barbariansas laymen is quite as it should be -
barbariansare nothingbut laymen; but to treat thinkingmen as laymen
is very hard. This great claim, made by man to subjectivefreedom,per-
ception and conviction, the- philosophersin question contended for
heroicallyand with splendidgenius, with warmth and fire, maintaining
that a man's own self, the human spirit, is the source from which is
derivedall that is to be respectedby him ... Thoughtwas raisedlike a
standardamong the nations, liberty of conviction and of consciencein
me " 26 Thus, Hegel explains Mr. Justice Black's idea expressed in his
dissenting opinion in Dennis v. United States: "I have always believed
that the First Amendmentis the keystone of our Government,that the
freedomsit guaranteesprovidethe best insuranceagainst destructionof
all freedom."27
The theory of alienation of the French Enlightenment, which was
directedagainst feudal alienation,was counteredby the theory of alien-
ation of feudalism,whichjustified such feudal alienation.In the outlook
of.Savigny, the legal theorist of the Germancounter-revolution,history
was like an alp, pressingdown on the present.With Savignyfeudalalien-
ation is inevitable and it is permanent.28Hence his thought is in conflict
with Hegel's, for whom the alp of history, instead of arrestingdevelop-
ment, was necessary to the unfettering of history. In his celebrated
discussionof lord and bondsmanin the Phenomenology, Hegel says that
"The truth of the independentconsciousnessis accordinglythe conscious-
ness of the bondsman. . . But just.as lordshipshowedits essentialnature
to be the reverse of what it wants to be, so, too, bondage will, when
completed, pass into the opposite of what it immediately is: being
consciousnessrepressedwithin itself, it will enter into itself, and change
around into real and true independence ... Through work and labor ...
this consciousnessof the bondsmancomesto itself ... labourshapesand
26 Hegel, Leoture8on thePhi lo8opl&yof HSntory(Hldane's and Simson'str., 1896)III,
379, 390,397-398.
27 D.enns v. UnitedStaes 341 U. S. 494, 580 (1951).
28 Franklin,"The Kantian Foundationsof the Historical School of Law of Savigny,"
22 Revita Juridir (PuertoRico) 64, 65 (1952/1953).
ASPECTSOFTHEHISTORYOFTHEORYOFALIENATEDCONSCIOUSNESS 88

fashions the thing. The negative relation to the object passes into the
formof the object,into somethingthat is permanent-andremains;because
it is just for the labourerthat the object has independence.This negative
mediatingagency,this activity givingshapeand form, is at the sametime
the individual existence ... The consciousnessthat toils and serves
accordinglyattains by this means the direct apprehensionof that in-
dependentbeing as itself." 29 Thus, with Hegel the alienationis itself
alienated. There is, then, an importantcleavage between the alienation
theory of Savigny-andthat of Hegel, althoughboth are historicaltheories
of alienation.
Savigny sought to preservefeudal alienationin the face of the Enligh-
tenment and of the French Revolution by advancing conceptions of
historicsocialrelationswhichwerejustifiedby long continuedenjoyment.
The feudalalienationwas justifiedbecausethe alienationhad been and is.
Savignylegitimatedthe basenessof the presentby the basenessof yesthr-
day. He explainedevery cry of the serf against the knout as rebellious,
once the knout became a prescriptive, an historical knout. That is,
Savigny justified social rights justified by usucaption or acquisitive
prescription.Poundlinks the Romanlaw theory of ocoupatio,occupation,
with "Savigny'saphorismthat all propertyis founded in adverse pos-
session ripened by prescription."30 In adverse possession'of Anglo-.
American common law, the acquisition of the property of another is
gained by holding for a certain period of time against the will of. the
originalowner.In the usucapioof the Roman law the acquisitionof the
property of another is also acquiredby holding for a certain period of
time, but without entering into details, such holding originally seems
justified to the usucaptor by the will of the original owner. But this
limitationis not requiredunderlongissimitemporisprescription.3'
Savigny'sconceptionof propertywas designedto justify feudalproperty
relations. It is a reflex of the history of the overthrowof the Roman
Empire by the Germanictribes and. of the- eventual introduction of
feudalisminto Europe. As the basic alienationin the Roman.State was
slavery, this means that the old alienation, the. alienationwhich Hegel
describesso brilliantlyas the relationof masterand bondsman,was itself
alienated,and replacedby a new.alienationbased on feudalserfdom.One
of Savigny'sweaknessesis that'he conceivedthe feudal alienationto be
the inevitableand.the permanentalienationof freedom.
Having justified feudal property as an alienation, :Bavignyerects
thereon an appropriateconceptionof human consciousnessas an alien-
ation.
29 Hegel, op. it. supranote 5, at pp. 237-238.
30 Pound, An Introductionto thePhilophy of Law (1922)213.
31 Buckland,A Text-bookof RomanLaw (2d ed., 1932) 251,
84 PHILOSOPHYAND PHENOMENOLOGICAL
RESEARCH

Savigny begins with the Volksgeist,the spirit of the Volk or of the closed,
monadic community as the basis for the justification of law and of the
State. He said that "... law will be found to have ... a fixed character,
peculiar to the Volk, like their language, manners and constitution ...
That which binds them into one whole is the common conviction of the
Volk, the kindred consciousness of an inward necessity, excluding all
notion of an accidental and arbitrary origin ..." 32 The Volksgeist of
Savigny and of the German Historical School of Law which he headed
was an indeterminate, unknowable thing-in-itself, which, as Stammler
says, existed "outside US," 33 and which hence should be described as an
alienation. Stammler describes the Volksgeist of the Historical School of
Law as "the soul of the Volk, a psychic collective phenomenon." 34
Through this alienation, the consciousness of the rationalistic man and the
rationalistic people of the natural law of the Enlightenment was alienated to
an idealistic monadic conception of spirit or Geist. The aim of Savigny's
estranging theory of the Volksgeistwas to narcotize or to silence Encyclop&-
diste public opinion and public will. The Volksgeist expressed itself as a
revelation through customary law, but not rationally through Encyclopg-
diste legislation or codification. The idealistic Volksgeist had innate ideas
from past history, but was closed to the environment or circumstances of
present history. The alienating Volksgeist directed the subjects of law,
whereas the subjects of law directed Encyclopediste public opinion and
public will, its content, its environment. Through a new alienation, based
on this Leibnizian and Kantian idealistic, monadic conception of Volks-
geist, Savigny overcame vital aspects of the theory of alienation of the
eighteenth century.35
Since the close of the Second World War Joseph Koerner has said in
Germany that "The most recent research in social theory perceives in
Savigny, not in Schelling, the decisive thinker of High Romanticism,
beside Hegel the strongest philosophical might of the period." 36 He feels
that Savigny occupied a place in German intellectual life which may be
compared with that of Goethe. Of course Savigny has not been forgotten
in the history of law. He has been regarded as the ablest technical scholar
of many centuries of Roman law, though his role in the history of the
science of Roman law has not been permanently felt in the English-
speaking world because the latter is the world of the Anglo-American

82 Savigny, Of the Vocation of OurAge for Legislaion and Juri8prdence (Hayward's

tr. 1831), quoted mi Franklin,loc. cit. aupranote 28, at p. 67.
a3 Stammiler,Weaendes Rechtesund der Rechtissenchaft, in Sy41stematieche RechtM.
wimsenechaft(1913) 6.
34 Id.
35 Franklin, be. cit. eupranote 28, at p. 71.
36 Koerner,Marginalim (1950) 13.
 oF THEORY
OFTHEHISTORY
ASPECTS CONSCIOUSNESS85
OFALIENATED

common law. However, in the history of thought it has not been usual to
rankSavigny besideHegel as a philosopher,nor to say that he supersedes
Schelling. But as Koernerrelates his high appreciationof Savigny to
Baeumler, whose name appears in the history of German National
Socialism,new interest in Savigny'sthought must be vigilant interest. It
may be that contemporaryinterest in Savigny'stheory of alienationhas
been arousedbecauseof the appearanceof the alienationideas of existen-
tialism.
Savigny is important not only because he emphasizesthat existing
historicalienationis inevitable and permanent,but becausehe conceives
of such alienation as appropriation,as an historic activity founded
primarilyon the will and consciousnessof the appropriator.But with the
terminationof appropriationalienation would disappearas an historic
category.Humanity would then exteriorizeitself throughlanguageand
labor.AlthoughHegelmay not differentiatefirmlybetweenalienationand
exteriorization,37his theory of being requires and justifies the latter.
"Consciousness," he wrotein the Phenomenology, "findsthat it immediately
is and is not anotherconsciousness,as also that this otheris for itself only
when it cancelsitself as existing for itself, and has self-existenceonly in
the self-existenceof the other. Each is the mediatingterm to the other,
throughwhich each mediatesand unites itself with itself ." . " 38Thus, in
the passagediscussinglanguagealreadymentioned,Hegel not only says
that language becomes an object, but also says that it at "... the same
time fuses directly with others and is their self-consciousness.The self
perceivesitself at the same time it is perceivedby others: and this per-
ceivingis just existencewhichhas becomea self." 39
In reviewing the historic development of the theory of alienation
begin ing with the Encyclop~distes,certainmomentsin this historyshould
be emphasized.The Encyclopddistes had shownthe generalsocialrole and
importanceof alienation,and that it was determinedby circumstances.
Hegelshowedthat the essentialalienationwas the alienationof language
andof labor. As Feuerbachshowedthat the earthly alienationexplained
and preceded the spiritual alienation, it could also be said that earthly
alienationis in generalreflectedin appropriateculturalalienation.Savigny
emphasizedthat both earthly and spiritualalienationwere an activity,
an appropriation.
The mechanistic,unhistoric Encyclopedistesended the alienation by
re-alienation,with a return to the human nature of the state of nature.
87 Hyppolite, Logiqueet existence (1953) 236.
88 Hegel, op. cit. 8upranote 5, at p. 231. See Franklin, "MonadicLegal Theory and
the Perspectivesfor World Law," Philosophyand PhenomenologicalResearch,201, 204
(1955).
89 Hegel, op. cit. 8upra note B, at p. 661. See also Hegel, op. cit. &upranote 1, at p. 58.
86 PHILOSOPHY AND PHENOMENOLOGICAL RESEARCH

But Savigny said that "The repudiationof the given is, rather, strictly
impossible. The given.inevitably dominatesus; we might be mistaken
.with regardto it; but we cannot changeit." 40 However,with Hegel, the
alienationof the alienationis not only required,but realizesa higherlevel.
Thus,humanitymakesitself in makingits history.
Althoughthe problemof alienationclearly appearsin eighteenth-and
nineteenth-centuryEuropeanthought, it does not disturb the repose of
twentieth-centuryAmericanlegal science. But this indifferenceis not
justified;for basicAmericanconstitutionalideaswereforgedby American
JEncyclopddistes,under whose influence Americansproclaimed"inalien-
able" rightsof men.
Pound's theory of interestshere becomesimportant.With him human
interests emerge as the origin of law and legislation. Because of this
starting point alienationseems overcome.However, Pound is subject to
reproach because his catalogue of social and individual interests may
present an unhistorical conception of interests, abstracted from the
actuality of historicalsocial life. Hence attention here may be directedto
Hegel's thought that "legislationboth in general and in its particular
provisionsis to be treated not as somethingisolated and abstract but
rather as a subordinatemoment in a whole, interconnectedwith all the
other featureswhich make up the characterof a nation and an epoch. It
is in being so connectedthat the variouslaws acquiretheir true meaning
and therewiththeirjustification."41
Indeed, because Pound's theory of interests may be, in general, an
unhistoricalconception,it may be, therefore,only a theory of abstract
interests.Hence, each of Pound's.abstractinterestsmay readilybe under-
stood as a Kantianinterest-in-itself,unrelatedto other Kantianinterests-
in-themselves. If so, Hegel's criticism of Kant's thing-in-itselfmay be
reformulatedas criticism of Pound's theory of abstract, unhistorical
interests. "Thingsare called 'in themselves,"'Hegel said, "in so far as we
extract ... Being-for-Other,which meansthat they are thought of quite
without determination, as Nothings ... Things-in-themselves ... are
mereabstractions,void of truthand content."42
Pound seeks to justify his theory of abstract,unhistoricalinterests by
establishing their reality through William James' theory of interest.
James said: "Take any demand, however slight, which any creature,
howeverweak, may make. Oughtit not for its own sake to be satisfied?
If not, provewhy not ... [We] inevitably-arecarriedonwardto the most
universal principle- that the essenceof goodis simply to satisfy demand

40 Quotedin Marcuse,Reasonand Revolution(1941)367.

41 Hegel, op. cit. stspranote 1, at p. 16.
42 Hegel's,Scienceof Logic(Johnston'sand Struthers'tr., 1929)I, 133-134.
 OFTHEORY
OFTHEHISTORY
ASPECTS CONSCIOUSNESS87
OFALIENATED

.. ." 43 But James forgets that human consciousness may have become
or alienation
estrangedfromitself, and that theremay have been a tradition
of consciousness.In such societiesinterest-for-selfmay have been veered
into interest-in-itself.Hence James may not have furnishedwhat he has
promised,for his interesttheorymay beginin truth only with the alienated
or appropriated subject-of-law. Such theory.of interest must be differenti-
ated from the interest theory of Encyclop6diwme (Holbach, Helv6tius)
whichbeginswith the fact of feudalalienation.
Having precludedan historicaltheory of interrelatedinterests, Pound,
like Kant and Leibniz before him, relates his monadic interests, his
interests-in-themselves,through the formal power of his own conscious-
ness. Thus, the jurist or lawmakerimposeshis determinationson a chaos
of monadicinterests.Pound conceivesof this as the valuing or balancing
of interests. But this perhaps also ean be describedas a subjectivistic
Kantianreconciliationof interestsaccordingto a generalformulaor as the
working of a subjectivistic Leibnizian pre-established harmony of monadic
interests. Here may emerge the role of the secretive jurist or lawmaker,
inspiredby what Mr. Justice Holmes called "judgmentor intuition more
subtle than any articulatemajorpremise." '4 Interest-for-otherthus may
lurkbehindinterest-in-itself.
Thus, abstractinterest theory may come to rest with alienation,with
appropriation,with Beig-for-Other. However,historicalinterest theory,
such as that of Hegel, recognizesthe fact of alienation,of appropriation,
of Being-for-Other,but achieves Being-for-Selfthrough human work,
humanlabor, and the generalobjects fashionedby such generalactivity.
Thus, through exteriorizationBeing-for-SelfovercomesBeing-for-Other,
but nevertheless preserves it.
MITCHELLFRANKLIN.
TULANE UNIVERSITY.

43 James, The WiU to Beleve, 195-206, quoted in Pound, Outline of Lectureson

Jurieprudeiwe(5th ed., 1943)56.
4 Lochnerv. New York,198 U.S. 45, 76 (1905).