by Alexandre Kojève (edited and translated by Bryan-Paul Frost and Robert Howse). Lanham: Rowman & Littlefield, 2007. 512pp. Paper $29.95/£19.99/€31.48. ISBN: 9780742559059.
Reviewed by Glenn Mackin, Department of Humanities, Eastman School of Music, University of Rochester. Gmackin [at] esm.rochester.edu.
In the English speaking world, Alexandre Kojève is primarily known second-hand. There is, perhaps, some notion that he discussed the ideas of the “End of History” and the Universal and Homogeneous State. But the meaning of these ideas is known primarily through the work of Francis Fukuyama (see Fukuyama 1992). For this reason the new English translation of Kojève’s OUTLINE OF A PHENOMENOLOGY OF RIGHT, which is his most sustained treatment of these ideas, is most welcome. At the very least, it will allow a broader audience to engage Kojève’s sophisticated cataloguing of all of the phenomena surrounding “droit” (which means right or law, but is left untranslated in the text). Yet, I am less sanguine about how much Kojève’s work will actually contribute to ongoing discussions about international law, cosmopolitanism, or globalization. One difficulty is the sheer inaccessibility of the text – its odd use of capitalization, the translators’ refusal to translate key terms (such as droit), and the author’s love of abstraction (Kojève’s theoretical universe is an odd one, populated more by theoretical ideas than actual people – Law, Society, Slave, Master, State, each with its own Capital Letter). But even leaving this aside, Kojève’s conception of the end of history is relatively unhelpful in that it offers little understanding of democratic politics and why it might be necessary in the face of globalization.
It is useful to break Kojève’s complex argument into three claims:
(a) The nature of law is such that it can only be fully actualized in a universal and homogeneous state. For Kojève, legal phenomena exist only insofar as an impartial and disinterested third, C, intervenes in the relations between two subjects of the law, A and B, in order to annul one of these actors’ efforts to suppress the acts of the other (p.40). To actualize legal phenomena fully, a universal and homogenous state is necessary. A genuinely impartial third cannot be part of an “exclusive juridical group” with only a relative conception of justice; rather it will have to represent a universal humanity, guided by a single and universal conception of justice. And the state will also have to be universal in the sense that it will encompass all of humanity, thereby maintaining the power necessary to make the members of society conform to such a conception (p.126). In a world of multiple states, B can escape C’s annulment of her behavior simply moving to a different state guided by different laws.
(b) This universal and homogeneous state will be guided by a final and complete conception of justice, which Kojève calls “equity.” Kojève derives this concept of justice through an [*861] analysis of Hegel’s Master/Slave dialectic. Equity is the dialectical synthesis of “aristocratic equality” (which is a sort of formal equality) and “bourgeois equivalence” (in which there is a sort of reciprocity of rights and duties). With equity, everyone will have equal status as citizens, and everyone’s obligations to society will be fully equivalent to the benefits they derive from it.
(c) One can accept Carl Schmitt’s conception of the state and still understand the universal and homogeneous state as a constitutional state ruled by law rather than men (see Schmitt 2007). Kojève agrees with Schmitt that the political state is simply an organization of friends who stand in opposition to their enemies. Moreover, the constitution of a state is merely a description of how the group of political friends has chosen to organize themselves. A constitution, therefore, has nothing juridical about it: between a state and citizen, no impartial and disinterested third is possible. Yet in the end state, the agents of the state can become genuinely impartial, at least in principle. This is because they operate in accordance with a constitution that embodies a complete conception of justice. Or put differently, if a civil servant is acting as an agent of the universal state, then Kojève holds that there can be no legal relationship between the agent and the citizen. The state is a party in the relationship to its citizen and so no genuine third is possible. But if the civil servant acts as a private agent, then the universal state can intervene as an impartial third. This means, practically speaking, that whenever a civil servant acts against the constitution, one has a genuinely legal remedy. This leads to the end of the Schmittean political state, since everything can now be settled legally (rather than politically). All conflicts can be settled by appealing to a disinterested third who resolves the conflict in accord with a universal principle of justice, which is embedded in the constitution (see pp.337-339).
To be sure, Kojève offers a sophisticated conception of a cosmopolitan political order. Unlike many caricatures of the end of history, the universal and homogeneous state is not an oppressive world government. The end state may emerge along the lines of EU integration. Nor will the end state represent a sort of sameness. Since it will occur via a synthesis of equality and equivalence, there can be recognition of differences in talent, provided that every person’s humanity is equally recognized. The end state simply represents the end of violent struggle over recognition, such that every human need can be met and every human conflict can be resolved impartially.
However, there are also significant difficulties with Kojève’s argument. For example, in the wake of various criticisms of “essentialism,” Kojève’s effort to identify the essence of law, and then derive a conception of a universal state from it, is bound to arouse suspicion. It is also not entirely clear how useful it is to derive basic conceptions of justice from some primordial moment of anthropogenesis in the master/slave dialectic. But I will leave such issues aside and instead focus on his conception of equity, which reveals the democratic (and political) deficit in Kojève’s thinking. [*862]
Kojève best describes equity through an example (pp.254, 269). Imagine that two persons are sharing a dinner and that one of them has not had any lunch. According to the aristocratic conception of justice as equality, the share of the food should be formally equal. Yet according to the bourgeois conception of justice as equivalence, unequal treatment will be needed: to achieve the equivalent satisfaction of hunger, the hungry person will need more food than her eating partner. The tensions between these two conceptions, however, can be overcome in equity, or the justice of the citizen. In the orientation of equity, one wants to eliminate unequal treatment without violating the principle of equivalence: “One will therefore ask why some are more hungry than others. And if one observes that this difference results from the fact that some have had lunch and others not, one will see to it such that from now on all might have lunch” (p.269). Thus, the solution to the problem is neither aristocratic equality nor bourgeois equivalence, but rather a synthesis. Everyone’s needs must be equivalently satisfied, yet everyone will also be treated equally. The result is both substantive and formal equality; everyone’s needs are equivalently met, and everyone is granted equal treatment.
Unfortunately, this example also demonstrates the inadequacy of Kojève’s conception of impartiality and its relation to politics. Even if we accept that the solution is a synthesis of equivalence and equality, the terms of this solution are incomplete. There remain fundamental questions for which Kojève provides no answers: what counts as a decent lunch, and who can make such a determination? How can such lunches be provided in a way that is actually compatible with equal respect for all (i.e., how does one move to redistribute goods without violating principles of equality and without marking those who need such lunches as unequal)? Kojève’s only answer would be that the impartial third will do so. Fair enough. But how will the disinterested third make such a determination, and how can we be sure that the determination is actually impartial? Kojève does not appear to be interested at all in such questions. Rather, he merely assures us, while providing no concrete (as opposed to conceptual) mechanism for how it might actually happen, that such conflicts tend toward synthesis (see pp.263-268).
This significantly undermines the usefulness of Kojève’s approach to questions of globalization. As many observers have pointed out, one of the main difficulties in globalization is a democratic deficit. Those affected by the law have relatively little input into its formation, and so international institutions become increasingly distant and bureaucratic (see Habermas 2001). Kojève has no way to address this, nor even to recognize it as a problem. He is surely correct to point out that the law’s claim to legitimacy is linked to its impartiality. However, impartiality must be guaranteed through the conditions of its generation and application. For example, Jürgen Habermas’ discourse theory understands impartial decision-making in terms of a deliberative procedure that includes the voices of all affected (see Habermas 1996). This may or may not be an adequate conceptualization, but it does at least contribute to the diagnosis of and remedy for democratic shortcomings. Such an approach also points out that [*863] impartial decision-making is not necessarily antithetical to politics. If persons are going to determine how to treat all persons equally and equivalently – if we are going to see to it that all have had lunch – we must link legitimate law to democratic procedures. For in the end, it is only the citizens themselves who can determine what counts as a decent lunch.
Fukuyama, Francis. 1992. THE END OF HISTORY AND THE LAST MAN. New York: Free Press.
Habermas, Jürgen. 2001. “Why Europe Needs and Constitution.” 11 NEW LEFT REVIEW 6-26.
Habermas, Jürgen. 1996. BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY. (W. Rehg, Trans.). Boston: MIT Press.
Schmitt, Carl. 2007. THE CONCEPT OF THE POLITICAL: EXPANDED EDITION. (G. Schwab, Trans.). Chicago: University of Chicago Press.
© Copyright 2007 by the author, Glenn Mackin.