Alexandre Kojève (Moscow, 1908, Brussels, 1968) and Sir Henry Sumner Maine (Kelso, United Kingdom, 1822, Cannes, France, 1888) are two mirror figures, to some extent. Both men dedicated their political and theoretical work to the question of the Empire. In the case of Sir Henry Sumner Maine, it was the British Empire. In contrast, in the case of Kojève, the dream of a Latin Empire materialised in his concrete actions as fonctionnaire representing the French State in setting up the foundations of what would later become the European Union. The Latin Empire is an alternative political and imperial formation to the Anglo-American Empire and the Soviet one. It is Latin since it has the Mediterranean as its focus, and it finds its legitimation in the universalism of the Catholic church. On August 27, 1945, Kojève wrote a manuscript titled “Latin Empire” while Kojève named it Outline of a Doctrine of French Policy. Kojève wrote this note to the attention of Robert Marjolin, who was one of Kojève’s students during his lectures on Hegel at the École Pratique des Hautes Études and was then Director at the Minister of Economy of the French Republic (1945 and who was then a commissioner at the Monnet Plan (1946-148) as well as deputy head of the Commission of the European Economic Union (1958–1967).

Kojève, in the text on the Latin Empire, suggested that France should lead an alliance of Latin and Catholic States, with Italy and Spain as well as the African protectorates of these countries, and with the agreement of the Vatican. Only an Empire could have the capacity to survive after the Second World War and to confront the Anglo-American and the Soviet ones. After the war, through Marjolin, Kojève started a career at the DREE (Direction des relations économiques extérieures), working thus at the direction of the economic and foreign French policy. Kojève and Maine uniquely associated their legal and political philosophy works with administrative action at the highest level. The figure of Henry Sumner Maine appears as a contrasting double to Kojève’s philosophical understanding of Right in Kojève’s Outline of a Phenomenology of Right.

It is possible to argue, with Karuna Mantena, that “no intellectual was more influential in shaping the practical work of nineteenth-century British empire” than Henry Sumner Maine. Kojève was instead a “grey eminence” in French foreign administration and international settings. Maine was part of the council of the British governor of India from 1863 to 1969. His vision of the encounter between Indian customary law and British rule was highly influential in developing colonial law as an indirect rule.

Kojève and Maine’s philosophies of law, or Droit for Kojève when it describes a broad historical phenomenon and not just “law-making”, are specular yet reversed images of the relation between Europe and its “outside”. Maine’s understanding of the dynamic between law and history reflects how legal categories can travel, as well as his role as part of the colonial administration of the British Empire. According to Kojève, the actualisation of justice through Droit entails the overcoming of the national, and thus partisan, figure of the citizen and the realisation of a universal and homogenous Citizen and State.

I. Kojève’s phenomenology of right

A. Time and Droit

1. From exile to the zone libre: a philosopher’s path to action

Born in 1902 in Moscow, Aleksandr Kožénikov, who would then become Alexandre Kojève once he acquired French nationality, belonged to a family of the élite bourgeoise. His uncle was the painter Vasilij Kandiskij. Unlike the Russian aristocracy, the élite bourgeoise of Moscow was turned towards Europe, favouring exchanges and the opening of the Russian intellectual society. Kojève was part of the Russian intellectual diaspora in Europe, leaving Moscow for Germany in 1920. In 1917, Kojève’s stepfather, Lemkul, who was a landowner, was killed during a peasants’ revolt. Kojève was arrested by the Bolshevik police for selling soaps on the black market and condemned to death. He managed to be released and left Russia with his friend George Witt. Travelling through Poland, he reached Germany Berlin. After a short stay in Rome, he moved to Heidelberg, where he studied philosophy under the supervision of Karl Jaspers. During the years 1922–1926, Kojève studied not only classical philosophy but also Oriental philosophies, mainly Indian and Russian ones. After concluding his doctoral studies in Heidelberg in 1927, Kojève followed his friend and theoretician of science, Alexandre Koyré, in Paris. It is through Koyré that Kojève started teaching at the École Pratique des Hautes Études in Paris. From 1933 to 1939, Kojève delivered his famous lectures, later collected in the Introduction to the Reading of Hegel. These lectures opened the phase of existentialism and structuralism in French post-war philosophy: they not only imposed Hegel in France but also Kojève’s Hegel, the one that gives priority to the struggle for recognition in the fight between the Master and the Slave. During the Second World War, Kojève moved to the south of France, in the village of Gramat, the so-called zone libre, where he was part of the Resistance to the Vichy government. This is the moment in which his thought and life turned away from philosophy as his primary occupation to favour action in the form of work in the French public administration after the war. Political preoccupations and the theme of the order of post-war Europe, and thus the question of Droit, occupy Kojève. The Esquisse remains an unpublished manuscript until 1982. Still, it was drafted by Kojève in the 1940s, during his time in the zone libre, the part of France near Marseille that was not occupied and not part of the Vichy government.

2. The fight for recognition as the essence of Right

Kojève discusses the legal theory of Henry Sumner Maine at the beginning of the Outline of a Phenomenology of Right. The English translation of the French original version of the Esquisse d’une phénoménologie du droit uses the French word Droit in the text (but not in the title) to indicate the Kojèvian concept of Right^. Droit in French means both law and right, and since Kojève uses the word in both senses, the translators of the English version decided to leave the word mainly in the original language.

For Kojève, what distinguishes a juridical intervention from any other kind of human interaction, such as moral situations, is a relation characterised by three subjects, not just two. In the relation between A and B, there is a relation of droit when a third subject intervenes, C, in a disinterested manner. Right is, from its origin, a phenomenon coextensive with human society’s existence. As Kojève writes: “Droit could be considered an (oral or written) codification of cases when interventions of disinterested thirds had occurred instead of being interpreted as the collection of principles provoking such interventions.”

B. Kojève’s absolute legal system

1. The anthropogenic nature of juridical acts

The anthropogenic nature of juridical acts, which frame human interaction around the intervention of an impartial and disinterested third, calls for a phenomenological analysis of Right rather than a normative one based on the rational argumentation of legal principles.

Law refers instead to the more specific phenomenon of regulations and norms promulgated by a State. The Outline attempts to reformulate the theoretical basis of an understanding of Right beyond existing legal systems. Kojève’s essay must thus be placed in a debate on the political nature of Right along the categories of the State and the Constitution. The philosopher attempts to provide a phenomenological analysis of the category of Right, starting from specific cases, allowing for a theoretical definition of the nature of Right (or Droit) in human societies.

Kojève refers from the start to Husserl’s understanding of the “Phenomenon”, elaborating a definition of the “essence” of Right starting from its different manifestations in human history and society. Nevertheless, Kojève’s reading of Husserl’s phenomenology is filtered through Hegel’s dialectical historicism. Droit is taken in the Outline as a human phenomenon, and as such, it is constituted by Time. The difference between human and natural life, or animal life, consists in the capacity of human action to confront death and thus Time, as developed in the Introduction to the reading of Hegel.

Kojève’s phenomenology of Right considers Droit as linked to the fight for recognition between the master and the slave: « One must further show in the anthropogenic act, which generates man as such in time, the aspect which creates the juridical phenomenon in man». From the start, Kojève tries to combine the situated character of his analysis of Right with the possibility of an absolute system of Droit: law (droit), which varies in different historical and social contexts, is the isolated, specific phenomenon, and is to be distinguished from the system of Droit. This latter includes “all juridical possibilities” and the absolute dimension of Time. Indeed, “(…) what has been 'just' yesterday might no longer be so tomorrow. But if all that exists in time changes by this very fact, time as such does not change, nor the totality of temporal phenomena.”

How Time alters and dissolves juridical acts as acts that constitute human life in history is critical to thinking of an absolute Legal System. As Kojève writes: “Thus, the 'absolute' system must imply all the other (systems): really or ideally. It must 'understand' them in themselves and 'understand itself'. But it may understand them as superseded (dépassés) stages, and it may understand itself as a result of these stages, as their integration.”

2 . The social dimension of Right

The historical and situated nature of Right, the different stages of its evolution, and the comparative dimension of the analysis of the juridical phenomenon, as well as an understanding of Right as part of the fundamental grammar of politics and society, are traits shared by both Maine and Kojève’s legal philosophy.

It is precisely when Kojève discusses the relation between the historical and social “reality” of Droit and how they contribute to the understanding of Droit over time as a System of Law that the work of Henry Sumner Maine is mobilised in the argument of the Outline.

We may look at Chapter 2 of the Outline, “The Reality of Droit: Droit, Society, State”, to understand how. Here, Kojève discusses the relationship between history, context, and the nature of Right. The social context is an essential part of the dynamic of juridical acts since

(…) the content complexity of the real Droit of a Society depends, on the one hand, upon the content and richness of the social interactions; for every social interaction (real or possible) can generate a legal rule, and every legal rule corresponds to a social interaction (real or possible).

The role of the legislator, the figure of the impartial third party, is the essential element needed for generating a legal rule out of the interaction of two distinct parties, A and B. What can be considered real Right changes with respect to each time and place specific cultural and political features. Right is the function of social interactions and acts of “arbitration” that transform them into juridical situations. The two movements reinforce one another, Kojève argues, and there is a historically coeval evolution of complexity in terms of social relations and a more articulate legal system.

II. Kojève’s Critique of Maine’s liberal understanding of Right: Historical ruptures and the role of public Droit

A. Kojève: revolution and public Droit

Kojève brings in the distinction between public and private Droit. At a first level of generality, public Droit concerns situations that are directly framed by the intervention of the legislator (the Judge) or in which a system of sanctions (the Police) intervenes directly. By contrast, private droit allows the legislator to intervene only upon request of one of the parties involved. Private Droit relies on a relationship of trust between citizens and the state, whereas public law is enforceable by force. This is where Kojève first addresses the “liberal” legal tradition, represented by Henry Sumner Maine. “This is why the 'liberal' conception, according to which juridical evolution (and progress) consists in the shrinking of public Droit and the enlargement of private Droit, is false.”

In the footnote relating to this affirmation, Kojève explicitly refers to the work of Henry Sumner Maine as exemplifying the liberal understanding of legal evolution. Maine’s well-known thesis is the one according to which status is gradually replaced by contract. Kojève’s thesis is that we experience an opposite situation, in which Droit evolves towards a situation where private rules must be replaced. It is possible to interpret such a change as the sign of a crisis or instead of revolutionary change of the very notion of Droit — that is, the idea of Justice that forms its base".

In that section, Kojève recalls the role of the Soviet Tribunals in the 1920s during Lenin’s New Economic Plan. At the time, Lenin had re-established a private economy, allowing small businesses to operate, and Soviet Tribunals were tasked with dealing with private economic issues. However, business owners avoided them since there was no trust in these institutions. Kojève uses the example of these Soviet Tribunals to criticise a too sharp distinction between liberal states and societies, supposedly defined by the expansion of private law on the one hand, and non-liberal societies, characterised by a more substantial role of the state and the pre-eminence of public law on the other. Instead, revolutionary ruptures can give rise to a mixed-use of public and private Droit. Indeed, “(…) one must not believe that private Droit shrinks (…) only during revolutionary periods. It does so every time that the collective interest is opposed to private interests: in times of war, for example, or during serious crises, and so on.”

Moreover, within liberal societies, historical ruptures of various natures entail a weakening of the expansion of private law in favour of public law.

B. Maine’s attention to historical brakes as a question of legal grammar

To illustrate his point, Kojève refers to Maine’s famous idea, expressed in Ancient Laws, that the Droit (writes Kojève) of “statuses” is gradually replaced by the Droit of contracts. What could motivate this reference? In Ancient Law, Maine’s description of the movement from status to contract starts with his criticisms of theorisations of the shift from a supposed state of nature, or what Maine names the pre-social state, to a society governed by legal rules. For Maine, British modern political and legal theory, both derived from social contract theories, would differ significantly in their account of social and legal evolution. Despite their nuances, their common limit in fact resides in their indifference to a historical investigation of the conditions of change within Droit itself, especially in situations that are too remote from the legal grammar they are familiar with Maine thus reads Bentham’s understanding of law and its historical breaks as the response to a “problem of language”.

Consequently, for Maine, “the whole question remains open as to the motives of societies in imposing these commands on themselves, as to the connexion of these commands with each other”. Law contains its grammar, but the use and study of this grammar should consider how distinct and structurally different other societies and cultures can be and how this creates a gap between them and the theory that tries to explain their legal transformations. Therefore, the “history of primitive societies” must focus on the “simplest social forms in a state as near as possible to their rudimentary condition”.

Ancient institutions offer the legal theorist and historian a source of “strangeness and uncouthness”: they differ in their form with respect to “the baffling entanglement of modern social organization”. Observing less advanced societies and their legal development sheds light on one’s legal system’s ruptures and transformations. Maine, nevertheless, is cautious not to equate observations of legal evolution with civilisational distinctions. It is not a question of observing “barbarian” societies. Instead, the “difference” should be understood in formal terms (“degree”) rather than in terms of content (“kind”). Tacitus’ Germany is an example of how it is possible to reconstruct the evolution of the formal grammar of law by studying the “fragments of ancient institutions”.

III. Nature as Artefact. Or the Production of Nature by Law in Kojève’s Outline and Maine’s Ancient Law

A. Nature and Droit

1. The production of Nature as Artefact through Law

For Kojève and Maine, law produces nature as an artefact, a technology. Social relations and their historical character are at the foundation of how law creates nature. Still, for Kojève, Maine’s understanding of the relation between law and nature places him on the side of bourgeois Droit, in which the civil, societal dimension of the legal techniques prevails over the public, state-like one, referring and reproducing an idea of nature and justice as equivalence rather than equality.

The relation between time and Droit intersects with the one between nature and Droit. One of Kojève’s main arguments in the Outline is framing Droit as a specific human, or better anthropogenic, phenomenon. Denaturalizing Droit and its principles is essential to opening it up to Time. As Kojève writes in the Chapter on “The Specificity and Autonomy of Droit”, Droit is “a specifically human phenomenon that is not found in non-human nature”, and the intervention of the impartial and disinterested third that constitutes the phenomenon of Droit, “has no equivalent in the animal world”. Just like the act of work, which is “anthropogenic”, since it is a “specifically human act which one finds nowhere else (…) and that tries to explain all that is human in man according to this anthropogenic act”, interaction through Droit does not refer to principles or norms that find their origin in the natural world.

Conversely, Droit for Kojève represents a break with the natural world. More than that, Kojève, in the Outline, aims at unveiling the artificial nature of Droit, which corresponds to its inscription in Time as the capacity of man to face death in the “fight for pure prestige”. In Part Two, Chapter One, of the Outline, Kojève places the “Anthropogenic Desire for Recognition” at the “Source of the Idea of Justice”. The specificity of human desire is “the desire for a desire”. While animal desire leaves its place to satisfaction, disappearing as such, human desire remains itself since it is satisfied by desire, which is an absence. The human act par excellence is thus “(the) absence of real or natural Being”.The specificity of human existence is to negate “natural” desire, which opens it up to its historical nature and therefore, to freedom. Being ready to give up animal life by confronting death is what constitutes the anthropogenic desire of the one who will win in the struggle for recognition.

2. The fusion of Mastery and Servitude in Kojève’s figure of the Citizen

The dialectic between the Master and the Slave translates into two ideas of Justice: “(relative) aristocratic mastery or (relative) bourgeois servitude”. Neither one nor the other actualises the dialectic of universal history, which is also
“—(among other things)—the dialectic of Droit and the idea of Justice”. Only the figure of the Citizen, the impartial and disinterested third, realises equality as being “recognised by one whom he himself recognises and he will recognise the one who recognises him”. Kojève defines citizenship as the moment in which mastery fuses with servitude. This is the moment in which Justice is embodied in the figure of the citizen of the universal and homogenous State. For “man” to be a subject of droit, he must posit nature’s historical essence. Through the anthropogenic act that constitutes man, in a reflexive gesture, as “a human being opposed to the animal which is in him and which he also is himself”, man becomes the subject of droit and “he will one day be an integral Man or Citizen”. Indeed, “the real and actual opposition between man and the animal in man” that “justifies the notion of ‘subject of droit’ in general, and that of ‘moral person’ in particular”.

The reference to Maine serves the purpose, it is our hypothesis, of incarnating the model of a “bourgeois” understanding of Droit as equivalence. As such, Maine is placed by Kojève on the side of the “anti-state” theoreticians, locating the authority of Droit in “customs” or in a state of nature. The force of Droit stems from Authority, which is one of the legal rules. The question is thus one of the origins of this authority, whether it is located in the State or society. Indeed, “but if the State is content to sanction and make its own a Droit which has existed, or which is supposed to be able to exist, without state sanction, i.e. without the use of force, one can admit that this state-sanctioned Droit also enjoys an Authority in the Society in question. It is in this sense that ‘anti-state’ theoreticians like Sumner Maine oppose ‘custom’ to (juridical) ‘law’. Kojève reformulates Maine’s category of custom as “(...) the Droit whose Authority is recognised by an ‘exclusive juridical group’. It is the Droit which correctly applies to social interactions the ideal of Justice accepted in this group”.

B. The Citizen as the subject of Droit: equality and equivalence

1. Kojève’s critique of Maine’s reintroduction of Natural Law

Kojève shares with Maine a historical and sociological approach to Droit. Nevertheless, Kojève sees Maine’s understanding of customary or non-State sanctioned Droit as the re-introduction of the idea of natural Droit within legal theory. Kojève reintroduces conflict within the opposition between the Droit of the state of nature and positive Droit. The juridical conflict between two social groups competing for legitimating Droit can only be decided, according to Kojève, by a “(...) political revolution, a change of the governing group, this revolution having had a juridical cause, a need to change Droit and the ideal of Justice. One changes the governing group, one alters the State, in order to replace an unjust Droit by a just Droit”. According to Kojève, there is also the possibility of a political evolution in which one social group will “educate” the other. Customary Droit does not originate in a state of nature outside or “before” state-sanctioned Droit. As Kojève writes:

One can therefore say that the conflict between an unjust state-sanctioned Droit and a just customary Droit can only be resolved by a political revolution or evolution, but never by the simple suppression of the political sphere — that is, of the State. And when, at the limit, the State and politics will be overcome in the universal Society (i.e. without 'enemies'), there will no longer be conflict over Droit—that is, no longer political revolutions or evolutions for juridical causes.

2. Maine’s bourgeois understanding of Droit in Kojève’s Outline

The figure of Maine corresponds, in Kojève’s argument, to a customary, bourgeois understanding of Droit as equivalence within Nature. The idea of Justice as equivalence and compensation is, for Kojève, at the basis of the notion of juridical contract. The capacity to confront death and to risk one’s own life in the struggle for the desire of desire entails the negation of nature. Thus, it leads to equality as human beings, whose natural inequalities are negated through the anthropogenic struggle. On the opposite side, equivalence means that two persons (the “slaves”, that is, those who prefer to quit the struggle not to confront death) are interchangeable, with an understanding of equality instead as the possibility of compensating the two parts in the struggle to make them equivalent.

Bourgeois Droit, the Droit of the Slave, also entails the equivalence between a person’s rights and duties. Conversely, aristocratic Droit attributes to the juridical person “(...) the plenitude of droits without any duties”. Kojève does not cite Maine directly but instead paraphrases him when he writes: “Generally speaking, bourgeois Droit tends to replace the aristocratic notion of 'status' with that of 'function'. This is why this Droit is first and foremost a Droit of contract.”

A contract is based upon the equivalence of exchanged things or acts. Recognising the juridical equivalence of two beings, according to Kojève, entails recognising them as subjects of Droit. This equality, as bourgeois Droit frames it, is simply formal or abstract, and it can entail different contents. Still, form is an essential driver of historical legal change: “(...) every ‘form’ tends to ‘mold’ (former) its content to assimilate to it”. The evolution of bourgeois Droit will eliminate both the non-equivalences of aristocratic Droit and the inequalities of bourgeois Droit, and this historical movement will give rise to the Droit of the citizen.

IV. Kojève’s Transformation of Maine: From Contract to the Status of the Citizen

A. Droit as overcoming animal action

To understand Kojève’s critique of Maine’s thesis that law evolves from status to contract, the distinction between Public and Private Droit and their relation to Time is central. An entity, argues Kojève, can be real in potentiality or actuality. What is possible does not exist in the present moment but can be realised “at some moment in time”. Kojève continues:

The entity in potentiality, therefore, really exists, but its reality is the reality of a becoming (devenir). The reality in potentiality is a reality on the way to becoming, while the reality in actuality is the reality 'having become' (devenue), the result of integration of its becoming^.

The distinction between Droit in actuality and Droit in potentiality depends, in Kojève’s argument, on the position of nature within society and, thus, history. In the Outline, Kojève describes conflictual situations within a society as involving three members, X, Y, and Z. There is a shift here from a fight for recognition that only involved two people to a conflictual situation mediated by Droit and involving three members, two parties in dispute and a third one to adjudicate it.

The role of Droit is central in the situation of conflict. Assuming that X acts according to the law and Y reacts in an “illicit” way, Y acts at the same time against the law but also, to some extent, against himself or herself as “coauthor of the legal rule” (OPR, 122). As a “juridical man”, “Y condemns his way of acting just as he would have done if he were in Z’s place”. As a consequence, the position of the neutral and impersonal figure of the third party implies that “the true conflict, therefore, is not between X and Y, or between X and Z and Y, but between X, Y and Z taken as ‘juridical men’ and Y taken as a ‘non-juridical’ man”. Therefore, Y is in a position of conflict with himself or herself. Independently of the various reasons that could determine Y’s illicit acting, Kojève frames the situation as a conflict between Droit and the biological dimension of nature. The conflict is between juridical and animal action: “But in reality, i.e. in actuality, Y acts as an animal: his juridical action is replaced by animal action, which alters the actual surrounding reality and is thus real in actuality”. Droit continues Kojève, is real only as long as X and Z’s action is juridically in actuality, and to be so, the juridical action must overcome the “actual reality of Y’s animal action”. As Kojève concludes,

Consequently, the legal rule, i.e. Droit in general, has become real in actuality in this Society because the interaction between its three members has resulted in the overcoming of the real action in actuality, namely Y’s animal action. This action has been overcome by Z’s juridical action (...). The juridical action, therefore, has been real in actuality.

For juridical action to be real, it must overcome a non-juridical real action, conditional on the fact that the illicit animal behaviour is inside Society. If Y were able to leave society, to be outside of it, “then his actual animal action would not be overcome, and the juridical action would therefore not become actual as such”.

B. Droit as the alteration of becoming of the natural element into a social artefact

An isolated Society is autonomous: its existence is a function of the relations of its members. Nature, which is outside of Time, is transformed by Droit in history: social relations are natural artefacts shaped by the operations of Droit through Time. When there is no outside to Society since it “implies the whole of humanity”, Y could escape Society only “by chance” but not in principle. Droit is real only in a Society without an outside: “The Society which implies all humanity, therefore, is truly autonomous, and Droit is necessarily actualised there as soon as it exists in reality” . Time as alteration (of Nature) is the essence of Droit. For the illicit animal action to be reintegrated within the Legal System, there needs to be alteration:

(…) the original Droit (…) will have to be completed—that is, altered. It has, therefore, been altered because, being real, it has not been able to be actualised. And this is precisely why it is said to be real in potentiality: it must be altered to be actualised, its reality is a reality of a becoming.

Therefore, Droit involves altering the animal, a natural element, into a social artefact with virtually no outside.

1. The foundation of Droit within the State as an autonomous Society

This is when Kojève goes beyond Maine’s blurring of the boundaries between Natural Law and Civil Law or Private Law and Public Law. Finally, only Public Law can make Droit real in an autonomous Society. The state is the only institution with the power to make social relations autonomous or political. The State has pre-eminence over the Church or Canon Law since this last one was real “(…) only (…) to the extent that the State made it its own. Therefore, the Droit of the State is real in actuality”. What is true for Canon Droit is also true for family and corporate Droit. The State actualises Droit, but this is possible only when it has no “outside”. National laws are not real Droit; the only autonomous, real Droit, is the one that has no outside, that is the Droit of the Empire: “(…) one can say that Droit exists in this day and age only as a becoming of the actual Droit of the future Empire”.

In paragraph 24 of Chapter 2 of the Outline, dealing with the question of the Reality of Droit, Kojève summarises his confrontation with Maine. Public Droit, or, better, state-sanctioned Droit, is the only one that exists in actuality. For Kojève, it does not make sense to oppose « natural Droit » or « Customary law » to Public Law. Droit and all droits exist only within the state-sanctioned Droit. Kojève refutes the idea that the legitimacy of Droit derives from a set of principles detached from the sanction of the State. Still, the fact that only the Droit that is positive, that is, political since the State decides it, is real, does not mean that there is no juridical idea of Justice. But Justice becomes Droit, a juridical entity, “only if it is applied to whatever social interactions (…)”. Therefore, Droit derives its substance from social relations rather than abstract ideals.

Moreover, Justice is a historical category since “(…) the idea of Justice is not given once and for all. It also evolves in time”. At this point, Kojève introduces a theoretical tension. There is no Droit valid everywhere and always, and here he comes close to Maine in the sociological and historical foundations of Droit. Still, for Kojève, “absolute Droit will only exist at the end of history, being the correct application of the idea of Justice worked out in the universal and homogeneous State for social interactions existing in this State”.

2. Droit, Force and Authority: the Political reading of Maine by Kojève

The relationship among Right, State and Society opposes Kojève to Maine. For the British legal theorist, writes Kojève, “Droit is born before States”, and thus “(…) there are non-state sanctioned customary Droits” (OPR, 152). Maine is correct only if we do not consider the role of Time and the end of history as the point in which Time and Droit coincide in the distinction between Right in actuality and Right in potentiality. Only state-sanctioned Droit exists in reality since it needs a society without an “outside” of time and space, an “autonomous” society, to exist in actuality. Only a political Society (a State) is autonomous, and Right can be real, in actuality, only in an autonomous Society, where there is no “outside”. The political dimension of Droit as a public Right is given by the fact that Right does not evolve from “custom”, that is, non-political conditions. Droit and the State rejoin one another at the end of history once Time and Concept coincide in an autonomous field of not only social but, finally, political relations, whose authority is provided by Droit itself. As Kojève argues: “Sumner Maine is therefore wrong to criticise the principle which is at the base of the arguments of a Bentham and an Austin, namely the principle according to which’ the Sovereign prescribes all that he does not forbid’ (OPR, 153).”

The function of government is one of representing “Society in its relations with the outside” and it is always Government “which draws the (in principle) impassable limit which separated friends from enemies” (OPR, 153).

Kojève is very clear on the political dimension of his legal theory, precisely in criticising Maine for thinking that

(…) ‘customary’ law, or Private law, precedes the State, which eventually adopts and transforms it. Indeed, the transformation from ‘status to contract’ does not entail the adaptation of a historical Society to Law as a grammar or form that is capable of ‘polishing’ customs.

Instead, the action of the State transforming customs into Droit is

(…) a matter of political revolution (carried out or attempted for juridical reasons) which no longer has anything juridical in itself. It is not the juridical entity of the old Droit that one then opposes to the state-sanctioned Droit: it is a political action that one opposes to the political reality of a State (which is) supposed to result in either a violent change of its nature or its total suppression.

Droit is not an ensemble of “instrumentalities” capable of creating a political reality beyond the social reality of a given context. As such, Maine, Kojève confirms, is right in retaining that it would be absurd to think that the British government could introduce polygamy into England or authorise murder. Droit cannot produce a political and social reality out of abstraction and going against “customary” laws. Droit is, nevertheless, thought of by Kojève as a “force”. Better, writes Kojève, “Droit can only exist in actuality provided that it has at its disposal a force (in principle irresistible) which sanctions it and makes it respected, as one says”. Authority and force tend to coincide since “(…) the legal rule must be valid (as much as possible) because of its Authority, and not on the grounds of the force that is connected to it”. Customary Droit, that is, Private law or non-state-sanctioned Law, does not have force at its disposal, Kojève argues. For Kojève, Authority is a legitimate principle that does not resort to force, and the force through which the State actualises Right finally coincide with it since Authority is the key to turning right in potentiality to Right in actuality. All Droit with Authority will become actual through a State, even without the need for force. In the following lines, Kojève summarizes Maine’s argument:

But if a State is content to sanction and make its own Droit which has existed, or which is supposed to be able to exist, without state sanction, i.e. without the use of force, once can admit that this state-sanctioned Droit also enjoys an Authority in the Society in question.

Kojève describes Maine as an “anti-statist” theoretician opposing “custom” to legal systems. The question is, nevertheless, what authority is. It cannot be, argues Kojève, an idea of Justice, whatever its content. The specific authority of Right is of the “Judge”: “A man or collectivity have this Authority when they are deemed to be ‘impartial’ or ‘equitable’—that is, when they embody Justice, so to speak”. Droit is a phenomenon and not a principle or an ideal since it is the realisation or embodiment of Justice. The interdependence between Droit and the State is at the foundation of the relationship between Droit and social relations. As such, “The State (or Society) acts not only politically but also juridically, in its aspect as Juridical Legislator, Judge and judicial Police”.

V. The Conflict over Time and the Dialectic of Contract and Status

Kojève then discusses the relationship between conflict and Time, or the shift from potentiality to actuality. There is a tension within reality itself, with the tendency of both what is actual and what is just a possibility to expand and propagate. There is a movement of Resistance by the “external reality”, which also tends to grow and annul the “entity in question”. As Kojève argues: “There is then a contradiction inside reality as such: there is a conflict and a struggle”, and this conflict concerns Time, or “the tendency to actuality”. The struggle becomes quintessential when it involves a biological reality, “a living being, an animal, for example”. Every animal, says Kojève, has an instinct for self-preservation (defence and food) and for generation (propagate). There is a contradiction between these two instincts, as well as the fact that they imply, in some cases, the animal’s death. Still, this is not a dialectical contradiction, according to Kojève:

But on the plane of ‘natural’ reality (i.e., non-human or non-historical), this immanent contradiction is not dialectical: it does not end in a synthesis; it remains in identity and resolves itself by identity; and this is why it does not lead to a creative evolution, to a progress, to an historical process.

A. Droit, Repetition and Difference

Kojève places the natural element of biological life outside of the historical movement of Time and progress. However, there is more in Kojève’s reasoning, and his writing in the conclusion of Chapter 2, on “The Reality of Droit”, can be read as a direct counterpoint to Maine’s legal theory. Time and the dialectical movement of history produce differences. In fact, within biological life, the contradictory movement of preservation and propagation, or the negation of the natural element, reproduces it through a movement of repetition. In this process, “the individual product is identical to the individual producer, which is why the process is repeated indefinitely”. Biological “evolution” is, according to Kojève, an anthropomorphism: it exists for man and not “in Nature”. The contradiction is dialectical within human and historical reality: negation “(…) preserves what is negated but preserves it as negated—that is, altered and evolved”. As historical stages, identities are not erased by Time but transformed while persisting, engaging a movement beyond individuality.

Droit responds to the historical logic of human progress rather than nature’s evolution. The evolution of Droit, its dialectical movement, not only follows the historical evolution of human action, but it “(…) wants to be applied to all possible and imaginable types of social interactions (allowing an application of Droit)”. Through the historical dynamic of Time, Droit becomes the actuality of the whole of humanity:

Droit is subject to a historical evolution, leading to the point where the two tendencies coincide. In the limit State, universal and homogeneous, Droit is applied to the whole of the social existence of humanity and nevertheless remains identical to itself .

Moreover, Droit and the State move, Kojève argues, along parallel lines. Their evolution can be non-simultaneous and evolve in contradictory directions; still, “(…) the connection between Droit and the State seems to be more intimate than that between the State and the other aspects of human existence”.

In Part Two of the Outline, entitled “The Origin and the Evolution of Droit”, Kojève defines Droit as the “application of a certain idea of Justice to a given social interaction”. In Chapter 1 of Part Two, Kojève frames the Source of Droit as “The Anthropogenic Desire for Recognition as the Source of the Idea of Justice”. Action, to act, is the “genuine being of man”: it is an act, which is free by definition, “which satisfies a desire (Begierde) about another desire taken as desire”, and the “desire of desire” is the moment (Time) through which “(…) man creates himself as this act” (OPR, 209). Desire of desire is possible only because of man’s absence in nature. The political autonomy of human life, in opposition to “living in agreement with nature”, is given by Time as the space of Nature, the force existing “outside” the movement of repetition of the identity of Nature. The animal “(…) by realising its desire it annihilates it as desire: it fills its emptiness; it replaces the absence by a presence. It is, therefore, the being that it desires, i.e., a natural or material reality, and it is nothing else: its desire, which is the absence of this reality, is born only to disappear.”

On the contrary,

Human desire (…), being the desire for a desire, remains what it is in its very actualisation, for it is satisfied by what it is itself, by a desire, by an absence which 'nihilates' and this ‘nihilation’ of human desire (…) it is a Being which exists and not a Nothingness which disappears. Finally, free, human or historical existence is the permanent ‘nihilation in the natural world’ and ‘Man negates the world by satisfying through action his desire for desire (...) this self-negation is precisely his specifically human existence’^.

The essential shift in legal and political philosophy that Kojève achieves with the Outline is the one from the Master and Slave dialectic of the Introduction to the Reading of Hegel to the one of the Citizen.

B. From the Friend-Enemy Political Distinction to the Citizen as a Synthesis of Mastery and Servitude

Through the change from the friend-enemy, or dual relationship of political confrontation, to a conflict between three members, one of which is the figure of the Judge or the Impartial Third, the self- and mutual recognition process needs the figure and the force of Droit. The Master becomes the Citizen. Time, as Droit, operates the shift from the dual conflict to the configuration of a conflict articulated around three figures: “Consequently, if man is only born in the opposition of Master and Slave, he is only fully and realised in the synthesis of the Citizen” who is actualised potentiality. Man is real only to the extent that he is a Citizen, Kojève argues:

But the Citizen is a synthesis of mastery and servitude, and this synthesis is a passage from potentiality to actuality—that is, an “evolution” and such a “dialectic of universal history” involving aristocratic mastery and bourgeois servitude, is “(...) the dialectic of Droit and the idea of Justice” which will lead to the “(...) synthetic Justice of the Citizen properly so-called, of the citizens of the universal and homogenous State”.

This will produce a synthesis between status and contract within the figure of the Citizen. The contract of the Citizen is based upon both equality and equivalence, reminding us of Maine’s Equity. For Kojève, since these contracts will concern the autonomous Society or State, they will be “collective contracts”, setting out the “status” of legal persons beyond the figure of the individual. Still,

(...) this status of the citizen will differ from the aristocratic status in that it will be the result of the expression (set down juridically) of social interactions. Status will therefore be a contract, and contract a status. And it is in this way that there will no longer be either statuses in the aristocratic sense of the term nor contracts in the bourgeois term.

In a footnote, Kojève refers directly to Maine. He returns to what he announced before, meaning that, in the most recent times, we are witnessing the opposite of what Maine diagnosed, that is, not a movement from status to contract, but rather from contract to status: “(...) an opposite movement, with contracts tending to become statuses. There is a passage (...) to status-contract or contract-status of the synthetic Droit of the citizen”.

VI. Status as the presupposition of Contract: Kojève actualising Maine

Kojève directly makes a final reference to Maine’s legal theory in the last pages of the Outline. In Part Three of the book, Kojève discusses “The Legal System”, which is the main mode of “applying a given idea of Justice to social interactions”. When talking about Private Droit, Kojève raises the question of whether it is indeed possible to imagine a « Social Contract » making it possible to interpret the single injury operated by A against B not as only affecting B, but as affecting the whole of Society given the Convention according to which a single injury is instead an injury against all members of a given Society. To some extent, the idea of a Contract is applicable only when members enter voluntarily as members into a Society, which can be an association of an economic nature, for example. The idea of a freely subscribed obligation through a Contract presupposes the possibility of choosing and exiting the membership association.

A. Convention as the creation of a Juridical Collectivity

Instead, when being a member of Society is not a choice but a fact of existence, determined by birth, for example, to Kojève, the notion of Contract “seems inapplicable”. Kojève resorts to the distinction between Convention and Contract. Collectivities, or Societies, formed by free agreement of their members correspond, according to German legal theory, either to Vereinbarung (Convention) or Vertrag (Contract properly called). The difference is that a Contract (Vertrag) involves two parties, A and B, while a Convention (Vereinbarung) is an interaction that creates a collectivity involving three parties, A plus B and another individual or collective agent, C. Kojève argues that “the Convention creates the collectivity in its being, and it creates it as a juridical person if the Convention is recognised by the Third”(OPR, 465). At this point, the question revolves for Kojève around the one of Status, which is “(…) connected to the very being of the interested party and not to his action, to the ‘function’ of this being”. As such, Status has a foundational role in Contract, and while “There are then Statuses independent of all Contract, but all Contract presupposes one Status or another—to say the very least, the one which makes the contracting parties subjects of droit, juridical persons” (OPR, 465).

Kojève asserts that all Status necessarily presupposes a Convention or “Social Contract”. Since an autonomous Society is a necessary condition for the actualisation of Droit, that is, the situation in which there is no outside of the Society in the form of a natural or biological outside, it makes no sense to speak of a Convention or a Social Contract regarding membership in the political Society, or the State or actual Droit, since a Convention would entail the possibility for its members to exit Society. Instead, we are in the realm of Status, one connected to the being of the members of Society and which does not depend on the members’ actions, will, or the recognition of their status. Kojève finally reverses Maine, but I would argue that he does so while keeping Maine’s legal theory within his Outline of a Phenomenology of Right and transforming it, similarly to when he wrote that the French Revolution needed to change (after Napoleon) “to be able to maintain itself in France”(OPR, 163).

B. Droit as Temporal Evolution

I would argue that Kojève transforms Maine’s legal and political philosophy of law by introducing a movement “from Status to Contract to Status”. Indeed, Droit is always public and State Droit in actuality and its actualisation presupposes the transformation of Nature and the biological side of social interactions into Droit. This transformation happens through the negation of animal being, that is by leaving an absence within Time, and this absence allows for there to be no outside of Time. The shift from a political conflict between friend and enemy, a form of political dialectic and negation, is transformed into a juridical conflict involving three members. This allows for the completion of Time from potentiality to actuality. Droit transforms the desire of desire, the negation of identity, into actual Time, that is, into Status as a Society in which collective interest can be realised at the end of History, in the universal and homogenous State, through the figure of the Citizen. Therefore, « the juridical evolution is here going from Contract to Status, and not from Status to Contract, as Sumner Maine wanted”(OPR, 466). This happens through the temporal evolution of Droit, which “(…) transforms the Convention, or if you will the ‘Contract’, into ‘Status’ since it presupposes a Convention, in the last analysis, “(…) forming a collectivity that realised the Droit in question” and this collective subject is the Citizen. As Kojève powerfully writes: “And the Status of the Citizen will be the ‘status’ of the human being as such”. The figure of the citizen will be governed by the principles of equality and equivalence with others, and no one will be either governor or governed.

C. Being as Legal Function, or Droit as the Status of the Citizen

Historical evolution is consubstantial to action in Time, “(…) being is function, and function is being” and “therefore, Contract is here status-like, and Status contractual or conventional”. Closing the circle of thought with Hegel, “(…) ‘the true being of man is his action’ (Hegel), and the action of man really exists in actuality and is revealed as human, non-natural, cultural and historical being”. In conclusion, writes Kojève, “Historical evolution, therefore, is going from Convention to Status, and hence to their ‘socialist’ synthesis in and by the universal and homogenous State”. Kojève’s philosophy of Right is finally the completion of a political understanding of Time, through Droit. Revolutions and wars will last “(…) as long as there are men excluded from a given political Status and as long as those who submit to it are not ‘satisfied’ (befriedigt) with it—that is, as long as they will feel their inheritance as a burden”. The reason why, through Time as Droit, the Convention turns itself into Status is that “(…) one is a citizen not because one wants it, but because one is, because one exists as a human being”.

Maine is thus a central figure in Kojève’s reworking of the relationship between Nature, Time, historical evolution and Right: Kojève uses the centrality of the artificial character of the desire of desire as the motor of the dynamic of the collective subject of History to rethink Droit beyond individualism while maintaining autonomy at the heart of its dialectical movement. It is indeed,

the Dialectic of Status and Convention (Contract), therefore, [that] leads to the end of history, with the universal and homogeneous State—to a definitive synthesis where status-like being is identified with convention action, and where active convention solidifies itself into a truly (réellement) existing status in actuality and in its identity with itself.

It is Time, in its political dimension of desire of desire, that restitutes a deeply political understanding of Maine’s movement between Status and Contract and that resignifies the legal fictions that produce Nature as Artifact, as an Artifact of Droit.

Teresa Pullano

Teresa Pullano is currently a researcher at the Department of Social and Political Science and the EPRA Hub at the University of Milan, Italy. She is a research fellow at the Institute of European Global Studies of the University of Basel, where she worked as Assistant Professor of European Global Studies. She holds master’s degrees in political science and in philosophy from Sciences Po Paris and from the Università degli Studi di Pavia. She obtained a PhD in political science, with a focus on political theory, from Sciences Po Paris. Her research focuses on European citizenship’s policies in connection to freedom of movement within the EU. She is interested in analysing the restructuring of contemporary citizenship in Europe as a specific form and structure of statehood. Her research deals with the political and legal tools through which European citizenship acts as a strategy of differential governmentality in contemporary Europe. She focuses also on EU’s citizenship capacity of structuring a form of territory at the continental level. On these issues, she published the book La citoyenneté européenne : un espace quasi-étatique (Paris, Presses de Sciences Po, 2014). Her research on this topic was also published in Droit et Société, Politique européenne, Politica & Società and in several edited books in English and in French.