Ideology critique via jurisprudence

Introduction

This article introduces a neglected version of ideology critique via jurisprudence put forward in the mid-’80s and developed in the ’90s by British social philosopher Gillian Rose (1947–1995). Rose used her approach to reveal something of the formation of the philosophical consciousness by examining the implicit legal and juridical concepts at work within social theory. In the first section of this article I set her work in the context of post-Kantian thought and her own wider intellectual project. In the next section I clarify Rose’s view that Roman law significantly shapes Kant’s form of rationality as a whole by separating her argument into three claims and tackling each in turn in the following three sections.

The argument of Dialectic of Nihilism

Rose’s third book is perhaps her least read and least well understood. It will therefore help to put it into context and sketch the argument as a whole. The context for Rose’s book on post-structuralism and law is the ‘crisis of legal anthropology’ (Schechter, 2010: 7). The Kantian moral subject was, like the legal subject, rational and self-legislating. This view of anthropology, ethics, jurisprudence and reason was put under pressure by the post-Kantian tradition, and Rose wrote to avoid having the baby thrown out with the bathwater. Since the Roman period, juridical thinking has posited person, thing and obligation as a fundamental, trifold distinction, and Rose believed this was a true and useful distinction, which could adequately respond to the criticisms made of juridical rationality and the legal person by using a sufficiently textured view of reason and self-rule, including one attending to the inner life of the individual. Like Hegel, she believed ‘law itself is a legitimate means…there is no legitimacy or legitimate ends without law’ (Schechter, 2010: 14). Further:

the emergence of modern reason is inextricable from the emergence of modern law: that rationality acts as a means of maintaining temporally and locally overarching sequences of predictability, calculability and organisation – that is, of securing conditions of legal regularity through society. Modern rationality, on this account, is co-genetic with the construction of the thinking person as a universally identifiable centre of imputation, and as a legislatively empowered agent, capable of ordering its social and cognitive relations in accordance with generalised conceptions of validity. (Thornhill, 2005: 103–4)

According to Rose, 19th-century neo-Kantian attempts to simplify law to one principle (in order to remove its antinomies and aporias) went hand-in-hand with the desire to eliminate metaphysics from Kantian philosophy. But the antinomies returned in different forms, usually transferred to their conceptions of society. Derrida, following Benjamin and paradigmatically for post-structuralism, regards law only as dissemblance, only wrongly coercive. Rose sees the post-structuralist version of law as an inverted natural law: the given law that all human law merely interprets is now irrational and violent rather than rational and beneficent, an ‘ontological injustice’ rather than original justice (Rose, 1984: 99). Whereas Hegel showed ‘the antinomy of law as the speculative identity and non-identity of the state and religion – of “politics” and “ideology” – so I read the antinomy in the work of our contemporaries as presenting us with a pale cousin: the nihilistic identity and non-identity of law and metaphysics’ (Rose, 1984: 5). (The ‘antinomy of law’ has various connotations throughout Rose’s argument but all of them circle around the distinction and tensions between the legal and ethical law, or the constitution and customs of a society.) Post-structuralism extracts from Nietzsche an ‘unhealthy scepticism towards all human, social and political values, assimilates all signification to a general sociology of control, and then yearns for the raptus of a Singularity which cannot be named, known, or negotiated’ (Rose, 1993: 19). A healthy scepticism accompanies a speculative philosophy, whereas an unhealthy scepticism colludes with an ossified and unproductive dialectic.

If law and metaphysics are always speculatively identified, always antinomic and necessary (cf. Thornhill, 2007), the post-structuralist attempt to escape metaphysics and law is a mistake, and fails to learn sufficiently from the tradition it claims to have surpassed, whereas the neo-Kantian attempt to eliminate law’s antinomy mistakes the nature of law. Rose’s strategy for substantiating this is to show the form of Kant’s theoretical and practical philosophy as under the influence of Roman law, show the difficulties of jurisprudence of four neo-Kantians as they eliminate the antinomy of law, and immanently critique some post-structuralists to demonstrate their failures to theorize law, ethics and society and their unwitting reliance on various legal forms. The claim to have finished with all the difficulties entailed by theorizing subjectivity, representation, law, metaphysics and values turns out to land these theorists back in the middle of all the difficulties, but with less awareness of what determines their thought. They are thus subject to a dialectic. As Adorno and Horkheimer argued that enlightenment and myth, as two forms of reason, are always entwined, so Rose argues there is no escaping from metaphysics and law. She agrees with Nietzsche that nihilism is now a normal condition, since values always threaten to undermine themselves (or dialectally reverse themselves), but Rose denies anti-ethical or antinomian consequences follow from this, as found in Weber or post-structuralism (but not in Nietzsche in her view). Antinomian post-structuralism attempts to evade law (both as a form of reason and laws in society) yet relies on legal forms: this is its dialectic. Its refusal of law and metaphysical-ethical reasoning is its nihilism. (Rose confusingly operates with two meanings of nihilism without spelling them out: a ‘good’ version in her interpretation of nihilism as a normal condition, and a ‘bad’ version in the post-structuralist refusal of knowledge, ethics and reason.)

Much of post-Kantian philosophy comprises each generation accusing its predecessor of failing to complete the task of overcoming metaphysics, so it is plausible for Rose to say attempts to overcome metaphysics end up recapitulating it. This could support Rose’s view that metaphysics is ineliminable or it could mean success still awaits. More important here is Rose’s idea that legal concepts fill the vacuum left by the banished metaphysics. She traces the antinomies of metaphysics as they migrate from law to society (neo-Kantians) to language (post-structuralists), without accomplishing their alleged solutions (supporting her view that antinomies are permanent). Post-structuralist social philosophy tends to be unaware of its indebtedness to the jurisprudential tradition. Raising awareness of the social and intellectual factors determining consciousness is one of the aims of ideology critique, as a condition for responding with freedom to those determinations. Ignorance of the role of law and jurisprudence in social philosophy therefore undermines post-structrualism ability to negotiate its determinations. Its (and so our) relation to law and legal ideas remains hidden, incubating the social pathologies resulting from over-reliance on one or another competing tendency in society. There is a strong case to see sociology as emerging out of the discipline of law (Murphy, 1997; Cotterrell, 2006, 2013), including the Savigny-Thibaut debate on jurisprudence (Lybeck, 2013). Dialectic of Nihilism is therefore Rose’s contribution to ideology critique. This is not the usual Marxist approach to law and ideology, in which law is regarded as ideologically shaped by capitalist economic and political forms. Nor is it a critique of law or the reliance of philosophy on law but a critique of (some) social philosophy’s ignorance of its determination by law and of attempts by older, more self-aware legal philosophy to remove law’s antinomies. The close relation between modern law and modern reason, discussed by Thornhill, justifies Rose’s strategy. Part of her contribution in this regard is to produce a different map of the terrain of social philosophy by examining ‘the historical connection between psychology and objective spirit. In this way its law may become knowable’ (Rose, 1984: 124).

Such is the broad architecture of the argument of Rose’s third book. It is an argument for the antinomic and aporetic nature of metaphysics and law, their speculative identity, and the importance of both in social philosophy, and it performs an ideology critique by uncovering the jurisprudential presuppositions behind various social philosophies. The antinomy of law is thus part of the speculative identity of form and history, and both are inseparable from the relation between philosophy and its context of the state-society relation:

The separation in modern states of public from private law, of the realm of needs or economic life from the realm of politics and citizenship, arises from specifically modern forms of private property and formal equality. This separation gives rise to the illusion of sovereign individuality which is represented in the absolute demands of morality and religion, and reproduced and justified in Kant’s critical philosophy. (Rose, 1984: 2)

An elective affinity between Kant and Roman law

Rose’s argument about Kant can be parsed into three connected claims:

Kant’s form of rationality as a whole is based on Roman legal thought: ‘In Kant’s concept of pure reason, in the familiar opposition between persons and things I find litigation, contract and property’ (Rose, 1983: 99). That is, the Roman legal distinction between persons and things does much work not only in his political and ethical philosophy but in generating the form of rationality that uses the ‘interlocking set of oppositions: ends/means, persons/things; absolute/relative; subjective/objective’ (Rose, 1984: 20). This is not the usual Hegelian gravamen that Kant smuggles content into the form of the categorical imperative; it is a much more far-reaching claim about the whole shape of his thought: ‘the split between the ideal and the real itself depends on importing features of the real into the very form of the ideal’ (Rose, 1984: 19). Notice it is not, as it stands, a criticism; it is simply an observation.

Each of these claims will take some unpacking, beginning with the precise target of the argument itself. The argument is not that the Roman legal influence on the form of Kant’s philosophy invalidates his entire thought; the argument is that certain features of Roman dominium skew Kant’s picture of freedom, the self, and social and political philosophy, because he freezes the property/thing distinction and inflates the role of property. Nor does she argue social philosophy should escape legal influence; it should instead consciously negotiate its relation to law and theorize law itself as a topic of social philosophy. Beyond such critical aims, Rose is arguing towards the Hegelian view that freedom is compatible with external influence, and that freedom can be actual and be theoretically known as such (whereas for Kant freedom remains transcendental and so beyond theoretical knowledge or appearance within the phenomenal realm; it can only be warranted by practical reason). Nor need Rose be read as denying the importance of Hume, Newton or theological influences on Kant’s theoretical and practical philosophy; she is adding to the list of influences on Kant’s thought, though implicitly claiming Roman law as a dominant influence.

Even with the precise aims of the argument in mind, it is not easy to assess the three claims. Rose’s argument is best construed as discerning a Weberian elective affinity between the form of Kant’s philosophy and Roman legal thinking, and referring his philosophy back to a structure of state and civil society. ‘In this context “to sublate”, the standard translation of Hegel’s aufheben, implies to carry an opposition back to its source’ (Rose, 1984: 50 n.2). This of course must be historically mediated, but how exactly Kant comes by his Roman influence is not the key issue (see Kelley, 1979; Henrich, 1989; Conklin, 2008: 48–52). The issue is the relationship between Kant’s thought and Roman law (even if Kant was not aware of it). Her reading is similar to a hermeneutic of suspicion, but in a way that wishes to sublate Kant’s work, not reject it. Weber never defined elective affinity, but its meaning has been reconstructed by Richard Herbert Howe. The basic idea concerns ‘interrelationships of networks of meanings’ (Howe, 1978: 382), ‘whether and how strongly they mutually favour one another’s continuance, or, conversely, hinder or exclude one another’ (Weber, 1968: 341). Weber acquired the term via Goethe’s novel (Die Wahlverwandtschaften), itself named after a term from chemistry. The chemists of the period discussed the process in which substances A and B are joined, but uncouple in the presence of substance C, and A now joins with C. A and C then have a stronger affinity than A and B. Sociological judgements of elective affinity look for shared characteristics; they are portrayals of ideal types, not foundations for syllogisms; likenesses, not logically necessary deductions. ‘The greater the number of positive inner affinities between two elements vis-à-vis the total possible number, the more strongly are the elements joined. That is their “degree” of elective affinity’ (Howe, 1978: 381–2). Rose’s main evidence for discerning an elective affinity between the form of Kant’s philosophy and Roman law are the three above claims: interlocking oppositions connected to the person/thing distinction, how Kant’s defence of freedom actually works (contrary to his own view), and the parallels between Roman private law and freedom in Kant. These elements of Kant’s thought also take in his picture of the subject, state and law. This is Rose’s way of pursuing the Frankfurt School theme of the various connections between rationality in the social sense and the more narrowly logical use of reason. Finally, there is no contradiction between ideology critique and discerning an elective affinity, because affinities need not be obvious and, once seen, may reveal problematic features otherwise unnoticed. In this light, (1) becomes a criticism when it supports problematic features such as (2) and (3). I now assess each of Rose’s claims.

Kantian rationality and the person/thing distinction (1)

Rose argues (1) by reading Kant’s critical writings, especially the first Critique, through the definitions of property and possession in the Metaphysical Elements of Justice. She proceeds as follows. ⁵ Kant is concerned with both the canon of reason (its proper use in limiting knowledge to the combination of sense experience and concepts) and our ‘possession’ of freedom. Kant’s first Critique uses ‘practical [my emphasis] ideas of de jure, property, possession, justification’ to ‘expound’ the transcendental deduction of theoretical knowledge. Here she cites The Critique of Pure Reason A84-5/B116-7, which is entitled ‘On the principles of a transcendental deduction in general’, where these ‘practical’ terms are found. She references Schopenhauer’s observation (in On the Basis of Morality) that Roman legal terminology is used so much, especially in this section, it appears essential, not accidental, to Kant’s thought. (Rose’s additional references to Kant are to: the third Critique; the Groundwork of the Metaphysics of Morals; and The Metaphysical Elements of Justice.) Given the technical nature of Kant’s vocabulary however, it begs the question somewhat to call these concepts in this context ‘practical’. Further, Schopenhauer, in the passage Rose cites, goes on to say that although the impression Kant gives is that moral thinking is specifically Roman legal in character, it is not – it is a form of judging like any other (2009: 169–72). On the one hand, this could imply that Kant’s thought really was influenced by Roman thought, because he construed all thought as Roman legal trial; on the other hand, it could imply that Kant’s metaphor is a metaphor that can apply to any kind of weighing up of reasons. So far, so inconclusive.

Rose’s argument is further put into doubt if we turn to the work of Dieter Henrich (1989) and Ian Proops (2003, building on Henrich), who have shown that the form of argument used in the Transcendental Deduction is based on a form of legal argument called a deduction, which traces a legal claim (usually to land) back to its source in order to prove its legitimacy. Legal deductions came into existence in the 14th century, ‘a time when the tradition of Roman law was not yet revitalized and the modern theory of law had not yet been founded’ (Henrich, 1989: 33). Indeed, Roman law did not make significant inroads into the German-speaking principalities until the end of the 15th century (Kelly, 1992: 180–1). This supports Rose’s view of the influence of some legal thinking on the whole of Kant’s thought – Proops discusses deductions in the first two Critiques, Henrich in all three – but not Roman law. ⁶ Henrich notes:

the idea of an acquisition of legal titles does not necessarily presuppose a particular legal system with reference to which the entitlement becomes decidable. The Natural Right Kant uses as his paradigm recognizes an original acquisition. The conditions of its rightfulness can be determined prior to any particular legal system. (Henrich, 1989: 36)

After highlighting the legal vocabulary in the Transcendental Deduction, Rose’s next move is to read Kant’s critical writings through the 1797 The Metaphysical Elements of Justice because that is where Kant defines the terms ‘possession’ and ‘property’, and how they may be held lawfully (de jure) (i.e. even without physical proximity). This is a clever idea but has problems. There appears to be slippage in Rose’s argument between Kant’s theoretical and practical philosophy (Lash, 1987: 305). Rose thinks Kant is pursuing both the canon of reason and freedom in terms of the de jure possession of property, but that when Kant explains, in Elements of Justice, what he thinks de jure possession entails, it rests on a claim of ‘natural justice’ (Kant, 1956: 59), which is a kind of ‘given’. Rose thinks the ‘meaning of deduction and justification has shifted at this point’ because the ‘complex machinery of justification rests on a simple appeal to natural justice’ (Rose, 1984: 13–14). Let us accept, in the mode of discerning elective affinities, that ideas from the 1797 text may be used to exposit those from 1781; we must still register the fact that the context of the quotations Rose gives from Elements of Justice is Kant’s argument for the possibility of de jure (noumenal) possession of a physical object, whereas freedom for Kant is explicitly not a physical object, so this sort of argument would not apply to it, nor does Kant imagine it does (Kant, 1999: 176–7). In the case of discerning an affinity, however, this is not decisive. Rose could respond that the de jure possession needed by Kant to make sense of possession of objects is paralleled by the transcendental nature of freedom, which exempts it from ever being experienced. Perhaps Kant does think of freedom as a property we possess, despite lacking entirely convincing proof of its legitimacy. ‘Property’ and ‘possess’ here are ambiguous between physical objects and predicates/characteristics, which may be part of Rose’s point. Yet Kant can reply that his noumenal/phenomenal distinction is transforming Roman private law, rather than vice versa. Nor is it fair to Kant to imply that because we lack theoretical knowledge of noumenal freedom we thereby lack any legitimate way to regard ourselves as free and must treat the idea as a given (Rose, 1984: 24). Quite the contrary, we have solid practical reasons to regard ourselves as free, such that freedom is fundamental to being a person (Guyer 2000; Ward, 2006).

The usucapio defence of freedom (2)

The idea of a canon of reason in the first Critique is raised by Rose but immediately dropped, and her discussion focuses entirely on ‘a specific case of unlawful possession: the defence of the “usurpatory concept” of freedom’ (Rose, 1984: 12) (claim (2)). Rose’s reference is again to A84-5/B116-7, but Kant there writes: ‘concepts that have been usurped, such as fortune and fate’, have no ‘clear legal ground for an entitlement to their use either from experience or from reason’. This passage sets up Kant’s demonstration of the legitimacy of the twelve categories because they are limited to making experience possible, in contrast to the illegitimate metaphysical use of notions such as fortune or fate. Thus, either Kant does not have in mind here that our freedom is usurped, because he is discussing the theoretical concepts of the categories; or, if he does (the second edition of the first Critique was published in 1787, only one year before the second Critique), then he will go on to show, in the second Critique, that freedom does indeed have legitimacy and is not usurped. The characterization of the human claim to freedom as ‘usurpatory’ tilts the scales too hastily in favour of Rose’s affinity claim, as did calling the legal vocabulary ‘practical’.

Kant’s view of freedom is admittedly a moving target. Nevertheless, it is problematic that Rose discusses only the Groundwork and not the Critique of Practical Reason because Kant defends human freedom in the latter. Kant offers what is now called (after Henry E. Allison) the Reciprocity Thesis: ‘freedom and unconditional practical law reciprocally imply each other’ (Kant, 1999: 162). In this section Kant considers two problems. In Problem I he starts by assuming that a moral will is only determined by the form of the moral law (not any material content), and ends up finding that such a will must be transcendentally free, because it is not determined by any material and so natural causal factors, but only by the rational form of a law, which is an intelligible idea and so transcendental. In Problem II he starts by assuming a will is free, and discovers that it must be determined by the form of law, since it cannot be determined by anything material, but only the intelligibility of a rational law’s form. Hence, unconditional moral law and transcendental freedom imply one another. ⁷ Now, in the Groundwork, Kant freely admits there is circularity here (Kant, 1999: 96–7). Yet, as Ian Proops (2003) has shown, the treatment of the moral law as a ‘fact of reason’ (in the later second Critique) does not mean it is insusceptible of any proof, contrary to the Hegelian objection, because philosophical proof for Kant is probative, not demonstrative as in mathematics. A deduction is a two-step proof, in which a fact is established, and then its force for the legitimacy of a juris question displayed. Precisely because the fact is legally relevant, its legitimacy for the court’s consideration must be established. Hence the fact of reason also needs a proof. Kant’s proof for the fact of the moral law (at least in the second Critique (5:30)) is our experience of obligation. We first experience moral obligation and infer from there to our transcendental freedom.

Rose never refers to the second Critique in her argument, which is odd, not least because it is the deduction there that most parallels the usucapio. The parallel is between taking the moral law as a fact of reason and inferring freedom from it, and the usucapio that takes as given a long-term possession and shows the innocent (if unusual) means of acquiring the possession. Yet, even if Rose had registered the parallel, what would it illuminate? The implication seems to be that Kant’s defence of freedom ultimately takes it for granted rather than proving it, and that freedom, as a given, it is of dubious provenance. Yet Kant already admits the impenetrability of freedom to theoretical reason, and he is explicit that refusing to presuppose freedom undermines practical judgements, hence the very need for a defence of our freedom.

Unsatisfied with the idea of de jure property in Kant’s political philosophy as (what she takes to be) a foundation for our freedom, and ignoring the second Critique, Rose moves straight on to the third Critique’s idea of purposiveness without purpose as a way of expositing the kingdom of ends as finally lacking proper coherence (a kingdom of ‘righteousness without a right’; Rose, 1984: 17). The kingdom of ends depends, she says, on ‘a life lived in one reality “as if” it were proceeding in a different reality’, since the way in which Kant separates ideal from real employs features of the real in the form of the ideal (Rose, 1984: 19). Yet the ‘as if’ characterization of the kingdom of ends is not accurate because the kingdom of ends is for Kant a postulate, which is something we must believe if we are to make sense of our reason and moral life. ⁸ Further, freedom and autonomy for Kant are intrinsically communal, albeit in the noumenal realm outside of time and space, due to their reference to the kingdom of ends. Kant could then be read as providing these ideals as the immanent development of the mores of his society, in which case he should be praised for avoiding imposing an external Sollen on his society. ⁹

In sum, Rose’s view of the usucapio does not seem to bring out any features of Kant’s views of freedom not already apparent from Kant himself, even if there is some parallel between Roman usucapio and the proof of freedom via the Reciprocity Thesis. Kant’s deductions, however, are alien to Roman law. Thus far it appears the affinity is weak. Further, Rose’s other charge – that freedom in Kant is akin to a right of necessity – conflicts with her usucapio analogy. A usucapio is fully provided for within the law (Justinian, 1913: II.VI), whereas the right of necessity is a case on which no law can be made (Kant, 1956: 41–2).

Freedom and private law (3)

Rose has a series of suggestions to support claim (3), that Kant’s form of freedom is that of private law (Roman mixed with modern). Discussing Kant’s idea that persons have dignity because no price can be set on them, she cites Bucklan (1928: 31) on Roman law: ‘The topic of Res or things may be roughly described as the main body of the law: the discussion of all those rights which have a money value, to the exclusion of such rights as liberty, and patria potestas which cannot be expressed in terms of money’ (Rose, 1984: 22). Private right is commonly acknowledged as the largest part of Kant’s philosophy of law too. According to Manfred Kuehn, the difference between physical and intelligible possession is ‘almost absent’ in common law but central to Roman law; and Kant made intelligible possession a postulate of pure practical reason, such that intelligible ownership is necessitated by reason (Kuehn, 2001: 397–8). As such, intelligible possession always exists; it precedes the state and the state is required not least to secure peaceful ownership of property. Rose’s critique of Kant’s view of property and freedom is echoed in Marx’s critique of Savigny. Marx believed Savigny simply treated Roman contingency as justice, not questioning private property or the original seizure it may involve: ‘private property…arose out of the simple act of prehension, or willful [sic] seizure, and then somehow was given legal status by receiving customary acceptance and general social formulation. Out of factum, in juridical terms, came jus’ (Kelley, 1978: 357). Similarly, Eduard Gans’ critique of Savigny was to state the latter’s positions thus: ‘Possession is a fact, a natural condition and not a right…but nonetheless the possessor has rights because of his possession’ (Kelley, 1978: 357). Rose is here on firmer ground. There are even affinities, unmentioned by Rose, that support her case. Stoic philosophy suited the Roman temperament and there are some affinities perhaps between Kant and Stoic outlooks (Kelly, 1992: 48). Kant’s view of freedom as independence is similar to the neo-Roman tradition of Renaissance republicanism. Kant extends this idea: not only the sovereign but no private citizen should have power of interference over another.

One could, as Rose appears to do, also view Kant’s systematic approach to law as more akin to the Roman civil tradition than to common law, since Kant’s prioritizing of ahistorical normativity is an exception to the usual German interpretive and historical legal tradition (Thornhill, 2007: 3). ¹⁰ Against the background of the historical debate in the Middle Ages between codified Roman (civil law) and geographically variable Germanic (common law) traditions (Ozment, 2005: 35–105), Kant could appear as siding with the former. Further, Kant’s practical philosophy shares certain characteristics with natural law, which was an important element in Roman law. Yet when one recalls that the Roman tradition stemming from Gaius (which Justinian’s Institutes transmitted) emphasized the practical, conventional and historical above the purely rational, natural and timeless, Kant in fact seems closer to the natural law tradition than to Roman law. Friedrich Carl von Savigny took Roman law as the paradigmatic foundation of his historical legal school precisely because of its preference for the concrete and historical. Indeed, in Donald Kelley’s lengthy article on the career of Roman law throughout western thought, Savigny is the modern Roman and Kant is simply not on the scene. ¹¹ It appears, then, that Hastie was correct to say Kant’s practical philosophy ‘corrected and modernized’ Roman law according to ‘rational and universal principles’, such that the influence within Kant’s philosophy runs the opposite way to Rose’s suggestion, namely, from his own transcendental philosophy to his Roman-influenced philosophy of law (Hastie, 1887).

Rose asserts that the various connected twofold distinctions in Kant’s work can be traced back to the Roman person/thing distinction as a hidden influence, organizing their logic. At first sight this seems unlikely since Kant’s major, driving division is always between the empirical and a priori, or phenomenal and noumenal. Ideology critique, however, must find what is not obvious. Perhaps Kant’s unusual (for the German tradition) valorization of private law and property vindicates Rose’s suggestion. Thus: ‘persons and things, conditioned by each other’ cannot coherently be made into ‘unconditioned values’; they cannot become ‘an Ideal of Reason, or the form of the intelligible, since the basic opposition which is thereby formalized is that of the bearers of the substance of Roman private law’ (Rose, 1984: 23). Idealizing and reifying Roman categories, in other words, leads to a contradiction. Kant’s picture of freedom is one of the Roman absolute property owner combined with the modern view of atomized subjectivity. In ‘the sphere of private law…Kant’s doctrine of legal order most closely reflected early liberal ideas’ (Thornhill, 2007: 110) by giving property and possession a central place in any legitimate Rechtsstaat; indeed, it is the peaceful acquisition and transfer of property that distinguishes the Rechtsstaat from the state of nature. To Kant’s mind, the thought of an object that no-one could possess was incoherent (Kant, 1956: 52–3, §2 ‘The Juridical Postulate of Practical Reason’), in contrast to traditions of the commons or sacred objects, which allowed for communal use without ownership. Property, for Kant, is required by pure practical reason. This leads, for example, to his view that active citizens may only be ‘persons of independent economic substance’ (Kelly, 1992: 258); and to his innovation of rights in rem over a person, that is, the possession of persons in a thing-like fashion. This applies in the case of spouses (who mutually possess one another), children and servants (the latter two in asymmetric relations to parents and masters). Rose, however, pushes her argument too far. Not only is the category of rights in rem restricted to a few cases, it creates greater equality for women and protects the rights of children and servants: a progressive view for 18th-century Prussia. It also makes slavery impossible. ¹² Further, freedom in Kant is centrally about performing the self-legislated, universal moral law, something she underplays (cf. Ameriks, 2012).

Rose points out that Kant wanted to use ‘for the present age’ Ulpian’s ‘three famous maxims…live honestly, hurt no-one, give each his due’ (Rose, 1984: 20; Kant, 1956: 42–3). Yet, as Arthur Ripstein (2009) notes, Ulpian’s comment was regularly used at the time, so there is nothing particularly affine between Kant and Roman law on that score; Kant (1965: 42) even admitted to putting content into the phrase rather than merely following it. Indeed, the rationalization and codification of law was normal practice from the 14th century and continuing into the time of Kant and his contemporaries Johann Gottlieb Heineccius and A. F. J. Thibaut (Kelley, 1978). Here again, then, the influence runs from Kant to Rome. Why not see Kant as idealizing persons and obligations, rather than persons and things? Or, since the fundamental Roman legal division is between three terms, not two (persons, things and obligations), why not see Roman law as fundamentally closer to Hegelian triune logic than Kantian dualistic logic? Or, why not see it as neutral enough to be common to any number of ways of thinking (Kelley, 1979) since the ‘Greek inspiration of these [Ulpian’s] maxims seems unmistakable’ (Kelly, 1992: 67)?

Conclusion

Rose looks for the jurisprudential and legal categories and ways of thinking shaping various social philosophies in order to reveal the formation of contemporary philosophical consciousness and critique its ideologies. She relates this to an expansive view of jurisprudence, which is explicitly entangled in ethical and metaphysical categories. She is able to show how attempts to avoid antinomies, law and metaphysics are subject to a dialectic and thereby put into doubt the wisdom of the attempts by some post-structuralists to avoid them. (Whether Rose’s specific arguments against the post-structuralists are fair remains contentious, though she certainly pinpointed various areas of concern to which subsequent scholarship has repeatedly returned.) In that sense, Rose’s work can be seen as an argument for the continuing need for and legitimacy of law and jurisprudence. All of these premises are plausible, suggesting that ideology critique via jurisprudence is worth pursuing. Despite this, Rose’s specific argument against Kant does not carry through. It permits an oblique and stimulating view of his work but it fails to establish the influence of Roman law on his thought as a whole, rather than on parts of his political philosophy; it does not reveal any difficulties with Kant’s defence of freedom with which Kant himself was not aware; it avoids a significant part of Kant’s defence of freedom as found in the second Critique; and it unfairly characterizes his view of autonomy as centrally focused on property and domination rather than on the activity of communal, rational self-legislation. Current Kant scholarship shows Kant well able to deal with all of these attacks. Although Rose does bring to the fore problems with the role of property in Kant’s political philosophy, this was not her primary aim, nor is it necessary to resort to ideology critique to do so. A straightforward criticism of Kant is able to do the same job.

Rose’s misfire against Kant is instructive insofar as it highlights the danger of performing ideology critique, notwithstanding its necessity. That is, although we cannot do without it, ideology critique runs the risk of arguing from silence, being unfair to a thinker or argument, and remaining on the level of indemonstrable and unfalsifiable assertion. It may be that Rose ‘discovered’ property and contract in Kant’s view of freedom by way of elective affinity with Roman law, but many others do not. I have tried to show why she was wrong, but the difficulty of adjudicating her claims is a salutary lesson for those committed to the important task of ideology critique, to which her jurisprudential version remains an underexplored contribution.