Vol. 11 No. 1 (January 2001) pp. 28-30.

OUTLINE OF A PHENOMENOLOGY OF RIGHT by Alexandre Kojeve, Bryan-Paul Frost (Editor), Bryan-Paul Frost and Robert Howse (Translators). Lanham, MD: Rowan and Littlefield Publishers, Inc., 2000. 492 pp. Cloth $45.00. ISBN: 0-8476-8922-0.

Reviewed by David Schultz, Graduate School of Public Administration and Management, Hamline University.

Anglo-American jurisprudence often fractures over disagreements concerning what the concepts "law" and "right" mean and how the two differ. Legal positivism's penchant for conceptual clarity sought clean boundaries between them. Offering various ahistorical answers in the writings of John Austin and H. L. A. Hart, legal positivism aimed to separate law from morality through a rule of recognition, and it similarly offered a conception of rights that was essentially defined by positive law. Even Ronald Dworkin's famous attacks on Hart and positivism persisted in distinguishing the terms law and right, while offering analytical distinctions that seem either a- or transhistorcial.

The French term Le Droit is also a difficult term to understand. Like the German concept das Recht, droit refers both to law and right, as well as perhaps conveying other multiple meanings or ideas that English has addressed in several words. Combining all these concepts into the one word droit thus poses special difficulties for legal scholars and philosophers.

OUTLINE OF A PHENOMENOLOGY OF RIGHT is an impressive and exhaustive effort that seeks to clarify the meaning of droit. The book, by Alexandre Kojeve, not only unpacks the term, but in the process layers droit with Hegelian and Marxist historiography such that the reader is offered a rich historical understanding of droit that is both challenging and thought provoking.

Alexandre Kojeve was perhaps one of the most important philosophers and teachers in the twentieth century, yet he is virtually unknown to most Anglo- American scholars. A Russian who immigrated to France, Alexandre Kojeve is most famous for his 1930s lectures on Hegel's OUTLINE OF A PHENOMENOLOGY OF RIGHT that took almost six years. These lectures were eventually published in English as INTRODUCTION TO THE READING OF HEGEL, but Maurice Merleau- Ponty, Raymond Aron, Jacques Lacan, and Andre Breton attended them in whole or part, among others. Thus his reading of Hegel, as well as his lectures on droit, influenced an important generation of French and international scholars.

One way of describing OUTLINE OF A PHENOMENOLOGY OF RIGHT is that it is a cross of Hegel's PHILOSOPHY OF RIGHT embedded fully within the context of the PHENOMENOLOGY OF RIGHT, yet influenced by many Marxist nuances regarding class structure, revolution, and liberation. Part one of this book provides a definition of droit, part two a historical discussion on the origins and dialectic of droit, with part three distinguishing among various legal systems,

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including domestic from international law, civil from criminal, and so forth.

Kojeve defines droit as the "interaction between two human beings, A and B, which necessarily provokes the intervention of an impartial and disinterested third, C, whose intervention annuals the reaction of B opposed to the action of A." Part one is an in-depth exegesis of this statement, breaking each component of it down for detailed analysis. Critical to droit is that the interaction is among humans, and Kojeve argues that at various times in history slaves and women were not considered as agents capable of being a subject of juridical relations. Like animals, institutions, non- moral entities such as corporations, and other forms of property, they were considered merely objects of droit, but over time that has changed to where all homo sapiens are able to be agents of droit.

The intervention of a disinterested third party can be a person or government, with voluntary intervention covering the realm of civil law and mandatory intervention being criminal law. As Kojeve develops his discussion, droit is distinguished from right, law, justice, authority, morality, and other legal and moral terms. Droit is a legal relationship connected to all of these terms, embodying many meanings conveyed by these terms within a legal regime and state that has the legitimacy to structure the relationships between at least two individuals. For readers not inclined to accept the Hegelian or Marxist gloss on droit, part one is a brilliant discussion of legal theory that even positivists and analytical scholars should read.

Part two really requires some familiarity or appreciation for Hegel and his PHENOMENOLOGY OF RIGHT and PHILOSOPHY OF RIGHT. Hegel's master-slave relationship and the battle for mutual recognition is the genesis of law. Here, two individuals confront one another for recognition, yet only one can win. The winner or master embodies the aristocratic ethos of droit while the loser or slave the bourgeois ethos of droit. The former represents the value of equality, the latter equivalence. It is out of this battle for recognition that justice, droit, and legal relations emerge, especially within the presence of a third impartial party who also acknowledges this battle for recognition and its outcome. Yet to say that the master-slave confrontation produces contrasting values is an understatement: What results are contrasting Weltanschauungs that bring with them legal systems, states, governments, property and class relations, and a dialectic of history that drives human conflict and relations.

Part two constructs a compelling narrative of droit through history. From the original master-slave conflict and the emergence of two droits, droit unfolds or reveals its various meanings in time. Eventually the resolution of the conflict produces an absolute droit in a universal state where all individuals are equal, not just those who are masters. History is thus driven by the dialectic of droit, with the final citizen droit a synthesis of the aristocratic and bourgeois droits. The fully meaning of droit, then, can only be revealed over time, with its absolute meaning yet to be determined.

Finally, part three of the book is really elaboration of many themes already constructed and articulated earlier. International and domestic, as well as criminal and civil and other forms of legal systems are dissected and given treatment in

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ways reminiscent of Herder, yet the Hegelian or Marxist twist is in showing the eventual unity or interconnectedness of these various parts of the law.

No book review can do justice in giving a brief summary to KojŠve's OUTLINE OF A PHENOMENOLOGY OF RIGHT. There is simply too much in terms of explaining Hegel, Marx, and German and French philosophy that would be required to go beyond the thumbnail gloss provided in this review. Yet, what readers can take away from this book is an appreciation for the interconnectedness of law, justice, morality, rights, and the role of the state and political institutions in giving meaning to these terms. In a profession often characterized by methodological and epistemological individualism, homo economicus, and ahistoricity, Kojeve's analysis is a powerful and sharp reminder of a political ontology that reveals linkages among concepts, ideas, and institutions. He is able to convey the complexity of understanding what judging means and how such actors bracket their own political or moral views when acting. Kojeve can also illuminate deeper relationships between law and morality that Dworkin's philosophy merely glosses, and he offers suggestions on juridical relations that go beyond traditional Hofeldian matrices. Finally, the translation from the French is superb, and the original French is often provided. In fact, droit is not translated, helping to preserve and capture much of the original flavor and nuance of the book.

Yet, for those who reject the grand theories of history provided by Hegel or Marx, this book will disappoint. These readers will be unable to see beyond this framework and appreciate the categories here that provide an interesting order to the various definitions of law offered over time. One weak spot in the book is the Howse and Frost opening essay. It is weak and wooden. In an effort to make Kojeve more contemporary, they try to hammer his work into Fukuyama and apply it to geopolitics, Qaddafi, and Milosevic. Readers can simply skip this essay.

Overall OUTLINE OF A PHENOMENOLOGY OF RIGHT is a profound book and it deserves to be read by legal scholars and political theorists both because of the ideas it expresses and because understanding it opens up the work of much of the French structuralist, poststucturalist, and postmodern intellectual movements that have also had a profound impact upon contemporary scholarship.


Copyright 2001 by the author, David Schultz.