Commentary on the Philosophy of Right, Chapter 18
Historical Forms of Contract
Here too the double caution from I.8 applies. What is general is that human beings make agreements about letting others dispose over things — this occurs in every society in which more than one person has disposal over things at all. What is modern is the specific form of the abstract contract: two free wills agree, detached from estate, birth, and personal bond, on a clearly delimited object, with an enforceable consequence. This form — which today appears self-evident — is a historical achievement whose preconditions arose only through a long process. Four stages can be briefly named.
In tribal societies, there is exchange and mutual agreement, but mostly embedded in lasting networks of relationship. The most important form is gift exchange — what Marcel Mauss analyzed as don / contre-don: one gives, the other gives back, in a cycle that stabilizes the relationship. What we think of as a mere contract scarcely exists here; giving always contains a personal bond that is more than what was negotiated in the particular case.
In the ancient world — and here above all in Roman law — the first systematic theory of contract emerges. Hegel, in his History of Philosophy and at several points in the Philosophy of Right, ascribed a special status to the Romans: they are the creators of law, the first to work out law as an independent, systematic sphere. The category of the person as a legal concept (persona), the differentiation between various types of contract (real contracts, verbal contracts, consensual contracts — sale, lease, partnership, mandate), the distinction between one’s own thing and another’s (meum and tuum), enforceability as the mark of a valid contract — all of this is a Roman achievement. These determinations continue to operate into modern civil law.
For all the sharpness of its contract theory, however, Roman law remains bound to specific preconditions. Contracts are concluded between citizens (cives), whose legal standing is defined by status; slaves are things and cannot themselves be a party to a contract, only its object. Locatio conductio operarum — the contract for labor services — already exists, but it is treated as an exception: whoever must sell his labor counts as unfree; the free citizen is marked precisely by not working for wages. The Roman contract is more refined than the medieval one, but it is bound to a status of citizenship that is not identical with the modern concept of the formally equal person. From today’s perspective, some Roman contractual forms that were then taken for granted — above all contracts for the sale of slaves — are incompatible with our understanding of the person as an end in itself; they violate what Hegel, in the preceding section, developed as the limit of alienability. This is a point where achievement (the refined doctrine of contractual form) and limitation (the tie to an exclusionary status of citizenship) appear together in the same material.
In medieval Europe, a different form comes to the fore: the feudal contract. Here the contract is not primarily the transfer of a thing, but the establishment of a lasting personal relationship — the vassal promises loyalty and service, the lord protection and provision. What in Roman law were clearly separated spheres (person, thing, contract) are, in the feudal contract, interwoven again; the contract binds persons into their position within the estate rather than releasing them from it. Alongside this, trade agreements, leases, and contracts for work exist — but all of them are embedded in the order of estates. The idea of a contract between formally equal parties, regardless of status, does not yet exist.
Only in modernity does the abstract contract arise in its pure form: two free persons agree on a determinate object, their agreement is enforceable, and their status is irrelevant to their capacity to contract. This presupposes what had first to be won historically — the recognition of every human being as a person (cf. III.1), the dissolution of the bonds of estate, the formation of a unified legal order with enforceable claims. Hegel’s theory of contract deals, at its core, with this modern contract, even though he does not systematically reflect on its historical conditionedness.
Wage Labor as a Specifically Modern Form of Contract
In modernity, one form of contract comes to the fore that is new both structurally and in its generalization: the wage contract, in which a human being sells his labor power for a period of time in exchange for money. It must be developed here because it is a matter of contract law, not merely one of civil society.
Structurally, it is a specific application of the abstract concept of contract: two free wills agree on an object. But the object is of a peculiar kind. It is not a thing that the seller hands over and is thereby rid of, but the living activity of a human being for a determinate time. The wage contract thus borders on the limit of alienability that Hegel developed in the section on the person and in the section on property. The person as such is inalienable; she cannot sell her will, her ethical life, her personality without ceasing to be a person. The Roman contract of slavery violates this limit openly — it turns the human being into a thing. The modern wage contract does not violate it openly, but shifts it: not the whole person is sold, but only her labor power, and only for a time. But labor power cannot be separated from the person to whom it belongs; whoever sells his labor power sells a part of his living activity, and for the duration of the contract the buyer disposes, in a strong sense, over the person of the seller.
The genesis of wage labor can be clearly marked. It becomes general to the extent that the separation of producers from the means of production is carried out — through enclosures, through the breaking up of guild bonds, through the concentration of capital in the early industrial period. Whoever has no means of production with which to produce independently must sell his labor power to others in order to live. The freedom of the wage laborer is a double one: free from the bonds of estate, but also free of his own means of production. This doubling is the historical condition of wage labor as a central form of contract.
The validity of the form is conceptually problematic. The formal structure corresponds to the general concept of contract: two free wills agree. But under the real conditions in which the contract is concluded, the equality of the wills is often merely formal. Whoever has no alternative, because he lacks the means for independence, concludes the contract under a structural asymmetry that hollows out formal equality. Marx formulated the point more sharply than any other tradition: the wage contract appears formally as an exchange between equals, but in content it is a relation in which one party to the contract disposes over the lifetime of the other. This is the teleological inversion in its sharpest form: what is supposed to serve as a means (labor power as a means to the satisfaction of the worker’s needs) becomes a means to alien ends (the valorization of capital), while the person who sells the means factually becomes a means of the means. Hegel’s distinction between alienable and inalienable spheres, between external and internal purposiveness, supplied the standard; Marx shows that actual conditions violate it.
The detailed economic analysis — how wage labor functions within the capitalist movement M-C-M′, what surplus value is, how the dynamic of accumulation results from it — belongs in the volume on capitalism and is to be carried out there. Here, in the philosophy of right, what must be clarified is the contract-law standing of wage labor: it is a form of contract that fulfills the schema of the abstract contract. § 67 expressly permits the alienation of “particular products of one’s labor and a use of oneself limited in time”; the limit lies only at “the whole of my time as concretized through labor, and the totality of my production.” The question, then, is not whether wage labor as such violates Hegel’s concept of right — it does not — but under what conditions a formally permissible alienation becomes, in fact, so comprehensive that it undermines the material precondition of mutual independence. That this happens systematically under capitalist conditions is an economic thesis and cannot be demonstrated from the philosophy of right alone; it belongs in the volume on capitalism. [KF] This tension is what the later account of ethical life will have to take up and work through — in the corporation, in the police power, in the state as contested terrain.