Commentary on the Philosophy of Right, Chapter 24
An Analytical Preliminary Note: Necessary Component and Overlay
One distinction protects the analysis of ethical life from a persistent, ever-threatening distortion.
Every ethical institution has a necessary component — something that genuinely serves its purpose, without which the institution would not be what it is — and an overlay, which attaches itself to this necessary component and sustains the system in its actual, factual shape, without still serving the original purpose. A bureaucracy that keeps records because otherwise knowledge would be lost is, in its necessary component, required; the same bureaucracy keeping records because its own existence depends on doing so is overlay. Both are real, both are intertwined, and it is methodically decisive not to confuse the two. Whoever takes the whole of an institution to be necessary idealizes it; whoever takes the whole to be overlay denounces it.
This distinction is the concrete application of the teleological question of means and end to the institution. It becomes especially important where bourgeois society produces something that it presents as necessary, while it is in fact overlay serving its own reproduction.
The limit of this distinction, and it must be drawn sharply. The schema assumes that every institution has a purpose that is, considered on its own, in order, and that everything bad is added on through attachment. For many institutions this holds true. As a general assumption, it is false — and then it trivializes.
The extreme case makes this undeniable. An extermination camp had an administration, and this administration kept records, managed inventories, and adhered to procedures. To try to distinguish here between the necessary component and its bureaucratic overlay would be to miss what matters most, and, worse, to say something obscene — for the necessary component served the purpose of the institution, and the purpose was the extermination of human beings. The appropriate critique is not directed against an overlay but against the institution itself and against those who ran it.
Three questions, not one. The analysis of institutions therefore has three levels, and they must be posed in this order, because each makes the next meaningful.
First: What is this institution for, and can that purpose be defended? This is the question of legitimacy. It cannot be answered by appeal to usefulness — an extermination camp was well suited to its purpose — but by whether the purpose can stand before that on which all right is grounded: that human beings are recognized as persons (§ 36). If the answer is negative, the further questions become moot.
Second: Does the institution serve its purpose? This is the question of fitness, the teleological question in the narrower sense. Here it can turn out that an institution with a good purpose fails to achieve it — and not through attachment, but through its very design.
Third: What has attached itself? Only here does the distinction between necessary component and overlay come into play.
What follows from this in practice. The three levels demand different answers, and confusing them is the most common error in the critique of institutions. Where the purpose cannot be defended, no reform helps — the institution must be abolished, and whoever tries to reform it merely prolongs it. Where the purpose holds but the design fails to realize it, the institution must be rebuilt, not merely trimmed. And only in the third case is what has attached itself to be cut back, without touching the rest.
Conversely, this also reveals a strategy of defense: whoever wants to protect an institution whose purpose cannot be defended shifts the debate to the third level. Then the discussion turns to procedure, where it should be turning to purpose. [KF]