Von der res cogitans zum Relationengeflecht?

Abstract

The concepts of autonomy and subjectivity are crucial not only for modern philosophy of law but also for its practice. Nevertheless, postmodern philosophy and postmodern theory of law claim to suspend these concepts, interpreting them as hypostatized narratives. The article argues that contrary to the postmodern reading, already the early modern concept of subjectivity is very fragile: It has no reality outside of a historical process in which the principle of subjectivity is connected to its external objective conditions of existence. These conditions are both theoretical and practical; the former are acquired by science, the latter by social, political, and legal history. This history has not been the pure realization of rationality. The development of the state of law from the state of nature, including the original appropriation and legalization of private property, has been a history of violence. This violence has not simply been overcome but is preserved in modern legal systems, too. It takes a materialistic social theory to tell this story in opposition to the narrative of modern law as a pure triumph of human freedom. This also entails that the subjectivity that stands at the end of this story is not only fragile but also fragmented.