I. The value of limit: physicalism and the human res

The ‘just compensation’ requirement in the US Constitution's Fifth Amendment takings clause has long been debated as creating a potential barrier to redistributive legislation. An indefeasible requirement to pay compensation for expropriations protects against confiscation and the nullification of vested rights, but can be double-edged: it will ‘make a just distribution more secure, but it also will make an unjust distribution more secure’ (Nickel Reference Nickel1976: 383, 388). The ‘original intent’ of the US Constitution's framers to this end has proven divisive in legal histories, although the clause's sole drafter, James Madison, was clear about his anti-majoritarian anxieties and the threat of populism to the rule of law (Nedelsky Reference Nedelsky1994: 205–207).

With Pennsylvania Coal Co. v. Mahon in 1922, the US Supreme Court debunked any so-called ‘physicalist’ limitation to the clause's application—its putatively limited application to property physically seized or occupied. The meaning of ‘taking’ was thus confirmed to cover abstractions of value, expectation and interest, such ‘things’ as might be taken when ‘regulation goes too far’.Footnote ⁵ This shift alarmed organized labour and legal realists who cautioned that ‘thingification’ simply veiled ‘the circularity of legal reasoning’: property's protection ensures value and value warrants protection as property (Cohen Reference Cohen1935: 815). This recursive relation between securitization and value is what is meant to drive growth and investment, but once any government measure may incur an obligation to compensate, it also puts an uncontrollable price on social and economic transformation.

In the wake of Mahon's ‘disintegration’ of the physical concept of property, an affliction of what Davies calls ‘post-Hohfeldian anguish’ has been unleashed, with practical consequences for takings law (Davies Reference Davies2007: 42; Grey Reference Grey1980). Broadly stated, Mahon's non-physicalist expansion is understood to risk engendering claims for indemnification for any diminution of value incurred due to ‘regulatory’ expropriations (Smith Reference Smith2012: 116–17). John Commons's Reference Commons1924 account regarded this slippage from the tangible to the intangible in US constitutional property thought as ‘more than a transition—it is a reversal’ (of the original, physicalist thesis), one which ‘becomes important when Capitalism rules the world’ (Commons Reference Commons1924: 21). Indeed, the legacies of US takings discourse extend well beyond US jurisdiction: after a century of fierce international contestation by postcolonial States, the Fifth Amendment's ‘enlightened’ norm of ‘just compensation’ has been successfully transplanted into a spaghetti-bowl of investment treaties, and effectively elevated to the status of an immutable principle of political and economic expediency, albeit one not yet considered customary international law (Vandevelde Reference Vandevelde2017: 5–28).

Brudner's enlistment of Hegel as the philosopher ‘uniquely’ able to understand the takings clause is a shrewd choice for thinking about shifting understandings of eminent domain, but—as I argue below—his justification of an indefeasible constitutional guarantee of compensation cannot be said to exhaust Hegel's philosophy, nor to exhaustively apply it to contemporaneous circumstances. Brudner reads into Hegel's ‘absolute right of appropriation […] over all things’ (EPR: §44, 75/126–27) a concept of property characterized as a right to ‘acquisition’ that ultimately becomes a duty to acquire,Footnote ⁶ thus imprinting Hegel's philosophy with paradigms of possessive individualism: property is acquired ‘prior to the rule of law’, ‘independent of distributive fairness or the public interest’ (Brudner Reference Brudner, Penner and Smith2013: 86). Brudner's account of the takings clause does reject the thesis that the physical thing was somehow eroded in property thought, and rather acknowledges that it was never first to begin with (Brudner Reference Brudner1995: 300).Footnote ⁷ But it stops short of exploring the significance of that understanding for what was, during Hegel's lifetime, the most contentious application of the clause: namely, slavery abolition.

Curiously, takings discourse's abyssal margins after Mahon have sustained an uncanny slippage between physicalism, absolutism and debt. If the notion of property as the law of things (the in rem right) has often been associated with a Marxian account of the legal reification of the commodity form, its corollary resides in the implicit anticipation that the revelation of property as relationality—‘through and through’ (Dagan Reference Dagan2021: 27)—entails a disenchantment of the law's operations and a more emancipatory concept of ‘property’ as a social construct. Without the ‘logical stopping point’ tendered by the physical thing, however, property might ‘include all legal relations’ and ‘lose meaning as a category of law’ (Vandevelde Reference Vandevelde1980: 362, 364). Margaret Davies notes that this post-Hohfeldian disaggregation of property coincides with linguistic theory's ‘crisis in meaning’ (Davies Reference Davies1998: 159). Takings law (perhaps uniquely) demonstrates that property shares with meaning a particular instability of over-extension: limit is the price of meaning—is reason's very condition of possibility—for the ‘the right of entry into language’ (logos) requires that ‘polysemia is finite’ (Derrida Reference Derrida and Bass1982: 247–48). Twentieth-century US property thought post-Mahon has often pivoted around determining how to delimit the clause's scope, guided by little more than the notion that property is a normative idea of distribution guaranteed by ‘some degree of permanence’ (Michelman Reference Michelman1967: 1203).

If the historic erosion of an original physicalist paradigm of property is a retroactive invention, Commons's physicalist ‘reversal’ thesis is more than ‘something of an oversimplification’ (Stoebuck Reference Stoebuck1972: 601–602). After the Fifth Amendment's ratification in 1791, the first express assertion of the federal power of eminent domain came in 1875, by which time the equation of property with ‘everything which has exchangeable value’ was already well established (Commons Reference Commons1924: 14).Footnote ⁸ Some antebellum state constitutions included compensation clauses, and some state courts held to the principle that ‘property must be actually taken in the physical sense of the word’ for the requirement to apply, but the application of the compensation principle to a ‘non-physical concept of property’ arose at least as early as 1816 (Stoebuck Reference Stoebuck1972: 601). Physical loss also remains paradigmatic of takings law: physical seizure or invasion are still the bright-line exemplars which structure practically all takings discourse. The debate over the conceptually promiscuous ‘intangible’ version of property post-Mahon culminated nonetheless in 1995 in Michael Treanor's presentation of the figure of the slave as evidence of the Constitution's framers’ adherence to the physicalist thesis, suggesting that human chattel was likely the first type of property to be considered under the federal takings clause's purview.

Treanor's premise—that the physicality of slaves proves the clause's original limitation to tangible property—is remarkable: Morris Cohen, Hans Kelsen, and Orlando Patterson each suggest in different ways that the very distinction between a corporeal and non-corporeal concept of property is as old as slavery itself (Cohen Reference Cohen1927: 11–12; Kelsen Reference Kelsen2005: 131; Patterson Reference Patterson1982). ‘Physicalism’ is an awkward trope of takings thought to apply to the context of slavery abolition: according to Patterson, absolute dominium was a legacy of the Roman slave economy that came to ‘haunt’ Western legal concepts for millennia (Patterson Reference Patterson1982: 31). It is, and always was, obvious that ‘strictly speaking, property refers to a set of relationships between persons’: slavery above all needed the concept of ‘things’, for the slave had to be ‘above all a res, the only human res’—an emphatically human thing (Patterson Reference Patterson1982: 32). The persistence of the thing in understandings of the property concept hinges on what Jeremy Bentham described as the ‘violent’ (if quotidian) ‘ellipsis’ of the property relation (Davies Reference Davies1998: 158): in this regard, the human res is the property concept's most violent denial of relationality.

II. Full right and full value: Brudner's ‘Hegelian’ indemnity

One of Hegel's primary interlocutors for modern US property thought, Alan Brudner presents takings law as illustrative of his concept of ‘dialogic community’, or how the ‘contradiction inherent in civil society is logically surmounted in the political community (what Hegel calls the ‘State’)’ (Brudner Reference Brudner, Penner and Smith2013: 91–92). Compensation for takings is ‘just’ because ‘property exists in the state as the private property approved in a free market and not as a product of the public welfare’ (Brudner Reference Brudner, Penner and Smith2013: 96). Cognizant that this condition may thwart redistributive legislation with prohibitive cost, he nonetheless maintains that ‘an authority to expropriate for the public welfare limited by a right of compensation indefeasible by the public welfare’ offers a theoretical axis of coherence for property law—the ‘reciprocal limitation within a whole’ (Brudner Reference Brudner, Penner and Smith2013: 69–73, 97–98).

It is not altogether obvious that this ‘constitutional essential for liberalism’ (Brudner Reference Brudner, Penner and Smith2013: 73) is essential for Hegel. While the clause's compensation requirement has emerged as a totem of liberal US property thought, the relationship of Hegel's Rechtsphilosophie lectures to liberal political philosophy is contested, in no small part due to its author's ambiguous commitments to statism and legal science, discussed below. Many sections of the Philosophy of Right lectures indicate that generally Hegel believed the State may subordinate private property to the public interest, seemingly sanctioning exceptional acts of confiscation (EPR: §46A, 78/130; Wilson Reference Wilson2019: 89–90). Hegel defends infringements of the right to property as patently necessary exceptions that rather prove the validity of the general principle that property should be protected (VPR H: §137, 134; VPR 4: §30, 157–58).

At the time of Hegel's commentary, litigation was still disentangling the question of compensation for the abolition of feudalism in France, and struggling to distinguish between feudal and non-feudal property relations. The ‘legal structure’ of property at the time of the French Revolution consisted primarily in ‘divided domaniality’, and the unification of dominium directum (ownership) with dominium utile (use) was effectively ‘shorthand’ for abolishing feudalism (Blaufarb Reference Blaufarb2016: 62). Overcoming the regime of divided dominium was sometimes framed as the restoration of an (ostensibly) original character of property as allodial (‘full’ or ‘absolute’), but Susan Reynolds suggests that the allodial paradigm was largely derived from ‘postmedieval historians who originated the idea of feudal law and feudal society’ (Reynolds Reference Reynolds2010: 105). In France, the invocation of an indivisible allodial right was rhetorical: Rafe Blaufarb writes, ‘Although [allods] recognized no overlordship, they could be dismembered into subordinate tenures in exactly the same way as a fief’ (Blaufarb Reference Blaufarb2016: 64). The term dominium eminens was first used by Francisco de Vitoria to refer to a superior sovereign, or princely, prerogative, over and above all other claims, and Hugo Grotius's influential 1625 account espoused the principle with compensation as its essential caveat, as a law of ‘jus gentium’ (Grotius Reference Grotius, Campbell and Walter Dunne1901: 387–88). Thus the US takings clause's strict compensation requirement certainly reflected a vital qualification of the original understanding of the concept of eminent domain—uniquely adopted by US constitutional discourse in legal treatises of the late nineteenth century (Reynolds Reference Reynolds2010: 109–10, 138).

However, the distinction between dominium utile and dominium directum, revived from Roman law in the twelfth century, had always been academic (Reynolds Reference Reynolds2010: 91) and politically potent (Fitzmaurice Reference Fitzmaurice2014: 37–39)—but never coherent. Early Franciscan texts had established an equivalence of dominium and ius that persisted in medieval and scholastic thought, meaning that dominium could enjoy a certain similitude with any loss entailing a right to restitution, and injury a broad equivalence with ‘furtum, theft’ (Brett Reference Brett2003: 25, 29, 127; Brett Reference Brett2014: 92). By the fifteenth century, Konrad Summenhart catalogued no less than ‘twenty-three categories of dominium’, and Vitoria would later deploy the divisibility of dominium to argue ‘that Indians [in the New World] could have dominion and yet still be under the jurisdiction of [Holy Roman Emperor] Charles V’ (Reynolds Reference Reynolds2010: 91–100). Andrew Cole suggests that the dominoes of domination revealed in this feudal past—Europe's ‘subinfeudation’—inspired Hegel's insight in the Phenomenology of Spirit that the master is ‘really the slave’: each lord ‘stands below a greater lord’ in ‘ever-ascending orders of domination’ (Cole Reference Cole2014: 79–80).

For the French, a compensation requirement equivalent to that in the US takings clauseFootnote ⁹ quickly provoked a dilemma of prohibitive expense and by 1793, civil unrest led the National Convention to mandate uncompensated abolition of feudal titles (Koskenniemi Reference Koskenniemi2021: 458–73). Hegel cast feudalism's division of dominium as a ‘madness of personality’ (EPR: §62R, 91/148), but denounced outright confiscation. The consolidation of dominium—its becoming ‘full’, as private property—signified for Hegel the necessary overcoming of the division between ‘concrete mastery’ (possession) and ‘abstract mastery’ (ownership), since if the latter ‘is deemed to accrue to another’, then the former could only ‘consist in an indebtedness’: a right to ‘insuperable’ debt would mean that right is ‘empty’, all possibility of its actualization foreclosed (LNR: §25, 73/27). The absolute power that Vitoria ascribed to sovereignty was thus in need of qualification, and Hegel recalled reforms undertaken by the eighteenth-century Prussian King Friedrich II, which made private property more than ‘mere domination’ by the sovereign, as exemplars of such ‘enlightened absolutism’ (VPR 4: §75, 253). In this vein, notes to the early lectures assert that ‘the principle that feudalism should be overcome was wholly good’, but disapprove of dominium directum ‘simply being annulled’: ‘[I]t had to be accompanied by compensation’ (LNR: §25–26, 74–75/28–29).

Hegel did not however endorse an indefeasible constitutional right to compensation: ‘only rarely’ could the State be ‘bound by right’ to pay it (LNR: §125, 225/175). He distinguished the illegitimate claims of German nobles and émigrés in France to compensation for lost privileges; rights to public office should not be indemnified, but when rights that have the ‘form’ of private property are abolished, including vassalage, ‘those who gain thereby must pay compensation to the losers’ (LNR: §125, 225–26/175–76). The early lecture notes further suggest that, within the logic of limitation implied by compensated expropriation, the law as public settlement is private property's condition of possibility:

For Brudner, in contrast, the lawgiver does not determine the price; rather the State must compensate expropriations ‘at a value judicially determined as fair’—meaning for Brudner market value, ‘the metaphysical values realized in exchange’ (Brudner Reference Brudner, Penner and Smith2013: 83–84, 96). Joseph Sax recalls that although Grotius is considered the ‘the father’ of the takings clause, he was in fact ‘a firm advocate of government regulation of prices’ (Sax Reference Sax1964: 54), and for Hegel—‘the philosopher’ of the clause—we could say the same: the passages from Hegel's lectures cited above suggest a far less dogmatic commitment to the principle of compensation, much less one that is fixed by market value (der Preis muß gesetzlich bestimmt werden).

III. Absolute property, absolute abstraction: thinking right

Any ‘absolute’ right to property derived—for Hegel—not so much from dominium, or value, as from phenomenology. The oft-cited section of the Philosophy of Right on the absolute right of ‘appropriation’ (absolute Zueignungsrecht) is immediately followed by this remark:

The predominant English translation of Hegel's archaic term—das Zueignen—to ‘appropriation’ flattens a far more plastic notion suggested in usage contemporary to Hegel: consecrate, attribute, convert, devote, consign, father, assume, adapt, enclose, address (Ebers Reference Ebers1793). The above passage, largely overlooked in English-language analyses of §44, frames Hegel's use of Zueignungsrecht as phenomenological, positing free will as ‘the power to push aside the curtain of phenomena’ and exposing ‘the entire world of things to be “manifestations” of the world of persons’ (Scholz Reference Scholz2009: 56, my translation; see also Hüning Reference Hüning, Hüning, Stiening and Vogel2002: 235–62; Mohseni Reference Mohseni2014: 59; Städtler Reference Städtler2017: 372). The free will can neither claim to know what things really are, nor forswear knowledge of them, and the phenomenological crux of Hegel's theory of property might be dubbed—in contradistinction to Locke—a labour (of thinking) theory of property. Property is the unassailably phenomenological structure of the capacity to determine property, and for Hegel, self is concomitant with determination.

Hegel's striking examination of ‘das Zueignen’ in earlier lectures defines it as ‘taking possession’ by one of three modes: i) seizing; ii) marking; or iii) imposing a form on a thing (LNR: §§19–32, 67–81/21–35). Physical seizure is the ‘in the highest degree the most limited and temporary’ mode and exemplifies the ‘imperfection of laws’: since matter ‘does not belong to itself […] when I seize it, it is mine’, but one ‘cannot go on holding things in detention, in bodily possession, indefinitely’ (LNR: §20, 67–68/22–24). Neither can marking suffice. As mere ‘objective representation’, the mark is arbitrary, indeterminate, a ‘most imperfect way’ of taking possession: European settlers in the Americas did not achieve ownership of land simply by planting flags, nor, pace Locke, could land-use alone ‘impose a form’ (LNR: §19, 67/21; §21, 70–71/24–25; §23, 72/26; VPR H: §58, 66).

Corporeality collapses as Hegel considers the exemplary physical object of property, res nullius, in the cadaver of a wild animal: ‘The negative condition [for my taking possession], namely that the thing should be ownerless (res nullius), is here self-evident, or rather relates to the anticipated relationship to others’ (LNR: §18, 66–67/21; §31, 80/34–35). But in his analysis of the wild prey dispatched by multiple hunters, Hegel quickly explodes materiality as connected and interstitial. In the forensic disaggregation of the kill, the ‘inner dividedness’ of the individuated res nullius is on display: its apparent singularity dissolves in its ‘intrinsic externality’, its ‘sensuous manifoldness, its various levels of life’ (LNR: §20, 67–68/22–24). Here, matter can accrue, fracture and disperse, and a litigative dismemberment ensues: this is where ‘legal disputes arise […], the understanding [decides] how essential one or the other part or aspect is, and so (determines) the right to the thing itself’ (LNR: §20, 67–68/22–24). Thinking through this juridical scrimmage over the innards of the hunted wild animal, Hegel seems to anticipate Walter Benjamin's identification of that ‘most ancient’ form of reading: ‘to read what was never written… reading before all languages, from the entrails, the stars, or dances’ (Benjamin Reference Benjamin and Jephcott1978: 336). Judgement arises already dissected, as ‘original division’, Ur-Teil— ‘every thing is a judgment [Alle Dinge sind ein Urteil]’ (EL: §§166–71, 243–48; Tanabe Reference Tanabe1971). Any ‘essential correspondence’ between intelligence and intelligibility, of laws natural or artificial, always already takes place against the ‘abyss of reality’ (Negarestani Reference Negarestani2018: 31). Absolute right (das Zueignen) thus delivers immediately and irrefutably the ‘problem of too much law’ (Cover Reference Cover1983: 41): the abyssal contestation of matter occasions ‘positive right’, the necessity of a decision founded on understanding (LNR: §20, 68/23).

For Hegel therefore, positivist legal science could never exhaust the meaning of right. Rather, there is a ‘point’ at which ‘right must become positive’, but positive law and philosophical science are ‘approaches’ that ‘can […] remain indifferent to one another’ (EPR: §3A, 28–31/65–68). Legal slavery exemplified this tension between legal science and philosophy: citing the French Code Noir, he describes how legislation merely derives validity from its status as legal source of authority, whereas right in itself is right by virtue of reason (VPR 4: 538). To a degree, Hegel's commitment to philosophical science gave him licence to be selective. Some aspects of positive law he deemed irrelevant for his understanding of right, others (such as the divisions of dominium, discussed above) were essential, if only for having produced an erroneous and empty entitlement.Footnote ¹⁰ Right, moreover, is restless. Even in situations of peace, the possibility of coercion remains the necessity of coercion, for coercion can only ‘be annulled by coercion’ and is ‘only rightful insofar as it destroys coercion’, and therefore ‘right must be’, irrespective of legislation (LNR: §44, 96/49–50). The permanence of property must also remain in question: ‘That I own a thing is something that happens in time’ (LNR: §27, 76/30–31). For Hegel, ‘imposing a form’ is the ‘most essential’ mode of possession—more so than seizure, or marking—precisely because it makes possession ‘durable’, and hence gainful (Erwerb) (LNR: §21, 70–71/24–25). Possession can become ownership—‘the aspect governed by right’—only when this ‘non-sensible, timeless aspect’ is introduced (LNR: §24, 72-3/26–27).

Zueignungsrecht demarcates then not a simple duty of material accumulation—as per Brudner—but rather a capacity to produce enduring formal abstractions, a release from indebtedness to the physical: for ownership in the sense given here—pace Commons's account, cited above—is by definition the introduction of the ‘non-sensible, timeless’, its intangible form. Hegel's account of ‘imposing form’ is paradigmatic of the teleology at work in Europe's embrace of property as selfhood, as an ideology of ‘human development’, and instrument of the alienation of labour; as Max Stirner later intuited, in this developmentalist account, the one indispensable thing for property is the human, and the distinct mark of the human is indebtedness, lack—for ‘no beast has its essence appear to it as a task’ (Stirner Reference Stirner2000: 293). For Hegel, form is a matter of ‘body and spirit’: ‘By imposing form I determine myself, I separate the determinate activities from me’ (LNR: §22, 71–72/25–26). In order to master oneself—to ‘divest [oneself] of arbitrariness’—and in order that one not be enslaved, one is paradoxically required to be ‘capable of taking on the form of the thing’ (LNR: §29–30, 78–80/31–34; EPR: §57, 86/141). Only this way can one ‘hand [some self] over’ as ‘something external’—service (LNR: §30, 79–80/33–34). The human must moreover be able to ‘separate [themself] wholly or in part from [their] body’ because ‘an animal cannot’ and, most unlike the wild animal, the human is not ‘something independent’ and does not ‘[lose] its independence by being tamed’, must be tamed to be free (LNR: §16, 65/19; §21, 70/24–25). At the same time, for Hegel, that the human should be so free is foremost a thought (der Mensch soll eine Freie sein, dies ist ein Gedanke) (VPR H: §258, 235), and thought itself imprescriptible, expressing a ‘boundless infinity of the absolute abstraction of pure thinking, of universality’ (LNR: §3, 53/7). Since the abstract is unbound—absolute—then in the vein of Aristotle's characterization of metaphysics as ‘the only free science’, Hegel arguably derives from absolute Zueignungsrecht an immanent injunction to think: a slave is one who ‘does not think himself’ (EPR: §21, 53/96).

In the matter of thinking oneself (to be) free, one is tempted to imagine that Douglass might have concurred,Footnote ¹¹ but it is difficult to avoid the fact that Hegel accepts a basic juridical correspondence between intelligence and intelligibility that is racialized in advance. The interpretation that Hegel perpetuated the myth of the servile slave often leans on one phrase derived from his student's notes: ‘If someone is a slave, his own will is responsible’ (EPR: §57A, 88/143).Footnote ¹² Often overlooked is the extent of Eduard Gans's revision, which eliminated from this passage a crucial distinction (between ‘an sich’ and ‘für sich’): the text of §57 and its accompanying notes in all other versions do rather suggest that for Hegel the notion of slave servility is paradoxically implicated in the very assertion that humans are by nature free; in his notes to the same passage, he refers to the enslaved in the West Indies as ‘victims of the general condition’ (cf. VPR H: §57, 65; VPR 3: §57, 226; VPR 4: §57, 209; see Nesbitt Reference Nesbitt2008: 122–24). Hegel's brief considerations of slavery are nevertheless emphatic in the conviction that African slavery is distinct, notoriously prescribing Bildung and Christianity, even slavery, as civilizing remedies to Africans’ ostensible servility. Arguably, Hegel precisely vindicated racial slavery by racializing Statehood: student notes to his final Rechtsphilosophie 1831 lectures record that, ‘[w]ith the Negroes, there is no progress or state building. The same with the Eskimos’ (VPR 4: 922; my translation).

Of course the ‘compulsion to think’ has never been reducible to a ‘Western enterprise’ (Negarestani Reference Negarestani2018: 410, 485), but in linking thought, form, and law together Hegel's account essentially consolidates a refusal of non-Western peoples’ juridical capacity through the continuing denial of their ability to abstract. The imposition of form necessitates that right is uttered, and known—hence, a discursive operation: property turns on the appropriative and jurisgenerative capacity of naming implied in the logocentric correspondence of nomos—Name/nehmen (to take) (LNR: §17, 66/20; Schmitt Reference Schmitt and Ulmen2003: 326). For Hegel, the law of nations (jus gentium) had long distinguished that imposing a form is ‘the most complete mode of use’, and thus accorded simple priority in right to ‘the most advanced, more civilised peoples’ (LNR: §21, 70–71/24–25). This deference to early modern law extends to philosophy what had for centuries served as a modus operandi of lawful imperialism—disaggregating humanity via the rubric of civilization. The consequent exclusion of non-Europeans from the capacity for reason and state-building likely also underpins Hegel's tentative deliberations on how to distribute the societal costs of abolition.

IV. Hegel and the slaveholder indemnities, 1822–68

Hegel's 1818–19 lectures presented an embryonic version of the Philosophy of Right, in his own notes to which the matter of slaveholder compensation transpires elliptically. In the following passage on slavery, the only feasible context of abolition (not expressly mentioned) must be inferred:

Notes to the Rechtsphilosophie lectures written six years later by Hegel's student, K. G. von Griesheim, expand on this cursory analysis:

Leaving aside the problem of the ‘bona fide slave’, or whether the misleading formulation is Hegel's or his student's, this second remark appears upon first glance to prematurely report a compensated abolition of slavery in North America as if it were history. Far from being abolished, slavery in North America in the 1820s was undergoing a process of expansion. Where gradual emancipation had already been enacted in the northern US states, this was achieved through prohibition of the trade and ‘free womb’ laws.Footnote ¹³ Cases of private purchase did occur—but no State purchase of slaves took place other than in the District of Columbia in 1862, some thirty years after Hegel's death (Sumner Reference Sumner1862). The source of the error is not immediately obvious.

These two fragments from 1818–19 and 1824–25 are (to my knowledge) Hegel's only commentaries on the matter and bookend a critical period in which US lawmakers tentatively began to tout estimations as to the cost of abolition. The timing of the two notes suggests that Hegel was prompted to consider the matter by an international arbitration awarding US slaveowners compensation for slaves ‘carried away’ during the 1812–14 Anglo-American war, which set a timely precedent for subsequent slaveholder indemnifications paid by Haiti, Britain and the US. The arbitration aimed to resolve a dispute that had ‘plagued Anglo-American relations for a quarter of a century’, and concerned the ‘taking’ of slaves—though not necessarily their emancipation (Quarles Reference Quarles1996: 200). During the US Revolutionary War, both the US and Britain viewed slaves of the enemy as ‘booty’ (Quarles Reference Quarles1996: 157). From the mid-1770s, the British promised loyalists compensation for slaves impressed into fighting their side; US states also compensated owners for impressed slaves, although on the US side anxieties about the ‘threat’ of advancement were high. To overcome US slaveholder reticence, ‘substitution’ was permitted (whereby slaveowners could offer slaves to dodge the draft) (Quarles Reference Quarles1996: 55–57, 67). Of the 50,000 slaves ‘carried away’ with the British during that war, many were forced back into slavery and US slaveholders hoping for restitution of their lost ‘property’, provided for under the 1794 Jay Treaty, were disappointed (Wiecek Reference Wiecek2018: 56; Quarles Reference Quarles1996: 200; Sinha Reference Sinha2016: 52). Thousands more slaves joined the British troops or fled behind British lines in 1812–14 war. Drafters of the 1814 Treaty of Ghent were thus anxious to avoid another failure: Article 1 of the Treaty provided that all ‘possessions’, ‘any slaves or other private property’, ‘carried away’ with the British were to ‘be restored without delay’ (Oakes Reference Oakes2014: 117–23; Finkelman Reference Finkelman2014: 172).

The parties agreed to refer their differences to arbitration in 1818, and a year later appointed the Russian Czar Alexander I as sole arbitrator in the case. For the British and US statesmen involved, slaveholder compensation likely ‘paled in comparison’ to concerns of maritime hegemony, territorial integrity and colonial expansion (Ostdiek and Witt Reference Ostdiek and Witt2019: 562). In deference to the law of nations, the British claimed never to have resisted the indemnification (Lindsay Reference Lindsay1920: 414); in 1820, Britain agreed a £400,000 indemnity to Spain upon the latter's abolition of the slave trade (Griggs and Prator Reference Griggs and Prator1952: 106). Ambiguity remained not as to whether a slaveholder indemnity was due, but whether the Treaty covered slaves originating in territories the British had never occupied. Curiously, compensation was not mentioned in the Treaty at all, only restitution, but with the arbitral decision, this slippage was tacitly settled. In 1822, the Czar awarded US slaveowners ‘just indemnification’ for the loss of slaves and $1,204,960 representing the value of 3,601 slaves was finally paid by Britain and distributed to the slaveholders in 1828.Footnote ¹⁴ The Morning Chronicle, of which Hegel was a ‘regular and assiduous reader’ (Petry Reference Petry1976: 15; Buck-Morss Reference Buck-Morss2000: 844, 859), reported both the award and its reverberations: in 1824, slaveholders organized in London and drafted a Petition to the King demanding that they too receive full indemnification upon slavery abolition in the West Indies.Footnote ¹⁵ The Ghent Treaty arbitration provided a critical precedent and its evaluations became a ‘yardstick’ for the British slaveholders, who soon demanded an indemnity of sixty-four million pounds (Draper Reference Draper2009: 79–94; Heyrick Reference Heyrick2010: 31–32). The British Parliament legislated in 1834 to compensate the slaveholders to the tune of twenty-million pounds, as well as a so-called ‘apprenticeship’ period during which slaves were to remain slaves, which ended prematurely in 1838 (Fogel and Engerman Reference Fogel and Engerman1974). The loan constituted ‘the largest single financial operation undertaken by the British State to date’, amounting to five percent of the national income—equivalent to around 200 billion pounds in today's terms (Draper Reference Draper2009: 270).

The fragment from Hegel's 1818–19 notes keenly anticipates how such debates would develop long after his death: a State with ‘the power’ and hence ‘the absolute right’ might indeed abolish slavery without compensation. For Hegel, however, blame rather resided in the totality—‘Schuld […] Aller, des Ganzen’ (VPR 2: 243)—and this sense that it would be a fallacy to impute the responsibility for slavery exclusively to slaveholders was widely shared at the time. In the US, the question of a slaveholder indemnity proved almost as unpopular with northerners unwilling to acknowledge such complicity in the economy of the South, as with proslavery southerners (Fogel and Engerman Reference Fogel and Engerman1974: 382–83). Up to and during the civil war, Lincoln maintained the belief that immediate, uncompensated abolition unfairly penalized slaveholders for participating in a legally sanctioned activity, its profits diffused throughout the economy. Soon after compensated abolition in the District of Columbia, in January 1863, he issued the Emancipation Proclamation—a ‘war measure’ declaring all slaves in seceding states to be free—recommending that compensation be paid to slaveholders ‘who shall not have been disloyal’, through government bonds issued to states that abolished slavery up until 1900.Footnote ¹⁶ As recognition that the North had shared in slavery's profits, he deemed compensation ‘just and economical’; relative to war expenditure it was even ‘prudent’—but with a thirty-seven year grace period for slaveholding states, it was anything but expedient. Towards the end of the civil war, Lincoln again failed to win support from his cabinet for a compensation settlement of 400 million dollars to southern slaveholders (Kleintop Reference Kleintop2018: 6–7). The passage of the Fourteenth Amendment in 1868 finally wiped out US slaveholders’ claims for a federal indemnity.Footnote ¹⁷

As mentioned in the introduction, the value of slave property had by 1860 made any prospect of a fully compensated abolition practically inconceivable. If Hegel ever considered that the exercise of eminent domain was contingent on such axiological stakes, he expressed it only in one parenthesized comment: what ‘if [the State] could not’ pay (VPR 1: §407, 149)? In this regard, the difference between compensation at a price determined by the legislature—as suggested by the Hegel of the Rechtsphilosophie lectures—and a compensation requirement indexed to market value—as suggested by Brudner's Hegel—is acute. This dilemma became only truly apparent in the months after Hegel's death, in a rare debate on abolition and compensation prompted by the revolt led by Nat Turner in Virginia (Tomlins Reference Tomlins2020: Chapter 6). In early 1832, James Gholson and other Virginia legislators deliberated and decried proposals for abolition—compensated or otherwise—as ‘monstrous’, claiming that discussion of abolition alone ‘impaired the property value of slaves’, and attempting to silence the debate (Curtis Reference Curtis2012: 135–36, 143). But if talk has axiological corollaries, slaveholders quickly learned to invoke the Fifth Amendment to better advantage: the requirement to compensate could also be used to demonstrate the ‘financial infeasibility’ of abolition (Kleintop Reference Kleintop2018: 47). Invoking hereditary slavery and claiming that owners of female slaves had a ‘reasonable right […] to their increase’ as much as any orchard owner has to fruit, the slaveholders worked to value abolition so high as to preclude it—marked with a de jure a price which was de facto unpayable: over 100 million dollars for Virginia's 400,000 slaves (Curtis Reference Curtis2012: 138–40). This foreclosure was popularized in one 1832 publication by Thomas R. Dew, a proslavery Professor of History, Metaphysics and Political Economy (Kleintop Reference Kleintop2018: 51–56; Stohler Reference Stohler2019: 118–19). Applied to federal abolition, the associated costs of compensated emancipation had by the 1860s soared to over three billion dollars, exceeding the value of all other property in the South (Piketty Reference Piketty2020: 237–38; Beauvois Reference Beauvois2016: 215).

V. Redeeming property? Compensation and ransom

The terminology of ransom (der Loskauf) in the comments attributed to Hegel in 1824–25 marks an interesting historical shift in the term's currency, useful for thinking through the impacts of the slave economy on legal and economic thought. Hegel's use recollects a lost meaning: ancient Christian philanthropic practices of slave manumission equated ransom with redemption, which connoted both purchase and deliverance. This association was maintained well up until the mid-nineteenth century (Sumner Reference Sumner1862; Kurtz Reference Kurtz1978: 256). One influential text on Christian thought in the antebellum US—Jonathan Edwards's History of the Work of Redemption—offers this earlier paradigm of ransom as an unwitting deconstruction of the commodity form. Edwards suggests that the distinction between debt and purchase is ‘more relative’ than ‘essential’: ‘He who lays down a price to pay a debt […] purchases liberty from the obligation. And he who lays down a price to purchase a good […] satisfies the conditional demands of him to whom he pays it’ (Edwards Reference Edwards, Nelson and Brown1836: 230; Tomlins Reference Tomlins2020: 74). Whether or not this will ‘suffice’, as Edwards intended, ‘concerning the meaning of the purchase of Christ’ (Edwards Reference Edwards, Nelson and Brown1836: 230; Tomlins Reference Tomlins2020: 74), his conception of ‘redemption’ intimates an essential slippage between the property form and matters of debt, and servitude.

To the enslaved, this slippage required no theological gloss, and Frederick Douglass's experience of such ‘redemption’ was transformative in more than one sense. When his associates rallied to pay for Douglass's own manumission in 1846, he not only denounced the act of being forced to purchase what was ‘self-evidently’ his as a ‘ransom’, but recognized that the term ‘ransom’ denoted a very public form of extortion: not charity, but rather ‘proof of the plundering character of the American government’ (FDSW: 53–54). Douglass broke ties with William Lloyd Garrison's American Anti-Slavery Society after fellow Garrisonians (though not Garrison himself) censured him for the manumission payment, and later found common cause with the millionaire abolitionist Gerrit Smith in the matter of land reform, which amply illustrated an insight the US legal realists would acknowledge only a century later: namely, that ‘dominion over things is also imperium over our fellow human beings’ (Cohen Reference Cohen1927: 13). The abusive conditions of slavery could well be maintained without the legal fiction of human chattel, and Smith regarded land monopoly an even ‘greater evil’ than slavery itself, since it produced ‘manifold more victims’; in 1857 he devised a plan of compensated abolition and land redistribution requiring a total federal budget of $525 million (Stauffer Reference Stauffer2004: 143; Stauffer Reference Stauffer, Appiah and Rockefeller2007: 218; Douglass Reference Douglass1856). Douglass privately endorsed Smith's plans, corresponding to him that a federal ransom in the US was ‘by no means So repulsive’ (TFDP 3:2: 74–75).Footnote ¹⁸

It never happened, but when the Fourteenth Amendment was passed in 1868 it also introduced (through its due process clause) the doctrine of ‘incorporation’, ultimately extending the federal constitution's compensation requirement to all US states’ exercise of eminent domain powers (Ackerman Reference Ackerman2012). Subsequently, Du Bois recalled that any ‘poetic justice’ of distributing the ‘lands of their masters’ to the formerly enslaved was forestalled because Congress failed to budget for any land purchases, and government thus possessed neither the power to confiscate, nor the money to expropriate (Du Bois Reference Du Bois and Edwards2007: 22). Du Bois wrote that the legacy of the Freedman's Bureau, a US government body established in 1865 to protect the rights of emancipated slaves, was ‘the work it did not do because it could not’: availing itself of limited ‘forfeited lands’ and ‘Confederate public property’, it ultimately took up the task of informing the freed slaves that ‘their land was not theirs, that there was a mistake––somewhere’ (Du Bois Reference Du Bois and Edwards2007: 27, 29, 32). After twenty years of abolition, Douglass could only lament that the ‘freedmen’ remained ‘at the mercy of the former slave-holders’ (TFDP 1:5: 210). The very constitutional amendment that had nullified the US slaveholders’ claims to an indemnity at the same time entrenched the redistributive limit of the takings clause, newly legitimized and consolidated without the stain of human chattel. In Patricia Williams's words: ‘Blacks went from being owned by others, to having everything around them owned by others’ (Gowder Reference Gowder2021: 66).

After federal abolition had been accomplished without compensation, Douglass's tone on the matter of slaveholder indemnification shifted significantly. Where he had once pointed to the British case as exemplary, he now declared that the compensation awarded to the slaveholders by the British ‘marred the beauty and perfection of a glorious triumph of truth and justice’, and denounced the thesis of vested rights as a ‘trick’ (TFDP 1:4: 222). As early as 1824, the British abolitionist Elizabeth Heyrick had called for compensation to be made ‘in the first instance, where it is most due; […] to the slave […]’ (Heyrick Reference Heyrick2010: 31–32) and Douglass later described Heyrick as a ‘prophetess’ (TFDP 1:2: 82). Her intervention is credited as successfully popularizing immediate, uncompensated abolition on both sides of the Atlantic (Wiecek Reference Wiecek2018: 152). In his account of how racial prejudice creates ‘the conditions necessary to its own existence’, Douglass would further capture how deference to the doctrines of vested or acquired rights (alluded to in Hegel's references to ‘justo titulo’, ‘legal sanction’) served this era of transition by translating white guilt into black debt: for the ‘office of color […] simply advertises the objects of oppression, insult, and persecution. It is […] the black letters on the sign telling the world where it may be had’ (FDSW: 654). The ‘demonic ambiguity’ of Schuld (as debt/guilt) disseminates that ‘guilt is a genealogical category’ (Hamacher and Wetters Reference Hamacher and Wetters2002: 83),Footnote ¹⁹ and Douglass's account of racial prejudice in the postbellum South posited the indebtedness of slavery's victims in a genealogical relationship to the guilt of its perpetrators: slavery is the ‘greatest injury this side of death’ and yet, ‘it is hard to forgive those whom we injure’ (FDSW: 652).

Douglass's experiences of, and insights into, ransom provide a striking illustration of Spillers's claim, that ‘laws regarding slavery appear to crystallize in the precise moment when agitation against the arrangement becomes articulate in certain European and New-World communities’ (Spillers Reference Spillers1987: 78). Ostensibly intended to curry slaveholders’ acquiescence and thereby expedite the end of slavery, the very possibility of indemnifying slaveholders arguably expressed only the unavoidable recognition of what successive slave revolts had exposed as an irrepressible liability: slavery's bankruptcy foretold in struggle (Beauvois Reference Beauvois2016: 253; Draper Reference Draper2009: 101). In that vein, the fact that the takings clause ‘crystallized’ in 1791, just four months after the uprising in Saint Domingue, has received surprisingly little attention in scholarship to date. In 1831, following the Nat Turner rebellion, Virginia's slaveholders quickly grasped on the clause's protection of value as a way to foreclose debate on abolition. And at the end of the 1860s, in the wake of ‘a general strike that involved directly in the end perhaps a half million people’ (Du Bois Reference Du Bois1998: 67)—at arguably the very moment in which powers of confiscation might have served the case of southern land reform—uncompensated takings became ‘almost entirely discredited’, to the extent that, up until today, though ‘[t]here may be disagreement on what constitutes a taking, there is near consensus that takings should be compensated’ (Hamilton Reference Hamilton2007: 4).

Hegel was not privy to these later developments, but may have had the foresight to consider the jeopardy of pricing compensated abolition in North America beyond what the State could afford. However, he appears to have never considered those stakes for the only republic founded by the formerly enslaved: the only sign that Hegel concerned himself with Haiti's 1825 ransom is the remark, cited above, that ‘the slaves themselves need not worry about it’. The same year, in 1819, Haiti's King Henri Christophe worried about the matter in correspondence to the abolitionist Thomas Clarkson, proclaiming that for ‘free men’ to accept such a condition would be to ‘[cover] themselves with infamy!’ (Griggs and Prator Reference Griggs and Prator1952: 176). Outside of Haiti, Douglass was one of remarkably few nineteenth-century commentators to recollect the case of Haiti's ransom at all (TFDP 1:5: 467).

Meanwhile, Hegel stuck to the maxim that the coerced (gezwungen) are eminently distinguishable from the conquered (bezwungen): ‘by his ability to die the subject proves himself free and entirely above all coercion’; ‘A people is dragged into slavery, it wanted this itself, it wanted to keep itself alive even as a slave, this was its own will’ (NL: 91; VPR 4: §91, 272; my translation). In this vein, Von Griesheim's notes to Hegel's lectures approvingly record a 1553 slave revolt in Venezuela: ‘they gave up everything, even life’ (VPR 4: §91, 272; my translation). If Hegel gleaned this obscure example from Alexander von Humboldt's contemporaneously published travelogues, he did not—as Humboldt had—liken these historical events to the contemporaneous situation in Saint-Domingue (Humboldt Reference Humboldt2008: 298–99).Footnote ²⁰ In fact, in the mid-1820s Hegel was still unable to find any convincing sign of slave revolts, still describing the ‘choice’ of slaves in the West Indies in the starkest of terms: slaves could always be free and dead (doch können sie als frey sterben), and that they were neither evidenced a ‘partial disposition’, amounting to mere ‘conspiracy’ on their part, presumably short of revolution, and ‘a demonstration of a self-consciousness still wanting’ (VPR 2: §57, 243).

Such conclusions might be best understood in terms suggested by Moten: that ‘particular interplay of blindness and insight’ which operates in the relation between the ‘problematic of overlooking’ and that ‘of a regulative and disciplinary overseeing’ (Moten Reference Moten2018a: 191, 155). For Hegel's deliberations betray either a highly limited knowledge or wilful neglect of the realities of the transatlantic economy. By the eighteenth century, a slave's ‘ability to die’ had acquired acute axiological corollaries: in the 1730s, British maritime insurers excluded all slave deaths (‘Natural, Violent or Voluntary’) from indemnification, but by the 1780s, slave resistance was ‘actively expected’, and policies began to disaggregate the indemnification of human chattel in transatlantic passage with regard to the manner of a slave's death: they insured slaveowners for the value of any slaves ‘killed, or thrown into the sea in order to quell an insurrection on their part’, but not the value of those who took their own lives (Rupprecht Reference Rupprecht2007: 17, 21). In 1783, a London court hearing the Zong case confirmed the distinction, ruling that the ship's owners could claim insurance for 122 slaves the crew had murdered—ostensibly on the grounds that the ship was running out of supplies—but that ten slaves who threw themselves into the sea were not covered by the policy: ‘They withdrew themselves from speculation’ (Baucom Reference Baucom2005: 169). Recalling three slaves he witnessed jumping into the sea during Atlantic passage, Olaudah Equiano wrote that two were drowned, ‘but they got the other, and afterwards flogged him unmercifully for thus attempting to prefer death to slavery’ (Equiano Reference Equiano2013: 42).

Indeed, irrespective of whether a subject may ‘prove’ through such withdrawal that they are ‘above all coercion’, as Hegel claimed, permitting the enslaved to do so clearly presented slaveowners with a greater liability than murdering the slaves themselves. Exactly one week after Hegel's death, on 21 November 1831, slaveholders in Virginia began to petition the General Assembly claiming reparations for slaves killed as a result of the ‘suppression’ of the ‘open insurrection and rebellion’ led by Nat Turner, citing legislation passed in 1691 guaranteeing ‘4000 lbs of tobaco [sic] for each slave so destroyed’.Footnote ²¹ These structures of compensation developed across England's New World colonies over two centuries, precisely in order to attend to the dilemmas of discipline, value and fugitivity—by insuring against the ‘costs’ of any slaves refusing to surrender unto death.