Subjectivity Transformed E-Book

Thomas Vesting

• Herausgeber: John Wiley & Sons
• Kategorie: Geisteswissenschaft
• Sprache: Englisch

Seitenzahl: 561

Veröffentlichungsjahr: 2023

Beschreibung

This book provides a historically informed reconstruction of the social practices that have shaped the formation of the modern subject from the early modern period to the present. The formal legal protections accorded to subjects are, and always have been, latent in social practices, norms, and language before they are articulated in formal legal orders. 

Vesting argues that in Western societies legal personhood is closely tied to three ideal types of social personhood – what he calls the gentleman, the manager, and Homo digitalis. By examining these three ideal types and their emergence in society, we can see that Western formal law does not bring these ideal types into being but, on the contrary, they arise from the social and cultural conditions that they generate and reflect.  Correspondingly, Western legal personhood, or “legal subjectivity,” arises from the history and culture of Western nations, not the other way around. Therefore, signature features of Western formal law, particularly its valorization of the rights of persons (whether natural or nonnatural), come from the particular sociohistorical cultural developments that had already generated the strong ideas of social personhood inherent in the ideal types of the gentleman, the manager, and Homo digitalis.

Subjectivity Transformed is a major contribution to legal and social theory and, with its original analysis of the formation of modern subjectivity, it will be of interest to students and scholars throughout the social sciences and humanities.

Leseprobe

CONTENTS

Cover

Half Title Page

Title Page

Copyright Page

List of Figures

Foreword by Heidi Li Feldman

Preface

1 Introduction

2 Instituting Power

3 Culture as an Orientation-Forming Symbol System

I The Universalist Legacy of Cultural Theory

II The Dual Character of Modern Culture

III The Challenge of Information Technology

4 Creative Freedom as a Source of Cultural Dynamics

I Transsubjective Conditions of Subjectivity

II Imagination as Poetic Mimesis

III On the Event Character of the New

5 Bourgeois Culture

I The Gentleman as a Personality Ideal

II The Technical Attitude to the World

1 The Early Modern Era as a Foundational Phase of Disruption

2 Fulfillment through Tireless Effort?

III The Social Body and the Body Politic

IV Formation of the Subject – In the Mirror of Society

V Legal Subjectivity and the Practices of Liberty Instituted in Society

VI The Alien Claim and Disciplining Subjectification

6 The Anglo-American Variant: The Gentleman

I Experimental Thinking and Useful Knowledge

II Sociability and Other Virtues

III The Mirror of Society Becomes Better Endowed

IV Inclusive Institutions and Instituting Power

7 The Continental Variant: Honnête Homme and Bildungsbürger

I The Sophisticated World of the Paris Salons

II The German Bildungsroman

III Subjectification as Subjugation and Empowerment

1 Invocation and Subjugation

2 Empowerment by Means of the State

8 Managerial Culture

I The Rise of Large-Scale Enterprises

II The Research and Development Laboratory

III Trust between Strangers

1 The Legacy of Spontaneous Sociability

2 From the Inner-Directed to the Other-Directed Individual?

IV Managers in America and Germany

1 The American Manager

2 Senior Executives in Germany

V Annex: Images of Corporate Bodies

9 The Culture of Information Technology

I Homo digitalis and the Theory of the Network Society

II The Regional High-Tech Cluster

III The Organization of Economic Production

1 Dissolution of Conventional Corporate Boundaries

2 Collective Learning through Informal Institutions

3 Continuous Experimentation: New Contract Models

IV On the Environmentalization of Legal Subjectivity

1 Paradigms of the Development of Technology

2 On the Intelligibility of IT Milieus

3 The Ecotechnological Dimension

V The Relevance of Instituting Power

10 Epilogue

Notes

References

Index

End User License Agreement

Guide

Cover

Table of Contents

Begin Reading

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Subjectivity Transformed

Subjectivity Transformed

The cultural foundation of liberty in modernity

Thomas Vesting

Translated by Neil Solomon

polity

Copyright Page

Originally published in German by Velbrück Verlag as Gentleman, Manager, Homo Digitalis: Der Wandel der Rechtssubjektivität in der Moderne. Copyright © Thomas Vesting, 2021. All rights reserved.

This English edition © Polity Press, 2024

The translation of this work was funded by Geisteswissenschaften International – Translation Funding for Work in the Humanities and Social Sciences from Germany, a joint initiative of the Fritz Thyssen Foundation, the German Federal Foreign Office, the collecting society VG WORT and the Börsenverein des Deutschen Buchhandels (German Publishers & Booksellers Association).

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All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.

ISBN-13: 978-1-5095-5335-8 – hardback

ISBN-13: 978-1-5095-5336-5 – paperback

A catalogue record for this book is available from the British Library.

Library of Congress Control Number: 2023936985

Typeset in 10.5 on 12 pt Sabon

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Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon

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Every effort has been made to trace all copyright holders, but if any have been overlooked the publisher will be pleased to include any necessary credits in any subsequent reprint or edition.

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LIST OF FIGURES

Fig. 1 Gravestone of Thomas Darling, Grove Street Cemetery, New Haven, Connecticut

Fig. 2 The epitome of politeness: Captain William Wade, portrayed by Thomas Gainsborough, 1771 © Victoria Art Gallery, Bath / Bridgeman Images

Fig. 3 Adam Smith, The Theory of Moral Sentiments, 7th edition, 1767

Fig. 4 Gustave Caillebotte, Paris Street; Rainy Day, 1877

Fig. 5 Frontispiece of Leviathan, 1651, probably by Abraham Bosse

Fig. 6 London coffee-house, ca. 1690–1700. The British Museum

Fig. 7View of the Mall in St. James Park by Marco Ricci, 1709/1710

Fig. 8Hall’s Library at Margate by Georgiana Keate, print by Thomas Malton, 1789 © Artokoloro / Alamy Stock Photo

Fig. 9Reading of Voltaire’s tragedy of the Orphan of China in the salon of Marie Thérèse Rodet Geoffrin in 1755 by Anicet Charles Gabriel Lemonnier, 1812

Fig. 10Caspar David Friedrich in his Studio (Hamburg version) by Georg Friedrich Kersting, 1811

Fig. 11 Eberhard von Kuenheim

Fig. 12 Thomas Edison and staff at the Menlo Park Laboratory, 1880

Fig. 13 Commuters on platform after getting off train, Park Forest, Illinois, 1954, photo by Bob Sandberg

Fig. 14. Turn On, Boot Up, Jack In: Steve Jobs and Steve Wozniak in their garage, 1976

FOREWORD

Subjectivity Transformed is a conscious intervention into the heart of legal theory. It invites us to think anew about old questions: What is the nature of wellbeing and of agency? How do these intersect and interact? How can government and law advance and secure either or both? The book responds to these issues with a dual taxonomy of personhood and of legal personhood, a framework that is simultaneously descriptive and normative. To devise it, Thomas Vesting’s analysis spans historical epochs and geographical locations. It incorporates ideas from poetry and literary studies as well as from history, philosophy, sociology, psychology, and political economy. Subjectivity Transformed is a deeply interdisciplinary venture – though not in ways typical of American legal studies. In the United States, interdisciplinary legal scholarship divides into conjunctive components: law and society, law and culture, law and humanities, law and economics, law and literature. Subjectivity Transformed does not fit squarely into any one of these camps, though scholars from all of them will enjoy and profit from reading it.

The book is best understood within the context of German social theory, a discipline that draws from and blends sociology and philosophy. Historically, German social theorists have advanced large-scale, systematic accounts of society, accounts that, like Vesting’s, are simultaneously descriptive and normative. Jürgen Habermas and Niklas Luhmann are the two twentieth-century social theorists most known to English-speaking legal scholars and political philosophers. Subsequent major figures like Axel Honneth and Gunther Teubner have also become somewhat familiar to American scholars. Subjectivity Transformed is recognizably a work in this social theory tradition, particularly in its meld of sociology and philosophy. Readers of Habermas, Luhmann, Honneth, and Teubner will appreciate that Subjectivity Transformed is in conversation with those authors’ works.

But Subjectivity Transformed is not just another iteration of German social theory. It challenges the social theory tradition itself. Vesting’s approach to understanding society, law, and law and society together is more contextual, comparative, and particularistic. He endorses an episodic, partial, path-dependent approach very different from the totalizing aspirations of thinkers like Habermas and Luhmann. Vesting delivers an account of two related features that appear across specific societies: subjectivity and legal subjectivity, or, to use terms perhaps more resonant with English-speaking lawyers, personhood and legal personhood. Through its concentration on personhood and its legal counterpart, Subjectivity Transformed connects directly to key concerns of lawyers, legal scholars, and legal theorists – and not only interdisciplinarians. In almost every area of law lurk the questions of who counts and why? Which entities and beings have interests and freedoms that merit legal recognition, protection, regulation, and promotion?

Thomas Vesting argues that these questions cannot be answered narrowly by law. He maintains that any legal conception of personhood must piggyback on conceptions of personhood latent in a society or culture. Subjectivity Transformed attempts to elucidate the ideal types of personhood that have arisen in various epochs of modernity and their correspondent forms of legal personhood. Both taxonomies, of personhood and of legal personhood, emerge from Vesting’s consideration of British, American, and continental European history. In some of the richest moments in the book, Vesting uses history to tease out variations in both kinds of personhood across jurisdictions, especially across Anglo-American and continental European ones, but also between France and Germany.

Vesting fashions three ideal types of personhood, which he calls the gentleman, the manager, and Homo digitalis. Each is animated by creativity and imagination, traits essential, in Vesting’s view, to all types of modern personhood. All ideal types of modern personhood also adopt an experimental, empiricist stance to the world. The stance is lived differently by different ideal types because of variations in cultural-historical context, but one through line is that each ideal type is a doer whose activities generate abundance or prosperity, the central good according to Subjectivity Transformed.

This focus on production and its contributions to human welfare gives Subjectivity Transformed a utilitarian cast. The book’s project rests on Humean foundations rather than Benthamite ones. Vesting is spurred by the prospects for improved quality of life and better standards of living, not by a technocratic fascination with efficiency and its measurement. Still, for Vesting, rights and liberties matter because they promote prosperity, not because they further the autonomy of human individuals.

Yet Subjectivity Transformed is very much a book about freedom. In contrast to conventional American constitutional theory, though, Vesting does not pit government and human individuals against each other and then argue that rights set the boundaries of government influence on individual human beings’ thoughts, beliefs, and actions. Instead, in keeping with the tradition of social theory, Vesting regards freedom as a matter of the functional differentiation of different spheres of action. He believes that personhood, subjective agency itself, cannot be brought into being through or by the state; that personhood arises in social spaces that are different from, and, to a significant degree, are separate from, government and law. To achieve any sort of personhood at all thus requires domains of activity which the state neither creates nor controls. Legal personhood is one tool for the protection and advancement of personhood primarily and necessarily generated in spheres differentiated from the state. By fostering this personhood, legal personhood reinforces the actors central to those spheres. In turn, this frees such actors to pursue practices of liberty within them, and that pursuit can then lead to further developments in personhood. The development of different ideal types of personhood and the interplay between ideal types and legal personhood is dynamic, ongoing, iterative, and contingent.

In addition to creativity, inventiveness, and an empiricist attitude, Vesting’s account of modern personhood postulates another enduring feature running through the various ideal types. They are all social, at the deepest level. Modern personhood cannot be realized in a vacuum; it requires participation in collective activities, opportunities for collaboration and interaction with others who also have the capacity for the subjective agency constitutive of modern personhood. Just as legal personhood must answer to modern personhood’s creative, inquiring aspects, so too must legal personhood respond to the social dimension of modern personhood. To promote modern personhood, legal personhood must comprehend the very basic way in which modern personhood is a joint enterprise, a product of actors thinking, working, and doing in relation to each other. Disregard for the social nature of modern personhood stifles its emergence and growth. It therefore blocks the sort of productive activity that yields prosperity.

Subjectivity Transformed is a sweeping, exuberant, multifaceted book. In crafting his double taxonomy of personhood and legal personhood, Thomas Vesting makes numerous, provocative arguments, claims, and stipulations. Different readers – and even the same reader at different times – will likely be more and less persuaded at different junctures. But one need not be convinced by Vesting at every point to learn from the set of insights he presents here. The insights and the interconnections between them are surprising and original. They will engender further thought in the book’s readers. In this way, Subjectivity Transformed epitomizes the sort of imaginative, collaborative inquiry into the world the book argues is at the heart of modern personhood.

Heidi Li Feldman, May 2023

PREFACE

This book grew out of my earlier work on the media of law. There I was concerned with demonstrating correlations between the invention and use of new media (such as the technology of printing) and the resulting opportunities they opened up for the developmental history of Western law. This was also the point of reference for the reflections made there on the evolution of subjectivity. In the media of law, subjectivity was spoken of in connection with a culture that was also objectively asserting itself. In the final volume in this series – on computer networks – this line of argument culminated in a critical examination of a new kind of culture of the personalization of subjectivity. Here the subject frees itself from the constraints of existing forms of life and replaces them with the notion of a self-chosen identity. The latter includes, not least of all, a search for recognition and a demand for rights, the contents of which the individual intends to determine for itself. This trend, I concluded, weakens the long-stable, group-pluralist arrangements of welfare-state democracy and other central institutions of a liberal social order, such as the family, educational institutions, and the public sphere. Accordingly, the original plan of my new project was to broaden the critique of the emergence of this peculiar culture of introverted rights and to give it a subject-theoretical as well as a historical foundation.

But after some reflection, I came to feel that a critique was insufficient and that I needed to work on a counterproposal instead. This book contributes to this aim. Taking three personality ideals of the modern creative human being as examples – the gentleman, the manager, and Homo digitalis – it aims to show that the way in which liberties are socially practiced provides the basis for the development of knowledge and the technological and economic dynamics of modernity. Since the early modern era, the subject has been detaching itself from the “realm of reality” in order to counter it with a new kind of “realm of possibilities.” This is accompanied by the creation of a processual form of legal subjectivity, the transformation of which this book traces. It shows that the gentleman, the manager, and Homo digitalis, as agents of this change, contribute to a general increase in prosperity unprecedented in history, to a transformation of human life on earth that is revolutionary in every respect. This transformation is what the American economic historian Deirdre N. McCloskey calls the “Great Enrichment,”1 and today, in global modernity, it is no longer only Western countries that participate in this increase in prosperity.

The book follows a transdisciplinary methodological approach that aims to undermine the boundaries of legal theory, but by doing so to restabilize it as a discipline. To this end, as an initial point of orientation, I join the move to open up jurisprudence to the social sciences, something which has been taking place for some time now. Rudolf Wiethölter has already interpreted the economic constitution of the Federal Republic of Germany as the result of a historical compromise developed between different social power groups that has been emerging since the 1970s: on the basis of “mutual notifications of expectations and behavior, some eloquent, some unspoken,” the practice of coordinating “institutionally and organizationally influential representatives of power” generates a novel form of “nonbinding/binding behavioral ‘contracts’” that sustain the economic order of German constitutional law.2 The method revealed here, which gives great weight to the social conditioning of law, remains exemplary for this study. However, the present book intends to extend this method in a second step by paying even more attention to the informal notifications of expectation and behavior that must be regarded as an important part of Western legal culture. As Wiethölter’s behavioral contracts oscillate between an explicit, formal conceptualization (the contract) and tacit behavior (so that in the syntactical unit behavioral contract “contract” must be placed in quotation marks), the phenomenality of legal subjectivity must likewise be granted a practical side that cannot be fully captured conceptually. The process of establishing legal subjectivity in society is by no means carried out according to the normative measures of a pre-established and declared catalog of rights. Rather, a society’s liberties can be conceptually grasped and given contour only after they have already been formed through social and cultural practices, independent of how rudimentary their form is. Accordingly, legal theory must then open itself up – beyond sociology and social theory – to a wide range of research that contributes to a better understanding of the processes by which law takes shape in a society that is designed for constant change.

No one who works primarily with theories and scholarly texts outside of their own practical experience can seriously make claim to presenting truly new insights at the end of such a project. Too much has been written in the meantime for that. But it may still be possible today to set an accent or two, an accent that undermines and destabilizes a body of knowledge long thought secure – and thereby in turn triggers new and fruitful readings. In the end this may actually create something akin to a new insight, new knowledge, or even a new theoretical paradigm. In this case, however, one must be prepared to set up one’s scientific research on an experimental basis, to allow room in the research process for unexpected results and the possibility of a surprising encounter of ideas and conceptions that were previously considered separate and unrelated. Given the scarcity of time in any one life, this is of course only possible to a limited degree. But even then, there is a great danger that such an experiment will fail, and I must admit that I came across such a large amount of fascinating literature during this project that at some point I lost control, or at least an overview, of my own busyness. After a few crisis-ridden months, I finally tried to reorganize the many strands of thought I had come across and included in initial drafts of the manuscript. I hope that in the final analysis the result ends up being more than just a tangle of thoughts that is difficult to unravel.

From the beginning an important intellectual venue that accompanied this project was the Wednesday seminar that I regularly organized with Rudolf Wiethölter and Ricardo Campos up until the onset of the COVID-19 pandemic. There we discussed, over the past few years, a wealth of literature from a variety of disciplines. Many of the texts that play a role in this book – such as the work in literary studies by Viktoria A. Kahn, Joanna Picciotto, David Wellbery, and Franco Moretti, or the work in economic and cultural history by Joel Mokyr, Deirdre McCloskey, Werner Plumpe, John Brewer, Jonathan Sheehan, and Dror Wahrman – were read and discussed together in the Wednesday seminar. I am therefore indebted to all those who participated in this seminar. This also applies to the many guests who have visited us in recent years and shared their insights and thoughts with us. I would also like to thank Ino Augsberg, Ricardo Campos, Andreas Engelmann, Merlin Eichele, and Ludger Heidbrink, each of whom read parts of the manuscript and gave me valuable suggestions. Karl-Heinz Ladeur provided me – as he did for my earlier projects – with important impulses regarding content as well as pointers to interesting literature. Shortly before the manuscript went to press, Deirdre McCloskey again emphatically drew my attention to the difficulties besetting the concept of the “gentleman.” In my department, I was assisted by Isa Weyhknecht-Diehl, who carefully supervised the manuscript and compiled the reference list. Anna Werner, Tim Wolff, Sören Zimmermann, and Marcel Pop helped me with the acquisition of literature and the compilation of indexes. Last but not least, I would like to single out the Volkswagen Foundation (VolkswagenStiftung), which awarded me a generous grant in 2016 as part of its Opus Magnum funding. This funding freed me from my teaching obligations for three semesters and thus gave me the temporal latitude and the peace of mind necessary to be able to write this book at all.

Thomas Vesting

Frankfurt and Munich

December 2020

1INTRODUCTION

This is a book about three personality ideals of modern creative man. All three – the gentleman, manager, and Homo digitalis – function in modernity as agents of knowledge production, technological progress, and economic growth. Starting in the early modern period, the gentleman as scholar, inventor, tinkerer, merchant, trader, entrepreneur, or financial broker helped establish a technical attitude toward the world and spread the “spirit of capitalism” in northwestern Europe. In eighteenth-century England, this dynamic led, for the first time in world history, to the explosive spread of machines and factories, and thus to the onset of industrialization. The British Industrial Revolution – as it has commonly been called in academic discussions since Arnold Toynbee’s Lectures on the Industrial Revolution in England (1884) – was arguably the greatest upheaval in the recent history of Western civilization. It provided the foundation for the salaried manager to become, since the last third of the nineteenth century, the driving force of an industrial society dominated by large-scale enterprises – a society first established in North America and later in places such as Germany and Japan. Homo digitalis, by contrast, represents the type of modern creative individual associated with the rise of the network society. Since the turn of the millennium, the high-tech cluster of Silicon Valley has become iconic for this society. Each of the three personality ideals stands for a particular historical constellation that becomes dominant at a different point in time. However, the ideals of the gentleman, the manager, and Homo digitalis do not emerge onto the stage of history one after the other and independently of each other, but rather form three overlapping and coexisting historical strata.

All three have the following in common: they are the subjects of a movement and in a movement geared toward new knowledge, technological innovation, the increase of economic prosperity, and the improvement of general living conditions. When considering the destruction of old structures and their continuous replacement by new ones that typifies the process of industrialization, the economist Josef Schumpeter spoke in the 1940s of a “process of industrial mutation” that he termed “creative destruction.”1 Whereas Schumpeter ultimately holds the exceptional entrepreneur as type responsible for this process – a type driven by power, ambition, and the will to shape things – I am interested in the personality ideals of the gentleman, the manager, and Homo digitalis for other reasons. They intrigue me primarily because their forms of work and life manifest practices (based on and pursuant) of liberty (Freiheitspraktiken) such as the invention of technologies, the founding of companies, or the creation of markets – because such practices are part and parcel of their personalities and the genesis of their psyches. In this way, all three contribute to the formation of a culture of universal rights and liberties (Freiheitsrechte). The intent of this book, however, is not to write a history of formal rights and their solemn declarations since the late eighteenth century. Instead, it aims to ask what significance the creative individual’s forms of work and life have had in the past and continue to have today for the technological and economic dynamics of modern society – and how these dynamics are related to a culture of rights and liberties. For this reason, this study does not limit itself to individuals as “bearers” of rights, but also incorporates in its view a sociocultural level that goes beyond individuals and their history of development. With the help of this method, the book aims to show how (and to what extent) the process of transformation of the concept of legal subjectivity2 in modernity accompanies a change in the nature of culture and how both developments influence each other.

In the twentieth century, a fundamental transformation takes place in the understanding of the connection between social and cultural phenomena. The sciences no longer look for cultural patterns or rules from which a social practice derives, but describe instead the social practices that produce cultural and normative phenomena in the first place. Wittgenstein’s late philosophy of language is typical in this respect. Wittgenstein no longer regards the grammar of a language, its set of rules, as a pre-existent mental form that makes speech in everyday life possible and governs its use. On the contrary, for him, grammatical rules follow from the way in which a language has established itself and is spoken in a specific speech community.3 A comparable shift can also be shown in twentieth-century European literature. Just as with Wittgenstein the speaking of a language becomes part of a form of life, so in European literature the real-life language and its modern repertoire of forms gain in importance. In Italy, for instance, Cesare Pavese is one of the first writers whose novels are characterized by a turn toward “everyday communicative conventions,” by literary work with spoken language, and by play with “slang, sociolects, and syntactic inflections from the Piedmontese dialect.”4 In the terminology of Michel Foucault, one could say that, especially in the sciences, it is now a matter of specifically discursive practices, their anonymous force fields and their effects – and no longer a matter of thinking along the axis of consciousness–cognition–science.5 This is the theoretical background that serves as the starting point for this book’s assumption that institutions such as legal subjectivity emerge gradually and incrementally from social practices, and not least from processes in which conventions are formed, the “economies” of which should not be reduced to the consciousness and intentions of individuals.

If such a primacy of social practices that are not fully accessible to reflection is accepted, it requires us to reconfigure the relationship between formal and informal institutions. For example, it is the case in many countries around the world today, including Mexico, that the validity of a law is tied to a parliamentary procedure; here it must first be passed before it can come into force and claim general binding effect. This formal procedure, however, presupposes a social practice that entails obeying duly passed laws. If, on the other hand, everyday life is dominated by the informal rule “I obey, but I do not comply – obedezco pero no cumplo,” then no matter how many laws the Mexican Congress passes, they will have no effect. Even if the president and administration employ coercive means, increase police presence, replace administrative personnel, or send in the military, laws will continue to be ineffective as long as the attitude of the population toward formal rules does not change. Informal rules and institutions such as “I obey, but I don’t comply” must therefore first be overcome in everyday life itself, and compliance with the law must gain constancy and stability; only then can the parliamentary legislative process take hold and have an impact. This is certainly a highly simplistic example of the problem of the validity of legal norms. However, there is a strong case to be made that the disparity in development and prosperity between northern Mexico and states in the south, such as Oaxaca and Chiapas, is related to a lack of compliance to the law, an obedience not internalized by the legal subject. And this contributes to southern Mexico having less efficient legal systems less able to enforce the law, and southern governments that are more patronage-based and corrupt in the way they deal with their citizens.6

Scholarly interest in a more detailed analysis of the significance of informal institutions for the knowledge-based, technological, and economic dynamics of modern society has increased considerably in recent times. I will be coming back to this point repeatedly in the following chapters. In this context, however, I refer primarily to a distinction developed in French political philosophy by Cornelius Castoriadis and Vincent Descombes: the distinction between instituting power and constituent power, between pouvoir instituant and pouvoir constituant. Descombes uses this distinction to name and resolve the foundational paradox of any consciously created constituted order: The formal order that is to be founded must in some way already exist as an order. One place in which Descombes encounters this entity – that is always already present and is to be accepted (i.e., the instituting power) – is in an analysis of the puzzles of collective identities. In particular, he finds it in the question of what it is that constitutes the common identity of the members of a nation-state. He argues that, for the nation-state as a collective body, the difference between the status of the citizen and that of the noncitizen is constitutive. Without this distinction, there can be no society.7 But where is the rule, Descombes asks, that determines the conditions for membership in the same body politic? In democracy, he says, it is the people who lay down these rules by giving themselves a constitution that contains them. But insofar as the constitution-making authority of the people decides, for example, who has the right to vote and who does not, those who have the right to vote decide on the rule that grants them this right. This is what Descombes quite rightly calls the “circular logic of constituent power.”8

The distinction between instituting power and constituting power is of great benefit for our investigation. It makes it possible to tie law as a formal or constituted order back to instituting power and its manifestations, to cultural and social activities such as speaking a language, and to media such as writing and printing. In this way, it also ties law as a constituted order back to technical practices without which laws cannot become explicit, or to customs and habits that must have become “second nature” (eingebürgert) in a society such that law is not merely something that is written in books or can be read about on websites. On this premise, formal or constituted law is indissolubly intertwined with practical culture and its instituted orders, which are indispensable, in particular, for the validity and binding force of formal law.9 Generalizing, then, we can say that our three ideals of personality – gentleman, manager, and Homo digitalis – always already operate in society and thus in a world that already has institutions, and never solely and exclusively in the realm of a formal law operating independently of this world. In other words, the formal legal discourse of legal subjectivity can only begin when social practices have already set in motion the process of instituting legal subjectivity, that is, when there is already a social practice establishing the exercise of liberty that can be observed and articulated.

Whereas formal law represents an explicit order, which today is continuously modified and renewed by parliamentary legislative procedures, administrative decisions, or by judicial law, instituted orders are not created purposefully and deliberately through reflected-upon actions or conscious decisions. Instituted orders emerge gradually and incrementally from processual social developments and are essentially based on tacitly accepted agreements. Their processual practice appears to people, in the limiting case, as completely self-evident. “When I follow the rule, I do not choose. I follow the rule blindly.”10 Conversely, instituted orders can never be fully articulated; by their very nature, they tend to remain implicit, preconceptual, and invisible. Therefore, instituting power is ultimately indeterminable, ephemeral, and elusive. Nevertheless, this book aims to show that the rise of the gentleman, the manager, and Homo digitalis as agents of knowledge production, technological innovation, and general wealth creation is in each case due to fundamental transformations in the instituted orders of modern society. This is also the reason why this study repeatedly enters the cultural and social field, moves toward the institutions that subliminally order social contexts and establish common beliefs – and cannot and will not limit itself to an analysis of explicit legal discourses about the legal subject, its formal rights and obligations, and their history of ideas.

By focusing theoretical attention on instituting power, this book simultaneously shifts its frame of inquiry to social contexts of action. The social body, to be sharply distinguished from the political body, is a relatively recent phenomenon, even if it has prototypical antecedents in the ancient and medieval city. Based on Greek, Jewish, Roman, and Christian traditions, the first forms of experimental thought and action, of the trying out of innovations of all kinds, emerge above all in the cities of the Italian Renaissance. Late medieval culture becomes more mutable, and an increased appreciation for artisanal arts helps this process along. This involves arts such as building techniques, painting, and sculpture, and it generates a practical knowledge among individuals that extends beyond the religiously and philosophically established, stable and fixed forms of knowledge.11 Culture becomes independent and free of arbitrary divine power: the world no longer appears as an organ of transcendence, as a manifestation of divine forces governing and determining it, but is now subject to the self-image of a free and creative subject. Hans Blumenberg describes this turn toward the formation of modern consciousness as the emergence of a technical attitude of man toward the world, as the projection of an absolute self-empowerment “whose inviolable basis, not subject to any arbitrary power – not even that of the divine – is the cogito ergo sum.”12 This transformation process is also ascribed great importance in this study: since the early modern period, the idea of a technical world as a realm of pure construction emerges. Things and the order of things become the object of an art of production, of making and constructing in an experimental culture open to the future and based on variation; they are no longer – as in the old world of the societas civilis – objects of pure contemplation.

The three ideals of modern man addressed in this book are treated in connection with the technical world and the social body. At issue is the type of social man that historically first took on a more mature form in seventeenth- and eighteenth-century England and Scotland. Earlier than anywhere else in Europe, especially in large cities like London, a “culture of curiosity” develops, dispersed in cafés, clubs, and scientific associations,13 a social laboratory of the mind that contributes quite decisively in instituting the early bourgeois subject as an intellectual authority. With Adam Smith, the social side of subjectivity then manifests itself in the faculty of sympathy, the ability of the self to empathize with its neighbors, to read their thoughts and sentiments, and to confront its experiences with its own self-image and its internal contradictions. In this way, the self becomes dependent on adopting into its own sphere of life and action the rules prevailing in (urban) society; the common man must open himself up to a culture designed for change and progress. For Smith, it is not just the moral universe that is based on this idea, but the legal one as well. It is crucial to emphasize this neighborly model of the formation of subjectivity. One must not ignore it and focus one-sidedly on the construction of the body politic in continental European history and on its imagined vanishing point, the sovereignty of an “absolute” monarch. For only by mistakenly doing so, would it be possible to reduce the process of subject formation to a way of submitting to a central political authority, to law or other forms of governance and disciplining of the individual.

The persistent self-observation of individuals in the mirror of society enables modern man to experience himself as a free, self-determining, and creative subject. Thus, for example, the idea of a libertas philosophandi, exported from the Italian Renaissance cities via Holland to England, helps to give validity to the new experimental way of thinking of natural philosophy, to protect it in its social productivity, and to produce a subject committed to scientific practices. This subject, for its part, initially in the cities, drives forward the instituting of a multiplicity of special world relations. This differentiation of different orders of life and regions of meaning includes science, technology, art, the public sphere, commerce, politics, and education. Thus, from the very beginning, the modern subject is related to an order in which the social division of labor and social differentiation grow. Nevertheless, this study is not primarily devoted to the analysis of these various social orders and the role that subjective rights such as the libertas philosophandi, freedom of contract, freedom of corporation, or freedom of property play in them. Nor is it primarily concerned with the tensions and conflicts that can arise between these orders and rights.14 The importance of each of these specific realms of liberty will by no means be ignored, but this book intends to focus on modern man’s relationship to instituting power. In other words, the focus here is on the preconditions of cultural practice that make it possible to repeatedly bring to bear – against a world that is what it is – a form of “excessive subjectivity” that is never completely one with itself, that never stays completely within itself (die nie ganz bei sich selbst ist).15 As a result, the phenomenality of legal subjectivity cannot and must not be reduced to processes of mutual recognition or universal rights.16 Against these and similar positions, I would like to recall that the capacity of modern creative man to set in motion a history of inventing and the putting to use of ever new technologies and useful artifacts – from steam power to the steelworking and chemical industries, to our present-day information technology – is the necessary counterpart to any corresponding right to equality.

The fact that the emergence of legal subjectivity is primarily associated, in this study, with the field of instituting power and the mechanisms of its self-organization contrasts with the view prevailing today, according to which legal subjectivity is a status conferred by the formal (state) legal order. However, the idea of the spontaneity of liberty must be seen as crucial precisely for a form of self-determined action based on rights (rather than laws). For this reason, no categorical distinction is made here between the exercise of subjective rights under public law and under private law. This differentiation is unhelpful if only because it ultimately merely serves the purpose of subjecting all subjective rights, including those of private law, to the objective legal order and making them dependent on princely or state or otherwise politically institutionalized authorization. But this obscures the view that legal subjectivity emerges from experimental practices. Moreover, only when this groping and searching, always unclear even in its objectives, this world of becoming, which cannot be anticipated, produces a successful set of practices, is it possible for legal or political discourse to recognize stable patterns of action, formulate them, and make them the object of explicit rights and guarantees of liberty. This was already a feature of the formation of bourgeois (bürgerlich)17 legal subjectivity in seventeenth- and eighteenth-century England. The same applies to the manager and Homo digitalis of the twentieth and twenty-first centuries: the transformation of legal subjectivity initially has an informal history that can only be observed to a limited extent; only thereafter do transformations of formal law occur, for example, in the form of the recognition of companies as legal persons.

A theoretical system that considers the instituted orders of society a foundation of legal action inevitably puts itself in proximity to cultural theories, which, in this way, also gain importance for law and the analysis of legal relations.18 At this point, the book takes up American cultural anthropology and uses its insights to describe more precisely the relationship between objective and subjective culture. In particular, it adopts the conviction of this theoretical tradition that the relationship between the individual and society cannot be grasped as the opposition of two stable realms of reality, but only as a kind of intersection and overlapping of these two realms. Culture is an emergent phenomenon. It generates an independent symbolic reality, which Clifford Geertz refers to as the webs of significance. The reality it creates in this way has a dual character: it is present both in the meaningful patterns of social practices and ways of life and in the psyche of individuals. On this social-psychological basis, it gives the world a sense of direction, a shared belief system, and a framework for ordered relationships between people. As a result, the gentleman, the manager, and Homo digitalis cannot be thought of independently of the particular culture in which they are socialized. As subjects, they are always individual and social characters in one; otherwise, their self-images could not be shared and could not crystallize into a personality ideal or ideal type. As a consequence, they remain bound to overarching shared contexts of meaning, to specific transsubjective forms of culture, which are labeled and described in this book as bourgeois culture, managerial culture, and the information technology culture.

The purpose of the previous considerations has been to introduce the theoretical and systematic starting points of this investigation. However, the references to the formation of a technological attitude toward the world in the early modern period and to the formation of a social body emancipating itself from the body politic in seventeenth- and eighteenth-century England already indicate that, beyond a systematic orientation, the subject of this work must at the same time be given a historical orientation. This is done in the firm conviction that one cannot meaningfully think about the transformation of cultural and legal practices in modern society without such an orientation. The historical orientation is sought here in terms of an evolutionary or developmental paradigm. The idea of a developmental history is already found in David Hume and Adam Smith (as it was later in Max Weber),19 and in many disciplines today theories of cultural evolution are replacing classical historiography.20 I have discussed my own views on the shift from conventional historiography to an evolutionary and developmental paradigm elsewhere.21 Accordingly, I will limit myself to a few remarks in this introduction (as well as in the other chapters of this book).

Evolutionary theories in the sense understood here are theories about the conditions of possibility of social and cultural change. In place of causal explanations, which pursue the question of the historical causes of events in a shorter or longer period of history (and prove this exclusively or primarily on the basis of sources), evolutionary theory concentrates on phases of radical change or disruption in history, which break from assumptions of uniformity and continuity and represent profound and fundamental changes in the way in which people live and work. The theory of evolution tries to reconstruct these changes on the level of their cultural and linguistic manifestations. Because the fields of meaning are thereby related to specific impactful moments in the history of ongoing social practices, evolutionary and developmental theories grant greater liberties in the disposition of historical material than does conventional historiography. This book also takes advantage of these liberties. To trace the emergence of a bourgeois ideal of personality and its transformations in the evolutionary history of Western civilization, I focus on three contexts: (1) first, on the emergence of the ideal of the gentleman in Britain and North America, insofar as this ideal displays bourgeois features;22 then, on the divergent development in continental Europe and the influences that the ideal of the gentleman had on the ideals of personality held by the bourgeois in France and the economic bourgeois in Germany; (2) furthermore, on the replacement of the primacy of the bourgeois ideal by the ideal of the employed manager starting in the late nineteenth century; and finally (3) on the emergence of the ideal of Homo digitalis in a network-dominated culture in the last third of the twentieth century, which in turn replaces the manager as the paradigmatic subject type.

Under this premise, it is a matter of three evolutionary steps. Using the insights of recent cultural and economic history, this book develops, in a first step, the thesis that the West has produced two types of bourgeois culture, an Anglo-American and a continental variant. Because bourgeois culture first established itself in Britain and North America, our history of the evolution of modern creative man begins there, and then relates the continental variant to this beginning. This is at the same time to formulate an objection against those authors who derive the form of legal subjectivity in modernity from continental European culture (in the French variant of the citoyen), from the declaration of rights as a political act, and criticize the form of rights from that perspective as an institution of depoliticization and loss of control.23 In my opinion, this criticism misses the point that the ideal of the gentleman, in which the consciousness of liberty first becomes historically relevant, emerges from social relations and the ties inherent to them. The gentleman and his consciousness of liberty evolve in a social body designed on the basis of self-control and self-change and not, or at least not primarily, in a political body that empowers itself through a solemn act of declaring human and civil rights. Only in continental Europe do burghers and citoyens continue to operate for a long time in the shadow of an (in detail quite different) political culture in which elements of aristocratic culture remain dominant. The aristocratic ideals of independence, idleness, and chivalric combat as the highest form of the quest for glory and honor, however, blocked the breakthrough to a genuinely bourgeois society and a corresponding conceptualization of legal subjectivity on the European continent until well into the nineteenth century. In Germany, for example, it was only with the emergence of the economic bourgeoisie that curiosity and scientific thinking, technological creativity, trade, commerce, and economic growth became generally regarded with high esteem. In contrast, the Bildungsbürgertum (roughly, the education-oriented or cultural bourgeoisie),24 while pushing the education and formation of the self (Bildung) and consolidating the willingness to self-transformation, essentially limited itself to the production of artistic and humanistic works, to philosophy, literature, classical music, or other forms of bourgeois high culture.

Against this background, this study argues that the Anglo-American bourgeois – the gentleman – can be seen as the starting point for the self-understanding of bourgeois subjectivity. The inscription on a tombstone from New Haven, Connecticut – that of Thomas Darling († 1789), a businessman, magistrate, and justice of the peace (Fig. 1) – depicts this ideal as follows: The gentleman has strong mental faculties, enriched and improved by science and literature, and by the study of philosophy. His moral reasoning, trained by contemplation and reading, endows him with profundity and sound judgment. He is animated by modesty and openness, kindness and self-control, honest and benevolent in his dealings with humanity, and kindly in all relations of social life. Literally it reads:

In

Memory of

Thomas Darling, Esq.

who died Nov. 30, 1789 —

A Gentleman of strong mental powers,

well improved with science and literature

— to the study of philosophy,

habituated to contemplation and reading

— in moral reasoning,

of deep penetration and sound judgement,

respected for modesty and candor,

benignity and self command

in his intercourse with mankind

honest and benevolent,

amiable in all the relations of social life

Only after enumerating all of Darling’s qualities as a member of society does the epitaph pay tribute to Darling the political man, his public service and offices, and his firm religious convictions:

And filled a variety of public offices

with fidelity and dignity

eminent abilities as statesman and judge

an early professor of Christianity

its steady friend, ornament, and defender

with a rational and firm faith in his God

and Savior: he knew no other master.

For the American sociologist David Riesman, who reproduced this epitaph in an influential study of white-collar work and life in the 1950s,25 Darling embodies the model case of a God-fearing Puritan and the exemplar for Riesman’s own ideal type of the inner-directed man. The present book, on the other hand, presents a different picture of the Anglo-American gentleman: the gentleman can hardly be characterized as inwardly directed if this means a person governed by his conscience. In contrast, Darling’s epitaph already proves that the gentleman embodies the epitome of a personality for which generalizable cognitive and social virtues are of the utmost importance. Two of these are particularly important: openness to the common project of bourgeois education and self-formation (bürgerliche Bildung) and the ability to bring acquired knowledge into cooperative (working) relationships with others. This is precisely what Darling himself exemplified. He was a gentleman of diverse pursuits, who brought the first printing press to New Haven through contacts with Benjamin Franklin and participated in various business ideas arising from printing technology. Whatever else one may regard as virtues and character traits of the Anglo-American gentleman, without a strengthening of mental powers through a book-based study of science and literature (education) and without honesty and politeness in all relationships of social life (sociability), the knowledge-based, technological, and economic dynamics of modernity in Great Britain and North America could hardly have been set in motion. In this way, however, bourgeois legal subjectivity would have lacked precisely those social practices without which it could not have become reality.

With the gentleman, a common and ordinary man enters the scene, who monitors himself in the mirror of society and, in so doing, accelerates the disintegration of the model of the heroic man of rank. Although the egalitarian moment – the ordinary neighbor – is of great importance for the formation of bourgeois self-consciousness, bourgeois equality cannot be separated from its counterpart – free, creative, “excessive” subjectivity. The appreciation of intelligence, imagination, inventiveness, and a readiness to learn, as well as a high regard for useful knowledge, constitute the flip side of the value of egalitarianism and spontaneous sociability in the cosmos of bourgeois individualism. Bourgeois subjectivity, therefore, includes not only the victory of rational acquisitiveness over erratic hedonism and other vices of aristocratic culture, which Albert O. Hirschman has emphasized in The Passions and the Interests (1977) in a way that is still worth reading. Rather, in addition to the rational calculus of interests, we find other prerequisites that are of paramount importance to the liberal bourgeoisie, most notably the cultivation of an experimental mindset and a sense of technological creativity that includes a strong element of craftsmanship. Without this moment, there would not have been a “triumph of capitalism.” To be sure, bourgeois thought never assumed that the power of imagination could be sovereign, that diligence, study, and reflection could at any time eclipse the supremacy of external circumstances and the real world. But it has always acknowledged the faculty of subjectivity as a source of reality, thus affirming the creative side of the self “that opposes circumstance, the self that is imagination and desire, that, like Adam, assigns names and values to things, and that can realize what it envisions.”26

Figure 1: Gravestone of Thomas Darling, Grove Street Cemetery, New Haven, Connecticut

The three historical layers of our model of personality types build chronologically upon each other and are open to each other across time. In other words, the model used here assumes that the epoch-making characteristics of the gentlemanly ideal live on, enter into the ideal of the manager, and are themselves renewed and changed throughout this process. The independent bourgeois/burgher (Bürger) now gives way to the organization man who puts his energies at the service of a large mass-production enterprise, its executive and CEO. This development has often been interpreted in the past as a transition to an externally controlled, “externally directed” conformism, as a passage into a world of work dominated by anonymous ownership structures and a lifeworld determined by mass consumption of standardized goods and things.27 In contrast, this study attempts to show that, since the late nineteenth century, the large corporation has become the driving force behind the dynamics of modern society – and the manager the figure and ideal type in which the intelligence of the corporation is, as it were, collected. Legal subjectivity and subjective rights, hitherto confined to bourgeois individuals, now grow to include a corporate dimension in which the practices of liberty instituted in society take on group and organizational forms. This transformation, which once again initially involves the instituted side of legal subjectivity, goes hand in hand with a change in the organization of knowledge in modern society: The formation of new technologies and products remains dependent on knowledge that is generally available in society and on an intact (private- or public-sector) educational infrastructure. But in managerial culture, application-oriented investigations in large research and development laboratories gain an unprecedented importance. Senior managers are now responsible for the processes of generating new knowledge and technical progress, the results of which are then attributed to these large companies, for example, via formal patent rights, which then make up their patent portfolios.

Even though the rise of large-scale enterprises appears at first glance to be a global phenomenon, a closer comparative historical analysis can show the extent to which the predispositions of bourgeois culture remain present in managerial culture as well. They divide the latter – just as they had previously divided bourgeois culture – into two paths of development. The French philosopher Gilles Deleuze, who knew Anglo-American culture well from his in-depth study of Hume, draws the following distinction in his essay on Whitman: “the Self [Moi] of the Anglo-Saxons, always splintered, fragmentary, and relative, is opposed to the substantial, total, and solipsistic I [Je] of the Europeans.”28 Loosely following this formulation, the present book unpacks the idea that an American manager’s gaze is directed toward a society spontaneously self-organizing out of a splintered and fragmented condition, and that this image, in turn, shapes his own self-image. In contrast, a European senior executive remains more deeply embedded in the corporatist structures of the body politic, especially the political parties, social groups, and associations that he finds in his everyday world and whose interests he must take into account in his decisions more than is the case for his American managerial counterpart. The continental ideal of the upper-level executive may not necessarily be oriented toward the realization of a higher substantial unity, as Deleuze’s formulation – which is reminiscent of Hegel in its talk of the “substantial, total, and solipsistic I [Je] of the Europeans” – might suggest. The continental managerial figure, however, is nevertheless caught up in notions of a normative integration of society that is ultimately attributed to the state. These differences lead to two types of corporate legal subjectivity: one type strengthens the self-organizing forces of a society attuned to knowledge-based, technological, and economic innovations; in the other type, the inherent dynamics and forces of corporate self-organization enter into a tense relationship with a pluralistic state and the political-social groups that support it. In continental countries such as France and Germany, these groups also gain far-reaching access to, and the ability to shape, corporate governance (Unternehmensverfassung) through the expansion of formal corporate and collective rights, which is thereby expanded into an economic governance.

The advantages that continental Europe may have had over the American variant of a manager-led industrial society in the three or four decades following the end of World War II appear, in retrospect, to have been bought in many European welfare states at the price of technological and economic weakness, especially in the fields of information technology (IT). This study thus focuses, in its section on IT culture, on the question of the interlocking circumstances that gave rise to the novel personality ideal of Homo digitalis in the United States and triggered a further metamorphosis in the history of the development of legal subjectivity. In this context, too, instituting power and its specifically bourgeois legacy prove to be significant and influential variables: The curiosity and joy of experimentation deeply embedded in Anglo-American culture, as well as the associated willingness and ability to try out new things together with others based on voluntarily formed social groups, determine and shape Homo digitalis. In the high-tech cluster of Silicon Valley, these virtues have combined with a sustained interest in the development of a fascinating and extraordinarily complex technology. This is accompanied by a dynamic transformation movement and the formation of a social body which, due to its a-centric character, its scattered and rather regionally interconnected nodes, is referred to here – following Manuel Castells – as a network society.