Dana Hollander. Ethics Out of Law: Hermann Cohen and the “Neighbor”. Toronto: University of Toronto Press, 2021. 324 pp. $80.00 (cloth), ISBN 978-1-4875-0624-7.

Reviewed by Jeffrey Bernstein (College of the Holy Cross)
Published on H-Judaic (August, 2022)
Commissioned by Barbara Krawcowicz (Jagiellonian University)

We are in the midst of a Hermann Cohen renaissance. Who should be our guide to the most important late nineteenth-century Jewish German philosopher? Dana Hollander’s new book, Ethics Out of Law: Hermann Cohen and the “Neighbor,” not only excels in conceptual analysis and explication but also pays close attention to the original German texts of the thinkers in question and contextualizes Cohen’s thought within its historical and institutional settings. Similarly, Hollander deftly zigzags between Cohen’s philosophical and Jewish writings in order to establish her interpretation of Cohen’s ethical position, with the effect that the very distinction between “philosophical” and “Jewish” is called into question. Still, there are many scholarly treatments of Cohen’s thought. What makes Hollander’s book so worthy of consideration?

Hollander’s book is by no means simply a detached study of Cohen. In transiting between his different discourses, showing how ethics emerges from a certain conception of law, and tying this to the messianic (which, for Cohen, implies universality) task of hospitality for all, her book is itself an ethical intervention that indicates the relevance of Cohen’s thought to our current situation. The thrust of Hollander’s injunction can be seen in a passage from her conclusion: “To think hospitality with Cohen is to reject any according or apportioning of rights, recognition, or sympathy to those who are figured from the outset as outsiders” (p. 260). For Cohenian ethics, there can never be any “a little bit” when it comes to one’s relation to the other person. At a time when issues concerning race, gender, sexual orientation, class, religion, and national identity are the continuous subjects of political wars with seemingly endless justifications, Cohen’s thought reminds us that, irrespective of the actual position of people in society, guiding ethical principles are—and must remain—unconditional. This unconditionality is, in fact, what it means to be human. The asymptotic task of bringing this hospitality about, to echo the Mishnah’s Pirke Avot (2:16), can only occur if humans are simply ethically unconditional. This is not a claim about needing ethicality to function as a heuristic or regulative principle for practical action. It is, rather, to claim that only the complete and unconditional ethical constitution of the human is able to metaphysically undergird such hospitality. Hollander makes this point with utmost clarity and force.

But if ethics arises from law, doesn’t this mean that the existing concrete order of things grounds moral speculation? For Cohen, both terms signifying law—Recht and Gesetz—push against this. Law-as-Recht amounts to “the legal-political realm, the system of the rule of law” (p. 4). As a system, Recht can in no way simply amount to a contingent, factical situation in which law occurs. And although Gesetz is oftentimes read along the lines of the concrete instantiation (or positing) of laws, Hollander finds that in Cohen it is more akin to “the open-ended task or hypothesis of self-consciousness belong[ing] to the self in guiding the self and is at the same time other than the self” (p. 79). Cohen can make this move because his entire outlook with respect to law and ethics is futural. This means that “ethical action, and ethical theorizing, are to be thought of as an open-ended futural ‘task’..., a project of achieving justice and peace in the world” (p. 4). The realm of Recht and the activity of Gesetz stretch out temporally in order to constitute an achievement or task-oriented ethics that, while never completed, amounts to the very definition of the human.

Chapters 1 and 2 delineate Cohen’s conception of ethics as grounded in law and of legal action (Gesetz) respectively. Hollander notes that “Cohen takes law or legal science/jurisprudence to be the ‘factum or science’ for ethics. Law thus occupies an ‘analogous’ role to that of mathematics for logic, and thus for theoretical philosophy” (p. 31). Law is thus the content and context with which ethics begins. If that law is futural, so too is ethics. The systematic role of Law-as-Recht indicates that the relation of humans to one another must be systematic as well. This means that Cohen’s conception of the individual is always already subsumed under a conception of collectivity (though not, be it noted, as a quantitative collectivity)—Allheit. In one sense, therefore, the individual is the one to whom ethics is directed—but only insofar as that individual is part of a universal collectivity of (all) other individuals: “Accordingly, the Allheit into which Cohen resolves the ‘ambiguous’ concept of the human being ... represents the achievement of collectivity, it is an ‘infinite gathering/summary/summation’” (p. 42). Law-as-Recht serves as the developing contexts in which law-as-Gesetz occurs to actualize (again, asymptotically) the principle of Allheit without which ethics would make no sense. This has definite political consequences: “To give priority to humanity as an ‘end’ is for Cohen ‘the idea of socialism’” but not, it should be noted, Marxian socialism, which, like Hegel, is tied to a conception of the real that precedes the ideal (p. 69). In fact, it is precisely the character of law as an idea that prompts the development of Allheit: “law names the process in which ‘demands’ or ‘claims’ are made, and in which the ‘fulfillment’ of those claims has ‘legal effects’ or ‘consequences’” (p. 77). The demands or claims are made from an ideal-ethical stance and only then are actualized in the world.

Chapters 3 and 4 deal with Cohen’s interpretive method and the messianic politics that emerges from it. Cohen’s method of idealizing interpretation has been questioned by some as a call to dogmatically alter the material under interpretation. Grabbing the bull by the horns, Hollander explains that Cohen’s interpretive stance (as it pertains to Judaism) “always aims to understand the ‘sources of Judaism’ according to the following criterion: what would be, and what should be, the, or a, religion of reason?” (p. 96). Cohen, in other words, is not simply trying to cherry-pick his favorite aspects of philosophy or Judaism to create his own system. He proceeds in an ordered and rigorous manner in trying to find those aspects of philosophy and Judaism that can be reset on rational grounds. Today, (in analytic history of philosophy circles) this is called rational reconstruction. Its aim is not to “reconstitute [a text], or the author’s intention, as a past artifact” (p. 113). And, as an ongoing and fluid method of reinterpretation, it is by no means (as some have construed it) simply a static directive. Rather, to reinterpret prior moments of thought rationally is to hold that they ought to adhere to a universal standard of meaning, and it is in this sense that idealization goes along with Cohen’s vision of a messianic humankind in Judaism. The particularized interpretation of Jewish laws ought not bind Judaism from its relation to ethics and to Law-as-Recht. Judaism manifests the same concern with Allheit that philosophy does; its tendency is universal, and as a result, futural and messianic. It is important to note that Cohen’s employment of the term “messianic” does not suggest a particular personage termed “the Messiah” who will show up in the world once it is perfect. In keeping with Cohen’s procedure of idealization, “messianic” refers to the universalizing futural stance that ethics out of law embodies to asymptotically achieve Allheit. This stance explains why Cohen was never in favor of Zionism or a Jewish nation-state. The purpose of Judaism is not to become just one more particular and territorial political formation among others. Rather, it is to evince a “nationality that needs no state, that exists within individual states, and that thus brings forward the universalist world-historical task” (p. 151). If it is difficult to conceive of this kind of cosmopolitan existence after the Shoah, it must be conceded that it is part and parcel of the universalist view that Cohen adopts and cannot easily be severed from it.

Chapters 5 and 6 examine Cohen’s critique of Allheit understood as “affective expansiveness” and the figure of the “neighbor” (or stranger) as a fundamental institution of Law-as-Recht. For Cohen, “Ethics consists of the correlation of the human individual with Allheit” (p. 159). However, ethics does not amount to a quantitative expansion of individuals into a whole; to view it thus would be to place reality as prior to (and, in a sense, more important than) ideality. The real, for Cohen, is precisely not the rational but needs to be made so. This can only happen according to an ideal conception of Allheit that metaphysically precedes actual individuals. Similarly, to view Allheit as involving affective expansion would be to locate the center of such gathering in the ego. Cohen rejects the view that “ethics is a function of expanding our point of view from ourselves to a consideration for others” (p. 160). To hold this view of ethics would be to construe hospitality insufficiently radically; it would be to view hospitality as a species of how one’s self ought to be treated. Instead, “the fundamental presupposition of Cohen’s theory of ethics out of law [is] that Allheit or universality, in the form of law (Recht), determines ethical subjectivity from the outset” (p. 185). As a result, “the ‘fellowman’ and the ‘neighbor’ must be understood as core concepts of Cohen’s theory of ethics out of law (Recht)” (p. 194). Hollander elaborates: “Any ethics worthy of the name ... requires an a priori notion of the other person” (p. 197). Judaism finds this in the figure of the “neighbor/stranger/Noahide”; they “represent ... the singular factum in the history of religious politics” (p. 244). In construing the neighbor, fellowman, stranger, and Noahide as the core figure of religious politics, Cohen comes full circle: he focuses the universal futural (messianic) task of humanity on the recognition of, and hospitality toward, the neighbor. In so doing, Cohen provides a content for Law-as-Recht in its fulfillment of the task of Allheit.

This review only begins to scratch the surface of Hollander’s wonderful book, which makes the most compelling case for a messianic politics not simply in Cohen but also in scholarship on Jewish ethics more broadly. Whether one ends up agreeing with Hollander’s Cohen or not, Ethics Out of Law is an indispensable resource for thinking through the issue of what a universal ethics out of law entails. In the end, I have only one, rather technical, question concerning Cohen’s procedure of idealization. Hollander resists thinking of this procedure in the form of a static directive (as encapsulated by Leo Strauss’s dictum-understanding of Cohen’s statement “And it may be asked whether such [idealizing] transformation is not the best kind of destruction/annihilation” [p. 107]). Why? It is true that the procedure is meant to be supple, context dependent, and resilient. Yet, in the big picture, there is paradoxically a static quality precisely to the never-ending character of idealization. It is (to my knowledge) never the case that Cohen feels we can do without this procedure; we never “outgrow” it. Indeed the asymptotic character of ethics out of law would seem to foreclose that possibility. What then is the problem with the directive-like character of idealization that, as Hollander shows, for example, Strauss proposes as a dictum in his treatments of Cohen? The point could be put differently as follows: is Cohen’s idealizing procedure subject to idealization? To answer this question might continue the process, so forcefully carried out by Hollander, of thinking what Cohen’s relevance to our own time might be.

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Citation: Jeffrey Bernstein. Review of Hollander, Dana, Ethics Out of Law: Hermann Cohen and the “Neighbor”. H-Judaic, H-Net Reviews. August, 2022.
URL: http://www.h-net.org/reviews/showrev.php?id=57091

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