It is far from coincidental that the authors of key early works of aesthetic philosophy, such as Kant and Hegel, also published major works on the philosophy of law. When aesthetics emerged as a branch of philosophy in the eighteenth century, it was not as a philosophy of art or of the arts, but as a philosophy of the senses. Modern philosophy tried to found itself on reason alone, on the subject as pure cogito; in the process, it cut itself off from the world. Aesthetics was philosophy’s attempt to reconnect reason and sense, subject and object. Art became central to this project because here, matter already seemed to be informed by reason. Whatever its medium, the work of art is a sensuous object that appears to be truly sensible, and yet we cannot fully grasp its essential workings. Constructed according to an obscure logic, the artwork is a bridge between philosophy and the world, but also a constant challenge to philosophy’s claim to dominion. If in the realm of the aesthetic, the material world reveals itself to be ‘dimly akin to reason’, in law reason reaches out into the world and seeks to regulate the tangled mesh of the social.footnote1

In his critical work, Kant opened up a chasm, not just between subject and object, but also within the subject—between the spheres of pure reason and practical reason. In both cases, however, we find instances of Kantian formalism. In the realm of pure reason, form is not pre-given in the senses or the object but imposed by the mind, which forms the stuff of the senses through space and time. The Ding an sich is unknowable: we only see things the way we ourselves form them. In the realm of practical reason, Kant posits a fundamental moral law, the Categorical Imperative, which abstracts from any and all particulars: act only according to that maxim through which you can at the same time will that it become a universal law.footnote2 According to Andrews Reath’s persuasive analysis, Kant ‘claims that only a formal principle can be the basis of categorical imperatives that apply with necessity’ and ‘argues for analytical connections between freedom of the will and the form of a law: that a will “for which the mere lawgiving form of a maxim can alone serve as a law is a free will”.’footnote3

With his third critique, The Critique of Judgment (1790), Kant tried to bridge the chasms his critical project had opened up with his concept of aesthetic judgment: if something is judged to be beautiful, it is as if reason and the world are in harmony. In On the Aesthetic Education of Man (1794–95), Schiller set out to show that aesthetics was not only capable of spanning the Kantian divide between reason and sensory experience, but also that aesthetic experience (in particular, the experience of the beautiful) could elevate the moral character of humankind such that social conflicts would be resolved and humanity would be freed from the dulling ‘mechanical’ nature of modern life. With his notion of the ‘play instinct’ or ‘play drive’ [Spieltrieb], Schiller tries to better Kant. He argues that ‘man’ is split between the ‘sensuous instinct’ on the one hand and the ‘formal instinct’ on the other. Our sensuous instinct anchors us in the material world and gives us over to time. If we were guided only by our senses, we would be completely lost among a myriad of impressions and desires. Our formal instinct imposes order on the world: it gives us laws (laws for judgements of knowledge and laws for moral actions) and these formal laws appear to exist outside of time and independent of empirical experience. The play drive is the synthesis of these two instincts: of senses and reason. Far from being a disinterested aesthetic judgment, Schiller’s ‘play drive’ is a lived aesthetic that actively shapes the world as it synthesizes the sensual and the moral. The aesthetic, in Schiller’s account, does not seek to supplant the domain of reason, statehood and the law. Aesthetic experience has the power to imbue formal laws and moral precepts with emotional resonance. Art, in other words, can ‘humanize’ the supposedly cold and inhuman Kantian moral precepts. As such, Schiller presents aesthetic education as the most effective manner of imparting and implementing formal laws. Aesthetic education is thus the necessary precondition for the creation of Schiller’s ideal state.

In his dramatic as well as his historical works, Schiller often dealt with heroic struggles against oppression and for a more just and free society. He is the author both of a play set in the context of the Netherlands’ fight for independence from Spain (Don Carlos) and of a historical treatise on the subject, ‘The History of the Revolt of the Netherlands Against Spanish Rule’ (1788). In his essay on ‘The Legislation of Lycurgus and Solon’ (first delivered as a lecture in August 1789, after the storming of the Bastille), Schiller argues that the state is no end in itself, but serves the purpose of allowing human beings to fulfil their potential: ‘If the constitution of a state hinders the progress of the mind, it is contemptible and harmful, however well thought-out it may otherwise be, and however accomplished a work of its kind.’footnote4 The development of the play drive, of a lived aesthetics, is potentially turned against unjust states and laws. On the other hand, towards the end of the Aesthetic Education we see a familiar move:

In the aesthetic state everyone is a free citizen, even those who are no more than tools: free citizens who have rights equal to the most noble, and intellect which violently bends the acquiescent mass to its ends has here to seek assent. Thus the ideal of equality is fulfilled here in the realm of aesthetic appearance, an ideal that the enthusiast would so keenly like to see realized in its essence; and if it is true that fine breeding matures most quickly and completely in the vicinity of the throne, one would also have to recognize here the benevolent dispensation that seems often only to limit man in the real world, the better to launch him into an ideal one.footnote5