Handbook of the History of the Philosophy of Law and Social Philosophy: Volume 3: From Ross to Dworkin and Beyond 3031195493, 9783031195495

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Studies in the History of Law and Justice  24 Series Editors: Mortimer Sellers · Georges Martyn

Gianfrancesco Zanetti Mortimer Sellers Stephan Kirste  Editors

Handbook of the History of the Philosophy of Law and Social Philosophy Volume 3: From Ross to Dworkin and Beyond

Studies in the History of Law and Justice Volume 24

Series Editors Mortimer Sellers, University of Baltimore, Baltimore, MD, USA Georges Martyn, Law Faculty, University of Ghent, Ghent, Belgium Editorial Board Members António Pedro Barbas Homem, Faculty of Law, Universidade de Lisboa, Lisbon, Portugal Emmanuele Conte, Facolta di Giurisprudenza, Università degli Studi Roma Tre, Roma, Italy Maria Gigliola di Renzo Villata, Law & Legal History, Università degli Studi di Milano, Milano, Italy Markus Dirk Dubber, Faculty of Law, University of Toronto, Toronto, ON, Canada William Ewald, University of Pennsylvania Law School, Philadelphia, PA, USA Igor Filippov, Faculty of History, Moscow State University, Moscow, Russia Amalia Kessler, Stanford Law School Crown Quad, Stanford University, Stanford, CA, USA Mia Korpiola, Helsinki Collegium for Advanced Studies, Helsinki, Finland Aniceto Masferrer, Faculty of Law, Universidad de Valencia, Valencia, Spain Yasutomo Morigiwa, Nagoya University Graduate School of Law, Tokyo, Japan Ulrike Müßig, Universität Passau, Passau, Germany Sylvain Soleil, Faculté de Droit et de Science Politique, Université de Rennes, Rennes, France James Q. Whitman, Yale Law School, New Haven, CT, USA

The purpose of this book series is to publish high quality volumes on the history of law and justice. Legal history can be a deeply provocative and influential field, as illustrated by the growth of the European universities and the Ius Commune, the French Revolution, the American Revolution, and indeed all the great movements for national liberation through law. The study of history gives scholars and reformers the models and courage to question entrenched injustices, by demonstrating the contingency of law and other social arrangements. Yet legal history today finds itself diminished in the universities and legal academy. Too often scholarship betrays no knowledge of what went before, or why legal institutions took the shape that they did. This series seeks to remedy that deficiency. Studies in the History of Law and Justice will be theoretical and reflective. Volumes will address the history of law and justice from a critical and comparative viewpoint. The studies in this series will be strong bold narratives of the development of law and justice. Some will be suitable for a very broad readership. Contributions to this series will come from scholars on every continent and in every legal system. Volumes will promote international comparisons and dialogue. The purpose will be to provide the next generation of lawyers with the models and narratives needed to understand and improve the law and justice of their own era. The series includes monographs focusing on a specific topic, as well as collections of articles covering a theme or collections of article by one author.

Gianfrancesco Zanetti • Mortimer Sellers • Stephan Kirste Editors

Handbook of the History of the Philosophy of Law and Social Philosophy Volume 3: From Ross to Dworkin and Beyond

Editors Gianfrancesco Zanetti University of Modena and Reggio Emilia Modena, Italy

Mortimer Sellers University of Baltimore Baltimore, MD, USA

Stephan Kirste Universität Salzburg Salzburg, Austria

ISSN 2198-9842 ISSN 2198-9850 (electronic) Studies in the History of Law and Justice ISBN 978-3-031-19549-5 ISBN 978-3-031-19550-1 (eBook) https://doi.org/10.1007/978-3-031-19550-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2019-2022, 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

This Handbook of the History of the Philosophy of Law is the product of the global republic of letters and more specifically, the International Association for the Philosophy of Law and Social Philosophy. The Internationale Vereinigung fuer Rechts- und Sozialphilosophie (IVR) has promoted solidarity and the exchange of ideas among the world’s philosophers since 1909. This Handbook reflects the efforts of philosophers in every school of legal and social thought and every corner of the world. More specifically, it reflects the leadership of Professor Gianfrancesco Zanetti and his colleagues at the University of Modena and Reggio Emilia: Professor Thomas Casadei and Professor Gianluigi Fioriglio, who both generously supported this project, and the rest of the Modena team—Michele Ferrazzano, John Patrick Leech (who helped to polish the English translation of some entries), Rosaria Pirosa, Serena Vantin, and Gianmaria Zamagni. Professor Zanetti is the Section Editor for Legal History in the Encyclopedia of the Philosophy of Law and Social Philosophy, published under the auspices of the IVR and the General Editorship of Professor Stephan Kirste and Professor Mortimer Sellers, the authors of this Introduction. The Handbook of the History of the Philosophy of Law arises from decades of shared effort that created the Encyclopedia. The global nature of the cooperation that culminated in this Handbook and the Encyclopedia from which it derives took on a new meaning in the midst of the universal Covid pandemic through which we have suffered for more than 2 years and from which we have not yet fully emerged. The disease that threatened all humanity reminds us of the fundamental unity of human fate and human society that informs— or should inform—the law everywhere. The editors and contributors to this volume took great comfort and pleasure from the solidarity and common purpose of their fellow scholars in other nations, and the constant correspondence with distant and sequestered colleagues, united nonetheless in a common purpose of understanding law and society. One happy benefit of the growth of computer technology has been the ability of those quarantined at home to reach across the world for knowledge and encouragement. This chance to be enlightened by the insights of others recalls the inspiring v

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epistolary exchanges of the eighteenth century that produced the great Encyclopedie of Denis Diderot. New and fortunate in this emergent era, we have also lectured and spoken directly with one another’s students—and our own—from the safety of our libraries at home. This experience more than any other made clear the necessity that a Handbook of the History of the Philosophy of Law should accompany the Encyclopedia. We must know better the scholars who have gone before, including those of other nations, and different schools of thought or points of view. We, our colleagues, and our students are hungry for such knowledge. This Handbook will provide it. No Handbook can be complete. There is a necessary and inescapable conflict between comprehensive coverage and convenience. Much was omitted from this collection that could have been included, including perhaps some subjects and scholars who ought to have been included, but were not. Here too the advance of technology provides some comfort. This Handbook appears in the bound paper volumes you now hold in your hand. These give it the presence and utility that justify its name. But there is also the vastly larger Encyclopedia, which exists in an ever-expanding, ever-corrected, ever-existent electronic form. Perhaps, this Handbook will turn you also to the broader project, to which you and scholars like you may yourselves contribute, by noticing its failures and omissions. Above all, this Handbook is a tribute to the hard work and persistence of Professor Gianfrancesco Zanetti. As the Encyclopedia Section Editor for Legal History, he worked tirelessly for the broadest and most complete coverage. As primary editor of the Handbook, he brings it rigor and exactness. As a lifelong member and frequent participant in the scholarly projects of the IVR, he has contributed to the global sense of fellowship and good purpose that brings the consolations of philosophy to those who seek them everywhere. Legal and social philosophy study to understand and improve our relationships with other human beings. Nothing matters more to the value and felicity of our transient humanity. Baltimore, MD, USA Salzburg, Austria

Mortimer Sellers Stephan Kirste

Contents

Adorno, Theodor Wiesengrund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Marie-Andrée Ricard

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Arendt, Hannah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hanna Lukkari and Martina Reuter

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Cardozo, Benjamin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Laura Miraut Martín

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Croce, Benedetto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Carlo Nitsch

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Dewey, John . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Brian Z. Tamanaha

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Durkheim, Emile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Javier Treviño

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Dworkin, Ronald . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Anthony R. Reeves

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Ehrlich, Eugen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Marcos Augusto Maliska

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Foucault, Michel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Julian Sauquillo

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Frank, Jerome N. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Valeria Marzocco

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Gandhi, Mohandas Karamchand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tara Sethia

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Geiger, Theodor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thora Margareta Bertilsson

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Gentile, Giovanni . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Marina Lalatta Costerbosa Hägerström, Axel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Enrico Pattaro Hart, Herbert Lionel Adolphus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Juan Vega-Gomez Hauriou, Maurice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Eric Millard Heck, Philipp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Joaquín Garrido Jellinek, Georg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Vivianny Kelly Galvão Kantorowicz, Hermann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Ivana Tucak Kelsen, Hans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Gregorio Robles Kollontai, Alexandra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Signe Arnfred Laski, Harold J. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 José Luis Monereo Pérez Lenin, Vladimir I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Csaba Varga Llewellyn, Karl Nickerson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Tomohiko Shiina Lundstedt, Anders Vilhelm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Roger Cotterrell Luxemburg, Rosa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 M. Carmen Barranco Avilés Olivecrona, Karl Knut Hans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Oscar Vergara Pashukanis, Evgeny Bronislavovich . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Bjarne Melkevik Pound, Roscoe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Tomohiko Shiina Radbruch, Gustav . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 Hidehiko Adachi

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Rawls, John . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 Rex Martin Ross, Alf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Rafael Hernández Marín Russell, Bertrand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Chandrakala Padia Schmitt, Carl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 Carlo Galli Stammler, Rudolf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Michel Coutu Weber, Max . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Andreas Anter Wittgenstein, Ludwig . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 Dennis Patterson

Adorno, Theodor Wiesengrund Marie-Andrée Ricard

Introduction A German philosopher, social-theorist, musicologist, and literary critic, Adorno (1903–1969) is with Max Horkheimer and Herbert Marcuse one of the most prominent representatives of the first generation of the interdisciplinary and Marxist-oriented movement of thought called Critical Theory, named after a programmatic text of 1937 by Max Horkheimer titled “Traditional and Critical Theory,” and less appropriately the “Frankfurt School,” as it was based in Frankfurt in the Institut für Sozialforschung, an affiliate of Goethe University, directed after Horkheimer by Adorno from 1958 until his untimely death. The only child of Oscar Wiesengrund, a prosperous Jewish wine merchant, and of Maria Calvelli-Adorno, a Catholic of Corsican descent who became a well-known singer before marriage and from whom Adorno later took his name, relegating Wiesengrund to the initial W., Adorno undertakes studies at the University of Frankfurt in the 1920s on philosophy, music, psychology, and sociology, then goes on to Vienna to further his study of musical composition with Alban Berg. Even though he continues to write many articles defending modern music and also to compose, he finally opts for philosophy. Under the direction of the neo-Kantian Cornelius, Adorno obtains in 1924 his doctorate degree with a thesis on Husserl’s phenomenology. In 1927, Cornelius refuses, however, his manuscript on the Freudian concept of the unconscious in the Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2020, https://doi.org/10.1007/978-94-0076730-0_746-1. M.-A. Ricard (✉) Philosophy, Laval University, Quebec City, QC, Canada e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_1

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transcendental theory of knowledge, that is, that focussed on the conditions of possibility of knowledge. He will obtain his habilitation only at the beginning of the 1930s, on the basis of Kierkegaard: Construction of the Aesthetic. Although he turns to existentialism at this time, Adorno still pursues the project, started since his doctorate, of moving beyond what he will call idealism or epistemology, that is, the admission of a primacy of knowledge or of the constituent subject on the object, belief that he will later integrate into a logic of false identification and of domination. This critique will lead to a study on Husserl written in Oxford in 1934–1937, Against Epistemology, A Metacritique; to Negative Dialectics, where Adorno affirms at the same time a reciprocal mediation of the poles of subject and object and nevertheless the difference of the object within this mediation, and consequently, “The Object’s Preponderance” (Adorno 1973, 183). In this way, he blocks any inclination toward elaborating any system, while bringing thought back to the necessity of experience and to the task of its interpretation. Its multiple facets, the scope of the subjects it addresses as well as the antisystematic impulses that follow from the desiderata of a genuine, i.e., open and corporeal-based experience of reality, give Adorno’s writings a paratactical, fragmental, and aphoristic form, a content that resists summarization into a sole thesis and a radically critical impulse. Nevertheless, it is possible to assemble his key ideas around a few focal points.

The Actuality of Philosophy and the Period of Exile in the United States Although he is not yet a member of the Institute for Social Research at this time, Adorno delivered there in 1933 his inaugural lecture entitled “ The Actuality of Philosophy.” All the while opposing himself to Hegel’s thesis pertaining that reality has an overall meaning and is identical to the concept, Adorno also rejects Heidegger’s and Scheler’s recourse to an immediate being. In his view, this phenomenological attempt lands either in the irrational or else in the ideological, that Adorno generally assimilates to the “false conscience,” a conscience that has forgotten or abstracted its own activity and finds itself thus reified. Adorno’s thesis is precisely that “the idea of science is research; that of philosophy is interpretation” (Adorno 2000, 31): “For the mind is indeed not capable of producing or grasping the totality of the real, but it may be possible to penetrate the detail, to explode in miniature the mass of merely existing reality” (Adorno 2000, 38). Since Hitler comes to power at this very moment, Adorno finds himself barred from teaching and soon forced to exile. He rejoins Horkheimer and the Institute for Social Research, which moved to New York in 1934. This period before and after the Second World War is very fertile for Adorno, although he never manages to adapt to the American way of life. He participates in two sociological studies in which the Institute is engaged.

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The first is the Princeton University Radio Research Project, where Adorno detects already the tendency towards the “marketability of art” which he thematizes in the famous chapter in the Dialectic of Enlightenment, entitled “The Culture Industry.” The second is the Berkeley Opinion Study Group inquiry on anti-Semitic behaviors, for which Adorno publishes the results in 1950 in The Authoritarian Personality. This multidisciplinary research, both quantitative and qualitative, is more generally focused on prejudices that reveal a fascist or antidemocratic potential in individuals, an “authoritarian” disposition susceptible of radicalizing itself in hostile or destructive practices with regard to outgroups (minorities) when placed in contact with ideology. The study has for hypothesis “that the political, economic, and social convictions of an individual often form a broad and coherent pattern [. . .] and that this pattern is an expression for deep-lying trends in his personality” (Adorno et al. 1950, 1). As these prejudices cannot be explained entirely by sociopolitical, economical, or even rational causes, the authors considered crucial that, if one wishes to thwart them, then the accent should be placed foremost on the psychology of these individuals. Many of the ideas developed here will later be taken up in the “Elements of Anti-Semitism” in The Dialectic of Enlightenment. Adorno publishes two decisive works as pertain to the development of his philosophical thought: Minima Moralia, Reflexions from Damaged Life in 1951 and, with Horkheimer in 1944, The Dialectic of Enlightenment. Starting from the presupposition that defines the Aufklärung, namely, that the progress of reason leads to emancipation from terror and superstition, this latter essays aims to comprehend the incomprehensible, that is, “why humanity instead of entering a truly human state, is sinking into a new kind of barbarism” (Adorno and Horkheimer 2002, XIV). The principal thesis of the book is that rationality has reversed into the myth of immanence – of existence as a blind and self-reproducing order – since it has misunderstood its own portion of alterity (its mimetic dimension, the ambiguous tendency of the living to make itself like the other) and its constitutive rapport to nature (as motor and substrate of thought and activity). This somber diagnostic draws on a reconstitution of the development of knowledge as a power which progressively substitutes itself to nature’s blind one, by becoming the tool of an instrumental rationality, that is, that reduces all being to a fungible and calculable means to any given aim in the name of control and efficiency (in the first study, “The Concept of Enlightenment”) and on a reconstitution of the advent of subjectivity as a fixed and closed ego, who represses his own impulsions and needs as heteronomous (in the excursus on Homer’s Odyssey and on de Sade’s Juliette). The possibility of emancipation resides however in that the human being still has the capability to reflect itself and reverse its tendency for a “totalitarian” domination. Hope resides, in short, in “the remembrance of nature within the subject” (Adorno and Horkheimer 2002, 32). Adorno turns consequently towards the non-identical, a notion that can be approached theoretically as to what differs from the general concept or the always identical and therefore either escapes one’s grasp or seems bare of meaning or value, i.e., blind spots and cast-off materials (Adorno 1987, §98), the “only” individual; and practically as to what raises fear and arouses defensive

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reactions, in the first place nature in or outside us, the suffering and weakness of the living body, the expression of something that is aesthetically perceived. Advocating for the nonidentical and the negation of suffering, his thinking takes a materialistic turn.

The Return to Frankfurt and the Late Works The two major publications from the 1960s converge into this motif of the materialistic turn concerning the subject. In Negative Dialectics, subjectivity’s self-reflection leads to validating the non-identical as the need or the pulsion that motivates the thought of suppressing the reality that weighs down on it and gives it at the same time its objectivity. This primarily somatic need to abolish suffering transforms itself respectively into the imperative and into desire, at the heart of the Adornian “after Auschwitz” reformulation of morality and metaphysics. On the one hand, morality must henceforth be reconstituted on this imperative that is addressed to humanity: “to arrange their thoughts and actions so that Auschwitz will not repeat itself, so that nothing similar will happen. [. . .] Dealing discursively with it would be an outrage, for the new imperative gives us a bodily sensation of the moral addendum – bodily, because it is now the practical abhorrence of the unbearable physical agony to which individuals are exposed even with individuality about to vanish as a form of mental reflection” (Adorno 1973, 365). On the other hand and in the same vein, metaphysics is reborn on contact with the despairing experience of the self as cadaver. It leads to a meditation on the intrinsically human desire, i.e., founded on a mimetic solidarity with the living, of immortality. This motif, which concludes Negative Dialectics and opposes Adorno to Heidegger’s solemnization of death (cf. also The Jargon of Authenticity, 1964), merges with the impulsion that penetrates the art of saving the nonidentical in an appearance, which is in the end perhaps only an appearance. This is treated in Aesthetic Theory, Adorno’s second major work, published posthumously in 1970. The feat which radically modern art must realize, that is, of turning itself against its appearance of being the thing itself, is to realize again this salvage. For this to be, art must become autonomous, nonapparent, almost a simple commercial commodity. Baudelaire is already an exemplary case: “The new is akin to death” (Adorno 1997, 21). Adorno’s engagement with respect to education converges also in this emancipatory motif. He returns to Germany in 1949, a year before the Institute, at the express request of authorities in Frankfurt, in order to occupy a position in the Department of Philosophy at the University. He also gets actively involved in the ongoing revision of the education program, which he conceives as well in an “after Auschwitz” perspective, as an education opposed to the hardening of individuals and to the iciness that allowed genocide to be, as indicated by the title of his most famous essay on the subject, “ Education after Auschwitz” (1966).

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The Question of Justice Adorno did not develop a philosophy of law to speak of and only rarely engaged on questions of jurisprudence, as in “ Sexual Taboos and Law Today” (Adorno 1998, 79 sq.), seemingly contenting himself with denouncing injustice, in particular that of positive law for which “the formal principle of equivalence becomes the norm” (Adorno 1973, 309). Notwithstanding the negativity of his position with regard to law, his advocacy for the fundamental right of those who suffer to express themselves, for the nonidentical and more concretely, the unique and incomparable entity that is each individual, is part and parcel of a conception of justice that permeates all of his writings. Drawn from a Marxian critique of the commodity fetishism and from the Lukácsian diagnostic of the universalization of the value of exchange in our societies that are increasingly bureaucratized, this conception of justice has for cornerstone the notion of exchange. According to The Dialectic of Enlightenment, this notion is rooted in the mythical law of equivalence between “guilt and atonement, happiness and misfortune” (Adorno and Horkheimer 2002, 12) and finds itself materialized in multiple activities aimed at escaping from that blind fatality, but ends up reproducing it, through sacrificial rituals, replacing the victim by the criminal, barter, work and the gift of hospitality, among others. In Negative Dialectics, Adorno connects more explicitly barter to identity, stressing therefore its ambiguity: “if mankind is to get rid of the coercion to which the form of identification really subjects it, it must attain identity with its concept all the same. The barter principle, the reduction of human labor to the abstract universal concept of average working hours, is fundamentally akin to the principle of identification. Barter is the social model of the principle [. . .] The spread of the principle imposes on the whole world to become identical, to become total” (Adorno 1973, 146). Accordingly, a just and unconstrained exchange would be one that is not governed by the abstract and potentially deceptive equality of equivalence, but by an equity wherein “each receives his own.” In terms of knowledge, this would imply that the subject “makes up for ” (Adorno 1973, 145) the “false copy” (Adorno 1973, 170) that he projects onto nature or objects, and that he gives them more than what he receives from them, however without sacrificing himself, proportionally to the surplus that they possess relative to the general concept, on the one hand, and to their reified facticity, on the other. In terms of social interactions, finally, this would mean that each tries to promote the others’ ends. In addition to the determination that a human being is its own end, according to a famous variation of the Kantian categorical imperative, Adorno takes up the Kantian rule of law that “everyone’s freedom need be curtailed only insofar as it impairs soemone (sic) else’s” (Adorno 1973, 283). In this way, a just society would ultimately correspond to a reconciled, a happy society.

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The Good Life and the Advocacy for the Nonidentical As for Critical Theory in general, Adornos aim lays in the emancipation from domination and in the intellectual contribution to the transformation of our society. Thus, at the very beginning of his major theoretical work, Negative Dialectics, Adorno says, contrary to Marx’s final Thesis on Feuerbach, that philosophy as an interpretation of the world is still on the agenda, given the failure of the transformation of reality and the regression into blind violence of soviet praxis and western activism. “The whole is the false”: this polemical thesis of Minima Moralia §29 means that, albeit entirely and rationally administered, our post-capitalist society is on the whole a self-destructive organization that atomizes individuals, forcing them to strategies of self-preservation, hence repressing human needs – i.e., the material and corporeal ones in the first place, as we have seen – instead of satisfying them, as promised. Adorno’s thought is therefore seminal in that it is located in the perspective of the good life and in that it confronts us with the crucial and still living question of whether and how one can lead a good life in a “bad life.” In short, Adorno answers this problem by way of an imminent critique and an autocritique. He believes that the exposure of the inner contradictions of one’s own life and those of the society as such may allow the good to still shine through, provided that the exposure permits the expression of suffering and its awareness. As we cannot know exactly what the good is, Adorno invokes it as an identity of ideas and phenomena, of subject and object, that he sometimes calls utopia, reconciliation, or best, “communication of what was distinguished” (Adorno 2000, 140).

Conclusion: Reception The reception of Adorno’s thinking encountered numerous critiques at first, even from the second generation of Critical Theory (Jürgen Habermas; Axel Honneth). He was generally criticized for his pessimism, negativity, and lack of a positive criteria for emancipation. Adorno obtains today a more favorable reception. The Posthumous Writings, which include his lectures in 18 volumes, his unpublished conferences and additions to the 20 tomes of the Gesammelte Schriften, assist in making his thinking more comprehensible. On another note, the recent publication of a 1967 conference, “ Aspects of Contemporary Right-Wing Radicalismus,” is surprising by its actuality. Finally, the primacy given to the body and the sympathy with respect to the concomitant vulnerability finds notably an echo in feminist and environmentalist thinking, animal rights studies, and even in the ethics of care.

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References Adorno TW et al (1950) The authoritarian personality. In: Horkheimer M, Flowerman S (eds) Studies in prejudice. Harper & Row, New York Adorno TW (1973) Negative dialectics (trans: Ashton EB). Seabury, New York. German edition: Adorno TW (1982) Negative Dialektik. Suhrkamp, Frankfurt Adorno TW (1987) Minima Moralia (trans: Jephcott E). University of Minnesota Press, Minneapolis. German edition: Adorno TW (1987) Minima Moralia. Suhrkamp, Frankfurt Adorno TW (1997) Aesthetic theory (trans: Hullot-Kentor R). University of Minnesota Press, Minneapolis. German edition: Adorno TW (1973) Ästhetische Theorie. Suhrkamp, Frankfurt Adorno TW (1998) Critical Models: Intervention and Catchwords, (trans: Pickford HW), Columbia University Press, New York, German edition: Adorno TW (1963) Sexualtabus und Recht heute. In: Eingriffe. Neuen kristische Modelle. Suhrkamp, Frankfurt Adorno TW (2000) Subject and object. In: O’Connor B (ed) The Adorno Reader (trans: Arato A, Gebhardt E). Blackwell, Oxford, Malden. German edition: Adorno TW (1969) Zu Subjekt und Objekt. In: Stichworte. Kristische Modelle 2. Suhrkamp, Frankfurt Adorno TW, Horkheimer M (2002) Dialectic of enlightenment. Philosophical fragments (trans: Jephcott E). Stanford University Press, Stanford. German edition: Adorno TW, Horkheimer M (1990) Dialektik der Aufklärung. Philosophische Fragmente. Fischer, Frankfurt Becker M (1994) Natur, Herrschaft, Recht. Das Recht der ersten Natur in der zweiten: Zum Begriff eines negativen Naturrechts bei Theodor Wiesengrund Adorno. Duncker & Humblot, Berlin Bernstein JM (2001) Adorno. Disenchantment and ethics. Cambridge University Press, Cambridge https://doi.org/10.1017/CBO9781139164276 Freyenhagen F (2013) Adorno’s practical philosophy. Living less wrongly. Cambridge University Press, Cambridge https://doi.org/10.1017/CBO9781139567763 Ricard M-A (2013) Adorno l’humaniste. Essai sur sa pensée morale et politique. Éditions de la Maison des sciences de l’homme, Paris Shuster M (2014) Autonomy after Auschwitz. Adorno, German idealism, and modernity. The University of Chicago Press, Chicago and London https://doi.org/10.7208/chicago/ 9780226155517.001.0001 Zuidervaart L (2007) Social philosophy after Adorno. Cambridge University Press, New York https://doi.org/10.1017/CBO9780511618970

Arendt, Hannah Hanna Lukkari and Martina Reuter

Introduction Hannah Arendt (Germany 1906 – United States 1975) is one of the most important political thinkers of the twentieth century and is mostly known for her writings on political action, evil, and totalitarianism. She studied philosophy in Marburg and Heidelberg, Germany, with such renowned German philosophers as Martin Heidegger and Karl Jaspers (Young-Bruehl 1982, 44, 48). Arendt’s political awakening took place when the Nazis ascended to power in Germany, and she joined the resistance movement. In 1937, she fled the Nazi regime first to France and then to the United States, where she lived the rest of her life and produced the majority of her intellectual work (Arendt 2000, 6–7; Young-Bruehl 1982, 92, 113). Arendt never systematically developed a theory of law. However, nearly all her works deal with some aspect of law, and in recent years scholars across academic disciplines have brought to light the insights and importance of Arendt’s legal thought (for instance Goldoni and McCorkindale 2012; Volk 2015). Arendt lived through the Second World War and saw how traditional, political, and legal concepts became unable to respond to the horrific events. She was concerned to find novel

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2020, https://doi.org/10.1007/978-94-0076730-0_410-1. H. Lukkari (✉) University of Helsinki, Helsinki, Finland e-mail: hanna.lukkari@helsinki.fi M. Reuter (✉) Department of Social Sciences and Philosophy, University of Jyväskylä, Jyväskylä, Finland e-mail: anna.m.reuter@jyu.fi © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_2

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ways of orienting ourselves politically and legally in a post-totalitarian world. This entry introduces key aspects of Arendt’s jurisprudential thinking through three themes that all shed light on the boundaries of law: law and politics, the problem of human rights, and law and evil, exemplified by the trial of Adolf Eichmann.

Law and Politics: Arendt’s Constitutionalism Arendt traces to ancient Greece the roots of the conception of law as a stabilizing and polity-constitutive force. In her reading, for the Greeks, law, nomos, was the ground of the political life in the polis that had to be erected before politics could take place (Arendt 2005, 182–183). Laws are artifacts comparable to houses, public squares, and books. They form the stable, nonpolitical foundations of the public space in which political action and freedom may continuously appear, and demarcate this space from what lies outside it, the private sphere and other polities. In The Human Condition (1958), Arendt distinguishes lawmaking from politics and emphasizes that for the Greeks, “the lawmaker was like the builder of the city wall, someone who had to do and finish his work before political activity could begin” (Arendt 1998, 194). However, Arendt does not simply claim that law is prior to politics and establishes its condition of possibility (see Barbour 2012). She is also inspired by the Roman notion of law, lex, which, she explains, came about through the explicitly political act of peace treaties, the binding of new contracts between different, formerly hostile peoples (Arendt 2005, 179). The notion of law as a durable tie and relation between people emerging from mutual contract fascinates Arendt, for in her understanding, political action of a plurality of people forms “an in-between,” and binds them into acting in concert, and the task of law as a contract is to maintain this bind across time (Arendt 1998, 243–245). According to Arendt, the roots of legitimate political power lie in “[t]he mutual contract by which people bind themselves together in order to form a community,” and such a contract “is based on reciprocity and presupposes equality; its actual content is promise, and its result is indeed a ‘society’ or “cosociation” in the old Roman sense of societas, which means alliance” (Arendt 1990, 170). She is particularly interested in the American constitution, which she sees as a historical – and thus factual as opposed to fictional – example of John Locke’s horizontal social contract. Locke criticized Thomas Hobbes’ vertical social contract, which transfers all powers to the sovereign, and according to Arendt, the American constitution follows Locke as it “limits the power of each individual but leaves intact the power of society” (Arendt 1972, 86). For Arendt, the American Revolution exemplifies political freedom in its act of founding a new polity. It shows how a polity can emerge out of political freedom to begin something new and be made a durable entity through “promises, covenants, and mutual pledges” (Arendt 1990, 181). In her famous argument, the French Revolution turned out to be a pale shadow of the American one and succumbed to

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terror. This was ultimately because the French were attached to the idea of the sovereign, to the idea of the One People that overrode the plurality of individuals and opinions the expression and appearance of which are, for Arendt, the quintessence of politics and political freedom and “precisely the quality that makes men human” (Canovan 1992, 27). Societas is, as we can see from its aspect of alliance, ultimately reliant on the obligation to keep promises. Arendt emphasizes the importance of the human capacity to make and keep promises in several of her writings: promises are the foundation for continuity and the only possibility humans have – often to a very limited degree – to determine the future (Arendt 1972, 92–93; 1998, 244–254). As a basis for the continuity of societas, promises serve the same purpose as laws, but on a more fundamental level. Arendt emphasizes that societas is prior to government: it is an alliance between individuals “who contract for their government after they have mutually bound themselves” (Arendt 1972, 86). Societas is not only prior to, but also to a certain extent independent of government. Like Locke, Arendt holds that societas can remain intact, and thus ground the possibility of resistance and/or a new contract, when a government dissolves or degenerates into tyranny (Arendt 1972, 87; Locke 1967, 429). Societas does not survive totalitarianism, though, and its destruction forms an important aspect of Arendt’s analysis of how totalitarianism destroys politics. True alliances do, according to Arendt, require plurality, and as she argues in The Origins of Totalitarianism (1951), it is significant for the particular kind of terror exercised by totalitarian regimes that they destroy the public space – be it the free press or the freedom of associations – that makes the emergence of plurality possible (Arendt 1976, 465–466). In her essay “Civil Disobedience” (1972), inspired by ongoing protests against the US involvement in the Vietnam War, Arendt discusses the conditions under which it is justified to break the law. She emphasizes that it is essential to distinguish consent to societas from consent to individual laws and specific policies: there are situations where societas may justify breaking the law. Arendt considers civil disobedience to be an American phenomenon, closely tied to the American legal system and its distinctions between the constitution, federal law, and state laws (Arendt 1972, 83). She criticizes the idea that representative democracy in itself creates an obligation to obey the law by giving people the right to vote. The idea is particularly flawed when representative government is in crisis, as Arendt claims it was in the USA in the early 1970s (Arendt 1972, 89). She holds that the only way to revitalize the foundation for consent to law is to revitalize institutions of actual participation, such as voluntary associations (Arendt 1972, 94–96). Arendt reworks the Republican constitutional tradition in thinking that the authority of the Republic and its law lies in the beginning, in the Founders’ act of foundation and constitution-making, and that this “beginning” cannot simply be something in the past. Rather, the Constitution must be “augmented” by new acts in the present that express its prevailing authority by renewing it. Civil disobedience ought to be added as a fundamental right to the American Constitution, Arendt argues, because the voicing of one’s opposition to a particular law is a way of both

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participating in the political debate concerning the form that laws as the “worldly artifice” ought to take and showing one’s respect for the Republic as a whole. In that sense, civil disobedience is part of the “caring for a world that can survive us and remain a place fit to live in for those who come after us” (Arendt 1993, 95). This political care for the world is the only possibility that we have in our time to preserve its authority and stability.

The Problem of Human Rights The Nazi regime stripped Arendt of her German nationality. She lived in exile as a stateless person for years, until she finally received new citizenship in the USA (Young-Bruehl 1982, 113). Arendt thus personally experienced what it is to live as a refugee outside the legally protected membership in a political community. In The Origins of Totalitarianism, Arendt presents her influential analysis of the structural “decline” that European states underwent after the First World War; a decline ultimately intertwined with what she calls the “end of the Rights of Man” (Arendt 1976, 267–302). Arendt identifies two aspects that were particularly striking in this decline: the creation of new national minorities as an effect of the Versailles Peace Treaties, such as Germans in Poland or Macedonians in Albania, and the phenomenon of mass refugee movements. The appearance of these two groups, minorities and refugees, and the state response to their appearance, constituted, for Arendt, an unprecedented legal-political situation in Europe. The plight of refugees and minorities differed from the “usual” sufferings of the unemployed or those whose civil rights had been violated, as they rather had no rights recognized by the state at all: they were rightless (Arendt 1976, 269). The displacement of the minorities and refugees “forced people to live outside the scope of all tangible law” (Arendt 1976, 293). Regardless of the recognition of minority rights as an element of the Versailles Treaties, both groups had lost the protective bond of equal citizenship in a nation state. The refugee was also an anomaly in the eyes of international refugee law of the time that only knew religiously motivated persecution and political dissidence as grounds for recognizing someone as a refugee. The new refugees were, however, persecuted because of their ethnic identity, not because of their political actions. The unprecedentedness of their condition in the history of forced migration consisted of the fact that the refugees could not find a new home anywhere else, thus being forced outside the legal world completely. In Arendt’s analysis, the plight of interwar refugees was an unprecedented situation of displacement: they were, Arendt writes, “depriv[ed] of a place in the human world which makes opinions significant and actions effective” (Arendt 1976, 296). According to Arendt, such loss of one’s own place left individuals in an exceptional position of “abstract nakedness of being human and nothing but human” (Arendt 1976, 297). Suddenly there were millions of people that European states did not recognize as their full-fledged members. States only protected the rights of

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those they selected for protection, not the human being as such. Arendt analyzes how old European democracies became incapable of reconnecting themselves to their own constitutional principle of legal equality at the moment when they faced people whose presence challenged the nationalist principle “one nation, one state.” Arendt’s analysis is a poignant description of state action that responds to the unwanted presence of people by, first, depriving them of equal legal statuses or refusing to recognize that they have any, and then resorting to “legally emancipated” means of police violence, or in the best of cases to humanitarian aid, to deal with the stubborn presence of these people (Arendt 1976, 287). The “kill[ing of] the juridical person in man” (Arendt 1976, 447) was one of those elements that, according to Arendt, in time crystallized into the totalitarian regime. Arendt observed that concentration camps were not prisons, but rather spaces of legal exception. Their inmates were precisely “merely human” and “absolutely innocent”: they could not be considered criminals, guilty or not guilty of illegal actions (Arendt 1976, 447–448). Arendt observed that to be made “merely human” is a horrific form of deindividualization and dehumanization, and stripping individuals of their meaningful place in a political-legal community opens the door to the possibility of their physical destruction. The blind spot of the Enlightenment idea of inalienable natural rights was that rights in actual reality are forms of recognition and inclusion of the individual into legal, political, and social institutions. “Inalienable” human rights turned out to mean nothing the moment people lost their membership in established legal-political institutions, national or international. Arendt’s radicality vis-à-vis the Western jurisprudential tradition rests on her claim that becoming recognized as a juridical person is a condition for any meaningful notion of human rights. The citizen grounds a recognizably human life, rather than the other way around (Balibar 2007, 732). It is against this background that Arendt argues for the existence of “the right to have rights,” the right to “belong to some kind of organized community” (Arendt 1976, 296). What she calls for in response to the horrors of the twentieth century is not unfettered universalism of a single global political community without borders (Arendt 1976, 302), but rather a novel understanding of the political-legal community that preserves both the humanity of the individual human being and the plurality of their communities. An important part of recent scholarship on Arendt has focused on interpreting the meaning of the enigmatic notion of “the right to have rights.” Scholarly understandings and uses of this notion can roughly be divided into three groups. The first group of scholars reads this notion against the background of Arendt’s oeuvre as a whole and articulates it as a novel, moral or ethical foundation of human rights (Birmingham 2006; Michelman 1996). The second group takes from Arendt’s analysis heuristic tools with which to analyze contemporary refugee and human rights law as well as the continuing plight of refugees and the persisting “rightlessness in an age of rights,” as one commentator puts it (Gündoğdu 2015). The third group understands “the right to have rights” politically, as pointing to political struggles of the excluded for inclusion and recognition of their juridical personality (Barbour 2012; Beltrán 2009). The “right” to rights is about politically claiming or taking one’s

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rights in a situation where one has been found by the state authorities as entitled to none (see Rancière 2004). Whichever approach to Arendt’s fascinating but enigmatic idea we choose, however, “the right to have rights” clearly is a notion that highlights the crucial importance of independent judgment and critique of the extant limits of positive legal rights and the framework of recognizing humanity and membership they provide.

Law and Evil: Adolf Eichmann on Trial In The Human Condition, Arendt connects the faculty to make and keep promises, discussed above, with the faculty of forgiving: these are the two faculties by which humans can come to terms with the unpredictability and irreversibility inherent to action (Arendt 1998, 237). She emphasizes that forgiving is “the exact opposite of vengeance,” which is a mere “re-acting against an original trespassing” (Arendt 1998, 240). Forgiving is “the only reaction which does not merely re-act but acts anew and unexpectedly, unconditioned by the act which provoked it” (Arendt 1998, 241). Arendt distinguishes forgiving from punishment as well, but here we are not speaking about opposites. Forgiving and punishment are both attempts to “put an end to something that without interference could go on endlessly.” They are intimately interconnected because humans are, according to Arendt, “unable to forgive what they cannot punish and [. . .] unable to punish what has turned out to be unforgivable” (Arendt 1998, 241). In The Origins of Totalitarianism and The Human Condition, Arendt connects the unforgivable and unpunishable with Immanuel Kant’s concept of radical evil (Arendt 1976, 459; Arendt 1998, 241). Later, in Eichmann in Jerusalem (1963), these remarks on evil are developed into her controversial claim that Adolf Eichmann’s deeds exemplify “the fearsome, word-and-thought-defying banality of evil” (Arendt 1994, 252; also Birmingham 2003; Rae 2019). Arendt argues that evil deeds do not require evil motives: except for looking out for his own advantage, Eichmann “had no motives at all” (Arendt 1994, 287). In her interpretation, the trial against Eichmann came to question the juridical assumption that the seriousness of a crime depends on the subjective factor of intent (Arendt 1994, 277). Eichmann may have lacked evil intentions, but this was certainly not an extenuating circumstance. Arendt argues that he was just as responsible for his deeds regardless of whether they were motivated by evil intentions or not. Arendt’s analysis of Eichmann’s trial is above all a fierce criticism of what she calls “the cog theory,” according to which the Nazi perpetrators, including Eichmann, were mere cogs in a machinery. Arendt does not deny that “the essence of totalitarian government [. . .] is to make functionaries and mere cogs [. . .] out of men, and thus dehumanize them,” quite the contrary, but she emphasizes that the “cog theory is legally pointless” (Arendt 1994, 289). The trials against the Nazi perpetrators were of crucial importance exactly because “all the cogs in the

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machinery, no matter how insignificant, are in court forthwith transformed back into perpetrators, that is to say, into human beings” (Arendt 1994, 289). Arendt develops her discussion of the de- and rehumanizing of the Nazi perpetrators in her posthumously published lectures on moral philosophy from the mid-1960s. Here she points out that when perpetrators on trial claimed that they had not acted on their own initiative, they “renounced voluntarily all personal qualities, as if nobody were left to be either punished or forgiven” (Arendt 2003, 111). This voluntary dehumanization is, according to Arendt, what makes limitless evil possible. She continues: “the greatest evil perpetrated is the evil committed by nobodies, that is, by human beings who refuse to be persons” (Arendt 2003, 111). In these lectures, Arendt concretizes the banality of evil by describing it as rootless evil. A person is someone who is rooted in the world by using her capacities of thinking and remembering (Arendt 2003, 100). Arendt emphasizes that though a person may be vicious as well as stupid, thinking and remembering will impose some “limits to what he can permit himself to do [. . .] limitless, extreme evil is possible only where these self-grown roots [. . .] are entirely absent” (Arendt 2003, 101). Arendt discusses the crucial importance of memory and remembering throughout her writings (also Herzog 2002; McMullin 2011). In The Origins of Totalitarianism, she compares memory and law: “the boundaries of positive law are for the political existence of man what memory is for his historical existence: they guarantee the pre-existence of a common world” (Arendt 1976, 465). Nobody can be forced to think and remember, but a court in its judgment declares even those renouncing the common world as well as their personhood responsible for their deeds. This is why the trials against the Nazis included an important aspect of repersonalization, not just of the victims, but also of the perpetrators.

Conclusion In her legal thought, Arendt tries to bring together two ideas (see also Honig 1991; Lukkari 2020). First, the idea of law as a precondition and guarantee of the durability of a space within which political action may appear, and all members are recognized as equals; and second, the idea of politics, the acting together of a plurality of individuals, as the ultimate source of law. Laws guarantee equality, but a legitimate legal order also requires concerted political action between equals in order to arise. Equality, thus, is both inside and outside the law, its product and precondition.

References Arendt H (1972) Crises of the republic. Harcourt, New York Arendt H (1976) The origins of totalitarianism. New edition with added prefaces. A Harvest Book, Harcourt, Orlando

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Arendt H (1990) On revolution. Penguin, London/New York Arendt H (1993) Between past and future. Eight exercises in political thought. Penguin, New York Arendt H (1994) Eichmann in Jerusalem: a report on the banality of evil. Revised and enlarged edition. Penguin, New York Arendt H (1998) The human condition, 2nd edn. University of Chicago Press, Chicago Arendt H (2000) “What remains? The language remains. . .” a conversation with Günter Gaus. In: Baehr P (ed) The portable Hannah Arendt. Penguin, New York, pp 3–22 Arendt H (2003) Responsibility and judgment (ed: Kohn J). Schocken, New York Arendt H (2005) The promise of politics (ed: Kohn J). Schocken, New York Balibar É (2007) (De)constructing the human as human institution: a reflection on the coherence of Hannah Arendt’s practical philosophy. Soc Res 74(3):727–738 Barbour C (2012) Between politics and law: Hannah Arendt and the subject of rights. In: Goldoni M, McCorkindale C (eds) Hannah Arendt and the law. Hart Publishing, Oxford, pp 307–319 Beltrán C (2009) Going public: Hannah Arendt, immigrant action, and the space of appearance. Political Theory 37(5):595–622 Birmingham P (2003) Holes of oblivion: The banality of radical evil. Hypatia 18(1):80–103 Birmingham P (2006) Hannah Arendt and human rights. The predicament of common responsibility. Indiana University Press, Bloomington Canovan M (1992) Hannah Arendt: a reinterpretation of her political thought. Cambridge University Press, Cambridge Goldoni M, McCorkindale C (eds) (2012) Hannah Arendt and the law. Hart Publishing, Oxford Gündoğdu A (2015) Rightlessness in an age of rights. Oxford University Press, Oxford Herzog A (2002) Reporting and storytelling: Eichmann in Jerusalem as political testimony. Thesis Eleven 69:83–98 Honig B (1991) Declarations of independence: Arendt and Derrida on the problem of founding a republic. Am Polit Sci Rev 85(1):97–113 Locke J (1967) Two treatises of government. In: Laslett P (ed). Cambridge University Press, Cambridge Lukkari H (2020) Hannah Arendt and the glimmering paradox of constituent power. In: Arvidsson M, Brännström L, Minkkinen P (eds) Constituent power. Law, popular rule, and politics. Edinburgh University Press, Edinburgh McMullin I (2011) The amnesia of the modern: Arendt on the role of memory in the constitution of the political. Philos Top 39(2):91–116 Michelman FI (1996) Parsing “a right to have rights”. Constellations 3(2):200–208 Rae G (2019) Hannah Arendt, evil, and political resistance. Hist Hum Sci 32(2):125–144 Rancière J (2004) Who is the subject of the rights of man? South Atlantic Q 103(2/3):297–310 Volk C (2015) Arendtian constitutionalism. Bloomsbury Publishing, Oxford Young-Bruehl E (1982) Hannah Arendt: for love of the world. Yale University Press, New Haven

Cardozo, Benjamin Laura Miraut Martín

Introduction Benjamin Nathan Cardozo (1870–1938) is, together with Oliver Wendell Holmes (whom he succeeded as Associate Justice of the United States Supreme Court) and Roscoe Pound, one of the maximum representatives of the anti-formalist school of thought described as “sociological jurisprudence” which was highly influential in North America in the early decades of the twentieth century. Cardozo’s protagonism in the juridical culture of his time is twofold: as a judge and as a legal theorist. The two are, in any event, facets that are intertwined. On the one hand, his rulings (recognized for being thoroughly adapted to the new needs of a society in a continual process of transformation) represent a genuine expression of his theoretical thinking. On the other hand, his extrajudicial writings were mediatized by the final aim of providing the reader with an analysis of the correct legal decision. Cardozo already advances the nucleus of his ideas in The Nature of the Judicial Process (1921), where he expresses his intention of revealing the methods that a judge follows in preparing his rulings, proposing a definite criterion for determining their content. He looks more deeply, however, into some of those questions in The Growth of the Law (1924) and in The Paradoxes of Legal Science (1928), offering precise and articulated replies to problems that remained unanswered in that initial expression of his conception.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2019, https://doi.org/10.1007/978-94-0076730-0_417-1. L. M. Martín (✉) Philosophy of Law, University of Las Palmas de Gran Canaria, Las Palmas de Gran Canaria, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_3

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Legal Wisdom Cardozo believes that legal decisions are conditioned by law and the interpretation that scientific doctrine makes of it. The theory of legislation and the science of law represent in this respect ancillary legal wisdom that places the judge in the best position to give his ruling: the former permits laws to be well formulated, adapting them to the objectives that the legal system pursues; the latter transmits the necessary information about current legal provisions, reformulating in some cases their significance. But when it comes down to it, in resolving the conflict elucidated in each specific case, the judge has to reach for legal philosophy, unless the matters dealt with are so simple as to permit the automatic application of the law or of legal precedent. Legal philosophy thus emerges as the fundamental legal wisdom, i.e., the legal wisdom that determines in each case the ultimate meaning of the judge’s ruling. For the rest, legal judgments operate on the basis of facts. This makes it necessary for the judge to have sufficient knowledge to evaluate their presence and meaning, which is ever more difficult in a world that is changing at a dizzying speed. He proposes in this regard the model of a generalist judge who has the maximum level of knowledge of the realities of life that have to be taken into consideration when giving each ruling. The concept of continuity of knowledge that Cardozo (1939, 232) takes from Lawrence Lowell would refer to the importance that he himself attributes to the conjunction of legal knowledge and extralegal knowledge in the judicial process. The fundamental role that Cardozo attributes to legal philosophy contrasts with the absence of even the most superficial treatment of its subject areas, considering it unnecessary for his purpose of defining the correct judgment. He limits himself in this to declaring that the genesis, growth, and ends of law are the subjects in legal philosophy that claim his attention and for an overall consideration of the subject matter of legal philosophy referring to the analyses presented by Roscoe Pound (1922).

The Concept of Law and the Value of Legal Certainty Cardozo recognizes the existence of a body of law prior to the judicial ruling and in this matter is critical of the extremist positions of the legal realism that were beginning to form in America. In the idea of prediction, he detects the key to determining the very existence of the law: only those elements that permit us to predict the sense of the future action of the courts will constitute law. Those elements that in The Growth of the Law had not been defined sufficiently (on incorporating therein, superimposed, the contradictory ideas that only the principles of order are law and law is both these and the rules that reflect them provided they pass the test of predictability) would then be clarified in his Address in 1932 to the New York State Bar Association as encompassing therein “a vast conglomeration of principles and

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rules and customs and usages and moralities” (Cardozo 1932, 18). In this he definitively embraces as law those principles that inspire the traditional legal sources but also directly the latter. The only requirement for giving legal character to both is that both the principles and the rules of official law fulfil the demands imposed by the principle of predictability. Furthermore, Cardozo identifies in the adapting of the legal ruling to the legal objective the element that in the final reckoning determines its correct sense. He incorporates in this point legal safety or certainty that permits individuals to know in advance the consequences to them of acting against the law as part of the wider objective that he recognizes as social interests in The Growth of the Law. But legal certainty is not an absolute value but one which in certain cases may yield before the realization of other legal values with greater specific weight. Cardozo is very graphic in indicating the difficulties involved in the task of detecting in legal precedents the principle that has to guide at all times the determination of the content of the legal ruling. Applying legal precedents mechanically in a society which is constantly changing where the situations presented for the decision of the judge bear little relation to those that were presented in the past will in the end convert legal precedents in centers of infection that, as such, may finally affect the whole of society, perverting conclusively the sense of the very function of law. In these cases, the most we can achieve with legal precedent is a false sense of security whose appearance limits us in our efforts to reach true legal certainty. In this respect in The Growth of the Law, the distinction between what is the sound certainty and the sham certainty, between gold and tinsel, is emphasized (Cardozo 1924, 16–17). Cardozo assumes here a surprising material or finalistic conception of legal certainty bringing into it the idea of movement, i.e., of adaptation to social change. He would later (Cardozo 1932) take up once more the formal traditional conception of legal certainty, stressing in this sense that legal certainty as the governing aim of the content of the legal ruling can be defeated when it is in conflict with another higher aim. That oscillation between contradictory conceptions of legal certainty is explicable if we examine the specific characteristics that define the style used by Cardozo in his arguments. The assumption of the finalistic conception makes sense in the quest to discredit the function of legal precedent as the foundation of the ruling: in saying that precedent gives false legal certainty, he saves himself the work of convincing his audience of the limited weight of legal certainty as the governing aim of a ruling. The rehabilitation of the formal conception of legal certainty shown in his mature writings illustrates his assumption of the idea that the best that can be done so that law can be perceived as it really is is to show the opposition that presents itself in a legal ruling between differing values without searching for a formula that artificially encompasses all of them.

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The Workings of the Legal Process In The Nature of the Judicial Process, Cardozo identifies four methods that the judge employs in the discharge of his duties: the rule of analogy or the method of philosophy, the method of evolution, the method of tradition, and the method of sociology (Cardozo 1921, 30). The logical method represents the first tool for the work of the judge. As a method it is relevant, but not necessarily decisive because the ruling ought in any case to be adjusted to the social ends of law. The defense of the historical method, or the method of evolution, does not necessarily shackle a legal institution to the form that it had in the past. On the contrary, Cardozo considers it an invigorating and dynamizing function, one that enables the evolutive sense of law to be captured in relation to the different institutions. Cardozo admits the subordinate role of custom in respect of law, but that does not prevent him from appreciating the force that it can acquire in the absence of an applicable juridical regulation and, indeed, as a criterion operating on the very regulation that the existing legal norms establish, and he distinguishes two different scenarios: the reform of legal regulation through custom and the integration of the undefined legal concepts that may crop up in the existing legal norms. The method of sociology acquires sovereign significance over the rest in the view of Cardozo; it is the arbiter between all the other methods, the method that tells us in what proportion each of the others have to be taken into account in the various instances. At this point Cardozo turns to the concept of the social welfare underscoring with this the conventionalist sense of law, because the legal principle that determines the meaning of the ruling is given by consideration of the consequences that the application of one rule or another would bring about in each case. The social welfare is a hypothetical situation in which the consequences deriving from the legal ruling are appropriate more or less directly to the individuals and, by extension, to the whole of society. In this sense he proposes the substitution of the traditional structural analyses of law by other functional analyses that permit an evaluation of the adaptation of law to the ends which are intended. The problem is to determine which are the particular guidelines that the judge has to follow in order to carry out the aims of the law. Cardozo excludes the possibility of issuing correct legal responses on the basis of mere subjective sentiment or personal intuition. However, in The Nature of the Judicial Process, he gives no general rule for solving the problem of the content of the principle that has to guide the sense of the ruling. What prevails, he says, is the need to resort to reasons of a superior nature that have to be sought in life itself, but which have at the same time to connect with the demands imposed by moral considerations. Cardozo offers a much more elaborate analysis of the object of law in The Paradoxes of Legal Science. There, he expressly recognizes liberty as the underlying principle of his political philosophy, as a genuine element directing the sense of law and the legal ruling itself. But the principle of liberty is not a static and frozen concept. If the judge wishes to attend to the achievement of liberty, he will also have

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to provide the corresponding satisfaction to the personal circumstances of the individual whose exercise of liberty he is endeavoring to guarantee. The principle of liberty is thus endorsed in the formula of free development of personality which implies recognition of the right of each individual to form his own opinion furnishing him with knowledge of the opinions of others and permitting him to participate actively in public discussion. The free development of the personality evidently ought not to constitute a privilege of any individual or social class but should be open to all, guaranteeing equality of opportunity to every individual. The right to knowledge that is a result of the exercise of the liberty to participate effectively in social debate and the equality of opportunities are, therefore, the basic pillars on which his view of the free development of personality can rest. The application of these elements will not be automatic, however, as demands of time and place need to be met. Their application must in this regard be contextualized. The demands implied in the free development of personality cannot be of an absolute nature because frequently the claims of one individual to guarantee his liberty clash with those that another invokes to guarantee his own liberty. Hence the solution to be adopted by the judge when faced by a conflict of interests has necessarily to be adapted to the circumstances of the social group and the time and place in which he has to make his ruling. The ruling does not lose its moral nature with this. But it is not the morality of the judge himself that the ruling should reflect but the morality of the social group. That apparent relativism of the legal ruling is, nevertheless, nuanced when he states that the moral model that should be enshrined in the ruling is not that which the general membership of the group share, but that of those men and women of that same social group whose mentality may be considered as “intelligent and virtuous” (Cardozo 1928, 37). The law does not have as its aim the achieving of a society of virtuous people, but that of an ordered social life in accordance with criteria often imposed by convenience and prudence. In this point the social circumstances and peculiarities of the group it is intended to regulate and its environment have to be taken into account when solving social conflicts. But in trying to strike a balance between the various elements to be given value in the ruling, the judge will have to keep in mind the model of moral behavior that corresponds to intelligent and virtuous men. The legal ruling acquires in this sense a dimension that is unequivocally perfectionist. That remission to the perfectionist moral model of the social group does to some extent permit a solution to the problem that Cardozo had marked out in The Nature of the Judicial Process with remission to the idea of the superior principles that would have to guide in any case the sense of the legal ruling.

The Theory of Legal Decision-Making as Legal Philosophy Cardozo never intended to produce a complete, articulated philosophy of law. This already provoked in his own time some discussion about whether or not Cardozo could be considered a true legal philosopher. His view is explicit in this regard. Each

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legal ruling has an underlying specific philosophy. And the model of the correct legal ruling is, in any case, illuminated by the legal principle enshrined in legal philosophy. The legal ruling is thus presented as legal philosophy applied to the solution of legal problems and Cardozo as a judge who in exercising the administration of justice does no more than project his own theoretical conceptions as a legal philosopher. Cardozo draws up his theoretical conception in a cultural environment in which the influence of legal realism was becoming progressively more notable. His conception is far from being identified with the fundamental theses of what was then a thriving doctrinal tendency. In fact, the famous Address of the 22nd January 1932 to the New York State Bar Association is in a way a settling of scores. His differences with American realism are not limited to the moderate tone of his conception vis-à-vis what he considers to be the radical excesses of the neorealists. They are differences above all based in the concept of law. And Cardozo is very clear that there is law before the legal ruling, precisely because the ruling has to be in accordance with the law, even though this may be difficult to identify. The influence of Holmes on Cardozo in some aspects of his theory cannot be denied, in particular regarding his demarcation of law as a prophecy of what the courts will do. Cardozo himself confirms this influence in a laudatory work dedicated to Holmes (Cardozo 1930–1931). Cardozo is similarly explicit in regard to the influence that Pound had on him. The pragmatic basis of their conception is highlighted not only in their quotations from William James and John Dewey but in that Cardozo himself who already considered in The Nature of the Judicial Process that the philosophy of common law was the “philosophy of pragmatism” made an explicit profession of pragmatic faith in The Growth of the Law. The instrumental consideration of law and deeming it a reality in a constant state of flux determined largely by the needs and changes that take place in the life of a society are testimony to the unequivocal pragmatism of his legal philosophy. Cardozo also takes very much into account the theoretical contributions of François Gény (1889) in the sense of trying to identify an objective criterion on which to base the ultimate sense of judicial rulings. In fact, his conception has many points in common with the latter. In the search for that criterion, they equally appeal to the idea of natural law. But the expression acquires a very different meaning in the conception of these two authors. The natural law to which Gény appeals has a concrete material content; in contrast, Cardozo’s conception in appealing to natural law has as its priority a formal significance, referring above all to the remission to the ideal element of the judicial decision. The expression perfectionist seems in this sense preferable to describe the philosophy of law. Only in a very broad and improper sense could this be described as natural justice. Pragmatism and perfectionism are, in this regard, the philosophical conceptions that to the greatest degree underpin the legal thinking of Cardozo.

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Conclusion Cardozo’s view of the law represents above all a response to the problem of identifying the overriding principle that is to direct the sense of the correct legal ruling. For this he proclaims that the philosophy of law is the fundamental legal wisdom that would operate on the groundbase provided by the ancillary bodies of legal wisdom (the theory of legislation and the science of law) and nonlegal wisdom. The law is presented as a reality in a process of continual transformation where the elements of its configuration have to pass the test of prediction as to the probable way in which the courts will act. It is in any case a reality oriented toward the realization of an aim. Legal rulings ought to combine attention to that end with consideration as to the peculiarities of the reference social group and the time and place in which they have to be given. The view of Cardozo acquires an unequivocally perfectionist dimension in assuming that the moral model to be taken into account by the judge is the model of moral behavior such that would correspond to intelligent and virtuous men of that social group. Pragmatism and perfectionism constitute in this respect the foundations on which the legal conception of Cardozo is built.

References Cardozo BN (1921) The nature of the judicial process. Yale University Press, New Haven/London Cardozo BN (1924) The growth of the law. Yale University Press, New Haven/London Cardozo BN (1928) The paradoxes of legal science. Columbia University Press, New York Cardozo BN (1930–1931) Mr. Justice Holmes. Harv Law Rev XLIV:682–692 Cardozo BN (1932) Jurisprudence. Address before the New York state Bar association meeting hotel Astor, 22 Jan 1932. In: Hall ME, Bender M (eds) Selected writings of Benjamin Nathan Cardozo. The choice of Tycho Brahe. (1975, Reprint). Matthew Bender, New York, pp 7–46 Cardozo BN (1939) Our lady of the common law (An Address Delivered in 1928 by the Late Justice Benjamin N. Cardozo). St Johns Law Rev 13(2):231–241 Gény F (1889) Méthode d’interprétation et sources en Droit Privé Positif, A. Chevalier- Maresq, Paris Pound R (1922) Introduction to the philosophy of law. Yale University Press, New Haven

Croce, Benedetto Carlo Nitsch

Introduction Benedetto Croce (Pescasseroli 1866–Naples 1952) was a philosopher, historian, and literary critic and a prominent figure in Italian cultural and political life in the first half of the twentieth century whose thought had a significant international echo. Born in Pescasseroli to Pasquale and Luisa Sipari, Croce spent the early years of his education in Naples. In the summer of 1883, while on holiday with his family on the island of Ischia, he lost his parents and his sister, Maria, in the tragic earthquake of Casamicciola. Now orphaned, he was entrusted, along with his younger brother, Alfonso, to the care of his father’s cousin, Silvio Spaventa (1822–1893), a jurist and leading figure in the Italian Conservative Party (Destra storica). After moving to Rome, Croce complied with his uncle’s wishes, enrolling in the faculty of law, where he began to attend university courses, without, however, developing a real interest in legal studies. Already in this early period he began to formulate his first critical thoughts regarding both the conceptual abstractions elaborated by legal science and the nature of law, which he saw as clearly distinguished from morality and as bearing a close affinity to politics ( Intorno alla mia teoria del diritto, p. 82ff.). In these difficult years, he found stimulus in the acquaintance he made with Antonio Labriola (1843–1904), whose lectures in moral philosophy he began to attend regularly, dedicating most of his intellectual energies to them. Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_598-1. C. Nitsch (✉) Department of Law, University of Naples Federico II, Naples, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_4

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Upon leaving university, Croce returned to Naples, in 1886, and decided to devote his life to his studies – but did so always remaining a stranger to academia. He was diverted from his early erudite and literary investigations, first by philosophical meditations on the nature of history and science, which in 1893 culminated with the publication of his essay La storia ridotta sotto il concetto generale dell’arte, and then by the study of economics and the materialistic conception of history, from which derived the essays collected in 1900 in the book Materialismo storico ed economia marxistica. Reprising his own reflections on art, in dialogue with the ideas of Francesco De Sanctis (1817–1883), he began to design a vast theoretical and historical work dedicated to aesthetics. A turning point in his thought came with the publication, in the spring of 1902, of Estetica come scienza dell’espressione e linguistica generale: it was with this book that he began to develop his own philosophical system. These were also the years that mark the beginning of his intellectual partnership with Giovanni Gentile (1875–1944). With support from Gentile, in the summer of 1902, Croce drew up the program for La Critica, the journal of history, literature, and philosophy he would go on to edit (and mostly contribute to) for over 40 years starting in 1903. His “Philosophy of the spirit” would develop into a system made up of four parts: the first resulting in the third edition of Estetica (1908), the second in the second edition of Logica come scienza del concetto puro (1909), the third in Filosofia della pratica: Economica ed etica (1909), and the fourth in Teoria e storia della storiografia (1917). Decisive in shaping this work was Croce’s relationship to Hegel and Vico, the two philosophers who most influenced his thought: this led to his 1906 essay Ciò che è vivo e ciò che è morto della filosofia di Hegel and to the 1911 book La filosofia di Giambattista Vico. In January 1910, when he joined the senate of the Kingdom of Italy, Croce began an important period of political commitment which culminated in his appointment, in June of 1920, as minister of education, in the fifth and last cabinet of Giovanni Giolitti (1842–1928). In the heated political controversy that erupted during the First World War, he took part in the public debate by siding initially against the most fervent supporters of Italy’s intervention in the conflict and then against those scholars who, under the pretext of war, had succumbed to idleness or, worse still, had taken to manipulating the truth to make it a slave to the interests of their country. Politics never distracted Croce from his studies, which he constantly pursued with firm commitment, even in the difficult years of Fascism, which, after some early hesitation, he opposed with moral and intellectual rectitude. After the break with Gentile, when an irreducible political rift compounded the philosophical disagreement between the two scholars, during the period of isolation in which the regime tried to sideline him, Croce wrote his main historical works: Storia del Regno di Napoli (1925), Storia d’Italia dal 1871 al 1915 (1928), and Storia d’Europa nel secolo decimonono (1932) – three works united by the aim of reawakening the idea and value of freedom in the spirit of his countrymen. These books were received with great interest by readers and were thus a publishing success. These were followed, in close succession, by the two fundamental works La poesia (1936) and La storia come pensiero e come azione (1938), testifying to the deep rethinking of

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the essential cores of the “Philosophy of the spirit,” which, while departing from the original form of a treatise, nonetheless preserved its unitary and systematic character. After the Second World War, Croce came back to the center of the public stage, and beginning in the summer of 1943 his commitment to politics took up a large part of his life. He collaborated in rebuilding the Italian Liberal Party, of which he became president in 1944, and took part in the reconstruction of the democratic state, with an active involvement in its institutions: as minister without portfolio, in 1944, in the cabinet led by Ivanoe Bonomi (1873–1951); as member of the National Council (Consulta Nazionale), from September 1945; as elected member of the Constituent Assembly (Assemblea Costituente), in June 1946; and as senator in the first legislature of the republic, a post to which he was appointed in May 1948. Even during this period, Croce managed to be active in both politics and his studies. The radical crisis of European civilization, a consequence of the tragic war and of the unsolved postwar restlessness, prompted him to meditate on the dialectical relationship between “vitality” and “civilization” – a dramatic opposition, which, threatening to break up the spiritual unity of reality, forced him to return to Hegel, resuming with the German philosopher a dialogue that in truth had never been interrupted. This culminated in his book Indagini su Hegel, published in 1952, shortly before his death.

The Object and History of the Philosophy of Law Juridical activity does not constitute an autonomous category in the structure of Croce’s philosophical system; it rather represents a practical experience to be resolved in the wider sphere of economics, and as such distinct from, but related to, ethics. Nevertheless, his ideas on law and the philosophy of law grew to maturity in the process of developing the “Philosophy of the spirit,” in the early 1900s, and reached its climax with two works – Riduzione della filosofia del diritto alla filosofia dell’economia (1907) and Filosofia della pratica (1909) – written within a few years of each other. It is in the first pages of Riduzione that Croce treats the question of the object and history of the philosophy of law. According to him, scholars had been overly committed to defending the epistemological autonomy of the philosophy of law relative to universal history, to general theory, or to ancient natural law. For this reason, they generally paid little attention to the particular problem, proper to the discipline, of the nature of law. This real nature of law remained obscure, according to Croce, given the inability to distinguish juridical activity from ethics. Borrowing a significant metaphor from Rudolf von Jhering (1818–1892), Croce characterized this unsolved problem as the “Cape Horn” of the philosophy of law, which marked its entire history: certainly, according to him, this was a very recent history, its origins going back no earlier than the end of the seventeenth century. Until that time, there was no philosophy of law proper to speak of – whether in relation to the noble tradition of theories of justice, within which the law would have been entirely

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absorbed by ethics, or in relation to the opposite doctrines of force or utility, within which ethics itself was denied in its own consistency. The problem of distinction between juridical activity and ethics had to wait until Christianus Thomasius (1655–1728), who in his Fundamenta iuris naturae et gentium (1705) developed the first systematic account of the relationship between honestum, decorum, and justum. From this moment on, the idea of a peculiar trait by which to distinguish law from morality – the idea of a purely juridical form irreducible to the ethical one – would be rooted in modern philosophical consciousness. This was an important development, to be sure, but one that Croce still considered unsatisfactory, given that philosophical thought is fundamentally inimical to empirical concepts such as “exteriority” and “coaction,” through which this distinctive trait has been identified over time. The inability to solve this problem and, at the same time, the impossibility of setting it aside engendered the basic contradiction of legal philosophy: “law does not seem identical to ethics, but neither does it seem simply different from it; it seems to be both identical and different, yet the element of diversity cannot be fixed in the concepts of exterior, coactive, and the like” ( Riduzione, p. 32). According to Croce, this “morbid condition,” which was to plague legal philosophy for about two centuries, is a consequence of the failure to elaborate the category of the “economic” as the first form of practical activity and to recognize “utility” as an autonomous principle in the life of the spirit. From this there emerged the guidepost showing the path to be followed: assuming the unity of spiritual forms, distinct but not separate from each other, the problem is framed starting from the determination of the concept of law.

The Concept of Law As early as 1902, in Estetica, in the eighth chapter, dedicated to the system’s conceptual structure, Croce excludes that next to the aesthetic, logical, economic, and ethical forms, there may be a fifth, autonomous form of human activity – an argument he makes reasoning by specific reference to the example of “juridical activity.” However, the question of the nature of law isn’t dealt with in its proper meaning until his 1907 Riduzione. “Is the law a pure economic activity,” Croce asks, “or is it a moral activity?” ( Riduzione, p. 38). The very formulation of the question excludes the possibility that law belongs, not to the domain of the practical spirit, but to that of the theoretical spirit, to the sphere of human cognitive activity. It therefore excludes the possibility that the juridical can be said to be a particular and further determination of practical activity, as different from economics as it is from ethics, since this division, coinciding with that of the individual and the universal, leaves no room for any third form. Otherwise, the elaboration of an answer begins from the recognition of the “amoral” character of law, from the awareness that juridical action, considered in itself, is a practical activity that is neither moral nor immoral; it finally verifies the

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perfect identity of juridical activity with economic activity, the “action of the individual among the actions of other individuals,” the “first condition of any moral or immoral activity” ( Riduzione, p. 41, 45). Having verified this identity, law and morality would therefore be both distinct and united. Juridical (or economic) activity, the activity of the individual, can also be separated from ethics, without thereby becoming unlawful (or uneconomic). Ethics, on the other hand, the activity of the universal, is inclined to make every individual action its own means and thus to conform the whole of human life to itself, since the moral intention always turns into practical action, by necessity expressing itself in a juridical (or economic) form ( Riduzione, p. 53). To those who are startled by the affirmation of the unethical nature of juridical activity, and who refuse to admit the existence of immoral juridical facts and to recognize that immorality does not deprive them of their own consistency, Croce replies, in the most eloquent way, in a page in the note on international law published in the summer of 1916, in the middle of the First World War, and incorporated in 1919 in the volume Pagine sulla guerra: “if morality is powerless to make the law not be law (as it cannot make art not be art), it is, however, very powerful in forming conscience and the will, and in proposing moral needs that continuously operate in the history of law, although in it such needs must of necessity always take the form of law, strength, utility: which is precisely what is called the moral progress of humankind” ( A proposito del diritto internazionale, p. 120).

Juridical Actions and Laws Croce holds that once we set aside arbitrary representations, which would prevent the identification of law with the economy and produce spurious distinctions between juridical and economic facts, it must be recognized that there exists a genuine trait marking out juridical actions and laws as different. In Riduzione, he hastens to point out that this difference does not concern the essence of the juridical fact ( Riduzione, p. 49). Then, in the 1908 Obiezioni intorno alla mia teoria del diritto, he confirms that in order to distinguish between law and morality, it is necessary to refer to two irreducible forms of spiritual activity. It is therefore appropriate to consider law in the primary and simple form of individual acts, not in the secondary and complex form of the laws; in fact, contributing to the production of laws are both a theoretical work of abstraction and the practical act by which it is ordered that individuals must henceforth, in the acts they do, conform to the abstract models thus set out ( Obiezioni, p. 71ff.). Even so, in Croce’s assessment, the problem of the laws remains unsolved: having briefly but accurately examined it in Riduzione, he dedicates to it the entire third part of Filosofia della pratica. The first aspect of the problem concerns the ambiguity of the law, described as “a volitional act which as its content has a series or class of actions”: as an abstract volition of the abstract, the law is therefore taken to be an “unreal” volitional act. The

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second aspect of the problem, then, concerns the relationship between this “pretended volition,” contradictory and imperfect, and the determined volition of the single act, the real volition in view of which the law – by its nature impossible to be carried out, impossible to be applied to the concrete case – performs a “preparatory” and “aiding” function ( Filosofia della pratica, p. 317, 337f., 343ff.). Behind these pages, open to objection but nevertheless fascinating, it is possible to observe the problem of the freedom of individual action, which must come to terms with the need for social order in the dialectic between practical activity and the laws that govern it. It is also possible to descry, in the background, the disturbing hypothesis according to which the concept of “design” proposed for action and carried out by its means – a concept which has no place in the fields of the economy and ethics, but which has its legitimate meaning in the field of the laws – sheds a ray of light on a specific and distinctive character of law, beyond its determination as pure economy.

The Double Aspect of the Practical Problem According to Croce, although Thomasius had correctly framed the problem of the philosophy of law – concerning the nature of law and its relation to morality – this was not a problem that could properly be solved until the economy was elevated to a philosophical science and situated close to ethics. From this perspective, the entire history of the philosophy of law had therefore been a history of failures, of inevitable shipwrecks at “Cape Horn.” On the other hand, as he observes, the stubborn search for a solution would have contributed importantly to the recognition of the double aspect of the practical problem, considering that over the course of this investigation, the need for a philosophy of the not-yet-ethical ( aetica), or premoral ( premorale), form of the practical spirit would be affirmed and progressively consolidated in the modern philosophical conscience ( Riduzione, p. 37). The history of the distinction of law from morality, then, would have had an importance even greater than the experience of the emancipation of legal philosophy, since it concerned the whole domain of the practical spirit ( Filosofia della pratica, p. 366). This would ultimately be the historical merit of the philosopher of law, his precious contribution to the philosophical thought of modernity.

References Bertani C (2003) Il posto del diritto nella filosofia della pratica di Benedetto Croce. Un’interpretazione. In: Cacciatore G, Cotroneo G, Viti Cavaliere R (eds) Croce filosofo, vol I. Rubbettino, Soveria Mannelli, pp 51–78 Calogero G (1953) Croce e la scienza giuridica. Rivista italiana per le scienze giuridiche 89:1–13

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Croce B (1907) In: Nitsch C (ed) Riduzione della filosofia del diritto alla filosofia dell’economia (2016). Giuffrè, Milano, pp 1–64 Croce B (1908) Obiezioni alla mia tesi sulla natura del diritto. In: Nitsch C (ed) Riduzione della filosofia del diritto alla filosofia dell’economia (2016). Giuffrè, Milano, pp 67–75 Croce B (1909) In: Tarantino M (ed) Filosofia della pratica. Economica ed etica (1996). Bibliopolis, Napoli. English edition: (1913) Philosophy of the practical. Economic and ethic (trans: Ainslie D). Macmillan and Co., London Croce B (1914) Intorno alla mia teoria del diritto. In: Nitsch C (ed) Riduzione della filosofia del diritto alla filosofia dell’economia (2016). Giuffrè, Milano, pp 77–85 Croce B (1916) A proposito del diritto internazionale. In: Nitsch C (ed) L’Italia dal 1914 al 1918. Pagine sulla guerra (2018) De Gennaro A (1974) Crocianesimo e cultura giuridica italiana. Giuffrè, Milano Lalatta Costerbosa M (2016) Diritto e filosofia del diritto in Croce e Gentile. In: Ciliberto M (ed) Croce e Gentile. La cultura italiana e l’Europa. Istituto della Enciclopedia Italiana, Roma, pp 317–324 Marino G (2003) Diritto e ‘fare’. La denegatio crociana e la filosofia del diritto a Napoli nel ’900. Rivista internazionale di filosofia del diritto 80/2:231–273 Mustè M (1992) Benedetto Croce e il problema del diritto. Novecento 4:60–73 Nitsch C (2016) “Diritto”: studio per la voce di un lessico crociano. Jus-online. Rivista di Scienze giuridiche 2:1–23 Nitsch C (2019) “Arma” e “leges”. Note sul diritto internazionale nelle Pagine sulla guerra di Benedetto Croce. In: Ballarini A (ed) Novecento del diritto. Giappichelli, Torino, pp 147–159 Perazzoli G (2011) Benedetto Croce e il diritto positivo. Sulla “realtà” del diritto. Istituto Italiano per gli Studi Storici, Napoli Sasso G (1975) Benedetto Croce. La ricerca della dialettica. Morano, Napoli Sasso G (2012) Sulla Filosofia della pratica di Benedetto Croce. In: Filosofia e idealismo VI. Ultimi paralipomeni. Bibliopolis, Napoli, pp 11–106 Sciumè A (2017) Croce e la cultura giuridica italiana degli anni Venti del Novecento. Ital Rev Legal Hist 2(9):1–30 Silvestri P (2012) Economia, diritto e politica nella filosofia di Croce. Tra finzioni, istituzioni e libertà. Giappichelli, Torino Treves R (1941) Benedetto Croce y el problema filosofico del derecho. La Ley. Revista Jurídica Argentina 24:86–90 Troncarelli B (1995) Diritto e filosofia della pratica in Benedetto Croce. 1900–1952. Giuffrè, Milano

Dewey, John Brian Z. Tamanaha

Introduction John Dewey (1859–1952) wrote a handful of essays on various legal topics, and he made sprinkled references to law in his voluminous body of work (for informative analyses of Dewey’s perspective on law see Patterson (1950); Donoso (1959)). He did not elaborate a special theory of law, but rather analyzed legal matters from a pragmatic standpoint, treating law like other social institutions. This entry therefore begins with a summary of pragmatism. Then it addresses, in order, three topics Dewey covered with enduring significance: his critique of natural law, his account of judicial decision-making, and his social theory of law.

Pragmatism Developing their ideas at the turn of the twentieth century, the classical pragmatists – Charles Sanders Peirce, William James, John Dewey, and George Herbert Mead – were influenced by Darwinian evolutionary explanation, probabilistic explanation, and experimental scientific inquiry (the strain of pragmatism broadly described here, setting aside differences among them, was developed by James, Dewey, and Mead. Peirce distanced his version from that espoused by James). They applied a Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_600-1. B. Z. Tamanaha (✉) Washington University in St. Louis, St. Louis, MO, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_5

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naturalistic view of human social animals striving to survive, procreate, and improve the conditions of their existence. Reflective thought “has its origin in biological adaptive behavior and the ultimate function of its cognitive aspect is a prospective control of the conditions of the environment,” Dewey explained. (Dewey 1982, 37). There is a plurality of perspectives and interests among humans in social groups and their goal-oriented activities bring about continuous changes, intended and unintended, in natural and social circumstances. The collective striving of individuals to better their circumstances has in the aggregate resulted in “the inclusion progressively of social factors in human environment over and above natural factors; so that the needs which are fulfilled, the ends which are attained are no longer of a merely biological or particular character, but include also the ends and activities of other members of society.” (38). Knowledge is obtained by humans while engaging in purposive activities within natural and social environments, acting on the basis of their beliefs, ideas, and theories, paying attention to failures and successes, doing what works and discarding or revising what does not. The pragmatists modeled this problem solving (instrumental) view of knowledge on scientific inquiry, which they saw as continuous with all human inquiry. Dewey elaborated: “If ideas, meanings, conceptions, notions, theories, systems are instrumental to an active reorganization of the given environment, to a removal of some specific trouble and perplexity, then the test of their validity and value lies in accomplishing this work. If they succeed in their office, they are reliable, sound, valid, good, true.” (Dewey 1948, 156) The key to acquiring knowledge lies in attention to consequences that follow from action. Theories, ideas, concepts, under this view, are tools or instruments that facilitate the achievement of purposes. Truths are not absolute, but relative to the theoretical framework and the purposes advanced. As William James put it, scientists “have become accustomed to the notion that no theory is absolutely a transcript of reality, but that any one of them may from some point of view be useful. Their great use is to summarize old facts and to lead to new ones.” (James 1975, 33) The pragmatists absorbed this lesson from the development of non-Euclidean geometry and Einstein’s theory of relativity, which undermined previous beliefs that Euclidean geometry and Newtonian physics were absolute truths. (Dewey 1960, 108–39). Reflective thinking mainly occurs when people are confronted with problems, uncertainty, or new situations, which forces them to engage in inquiry and contemplation of alternative possibilities and potential solutions. Ideas and actions that work over time become ensconced in habits, customs, routines, rules, practices, institutions, and other forms of patterned behavior. Irrational beliefs are also incorporated in social institutions and perpetuated as tradition. Humans are naturally conservative and tend to hold on to existing beliefs and courses of action, even when poor results follow. (244) “Reliance on precedent, upon institutions created in the past, especially in law, upon rules of morals that have come to us through unexamined customs, upon uncriticized tradition, are. . .forms of dependence,” Dewey noted. (272). Consistent with their commitment to humanism, the pragmatists advocated “meliorism” – belief in the capacity of humans to improve their circumstances through reform efforts. (Dewey 1982, 34) This is a forward-looking orientation

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that subjects existing institutions to critical scrutiny. “What is needed,” Dewey stated, “is intelligent examination of the consequences that are actually effected by inherited institutions and customs, in order that there may be intelligent consideration of the ways in which they are to be intentionally modified in behalf of generation of different consequences.” (Dewey 1960, 273). The pragmatists set forth their position as a critique of and contrast to prevailing philosophical approaches, characterized by Dewey: They have seen themselves, and have represented themselves to the public, as dealing with something which has variously been termed Being, Nature or the Universe, the Cosmos at large, Reality, the Truth. Whatever names were used, they had one thing in common: they were used to designate something taken to be fixed, immutable, and therefore out of time; that is, eternal. In being also something conceived to be universal or all-inclusive, this eternal being was taken to be above and beyond all variations in space. (Dewey 1948, xii)

The pragmatists raised multiple objections: truths are tied to our theories, purposes, and actions, and cannot be found through pure reason, claims of self-evidence, and abstractions untethered to human experience; all existence is temporal so there is no standpoint outside of history; there is wide disagreement over what is self-evident; philosophical disputes are so detached from reality that they offer no useful guidance for social problems; the notion of fixed universals ignores the pervasiveness of pluralism, variation, and evolving developments, and is antithetical to the human capacity to effect fundamental changes in ourselves and the world. (Dewey 1948, 1960). Furthermore, Dewey asserted, philosophical claims of universality are false, since all philosophies reflect the circumstances in which they are constructed. “When it is acknowledged that under disguise of dealing with ultimate reality, philosophy has been occupied with the precious values embedded in social traditions, that it has sprung from a clash of social ends and from a conflict of inherited institutions with incompatible contemporary tendencies, it will be seen that the task of future philosophy is to clarify men’s ideas as to the social and moral strifes of their own day.” (Dewey 1948, 26) The pragmatist, James observed, “turns away from abstractions and insufficiency, from verbal solutions, from bad a priori reasons, from fixed principles, closed systems, and pretended absolutes and origins. He turns towards concreteness and adequacy, towards facts, towards action, and towards power.” (James 1975, 31). Dewey applied this cluster of pragmatic views to his analyses of law (early in his career, prior to his adoption of pragmatism) Dewey wrote an essay on Austin’s theory of sovereignty (Dewey 1894)). He wrote essays on corporate legal personality, judicial decision-making, law’s coercive force, natural law and reasonableness, and on law in general. Nearly all are brief, a dozen pages or less. Two threads flow through the essays, one critical and the other prescriptive. His criticisms are directed at breaking down traditional barriers to legal change, questioning legal essentialism, fixity, excessive conceptualism, and rigid adherence to precedent. His prescriptions advocate an instrumental view of law as a means to social ends, attention to consequences, and efforts at reform. Linking the two threads is the pragmatists’

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counsel to “not insist upon antecedent phenomena but upon consequent phenomena; not upon the precedents but upon the possibilities of action.” (Dewey 1982, 32–33).

Critique of Natural Law Dewey repeatedly criticized natural law, which was variously grounded in God’s will, reason, human nature, self-evidence, or the nature of things. (Dewey 1914b, 25) Proponents utilized claims of natural law to justify law, or to serve as an objective standard against which to evaluate the legitimacy and validity of law. Dewey granted that natural law arguments have sometimes served as sources of legal improvement. “But we also find that in practice one of the chief offices of the idea of nature in political and judicial practice has been to consecrate the existent state of affairs, whatever its distribution of advantages and disadvantages, of benefits and losses; and to idealize, rationalize, moralize, the philosophically given.” (31) Natural law in this usage entrenches the status quo, functioning as a bulwark against reform. Dewey points to the evident diversity of positions to challenge natural law arguments. “For upon an exclusively intellectual basis, the various legal philosophies are in such conflict with one another as to indicate that all alike are attempting the impossible.” (Dewey 1987, 75) The profusion of contrasting views of natural law principles at different times and places “is sufficient evidence that they were not derived from any a priori absolute standard.” (84) The claim of self-evidence, he wrote, is “ ipse dixitism. What is it but arbitrary dogmatism?” (Dewey 1960, 183). Assertions of universal timelessness made on behalf of natural law are guises. “As a matter of fact, legal philosophies have reflected and are sure to continue to reflect movements of the period in which they are produced, and hence cannot be separated from what these movements stand for.” (Dewey 1987, 75) Since they are tied to past systems, legal philosophies “have to be viewed in connection with actual cultural and social movements of the periods in which they appeared.” (75; Dewey 1926) Moreover, because societies are continuously changing, natural law arguments that once served as sources of positive reform when first introduced can later become regressive and reactionary owing to transformations in surrounding circumstances. Liberal principles of freedom of contract and property rights underwent this very shift from liberating to reactionary, according to Dewey. When these principles were introduced into law in the eighteenth century they served to “emancipate” industry, trade, and people from a “multitude of restrictions” held over from feudal times. (1914a, 27) The dawn of the twentieth century, however, witnessed pressing social challenges with the emergence of large urban societies, including huge monopolistic corporations with numerous employees, dangerous working conditions in factories and plants, transportation and electrification needs, extensive poverty and unsanitary conditions, corrupt municipal governments, and a host other problematic circumstances that called for solutions. Social welfare legislation was being enacted at the time to ameliorate problems, but judges were impeding these efforts by invoking

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traditional notions of liberty of contract and property rights entrenched in law. “Thus these principles became in turn so rigid as to be almost as socially obstructive as ‘immutable’ feudal laws had been in their day.” (27) Dewey was especially critical of Herbert Spencer’s laissez faire argument that the natural law of the survival of the fittest governs human behavior and efforts contrary to this are futile and socially detrimental. (Dewey 1960, 211–12; 1914b, 27) Natural law understood in these terms has a paralyzing effect, Dewey objected. “These natural laws were supposed to be inherently fixed. . . .Once discovered, nothing remained for man but to conform to them; they were to rule his conduct as physical laws govern physical phenomena.” (Dewey 1960, 212) Under this view, efforts to regulate economic affairs are “harmful interference” doomed to fail. (212) Powerlessness in the face of social challenges is contrary to pragmatism’s meliorism. Humans are active participants in nature with the natural capacity to purposively shape and change the conditions of their existence to try to meet their needs, Dewey argued. Legal rules and principles must remain flexible to deal with new circumstances and allow experimentation with reforms; otherwise they obstruct progress. “But if they are conceived as tools to be adapted to the conditions in which they are employed rather than as absolute and intrinsic ‘principles,’ attention will go to the facts of social life, and the rules will not be allowed to engross attention and become absolute truths to be maintained intact at all costs.” (Dewey 1914a, 27).

Judicial Decision-Making In “Logical Method and Law,” Dewey situates legal reasoning as an instance of inquiry generally, understood in the instrumental terms set out by pragmatism. At the outset, he distinguishes two types of human conduct. (17) The first type involves human action without deliberation, following routines, hunches, trained intuition, not consciously considering likely consequences. The second type engages in a process of inquiry in which facts are weighed, alternatives are evaluated, and probable consequences are anticipated, when deciding what course of action to undertake. Dewey limits his account of legal reasoning to the latter type (without denying that the first type might also come into play). Legal reasoning, he tells us, is similar in mode to reasoning by people engaged in other domains of purposive activities, like scientists, engineers, doctors, merchants, bankers, etc., working with their own material and objectives. (18) All areas of inquiry generalize principles and develop logical consistency among the propositions they utilize, though Dewey emphasizes that these systematizing efforts are not ends in themselves but rather instruments to achieve desired purposes. This applies to legal knowledge as well. “It is most important that rules of law should form as coherent generalized logical systems as possible,” he asserts. “But these logical systematizations of law in any fields. . .is clearly in last resort subservient to the economical and effective reaching of decisions in particular cases.” (19)

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The systematization of knowledge, in law as well as other fields, often involves concepts. Concepts are indispensable and beneficial in several ways, including organizing ideas and experiences, serving efficiency, and producing stability. “It is practically economical to use a concept ready at hand rather than to take time and trouble and effort to change it or to devise a new one.” (20) But concepts contain an “intrinsic inertia on their own account” and, combined with the human tendency to habitual behavior, they change slowly and can fall out of sync with evolving circumstances and needs. Following these general discussions of systematic knowledge and concepts, Dewey turns to judicial decisions, first addressing syllogisms in general – the logical progression from premises to conclusions. He makes a crucial threshold clarification: “the syllogism sets forth the results of thinking, it has nothing to do with the operation of thinking.” (22) Likewise, a written judicial opinion laid out in syllogistic form does not purport to represent the actual process by which judges arrive at the decision. “The logic of exposition is different from that of search and inquiry.” (24) As exercises in the logic of exposition, written judicial opinions have several important purposes: to provide reasons that justify the decision (showing it was not arbitrary or ad hoc), to articulate a rule that guides the determination of future cases and facilitates legal uniformity, and to provide notice, stability, and predictability for people who need to know the legal consequences of their actions. (24) Judicial decisions are written in logical form, Dewey adds, because judges want to give the appearance that it is “impersonal, objective,” determined by law, although “the personal element cannot be wholly excluded.” (24) When describing how judicial decisions are made, he refers to the process of inquiry in general. People deciding on a course of action begin with a complicated and confused case, often with some vague anticipation of possible conclusions; they consider all relevant factors of which they are aware, and they consider and evaluate the likely consequences of different treatments and solutions. (23) “Premises only gradually emerge from analysis of the total situation.” (23) Lawyers and judges engage in the same back-and-forth process, considering applicable law and relevant facts, searching for law applied in similar cases, anticipating possible outcomes, altering the selection of relevant facts, modifying the selection of relevant law or its interpretation, and so forth, until arriving at a tentative resolution. (23) This is not syllogistic reasoning from premises to conclusion since both emerge in this process. “Thinking may be defined either as a development of premises or development of a conclusion; as far as it is one operation it is the other.” (23) Dewey closes the essay by drawing out the implications of his analysis for the dilemma confronting judges of the day: finding the right balance between maintaining legal stability while responding to the social demand for legal changes to meet new circumstances. “There is of course every reason why rules of law should be as regular and as definite as possible,” he emphasizes. (25) The reality, however, is that rules have ambiguities, are sometimes vague and indeterminate, and cannot be written to foresee or address all circumstances (25–26; Dewey 1926, 669); “situations do not literally repeat one another in all details, and questions of degree of this factor or that have the chief weight in determining which general rule will be

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employed to judge the situation in question.” (Dewey 1914a, 25) Difficulties are heightened during periods of rapid and sweeping social changes, like the present, for which longstanding doctrines are ill-suited. When judges doggedly hold to past interpretations “the gap between current social conditions and the principles used by the courts” constantly widens, breeding public “irritation” and “disrespect for the law.” (26) Judges, Dewey argues, should apply “a logic relative to consequences rather than to antecedents, a logic of prediction of probabilities rather than one of deduction of certainties.” (26) Logical systematization, legal concepts, and legal principles, are tools, not ends in themselves. “They are means of intellectual survey, analysis, and insight into the situation to be dealt with. Like other tools they must be modified when they are applied to new conditions and new realities.” (26)

Social Theory of Law Dewey sets forth his consummately pragmatic perspective on law in “My Philosophy of Law:” “The standpoint taken is that law is through and through a social phenomenon; social in origin, in purpose or end, and in application.” (Dewey 1987, 76) Law is an “ongoing” aspect of social activities, he emphasizes, and “must be viewed as both intervening in the complex of other activities, and as itself a social process.” (77) Because it is interconnected within society, “‘law’ cannot be set up as if it were a separate entity, but can be discussed only in terms of the social conditions in which it arises and out of what it concretely does there.” (77) He identifies “customs,” which are tied to the human tendency to habitual behavior, as the primary origin and source of law. (78) Dewey holds an atypically broad view of this term – “Social customs, including traditions, institutions, etc.,” – to encompass all sorts of “stable and enduring” social processes. (79) While ongoing patterns of behavior are “relatively fixed,” change also occurs, usually slowly, but sometimes rapidly, depending on the circumstances. (79) He describes the emergence of law and government in evolutionary terms as a “crystallization” of social forces into organized institutions that efficiently govern through law. (Dewey 1894, 41–43) Legal rules are “precipitated formulations” of longstanding social customs, while the enactment of customs into law in turn reinforces and extends the stability of said customs. (Dewey 1987, 79–80) Judicial decisions are the main mechanism through which customs are incorporated into law. Legislation enforces custom as well, although the recent “immense outburst of legislative activity” is tied to “social interests,” particularly those related to economic factors. (82) All law, including constitutional law, the common law, and legislation, involve the crystallization of “the moral (or social) forces” within society, (Dewey 1894, 43) as products of “the whole complex of social activities.” (51) The most effective form of regulation of everyday life and activities is not state law, Dewey reminds us, but customs and moral forces within “institutions like the family, the school, the business partnership, the trade-union or fraternal

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organization;” “a factory and a church.” (48) Legal doctrines and rules provide supportive frameworks for these social institutions, which have an “infinitely” greater role than state law in maintaining the order of society. (48) Law and government, in Dewey’s depiction, are instrumentalities for carrying out social purposes, including maintaining social order and advancing the public good. The application of coercive force makes law a more effective instrument, he argued. Hence “law is essentially a formulation of the use of force” for instrumental purposes. (Dewey 1916, 367) He asserts that one must evaluate whether law’s use of force in given instances is “intelligent” and justified by the “comparative efficiency and economy in use.” (367, 364) Dewey applies this analysis to ongoing battles between employers and striking laborers, who were subject to court issued injunctions against strikes and harsh enforcement by police. He uses the instrumental test not only to evaluate use of force by police, but also use of force by strikers. Police use of force that is excessive, brutal, or provokes a backlash does not advance social ends – “An immoral use of force is a stupid use.” (365) With respect to laborers, he wrote, if existing legal and economic mechanisms are the most effective means to the social ends at stake, then laborers should resort to these processes rather than engage in illegal strikes. If not, however, “then resort to extra-legal means may be indicated; provided it really serves the ends in question – a very large qualification it must be noted.” (362) He recognized that this assertion might be seen as an encouragement to violence, but emphasizes that in general there should be a presumption in favor of resorting to courts over violence. (363). Two pivotal points emerge from his analysis of the battle between employers and labor, which run through his other legal writings as well. The first is his insistence that law is not “sacrosanct” and must be subject to critical evaluation (364), and the second is that the standard of evaluation is whether law advances social ends. This prompts an inevitable question: How do we identify the correct social ends in instances of fundamental disagreement? Dewey eschews natural law principles as standards for the evaluation of law. (Dewey 1987, 82–83) He recognizes there are conflicting values and interests. He emphasizes that “the fact that such and such customs and laws have grown up is no sign that they should exist; it furnishes no test for their value.” (83) So on what basis is law to be evaluated? Dewey’s answer is that “the standard is found in consequences, in the function of what goes on socially.” (84) Observing the consequences of law requires that “intelligence, employing the best scientific methods and materials available, be used to investigate, in terms of the context of actual situations, the consequences of legal rules and of proposed legal decisions and acts of legislation.” (84) Empirical studies must be conducted to discern what legal officials actually do with respect to law in the books, and the social efficacy of these actions, as well as how people act in relation to matters covered by the law. This response, however, does not fully answer how law is to be evaluated. Attention to the consequences of law can reveal whether or not the law is working as intended. If the intended social ends are not achieved, or if unanticipated consequences result, then the law can be changed or its application be made more

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effective in the pursuit of those ends. But if the intended social ends are achieved by the law, by what standard are we to evaluate whether these desired results are good or just or serve social purposes? As Dewey states, “The fact that something is desired only raises the question of its desirability; it does not settle it.” (Dewey 1960, 260) He affirms that “it is true that social arrangements, laws, institutions are made for man, rather than that man is made for them; that they are means and agencies of human welfare and progress.” (Dewey 1948, 194) But “human welfare,” “progress,” and “social good” are value questions, which appear to require resort to a substantive standard – a content filled principle or notion – to determine whether something in fact advances welfare, progress, and the social good, particularly given competing accounts. Dewey rejects universal, immutable principles of the good and right, as too abstract, too fixed, and incapable of accounting for pluralism, vast differences in social circumstances, and historical change. He has no substantive standards and no hierarchy of values to offer – though he does state one proposition to be mentioned shortly. What Dewey propounds and advocates is a method1: intelligent inquiry into the sources of and possible solutions to concrete social problems, utilizing legal mechanisms to resolve these problems (if law can help), and observing whether the results of legal initiatives are desirable, learning from failures and building on successes. He contrasts this method with natural law: “the chief working difference between moral philosophies in their application to law is that some of them seek for an antecedent principle by which to decide; while others recommend the consideration of specific consequences that flow from treating a specific situation in this way or that, using the antecedent material and rules as guides of intellectual analysis but not as norms of decision.” (Dewey 1914b, 31). Dewey proposes intelligent, experimental, and piecemeal reformism with the conviction that when the consequences of actions are critically scrutinized, humans have the capacity to evaluate whether the results are socially desirable – are welfare enhancing and good – even though people inevitably disagree on such matters. Thoughtfully deciding upon and doing the reforms, and then observing their consequences, provides additional concrete information that helps evaluate their desirability: Was there a decrease (or an increase) in the extent of human suffering? Are people better off, and if so, in what specific ways? Are people worse off? Do we like the results all things considered? And so forth. A robust, informed exchange of views on these matters – which democracy facilitates – leads to the next reform effort, a continuous process of intelligent inquiry and instrumental action. “Ends grow, standards of judgment are improved,” Dewey wrote. “Man is under just as much obligation to develop his most advanced standards and ideals as to use conscientiously those which he already possesses.” (Dewey 1948, 175) This approach is superior to rigid adherence to fixed principles (frequently disputed

1 For an elaboration of Dewey’s focus on method rather than substantive propositions, see Manicas (1981).

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anyway), which can become dysfunctional and socially detrimental as circumstances change. The substantive end Dewey articulates is this: “It is socially desirable to give as much incentive as possible to the full development of everyone’s powers.” (Dewey 1978, 490) The “meaning” and “purpose” for all social institutions, including law, “is to set free and to develop the capacities of human individuals without respect to race, sex, class or economic status.” (Dewey 1948, 186).

Conclusion Edwin Patterson, who co-taught a seminar on legal philosophy with Dewey from 1924–1929 at Columbia Law School, claims Dewey had a “great influence” on the American legal realists, a number of whom cited his work (Patterson 1950, 619–620). The extent of his influence is unclear because aspects of his analysis of judicial decision-making echo positions previously expressed by Oliver Wendell Holmes, which Dewey acknowledges. The instrumental view of law as a means to social ends he articulates is similar to Roscoe Pound’s earlier advocacy of sociological jurisprudence (Pound 1907); and Holmes and Pound were exposed to the pragmatism of William James early on. What can be said with confidence is that pragmatism generally had an influence on American jurists and Dewey enhanced this by insightfully applying pragmatism to various contested legal issues of the day. Beyond the specific insights conveyed in his legal writings, the enduring significance of Dewey’s work lies in his overall mindset – his belief in empirically informed intelligent inquiry and in the human capacity to engage in actions that bring improvements to the lives of individuals and society, through the courage to act and make empirical and value judgments in the face of disagreement, uncertainties, and the absence of absolute truths or universal standards. Bringing this mindset to law is the best way to grapple with and surmount our ever-present challenges.

References Dewey J (1894) Austin’s theory of sovereignty. Polit Sci Q 9:31–52 https://doi.org/10.2307/ 2139902 Dewey J (1914a) Logical method and law. Cornell Law Q 10:17–27 Dewey J (1914b) Nature and reason in law. Int J Ethics 25:25–32 https://doi.org/10.1086/intejethi. 25.1.2989560 Dewey J (1916) Force and coercion. Int J Ethics 26:359–367 https://doi.org/10.1086/intejethi.26.3. 2377050 Dewey J (1926) The historic background of corporate legal personality. Yale Law J 25:655–673 https://doi.org/10.2307/788782 Dewey J (1948) Reconstruction in philosophy, 2d edn. Beacon, Boston

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Dewey J (1960[1929]) The quest for certainty. Capricorn, New York Dewey J (1978) John Dewey: the middle works, 1899–1924, edited by Ann Boydston. Southern Illinois University Press, Carbondale Dewey J (1982) The development of American pragmatism. In: Thayer HS (ed) Pragmatism: the classic writings. Hackett, Indianapolis, pp 23–40 Dewey J (1987) My philosophy of law. In: Rosenthal J (ed) My philosophy of law: credos of sixteen American scholars. Northwestern University, Chicago, pp 73–85 Donoso A (1959) John Dewey’s philosophy of law. Univ Detroit Law J 36:579–606 James W (1975) Pragmatism and the meaning of truth. Harvard, Cambridge, MA Manicas PT (1981) John Dewey and the problem of justice. J Value Inq 15:279–291 https://doi.org/ 10.1007/BF00136962 Patterson EW (1950) John Dewey and the law: theories of legal reasoning and valuation. ABA J 36: 619–622, 699–701 Pound R (1907) The need of a sociological jurisprudence. Ann Rep ABA 30:911–925

Durkheim, Emile A. Javier Treviño

Introduction The legal philosophy of French sociologist Émile Durkheim (1858–1917) focuses on three general areas: (1) the relationship between law and morality, (2) the correspondence between social solidarity and legal sanctions, and (3) the social functions of contract. Throughout his sociological writings, Durkheim analyzes several issues with some constancy: morality, religion, solidarity, and law. Of these, morality was for him the most important and law the least important. Durkheim regarded legal phenomena as nothing more than expressions of moral phenomena. It was his abiding interest in the moral elements of social life that strongly informed his views on law and society. Indeed, for Durkheim, society’s well-being depends on people’s commitment to moral beliefs and sentiments, of which law is simply a reflection. Due largely to his prevailing focus on religion and morality, Durkheim did not articulate a systematic sociology of law. He did, however, produce a comprehensive explanation of legal evolution.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2019, https://doi.org/10.1007/978-94-0076730-0_763-1. A. Javier Treviño (✉) Sociology, Wheaton College, Norton, MA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_6

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Intellectual Sketch Émile Durkheim was born in Épinal, France. At the age of 19, he was admitted to the prestigious Ecole Normale Supérieure in Paris where he studied philosophy, specializing in Montesquieu. However, by the time of his graduation from the Ecole in 1882, Durkheim had shifted his intellectual interest to sociology – a discipline that, though it had previously been founded by the French philosopher, Auguste Comte, was not yet part of that country’s curriculum. In 1887, a course on social science was created for Durkheim to teach at the University of Bordeaux. He completed his doctoral dissertation, The Division of Labor in Society, at the University of Paris and published it in 1893. It is here that Durkheim proposes his earliest ideas on law. His subsequent commentaries on legal sociology are scattered in various writings but can be principally found in two additional sources. The first is his article, “Deux lois de l’évolution pénale,” which appeared in L’Année Sociologique in 1900. The second consists of a series of lectures he delivered intermittently between 1898 and 1915 and posthumously published in English as Professional Ethics and Civic Morals. Durkheim was much influenced by the French philosophes, Montesquieu and Rousseau, and their ideas on the holistic view of society and the general will, respectively. Also of significance to Durkheim was Kant’s understanding of morality as a principle of social duty. From Comte, Durkheim derived his positivistic approach and his notion of “collective consciousness.” From Herbert Spencer, he obtained much of his organismic and evolutionary views of society. Ferdinand Tonnies’s concepts of Gemeinschaft and Gesellschaft shaped Durkheim’s ideas about the different types of social solidarity.

Law as Social Fact In his primer, The Rules of Sociological Method (1895), Durkheim’s main concern is with promoting the new science of sociology. For him, sociology must implement a methodology rooted in the principles of positivism. As such, he urges the sociologist to abide by the basic tenets of the scientific method, which include empirical investigation through observation and measurement. Additionally, sociologists must undertake a functionalist analysis of social phenomena and consider them in systematic relation to society as a whole. Durkheim identifies sociology’s fundamental subject matter as the study of social facts, which he defines as those “ways of acting, thinking and feeling, external to the individual, and endowed with the power of coercion” (1966:3). Social facts are “real” due to their regulatory influence on people’s actions. In this sense social facts are to be treated as part of an “objective,” external, and demonstrable social reality. But given that most social facts are nonmaterial, they are not easily observable. Finally, because social facts have a distinct existence independent of the will of individuals, they can only be explained by other social facts.

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For Durkheim, law is the preeminent social fact. It is coercive because it constrains people’s actions by prohibiting certain behaviors like murder, theft, and prostitution. It is real because its violation will usually evoke decisive sanctions such as a fine, incarceration, or execution. Law is also experienced as an objective aspect of social reality, as being “out there.” Law is a material social fact in that legal rules – as written down in codes, constitutions, and law books – can be observed, classified, and measured (counted). The nonmaterial social fact with which Durkheim is principally concerned in The Division of Labor is social solidarity, of which there are two types. Mechanical solidarity is the cohesiveness that exists when members of a small, traditional, preindustrial community are attracted to one another because of mutual resemblances. In this case, homogeneity creates a strong bond that unites this group. Moreover, there exists a well-defined collective consciousness – “the totality of beliefs and sentiments common to the average members of a society” (1984: 38–39) – that acts as a regulating moral force. Challenges to the collective consciousness evoke moral outrage and harsh retaliation. Thus, explains Durkheim, “we should not say that an act offends the common consciousness because it is criminal, but that it is criminal because it offends that consciousness” (1984:40). By contrast, an organic solidarity, typically characteristic of large, modern, industrial societies, involves an extensive and highly differentiated division of labor. Here, it is the members’ heterogeneity, the fact that they exchange different skills, that contributes to social integration. This relational engagement is one of mutual dependence between autonomous individuals with distinct specialties. Durkheim describes it as a “system of rights and duties joining [people] in a lasting way to one another” (1984:338). Thus, an organic society is held together by functional interdependence based on the division of labor. According to Durkheim, historically, there has been a general evolutionary movement from mechanical to organic solidarity and their associated forms of law.

Legal Evolution and Societal Complexity Given that mechanical and organic solidarities are nonmaterial in nature, they are difficult to observe and measure empirically. Nevertheless, because Durkheim regards social solidarity as a moral phenomenon and sees law as reflecting moral beliefs, he identifies codified law as the visible index by which to gauge social solidarity. Thus, according to Durkheim, the type and amount of law vary concomitantly with the type and amount of solidarity. “Since law reproduces the main forms of social solidarity,” states Durkheim in The Division of Labor, “we have only to classify [and count] the different types of law in order to investigate which types of social solidarity correspond to them” (1984:28). Durkheim classifies all legal rules as either repressive or restitutive. Repressive law encompasses criminal law, whereas restitutive law includes civil law, commercial law, procedural law, administrative law, and constitutional law. Durkheim

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correlates repressive law with punitive sanctions but sees restitutive law as providing for reconciliation. Moreover, he posits that the greater in a society the amount of repressive law, which is an expression of the collective consciousness, the greater the indication of mechanical solidarity. Likewise, the greater the amount of restitutive law, which is an expression of relationship reparation, the greater the indication of organic solidarity. In “Deux lois de l’évolution pénale,” Durkheim departs from his social solidarity thesis on penal sanctions and offers two propositions explaining the quantitative and qualitative transformations in the character of punishment. In the quantitative proposition, Durkheim contends that the greater a society’s governmental absolutism, the more likely it is to inflict severe punishments. Governmental authority is most absolute when it is concentrated in a single sovereign power. For example, because the ancient Hebrews, the city-state of Athens, and the Roman Republic were relatively democratic, they typically did not employ cruel and aggravated forms of execution. By contrast, in Imperial Rome, when the emperors exercised autocratic rule, penal law carried brutal physical punishments, and torture and capital crimes increased. Similarly, with the prevalence of monarchic absolutism in Europe during the fourteenth and seventeenth centuries, executions became common. However, by the eighteenth century, as the power of the monarchies declined and gave way to more democratic governments, punishment became more lenient. In the qualitative proposition, Durkheim explains the historical shift from corporal punishment to incarceration. According to him, the social practice of incarceration passed through several stages of historical development. The earliest prisons were intended only for the purpose of temporary detention. This was the case, for example, in Athens where Socrates was held in confinement only while awaiting trial. Prisons gradually became institutions for the administration of penal sanctions where prisoners were systematically subjected to various torments. The dungeons and torture chambers of the absolutist monarchs of seventeenth-century Europe exemplify this type of prison. Then, in the eighteenth century, following the collapse of these authoritarian regimes, physical punishment was superseded by depravation of liberty as the preferred penalty. Durkheim’s ideas on legal evolution and societal complexity, which he proposed in The Division of Labor, have been tested empirically by, among others, Richard D. Schwartz and James C. Miller (1964). In their study, based on a cross-cultural analysis of 51 preindustrial societies, Schwartz and Miller show that, in general, legal institutions follow a path of development that is the opposite of what Durkheim had postulated. Thus, in contradiction to Durkheim, Schwartz and Miller’s ethnographic data indicate that restitutive, not repressive legal structures, occur in mechanical solidarities. Steven Spitzer (1975) tests the propositions of quantitative and qualitative change that Durkheim advances in “Deux lois de l’évolution pénale.” Here again, contrary to Durkheim, Spitzer found, among other things, that advanced societies are generally characterized by more severe punishments. Notwithstanding Durkheim’s failings, Spitzer nonetheless credits him for making explicit the fact that punishment is deeply rooted in the structure of society.

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Contract: Evolution and Social Functions Though Durkheim’s ideas about contract’s social role were introduced in The Division of Labor, his most developed insights on the topic are found in a set of lectures he gave at Bordeaux and later at the Sorbonne (Professional Ethics and Civic Morals). Here Durkheim contends that the contract’s moral bond – considered in terms of duty owed – arises from two social arrangements. The first, predominant in premodern societies, involves the unilateral relationship between the status of persons or things, as in, for example, the case of masters and slaves. The second, common in societies with a highly differentiated division of labor, involves the willful agreement between individuals with rights and duties relative to each other. The true, juridical, contact has its basis in the second type of arrangement. Durkheim traces the historical progression of moral bonds – from unilateral coercion based on status to bilateral agreement based on reciprocal rights and duties – through five types of contractual relations. In the first, the blood covenant, members of a certain group are duty-bound to each other because they share a sacred quality: they see themselves as being “of the same blood.” In the “real” contract, the bond is forged with the actual transfer and delivery of a thing, thus giving rise to a duty of debt. The contract by solemn ritual involves the formal utterance of a specific phrase in accordance with a sacred formula. Here, the parties are bound, first, by the duty to fulfill their promises because they have sworn an oath to the highest moral authority, the deity, and, second, because they have “given their word.” The consensual contract, which emerges as economic transactions become more frequent, creates a bilateral bond of mutual rights and duties where each party – playing the dual role of creditor and debtor and promisor and promise – freely consents to the terms of the agreement. Finally, the contract of equity ensures a fair and just transaction. However, for Durkheim, contract’s social function is not so much to foster fair and just transactions between parties, but to ensure the parties’ regular cooperation in order to maintain social and economic coordination. To be sure, because it gives rise to corresponding pairs of rights and duties, the contract becomes the main legal expression of cooperative relationships. Moreover, the division of labor depends on the form of voluntary collaboration expressed by the juridical contract. As symbols of exchange, contracts harmonize the social relationships between persons performing differentiated roles like those displayed in the commercial negotiations between agent and principle, carrier and consignor, and insurer and insured. But even in interdependent collaborations as these, parties will nonetheless endeavor to advance their interests by maximizing their rights and minimizing their duties. If solidarity is to be preserved, however, every contract must result in a compromise that balances competing interests. In this way the contract ensures solidarity by encouraging social relations of cooperation and compromise between parties engaging in specialized and distinct tasks. In other words, the division of labor in organic society functions in accordance with contractual solidarity.

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Crime and Ritual Punishment For Durkheim, not only does the legally binding agreement of contract have its basis in morality and religion, so too does the legally violating action of crime. Indeed, in “Deux lois de l’évolution pénale,” he distinguishes between two types of crime: religious and human. Religious crimes, predominant in less-developed societies, are acts against beings or things with a transcendent or mystical character. Because an absolute sovereign possesses the attributes of a deity, offenses committed against him are considered sacrilege and blasphemy. Moreover, crimes against society are seen as crimes against the sovereign who makes the laws that express his will. In this case the collective consciousness is assaulted severely; the offenses are regarded as reprehensible; and, as a consequence of the community’s moral condemnation, punishment becomes an emotional act of vengeance. Thus, the function of ritual punishment – trials, excommunications, banishments, public executions – is to reaffirm group solidarity and restore the moral order violated by the criminal. In his study of seventeenth-century Massachusetts Bay Colony, Kai T. Erikson (1966) employs Durkheim’s functionalist ideas about ritual punishment and solidarity. He illustrates empirically that deviants provide a contrast that gives community members a sense of their cultural identity. In imposing severe sanctions in the form of ritualized expression, the community members’ cultural identity is renewed and reaffirmed, and they subsequently experience a greater sense of social cohesiveness. Human crimes, which include murder, theft, rape, and fraud, are prevalent in more advanced, differentiated societies where the collective consciousness has lost its sacred character. Here there is a shift from a collective, sacred morality and toward a secular morality that attaches supreme value to the dignity of the individual. This gives the offender and victim, qua individuals, the same moral standing. In addition, increased public sympathy and respect for all individuals prohibit cruel and degrading treatment.

Conclusion The Durkheimian perspective, which relies on an examination of the moral elements of social life, has yielded sociological theories to explain the evolution of law, punishment, and contract. Taken together, these statements constitute Durkheim’s evolutionary thesis on law. He sees morality as the basis of law because law usually represents the moral beliefs and sentiments of a community. His interest in law, in general, holds only to the extent that he uses it to measure the degree of social solidarity. Durkheim’s interest in contact law, specifically, is to show how it regulates cooperative relationships that engender contractual solidarity.

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References Durkheim E (1900) Deux lois de l’évolution pénale. L’année sociologique 4:65–93 Durkheim E ([1895] 1966) The rules of sociological method. Free Press, New York Durkheim E ([1893] 1984) The division of labor in society. Free Press, New York Erikson E (1966) Wayward puritans: a study in the sociology of deviance. Wiley, New York Greenhouse C (2011) Durkheim and law: divided readings over division of labor. Annu Rev Law Soc Sci 7:165–185. https://doi.org/10.1146/annurev-lawsocsci-102510-105516 Lukes S, Devyani P (2012) Durkheim on law and morality: the disintegration thesis. J Class Sociol 12:363–383. https://doi.org/10.1177/1468795X12453270 Schwartz R, Miller J (1964) Legal evolution and societal complexity. Am J Sociol 70:159–169. https://doi.org/10.1086/223791 Spitzer S (1975) Punishment and social organization: a study of Durkheim’s theory of penal evolution. Law Soc Rev 9:613–637. https://doi.org/10.2307/3053341

Dworkin, Ronald Anthony R. Reeves

Introduction Ronald Dworkin’s general theory of law1 centers on the issue of what determines the doctrine of a legal system. Take the following proposition: “In the state of Montana, it is against the law to discriminate in employment on the basis of a person’s political views.” This is a proposition about the doctrine or content of a particular legal system (hereafter, “legal proposition”). What, fundamentally, makes propositions of this sort true? Slightly differently, what facts, in general, determine the norms that a legal system has? Legal positivists have traditionally said2 that what fundamentally makes a legal proposition true is some social fact(s). For example, H.L.A. Hart has it that the social acceptance among officials of a common set of criteria for identifying law (what he famously calls a “rule of recognition”) is at the foundation of a legal system in that all other of its legal rules are law in virtue of satisfying these accepted

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Science+Business Media B.V. 2017, https://doi.org/10. 1007/978-94-007-6730-0_2-1. 1

Dworkin developed his philosophical views on law over the course of 50 years, during which they evolved in important respects. Here I will attempt to distill general aspects of his legal philosophy that remained stable in his later work (essentially, Law’s Empire forward). 2 The proper characterization of legal positivism’s foundational commitments is currently in question. See, for instance, Kevin Toh, “An Argument against the Social Fact Thesis (and Some Additional Preliminary Steps Towards a New Conception of Legal Positivism),” Law and Philosophy 27 (2008). A. R. Reeves (✉) Department of Philosophy, Binghamton University, Binghamton, NY, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_7

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criteria.3 Put roughly, what the law is around here depends on what is conventionally recognized as settling what the law is around here. Since the content of law is determined by what is, in fact, socially recognized, neither the tests of legal validity nor the norms they recognize as valid need have any morally respectable character to qualify as law. Rather, there simply need be a significant degree of factual social consensus on the criteria of legal validity. “[T]he rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria.”4 Dworkin rejects this kind of picture of legal content. On his view, the answers to doctrinal questions do partly depend on existing legal practice. However, that practice need not have consensus at its base, and morality is a fundamental determinant of which norms are law. Intuitively, we might express the underlying idea as follows. Imagine we are disputing whether I have an obligation to aid an old, long out-of-contact friend who has requested financial assistance. You argue that our friendship gives me strong reason to assist, pointing to ideas of mutual support and longevity typical of friendship and to aspects of my particular friendship (e.g., the friend offered intensive emotional support at a crucial juncture). I deny that I am obligated, contending that friendship normally does not involve financial solidarity and that the moral ties of this friendship were undermined by the long, voluntary absenteeism. However this facially sensible argument ultimately goes, the dispute is seemingly about what friendship (here and now) really requires. Moreover, relevant considerations include not only social facts about how friendships typically work, or the history of this particular friendship, but the moral point of friendships and how that point applies to the relationship in question. If the point of friendship is to foster personal virtue, then this will likely say something about the significance of the long absence and the propriety of financial assistance. If the point concerns committed and affectionate companionship, then that will say something else. Finally, we can have a cogent moral dispute about this point, i.e., the value and significance of friendship. On Dworkin’s view, law is in much the same way a contestable social practice, and what the law really requires in any specific system depends on the moral point of law as it applies to the system’s particular characteristics.

3

H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994), 100–123. Ibid., 110. A quick note on a division in legal positivism. Both inclusive and exclusive legal positivism hold that legal systems have a social convention about the criteria of validity. They differ on whether these further criteria are necessarily nonmoral social facts. Exclusive positivists say that they are and that legal content is always purely a matter of social fact. Inclusive positivists deny this, and say that a legal system can have moral criteria settling further content, as long as the criteria are conventionally recognized. Dworkin’s challenge is to both versions. 4

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Legal Disagreement Part of what motivates Dworkin’s account is a sense that a certain kind of legal disagreement occurs in law. On Hart’s view, recall, the social fact that determines which norms are law is the rule of recognition, which is partly constituted by concord among officials in identifying law. The problem, Dworkin argues, is that there is no such basic concord, and hence no such social fact. In Riggs v. Palmer, for instance, judges disagreed about the pertinent considerations in deciding whether a grandson named in his grandfather’s will was legally entitled to inherit after he had murdered his grandfather for the inheritance. The statutes of wills contained no explicit exception for such a circumstance. Some judges reasoned that the statute should be read literally, in strict accordance with its explicit language, to identify the applicable legal rule. Hence, they concluded, the grandson ought to inherit. Other judges, however, contended that the correct legal standard depends on the intentions of the legislators (who would not have intended to permit murdering heirs to inherit) and more general principles of law (which normally disallow profiting from one’s own wrong). On that view, the grandson has no legal title to inherit. The important point for Dworkin is that highly competent legal officials disagreed on the basic criteria for identifying the law in their jurisdiction. If there is disagreement about these criteria among practitioners, then they do not share a convention concerning how to identify law. The positivist view that asserts conventional agreement as the social fact that determines legal content is, Dworkin concludes, mistaken.5

Constructive Interpretation Dworkin believes that what motivates theories of law that posit consensus at a legal system’s foundation is the idea that disagreement in legal practice would be senseless if practitioners did not share the same criteria for identifying law. If the judges in Riggs v. Palmer really disagree about this basic matter, in what sense could they be having a meaningful dispute about what the law requires, rather than merely talking past each other? The challenge, as Dworkin sees it, is to offer an account of how meaningful legal disagreement is possible in the midst of a lack of consensus about the elementary terms by which to evaluate the truth of legal propositions. “Constructive interpretation” is his answer to the challenge.6 Stated in general terms, constructive interpretation is “a matter of imposing purpose on an object or practice

5

Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), 1–44. Justice in Robes (Cambridge, MA: Harvard University Press, 2006), 223–226; Justice for Hedgehogs (Cambridge, MA: Harvard University Press, 2011), 402–405. For useful framing and discussion, see Andrei Marmor, Interpretation and Legal Theory, 2nd ed. (Portland: Hart Publishing, 2005), 1–8. 6 Dworkin, Law’s Empire, 43–46.

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in order to make of it the best possible example of the form or genre to which it is taken to belong.”7 One begins by looking to the evident characteristics of an object to get a sense of an object’s general kind (call this “pre-interpretive understanding”), and then construes that object as the best possible instance of that kind, consistent with its evident characteristics. Put otherwise, the properties we properly attribute to the object depend on the interpretation of the object that fits its evident characteristics sufficiently, while making the object into the best example of the kind per the kind’s proper standards.8 If novels, for instance, are properly assessed in terms of the integrity and intrigue of their plots, the revelation offered by the engagement with their themes, and the richness of their characters, then we have aesthetic standards appropriate to the genre of novels. For a particular novel, to determine which narrative to construct from the text, I should treat it as the best novel it can be by, for instance, imputing character motivations or thematic commitments that best serve the literary values consistent with text’s constraints. When we disagree about the meaning of the novel, much of this disagreement can be sensibly understood as reflecting different understandings of what would make the novel best (and, this could further reflect different assumptions about how to prioritize certain aesthetic judgments in the literary form, e.g., cogent plot vs. significant thematic exploration).9 Similarly, Dworkin argues, we ought to treat social practices like friendship and law constructively to determine their content. “A participant interpreting a social practice. . .proposes value for the practice by describing some scheme of interests or goals or principles the can be taken to serve or express or exemplify.”10 When the practice concerns our practical interactions, the values relevant to the social object are likely to be moral rather than, for example, aesthetic in character. Nonetheless, in determining what friendship requires, I impute some moral significance to that sort of relationship, though one constrained and informed by standard social understandings of how friendships operate and what they require. I cannot reasonably conclude that friendship demands that a person wholly abandon their personal aims – it fits neither tradition nor the values likely to endorse other accepted elements of the relation. However, I can arrive at surprising conclusions about friendship’s demands if a powerful interpretation justifies other elements of the practice but implies that we must set aside some traditional understanding. It could turn out that friendship requires financial solidarity to a higher degree than is typically assumed if other aspects of friendship are best accounted on principles that commend that solidarity. In any case, the specific normative content of any friendship, and the practical requirements and attitudes it properly involves, is largely determined by morality.

7

Ibid., 52. Though, as we will see, fit with pre-interpretive understanding is not a threshold requirement for Dworkin. 9 Dworkin, Law’s Empire, 49–73. 10 Ibid., 52. 8

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In law, then, basic disagreement can be accommodated since we do not need foundational agreement on the criteria of validity. What we need, rather, is a moderate degree of agreement on the discrete elements that constitute the practice (again, though, not on why these elements constitute legal practice), for instance, that statutes, a constitution, prior judicial decisions, and certain customs are part of local law and that there are certain standard ways of approaching these materials in normal cases. From there we can offer interpretations or justifications of these elements to determine the precise content of law. These justifications will be moral in character, about what is valuable about the rule of law and about what makes legal practice morally best. Since there is no great mystery to having sensible moral disagreements about a common matter, we need no longer be mystified by the idea that we could have meaningful disagreement about law in the absence of a convention about the criteria of legal validity. In Riggs v. Palmer, no judge doubted that the statutes of wills were relevant. Rather, the issue, on Dworkin’s account, is what legal norms to construct from the text consistent with the value of the rule of law. We can see literal, textually constrained statutory interpretation recommended by a concern with predictability in governance and avoidance of ex post facto penalization and a focus on legislative intent recommended by a moral concern with democratic legitimacy and (when relevant) legislative expertise. That the judges are having a conversation about a common matter is secured by a sufficient degree of shared pre-interpretive understanding. That the judges are having sensible disagreement is secured by the intelligibility of a moral dispute about the value of the rule of law.11 The doctrinal upshot of constructive interpretation is that whether, for instance, the grandson is legally entitled to inherit depends on best moral account of the rule of law as that account applies to the jurisdiction’s legal practice. Since morality fundamentally determines legal content in this way, the truth of legal propositions cannot be conclusively established without engaging in moral reasoning. Even if the rule of law is best achieved if practitioners prescind from moral judgment in deciding everyday legal questions (for reasons of predictability, for instance), this is conclusion of constructive interpretation, established by some moral argument to that effect.12 Judges would be legally bound to use nonmoral heuristics in adjudication because of a moral requirement concerning the rule of law. Legal reasoning, then, is a practical engagement with the requirements of morality as they concern institutionalized, coercive legal practices, i.e., a kind of moral reasoning for a special subject matter. Rather than seeing law and morality as autonomous domains: [W]e might treat law not as separate from but as a department of morality. We understand political theory that way: as part of morality more generally understood but distinguished, with its own distinct substance, because applicable to distinct institutional structures. We might treat legal theory as a special part of political morality distinguished by a further refinement of institutional structures.13

11

Ibid., 87–101; Justice in Robes, 1–35, 140–186, 223–240. Law’s Empire, 87–101; Justice in Robes, 1–35. 13 Justice in Robes, 34–35. 12

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Further, legal rights, of the sort at issue in Riggs v. Palmer, are a special kind of moral rights – one has such a right in virtue of some moral justification of the legal materials.14 Why think the theory of constructive interpretation offers a correct account of legal content? Dworkin offers a number of arguments,15 but the most important and influential is the one implicit above, that constructive interpretation offers a way of understanding fundamental legal disagreement as intelligible and meaningful. If there is serious, non-irrational disagreement about the criteria for settling legal content among officials, that is something for which a theory of the nature of law should account. Even many of Dworkin’s positivist critics have been impressed by the challenge.16 Additionally, insofar as there are nonlegal matters to which constructive interpretation intuitively applies (e.g., other social practices or creative enterprises) that are relevantly analogous to law, we have a reason to believe that constructive interpretation applies in the legal context. Dworkin also argues that the model captures a quite general method of inquiry.17

Law as Integrity All this still leaves unsettled which moral standards are appropriate to the legal domain. Law, Dworkin contends, is in the business of regulating the use of collective power in accordance with past political decisions about the use of force. Hence, the relevant standards will concern why this governance practice is valuable.18 One view (call it “conventionalism”) says that the rule of law provides predictability and procedural fairness to subjects. On a constructive interpretation of local law, conventionalism indicates legal norms only when explicitly designated in the legal materials.19 Another view (call it “pragmatism”) says that the rule of law secures future valuables for the community and indicates legal norms whenever this will best promote the collective good.20 “Law as integrity” is Dworkin’s own alternative substantive theory of the rule of law. Dworkin argues that every political community owes equal concern to each member’s well-being on some plausible theory of what that concern involves. A community cannot legitimately mark arbitrary distinctions between members –

14

Justice for Hedgehogs, 400–409. See Law’s Empire, 49–65. 16 See, for example, Wil Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994); Jules L. Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001). 17 Dworkin, Justice for Hedgehogs, 123–188. 18 Law’s Empire, 90–96. 19 Ibid., 114–150. 20 Ibid., 151–175. 15

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distinctions in treatment must be justified in terms of some principled understanding of what equal concern involves. A community that embodies principled equal concern, even if the principles are somewhat mistaken from view of justice or proper democratic control, achieves an independent political ideal of integrity. This ideal, Dworkin contends, is significant enough to legitimate coercive political power.21 Since what is valuable about the rule of law is being governed by a coherent body of principle expressing a theory of equal concern, legal norms are indicated when they follow from the best principled moral justification of a jurisdiction’s legal materials. The task of the judge is to try to construct a coherent, morally cogent justification of those materials to determine legal content. “The adjudicative principle of integrity instructs judges to identify legal rights and duties. . .on the assumption that they were all created by a single author – the community personified – expressing a coherent conception of justice and fairness.”22 We are equal under the law when the law governs us on a single, integrated vision of principle. On this view, legal reasoning is not only moral at its base (as per constructive interpretation). Rather, moral judgment plays a role in uncovering the most pedestrian legal matters of local law (though, normally the underlying principles need not be articulate). Relatedly, judges are more likely to get legally satisfactory answers insofar as they have good moral judgment.23

Conclusion There are, then, several separable elements to Dworkin’s legal theory. Constructive interpretation could hold even if Dworkin is wrong about law as integrity (as he himself regularly emphasizes). The best theory of the rule of law depends on substantive considerations of political morality. Also, Dworkin could be wrong about constructive interpretation and legal content but succeed on other fronts. Legal positivists, for instance, may offer the best general descriptive account of law, but Dworkin may still be right that integrity is a virtue of politics and (separately) may even still be right that judges and other officials should adjudicate constructively. In the latter case, he would simply be deprived of the claim that judges are reliably tracking legal content when so deciding.

21

Ibid., 176–224. Ibid., 225. 23 Ibid., 225–275. 22

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References Alexander L (1987) Striking back at the Empire. Law Philos 6:419–438. https://doi.org/10.1007/ BF00142935 Alexander L, Kress K (1995) Against legal principles. In: Marmor A (ed) Law and interpretation: essays in legal philosophy. Clarendon, Oxford, pp 279–327 Bix B (1995) Questions in legal interpretation. In: Marmor A (ed) Law and interpretation: essays in legal philosophy. Clarendon, Oxford, pp 137–154 Dickson J (2010) Interpretation and coherence in legal reasoning. In: Stanford encyclopedia of philosophy Dworkin R (1963) Judicial discretion. J Philos 60:624–638 https://doi.org/10.2307/2023557 Dworkin R (1977) Taking rights seriously. Harvard University Press, Cambridge, MA Dworkin R (1986) Law’s Empire. Harvard University Press, Cambridge, MA Dworkin R (1996) Freedom’s law: the moral reading of the American constitution. Harvard University Press, Cambridge, MA Dworkin R (2006) Justice in robes. Harvard University Press, Cambridge, MA Dworkin R (2011) Justice for hedgehogs. Harvard University Press, Cambridge, MA Endicott T (1998) Herbert Hart and the semantic sting. Legal Theory 4:28–300 https://doi.org/10. 1017/S1352325200001038 Finnis J (1987) On reason and authority in law’s empire. Law Philos 6:357–380 https://doi.org/10. 1007/BF00142932 Green L (2004) Associative obligations and the state. In: Burley J (ed) Dworkin and his critics. Blackwell, Oxford, pp 267–284 Greenberg M (2004) How facts make law. Legal Theory 10:157–198 https://doi.org/10.1017/ S1352325204040212 Hart HLA (2012) The concept of law, 3rd edn. Oxford University Press, Oxford https://doi.org/10. 1093/he/9780199644704.001.0001 Himma KE (2002) Ambiguously stung: Dworkin’s semantic sting reconfigured. Legal Theory 8: 145–183 https://doi.org/10.1017/S1352325202082010 Lee W-C (2015) The judgement of all citizens: Dworkin’s protestantism about law. Law Philos 34: 23–53 https://doi.org/10.1007/s10982-013-9200-7 Leiter B (2001) Objectivity, morality and adjudication. In: Leiter B (ed) Objectivity in law and morals. Cambridge University Press, Cambridge, pp 66–98 Levenbook BB (2015) Dworkin’s theoretical disagreement argument. Philos Compass 10:1–9 https://doi.org/10.1111/phc3.12186 Lyons D (1987) Reconstructing legal theory. Philos Public Aff 16:379–393 Lyons D (1993) Moral aspects of legal theory. In: Moral aspects of legal theory: essays on law, justice, and political responsibility. Cambridge University Press, Cambridge, pp 64–101 https:// doi.org/10.1017/CBO9780511624667.005 Mackie JL (1983) The third theory of law. In: Cohen M (ed) Ronald Dworkin and contemporary jurisprudence. Rowman & Allanheld, Totowa, pp 161–170 Madry AR (2005) Global concepts, local rules, practices of adjudication and Ronald Dworkin’s law as integrity. Law Philos 24:211–238 https://doi.org/10.1007/s10982-004-8736-y Marmor A (2005) Interpretation and legal theory, 2nd edn. Hart Publishing, Portland Perry SR (1995) Interpretation and methodology in legal theory. In: Marmor A (ed) Law and interpretation: essays in legal philosophy. Clarendon, Oxford, pp 97–135 Postema G (1987) ‘Prostestant’ interpretation and social practices. Law Philos 6:283–319 https:// doi.org/10.1007/BF00142930 Postema G (2004) Integrity: justice in Workclothes. In: Burley J (ed) Dworkin and his critics. Blackwell, Oxford, pp 291–318 https://doi.org/10.1002/9780470996386.ch16 Raz J (1985) Authority, law, and morality. Monist 68:295–324 https://doi.org/10.5840/ monist198568335

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Ehrlich, Eugen Marcos Augusto Maliska

Introduction Eugen Ehrlich is considered one of the founders of the sociology of law. His understanding that law is a living force in society, which cannot be trapped in a statute or code, has brought about a profound change in the way jurists have come to understand law. This change is seen in various fields, but especially in philosophy and constitutional hermeneutics, the debates on the justice of judicial decisions have brought to the investigation the sociological aspect pointed out by Ehrlich.

Biography Eugen Ehrlich was born on September 14, 1862, in Czernowitz, capital of the then Duchy of Bukovina, part of the Austrian Empire. Ehrlich was registered with the name Elias in the birth book of the Czernowitz Synagogue, a city that at that time had 40% of its population formed by Jews. He changed his name in honor of Prince Eugen and changed his religion to declare himself a Catholic, a fact that helped him in the development of his academic career. Ehrlich studied law at the Universities of Czernowitz, Lemberg, and Vienna. After receiving the title of Doctor of Law and having written his habilitation, Ehrlich was named Privatdozent at the University of Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_602-2. M. A. Maliska (✉) Programa de Mestrado e Doutorado em Direitos Fundamentais e Democracia, UniBrasil Centro Universitário, Curitiba, Paraná, Brazil © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_8

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Vienna. In 1896 he was appointed Extraordinary Professor at the University of Czernowitz and in 1900 was appointed Ordinary Professor. Eugen Ehrlich was Rector of the University of Czernowitz between 1906 and 1907. Ehrlich developed much of his prolific academic production in Czernowitz, having lived in the city until August 1914, when the University was closed because of the advance of the Russian troops. Ehrlich went to Vienna leaving behind much of his belongings. Between August 1914 and August 1918, Ehrlich lived in Vienna, spending the summer months in pensions in Küb, in the region of Semmering and Bad Ischl. Until his return to Czernowitz in November 1920, Ehrlich lived in Switzerland. During his time in Switzerland, Ehrlich sent unsuccessfully to Vienna his request for retirement. He also pursued unsuccessfully his qualification as Professor of Sociology in Berne. Faced with these refusals, Ehrlich decided to return to the University of Czernowitz and present his request for return to the activities of Professor in the Romanian public service. Eugen Ehrlich, however, did not get to resume his activities as a Professor in Czernowitz. With the worsening of his health problems due to diabetes, he died on May 2, 1922, in Vienna (Rehbinder 2008).

The Controversy with Hans Kelsen on the Nature of the Legal Science The 1913 publication of Ehrlich’s main work Fundamental Principles of the Sociology of Law was followed by a critical comment by Hans Kelsen (1881–1973), published in 1915. In that commentary, which was answered by Ehrlich and initiated the famous controversy between the two authors, Kelsen argues that Ehrlich produced a methodological syncretism, a confusion between normative jurisprudence and explanatory sociology of law. Ehrlich responds to Kelsen’s criticism by saying that in his book law is always treated as “ought” and never as “is.” According to Ehrlich, it makes no sense Kelsen’s definition that the legal precept is a general legal norm and that it is logically impossible to think of legal relations without the presupposition of such precepts (Kelsen and Ehrlich 2003). The controversy between the two authors is marked by mutual incomprehension. Both Kelsen and Ehrlich depart from distinct methodological and terminological assumptions that preclude an approximation, a conclusive and approximate synthesis of the two understandings of law.

Ehrlich’s Influence on the Free Law Movement Ehrlich also played a prominent role in the so-called Free Law Movement, a movement that gained identity with Hermann Kantorowicz’s manifesto “The Battle for Legal Science” (1906) but strongly influenced by Ehrlich’s ideas. Ehrlich’s

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lecture on the free investigation of Law and free legal science, given at the Vienna Law Society, is considered an important milestone of the movement. According to Ehrlich, the free investigation of Law brings the following tasks to juridical science: (i) overcoming traditional civil law; (ii) the understanding of law as a living force and not as a rigid dogma; (iii) evidence of jurisprudence trends, their origins, effects, characteristics, and values, from which a picture of what is given in the jurisprudence and what its fundamentals can be derived; (iv) the preparation of specific studies on legal documents as they are drawn up; (v) the elaboration of specific research on relations in real life, the so-called living law; and (vi) the need of legal science to approach the practical jurist, as both develop activities that are very close (Ehrlich 1903).

Ehrlich’s Political Thought Ehrlich develops reflections on politics when dealing with the legal method. Thus, it is possible to identify his criticism both to absolutist and liberal thinking regarding the results of their conceptions of law. For both political forms, the statute is the only law, and the Judge has the task of applying it. According to Ehrlich, Montesquieu’s famous theory of the separation of powers knows only the law contained in the statute. One possible difference between them would be the fact that the absolutist conception of the law seeks only to imprison the judge, to subject him to the manifestation of the will of the state unity, whereas the liberal divides the state power into three and submits the executive and the judiciary to the manifestation of the legislator (Ehrlich 1925). Ehrlich’s writings on subjects related to politics generally correspond to a quarter of all his academic production. These writings can be classified into three categories: (i) questions about the First World War, (ii) questions about social policy, and (iii) questions about the pacifist movement (Rehbinder 2008). Ehrlich’s political thinking changed over time. In the student period in Vienna, he was strongly influenced by Marxist ideas. At that time as a professor in Czernowitz, he devoted himself to the study of social and political issues in the region and distanced himself from a more orthodox Marxist/socialist political position, as he had in Vienna, to take a more conciliatory position into a pragmatic perspective (Maliska 2015).

The Distinction Between State and Law According to Ehrlich An important aspect of Ehrlich’s work lies in the distinction between State and Law. The state emerged as a military association formed in the warrior aristocratic alliance between tribes with nearby languages, followed by free men who chose a permanent war chief. Alongside this purely military function, the State incorporated two others, the tax function and the police function. The law, in turn, has its origin in the clan or

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in the domestic community. Law is a social phenomenon, since most of the legal life is developed far from the state, state organs, and state law. According to Ehrlich, there are four aspects that contribute to highlighting the State as a source of law: (i) its participation in the formation of law through the act of legislating; (ii) its participation in the administration of justice through state courts and partly also through other governmental bodies; (iii) its power of command over state organs, which serve as an instrument to enforce its laws; and finally, (iv) the conception that maintaining a situation that corresponds to the law is only possible, whether in the first or last instance, through the coercive force of the State (Ehrlich 1989). According to Ehrlich, the enormous importance of the State for law lies in the fact that the Society uses the State to give a consistent endorsement of the law emanating from it, to impose its order on the associations that belong to it. The State is a social association, because the forces that act in the State are social forces and everything that emanates from the State, like the action of the governmental organs and, above all, the state legislation, is the work of the society executed through the state association (Ehrlich 1989). Ehrlich draws attention to the distinction between statute ( Gesetz) and state law ( staatliches Recht). State law is not linked to the state from the form, but from the content. It is a law that arises from the state and does not exist without it. It is indifferent to know in what form it arises, whether through statutes, regulations, administrative acts, or judges’ law. Legal prescription ( gesetzliche Vorschrift) contains both state and non-state law. The difference lies in the content of the normative act (Ehrlich 1989). State law consists of first-order norms and second-order norms. The first-order norms express the condition of the state of organ of the society. The Constitution of the State, the law of state organs, the purely state decision norms, and the State’s prescriptions for the different fields of economic and social life, such as education, the productive sector, and the financial sector, are first-order norms. The secondorder norms, in turn, criminal law, procedural law, and police law, protect society’s law and state law, do not directly regulate life, but exist to support a more comprehensive regulation. State law provides for state peace through state bodies specially created for this purpose. In this way, police law and criminal law, for example, are second-order norms whose purpose is to protect existing social and state institutions (Ehrlich 1989). State law produces its effects through decision norms ( Entscheidungsnormen) or norms of intervention ( Eingriffsnormen). The State prescribes to its courts and state organs how the issues that are brought to it must be decided. Most decision norms, however, are the law of jurists ( Juristenrecht), but when they arise independent of the law of jurists and seek to achieve a state purpose, they are part of state law. The norms of intervention, in turn, instruct state organs when they will act regardless of being called. If the legal precept allows for direct intervention or if it works only as a norm of decision, the solution is independent of the legislator or the statute, since what matters, in fact, is the habit actually existing. Administrative law, says Ehrlich, is an example in which norms of decision and norms of intervention are presented (Ehrlich 1989).

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The conception of law as a coactive order rests on the misinterpretation that the law comes from the State. It is known that only a small part of the law, the state law, comes from the State. The idea that all law derives from the State, that is, that a norm, regardless of how it emerged, only becomes a legal norm when it is recognized as such by the State, which involves it with second-order norms, with threats of punishment, procedure, and administrative rules, does not hold. If these aspects were indeed an integral part of the concept of law, says Ehrlich, much of the formations accompanying universal history and the history of law (the order of the Roman house, the medieval landlord, communal organizations, to the extent that they themselves are not considered as a State) would not be part of the law (Ehrlich 1989). The fear of punishment is not the only way to obtain obedience to norms. Ehrlich refers to the existence of internal obedience to the observance of norms. Obedience to law results, says Ehrlich, from an educational process. The impetus to comply with the norm alone is not enough. The balance between them is that it promotes the effectiveness of norms. All normative coercion, be it juridical, moral, religious, customary, fashion, and good manners, rests on the fact that the individual is not an “individual being,” since the same individual is bound to several associations. Homeland, place of origin, religious community, family, circle of friends, and political militancy are not empty words to anyone. It is in your circle that the person seeks support in case of need, comfort in disgrace, recognition, honor, and prestige, in short, everything that gives value in life. Associations are also important for professional success, and because of the profession, the person is linked to them as well. In this way, man/woman acts according to law, because social relations compel him/her to do so (Ehrlich 1989). Most of the legal life is developed far from the state, state organs, and state law. As in the remote past, in our era, new communities, new ownership relations, new contracts, new hereditary orders appear that for the statutes are still unknown. Notwithstanding this analysis, Ehrlich writes that social associations do not represent autonomous nuclei before the state reality, because they are understood as an expression of a law that is in harmony with the law of the State. According to Ehrlich, the experience of millennia shows that the formation of a locally dispersed law can only serve strictly local needs. The development of law has a great impulse only when, in large territorial extensions, it emanates from a single center that only the state can create. However, the existence of a single center does not presuppose the existence of general legislation. This, it is known, failed in the case of the two most important legal systems. Roman law and English law did not become what they are through statutes. In Rome the work was done by jurists, with the sources of intellectual aid provided by the immense empire. In England it was the judges who in London, for centuries, found the law proper to a large, economically developed and politically evolved country. The common law is fundamentally a work of the London courts. Only the third universal legal system, the French, owes its success above all to legislation. Thus, a highly developed law may arise without state legislation, but it certainly will not come without a state (Ehrlich 1989).

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Society as a Grouping of Associations and the Role of Legal Norms According to Ehrlich, society is formed not as a grouping of isolated individuals, but as a grouping of associations. Every individual belongs to a social association and these associations are the State, the family, the cooperative, the communities, etc. Associations have an internal order that is determined by legal norms. The basic difference between a legal precept and a legal norm is that the first one is the writing of a legal determination in a statute, and the second one is the legal determination transformed into action. While the legal precept emanates from the State through the formal mechanisms of state legal creation, the legal norm is empirical law practiced in associations, which is independent of the legal determination (Ehrlich 1989). The legal norms, in turn, are not to be confused with other social norms. The question of the opposition between legal norms and extralegal norms is not a question of social science but of social psychology. The various types of norms arouse various feelings, and one reacts to transgressions in different ways, with different feelings. The legal norm is particularly for Ehrlich, the sentiment for which the jurists of the common law had already found the significant concept opinio necessitates (Ehrlich 1989).

The Concept of Living Law Ehrlich’s work can be summed up in the concept of living law. In short, all of its academic effort is aimed at demonstrating that law is constituted by the binding norms that people voluntarily observe in social coexistence. Living law, as opposed to the only law-in-force before the courts and state bodies, lies in the dynamics of life, in the challenges brought by technological development, and in the new practices that open new fields of work to the jurist. To understand that the living law of people may consist of a code would be like damming a stream of water in a tank, one would no longer have a living stream, only dead water (Ehrlich 1986). According to Ehrlich, living law is found in modern documents, in the direct observation of the day to day of commerce, of customs, and also of associations. The modern legal document, especially the judicial sentence, presents itself as the most important source of knowledge of living law, in the sense that it presents itself as a witness of living law. It is not a matter of studying judicial sentence as a correct interpretation of statutes, but of investigating the legal relations inherent in it, the living law contained within it (Ehrlich 1989). However, Ehrlich observes that the investigation of living law cannot be restricted to the study of judicial decisions, since they do not in fact provide a complete picture of the legal life. Only a minimal part of what actually occurs is brought to court. Thus, the sociological method requires that the results obtained

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from the decisions of state organs may be supplemented by direct observation of reality (Ehrlich 1989). According to Ehrlich, the sociological analysis of the law will have to distinguish between law-in-force ( geltendes Recht) and living law ( lebendes Recht), in order to compare reality with both legal prescriptions and documents. The law-in-force (decision norm) is all ruling content of the document that will be brought to the process, but it is only living law if the parties observe it, even if they do not think about the process. Living law can also be observed by empirical analysis, even when there is no document that registers it. In these cases, jurist should be alert to day-today, inquiring people and register their manifestations (Ehrlich 1989). Eugen Ehrlich was an author who opposed the positivist thought of his time and the dogma that every law comes from the statute. Its pioneering role in investigating law as a social fact, in demonstrating that the law governing human life does not necessarily stem from state law, is highly relevant, both from the point of view of studies on legal pluralism (Bauwens 2016; Benda-Beckmann 2002; Bönte 2008; Chiba 1989; Correas 2007; Fournier 2016; Gailhofer 2016; Hertogh 2009; Meder 2009; Meder 2015; Otis 2014; Robles Morchón 2002; Röhl and Machura 2013; Schneider 2016; Seinecke 2015; Tamanaha 2008; Tarrega et al. 2016; Teubner 1996; Vogl 2003; Wolkmer 2015) and from studies on fundamental rights and the role of constitutional jurisdiction.

Ehrlich, Constitution and Pluralism Living law and association are two concepts of Ehrlich that can aid the constitutional law in the investigation of the relation between Constitution and pluralism (Maliska 2015, 2018). In portraying the forces of society expressed in the production of a living law in the context of the various associations of the community life, Ehrlich shows to constitutional law the existence of a law outside state law. In this context, the concept of a political community is presented as a more comprehensive idea than that of society, since it does not seek to oppose public or private order, but to understand, under the aegis of the Constitution, both State and society. The political community brings together the various social associations and the living law that is produced in them. The plurality of associations and constitutional unity, as a source of validity of law, points to the relevance of the work of Eugen Ehrlich in the twentyfirst century (Maliska 2019).

Conclusion A final word on the importance of Eugen Ehrlich’s work can be addressed to the meaning of law for a world civil society. The subject was investigated by Teubner (1996) with reference to a classic passage in the preface to Fundamental Principles

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of the Sociology of Law: “The center of gravity of legal development therefore from time immemorial has not lain in the activity of the state, but in society itself, and must be sought there at the present time.” The idea of law as a living force in society has enormous significance for the twenty-first-century world. The development of a law that is beyond the state (international, supranational, and transnational law) and also below it (extra-state local legal orders), based on a pluralistic legal paradigm, finds Eugen Ehrlich’s work an indispensable source.

References Bauwens K (2016) Religiöse Paralleljustiz. Zulässigkeit und Grenze informeller Streitschlichtung und Streitentscheidung unter Muslimen in Deutschland. Duncker & Humblot, Berlin CrossRef Benda-Beckmann F (2002) Who’s afraid of legal pluralism? J Leg Pluralism Unofficial Law 34(47): 37–82 Bönte T (2008) Rechtspluralismus in Afrika. Entstehung, Folgen und Probleme. Grin Verlag, Norderstedt Chiba M (1989) Legal pluralism: toward a general theory through Japanese legal culture. Tokai University Press, Tokyo Correas Ó (ed) (2007) Pluralismo Juridico: otros horizontes. D.M, Mexico Ehrlich E (1903) Freie Rechtsfindung und freie Rechtswissenschaft. Verlag von C. L. Hirschfeld, Leipzig Ehrlich E (1925) Die juristische Logik, 2nd edn. Mohr Siebeck, Tübingen Ehrlich E (1986) Gesetz und lebendes Recht. In: Gesetz und lebendes Recht. Vermischte kleinere Schriften. Duncker & Humblot, Berlin CrossRef Ehrlich E (1989) Grundlegung der Soziologie des Rechts, 4th edn. Duncker & Humblot, Berlin CrossRef Fournier P (2016) Family law, state recognition and intersecting spheres/spaces: Jewish and Muslim women divorcing in the UK. In: Provost R (ed) Culture in the domains of law. Cambridge University Press, Cambridge Gailhofer P (2016) Rechtspluralismus und Rechtsgeltung. Nomos, Baden-Baden Hertogh M (ed) (2009) Living law. Reconsidering Eugen Ehrlich. Hart Publishing, Oxford/Portland Kantorowicz H (Gnaeus Flavius) (1906) Der Kampf um die Rechtswissenschaft. Carl Winter’s Universitätsbuchhandlung, Heidelberg Kelsen H, Ehrlich E (2003) Rechtssoziologie und Rechtswissenschaft. Eine Kontroverse (1915/17). Nomos, Baden-Baden Maliska MA (2015) Introdução à Sociologia do Direito de Eugen Ehrlich. Aportes para uma Reflexão Atual sobre Pluralismo e Constituição, 2nd edn. Juruá, Curitiba Maliska MA (2018) On the importance of Eugen Ehrlich’s theory of law for constitutional law. Lecture given at the University of Lviv, Ukraine, on September 9, 2015. Ehrlich’s J 2:43–47 Maliska MA (2019) Die Rechtssoziologie von Eugen Ehrlich und das Verfassungsrecht. Die Tatsache des Pluralismus und die Rolle der Verfassung. Archiv für Rechts- und Sozialphilosophie 105(4):340–358 Meder S (2009) Ius non scriptum – Traditionen privater Rechtssetzung, 2nd edn. Mohr Siebeck, Tübingen Meder S (2015) Doppelte Körper im Recht. Mohr Siebeck, Tübingen Otis G (2014) The constitutional recognition of aboriginal and treaty rights: a new framework for managing legal pluralism in Canada? J Leg Pluralism Unofficial Law 46:320–337 CrossRef

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Rehbinder M (2008) Die politischen Schriften des Rechtssoziologen Eugen Ehrlich auf dem Hintergrund seines bewegten Lebens. In: Chiusi TJ et al (eds) Das Recht und seine historischen Grundlagen. Festschrift für Elmar Wadle zum 70. Geburtstag. Duncker & Humblot, Berlin Robles Morchón G (2002) Ley y Derecho vivo. Método jurídico y sociologia del derecho en Eugen Ehrlich. Centro de Estudios Políticos y Constitucionales, Madrid Röhl KF, Machura S (2013) 100 Jahre Rechtssoziologie: Eugen Ehrlichs Rechtspluralismus heute. Juristen Zeitung, 23. Year 68. Dez Schneider T (2016) Recht als Übersetzung. Rechtspluralismus und Gewohnheitsrecht in ghanaischen Gerichten. epubli, Berlin Seinecke R (2015) Das Recht des Rechtspluralismus. Mohr Siebeck, Tübingen Tamanaha BZ (2008) Understanding legal pluralism: past to present, local to global. Sydn Law Rev 30:375–411 Tarrega MC et al (2016) Estados e Povos na América Latina Plural. PUC-Goiás, Goiânia Teubner G (1996) Global Bukowina: legal pluralism in the world society. In: Teubner G (ed) Global law without a state. Brookfield, Dartmouth Vogl S (2003) Soziale Gesetzgebungspolitik, freie Rechtsfindung und soziologische Rechtswissenschaft bei Eugen Ehrlich. Nomos, Baden-Baden Wolkmer AC (2015) Pluralismo Jurídico. Fundamentos de uma nova cultura no Direito, 4th edn. Saraiva, São Paulo

Foucault, Michel Julian Sauquillo

Introduction What Michel Foucault did was to think over the political power. His analysis of the political forms is not limited to the state realm . This power embraces hospitals, workplaces, residencies, prisons, and schools. Finally, this “biocracy,” or living management, substituted the administrative character of the State. Michel Foucault was born in 1926 in Poitiers. He was raised in a traditional bourgeois Catholic environment. He was influenced by having descended from a family with a tradition in surgery. His ancestors were prone to drastic medical activity without any intellectual reflection (Michel Foucault, Le beau danger. Entretien avec Claude Bonnefoy, 2011). He did not find his comfort zone in Rue d’Ulm in Paris during his sojourn as a normalien. That is why his intellectual path was so far flung. He travelled to Uppsala, Warsaw, Hamburg, Tunis, Rio de Janeiro, Clermont-Ferrand, San Francisco, Stanford, and Tokyo, among other places. He was influenced by thinkers such as Nietzsche, Heidegger, Merleau-Ponty, Canguilhem, Blanchot, and Bataille. He was never engaged either at the Sorbonne Université, whose roots are Catholic nor at the École des Hautes Études in Social Sciences, where he was rejected, but he held a lectureship for life at the Collège of France, whose roots were Protestant. He died in 1984 of from to AIDS (Didier Eribon, Michel Foucault, 1984).

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0_422-1. J. Sauquillo (✉) Department of Public Law and Legal Philosophy, University of Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_9

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The Juridical Model as a Contrast/Opposition The juridical model for explaining political power is rejected by Michel Foucault, but it acts as a very important countermodel. Norms, law, and regulations are products of the state. For Foucault, the state mechanisms for exerting power are very important, but this normative procedure of regulation has a very limited scope. Normativity has simple and minor effects by comparison with the huge and wideranging realm of standardized control. Normalization is much more closely linked to crime prevention; it covers much more ground than punishment. The codification of behavior is much more useful than the punishment of crimes and torts. Normalizing is effected through two different procedures: firstly by regulating daily corporal movement and custom as if it were law, thereby imposing on work and pleasure a constant structured discipline; and secondly by way of a biopolitics of populations. The normalization through discipline of human behavior is effected by medical institutions (hospitals), pedagogical institutions (school, university), custodial institutions (detention centers, prisons, penal facilities), and health and rehabilitation organizations (psychiatric and asylum institutions). The biopolitics of populations is a strategy of power aimed, among others, at two different goals: to increase the birth rate, while at the same time fostering its work efficiency; this is an intensive and decentralized control over population. Birth rate and work efficiency are two of biopolitics´ possible targets, which include any largescale biosocial feature in a given population (morbidity, mortality, agricultural production, sexual customs. . .). This is called gouvernementalité – or governmentality, the tendency towards extending of the scope of power – and it does not belong to the realm of the State. Discipline is a power that controls gestures, normal practices and body activity, human life time, continuously and completely. Discipline provides omnivisibility, registration, and written behavior. It matches with the necessity of capitalism to improve the quality of work as input. This result is achieved through a constant and meticulous intervention on citizenship (implying control over birth, procreation, longevity, sickness, and death). The study of the mechanism of normalization does not underestimate the role of the law and the state in regulating conduct in these areas. Foucault argues there is a dialectic relationship between the juridical explanation of power and the concept of state sovereignty. On one occasion he declared, “I have no phobia of the state.” This engagement with the law is a key to Foucault’s thinking. In 1983, shortly before his death, he made a proposal to create an Institute of Legal Philosophy in Paris.

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The Dissonance Between Confession and the Enforcement of Penal Law Foucault laid out the fundamentals of his research, strongly focused on criminal sciences, in his work Wrong-Doing, Truth-Telling: The Function of Avowal in Justice (1981). In these writings, he analyzes the study of the unequal justice which originated from the judicial trials of Christian confession, the alternatives opened by medicine, the criminal sciences, and public security, in a world deeply marked by a concern with law and order. He also drew up a meticulous record of the proliferation of work in the aspects of society relating to madness, illness, and crime. When his detailed analysis reached the nineteenth century, he realized that one of the masterful devices of the legal system – the judicial confession – introduced a great deal of imbalance into penal law. In his courses he tried to analyze “the duty of telling the truth about oneself,” and its consequences as shapers of the subject, which has been transformed by psychiatric science into the intersection point between the Christian tradition and the new contemporary psychiatric therapy, which provided the judicial process with a much more accurate body of research. These lectures reflect some political and historic arguments, previously delivered in the Collège de France courses, taught between the academic years 1970 and 1973, and which led him to the writing of his masterpiece, Surveillance and Punishment. In this research, he examined the distortion as a consequence of what happened to the confession, a key point of the inquisitorial process during the eighteenth and nineteenth centuries. Up until then, self-incrimination of the defendant under suspicion was the main piece of evidence used in the criminal process. But the early transformation into the traditional version of confession was, as a result, unavoidable and imperative, and upset the well-established workings of the judicial machinery. The supposed defendant does not confess his/her crime and only leaves unfathomable conjectures as to his/her motives.

The Judicial Apathy of Penal Institutions Foucault dismantled the whole “religion of judicial confession” on which modern penal procedural law was based. A huge “economy of the truth” started from the very first police interrogation to the last public hearing, seeking crime recognition, which must be done by the defendant him/herself. Foucault highlighted the judicial laziness of the penal system, which was typical of the past century. As an example, he mentioned the execution of Mr. Ranucci, who was guillotined on July 28, 1976. In an ordeal in which judicial instruction was carried out for 5 days in a stressful environment, the final objective was for him to plead guilty to the horrific crime he had committed. What that process really reflects, he wrote, is that it is an indolent justice system.

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Judicial testimony makes the functioning of penal law difficult due to the huge disagreement between the parties. The more truthful the claim is for the jury, the more likely is the delinquent’s confession to result in a judicial anomaly. The problem is framed around judicial practice, but despite that, it goes beyond penal law, since the modern day search for the truth incorporates government technology which produces many different kinds of subjectivity. The present obligation to tell the truth can be found in many places, and often in religious and medical practices. The fundamental mutation in judicial testimony in court, according to Foucault’s argument, happens through the transition from its deficient form, always via the declaration “acknowledge your guilt, ratify your responsibility,” to the hermeneutical manifestation: “tell us who you are.” He highlighted the dramatic role of the judicial confession in some specific and violent cases which took place between 1805 and 1835 without any specific purpose, and which had already been examined in his course The Abnormal (Collège de France, 1974–1975). By that time, the judicial confession was so weak that it failed to produce a satisfactory explanation instead of performing its enlightening task: to serve as irrefutable evidence of criminal liability. The judicial inquiry into the case of Pierre Rivier, accused of murdering his father, achieved two goals: on the one hand, it illustrated a controversial mode of truth, grounded in Nietzsche´s philosophy (this controversial model reflects the confrontation between that of the medical, psychiatric and media establishment and at the same time, that of the murderer´s memories); on the other hand, it leaves open the black hole that judicial reasonability does not solve after the sentence has been delivered. Judicial truth was the consequence of social and judicial practices. His writings in Acting Wrongfully, Telling the Truth developed a research field previously drafted in “A verdade e as formas jurídicas” Universidade Católica de Rio de Janeiro, in 1973. When he mentioned the “juridical-political matrix” (mesure-enquête-examen), it was in order to stress the rise of some natural and human sciences.

An Exhaustive Knowledge of the Delinquent and the Citizen The eighteenth century judicial questioning for guilt “do you admit your guilt, of the crimes you are charged with?” – which implied the defendant’s unquestionable culpability – was changed for the mandatory injunction with the deep and exhaustive question: “who are you?”. Fabien Brien and Bernard E. Harcourt pointed out that judicial confession and the hermeneutic of the criminal subject configured both a soft and a hard power. Both views of truth are framed in Western democracy. “The fact that only madness can trigger a crime opens an endless crime/madness feed-back mechanism, in a society already faced with the threats of delinquency”

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The alliance between criminology and psychiatry expanded the social control webs much more deeply than when it was focused on those stealthy criminals. The subnormal (Collège de France, 1974–1975) had already drawn attention to the expansion of control over the new and emerging diseases, such as necrophilia (1840), kleptomania (1860), exhibitionism (1870), pederasty (named homosexuality in 1869), and sadism. This entire panoply of felonies is expanded, and psychiatric intervention is extended in dealing with such crimes. Psychiatry examines not only the monstrosity of crime but all other felonies as well, since in all of them lies the shadow of madness. Monomania is exempted from responsibility; individual and familiar degeneration qualified any crime or misdemeanor as a possible source of madness. In Foucault’s criminal history, social degeneration is fostered by police surveillance of the territory. What is at stake is not the treatment of the unknown, but police watch over the whole population. Confession is utterly inadequate as a medical forensic investigative tool, which has as its main target combating crimes. Currently, the goal is not to inquire into the defendant’s conscience but to prioritize social defense and crime prevention. Political crimes – the revolutionary crimes of 1848, the establishment of the Paris Commune in the wake of the Siege of Paris in 1870, and anarchical uprisings at the end of the nineteenth century – and common crimes are viewed in the same urban light which criminalizes the social body. Society must defend itself from the imminent danger, that which supposes widespread delinquency. Foucault detects the failure of the penitentiary system from the nineteenth century onwards. This crisis was present in the meetings of social reformers of the time. In Foucault’s mind, penitentiary facilities reproduce and feed back into the sealed system of delinquency, police, social surveillance, cycling back to delinquency and surveillance over the population. In this way, the penitentiary system has become a generalized surveillance device rather than a resocializing institution for delinquency. The whole construction of penal imputation, juridical principles, and notions dates back to the late eighteenth and early nineteenth centuries; it was surpassed by the rise of the idea of public safety, something which was the original target of the school of criminology. Foucault realizes that devices such as confession and cross-examination, already present in the Age of Enlightenment codes, were eclipsed by the forces of psychiatry, criminology, and psychology, since all of these sciences promised public safety in a society which was actually scared of imminent offences.

Surveillance Takes the Place of Punishment Theories and penal institutions (1971–1972), The Punitive Society (1972–1973), “The Power of Psychiatry” (1973–1974), and “The Abnormals” (1974–1975): all these writings make up the travaux prepartoires that lay the groundwork for the modern analysis of panopticon society that culminated in Foucault’s Surveillance

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and Punishment (1975). The main goal of his analysis was to unlink the juridical conception of power. This is one of many other tools that the theory of sovereignty accomplished in its role of legitimizing political power. Foucault stresses its functionality in modern society. In some way, now that we are in a very different time, law has a fundamental task in Foucault’s thought: the production of those “fictions” that political powers require in order to act in a very effective way. All through the eighteenth and nineteenth centuries, the theory of sovereignty and its durability has played a twofold role: on the one hand, it has served as an ideology challenging the Ancien Régime; on the other, in Foucault’s opinion, the codification of law, based on the notion of natural sovereignty, was used to promote the advancement of modern disciplines, concealed under the guise of constitutional rights with due process guarantees, in an environment of domination and inequality maintained by enforcement mechanisms. In this way, in our current society, a mechanism of power, grounded on social pact and people´s sovereignty shelters the subtle exercise of power over every person, which is carried out by means of work, spare time and the framing of the social space, and last but not the least an endless surveillance. In this way, Foucault reframes the purpose of law as an organizer of the entire social system. In Surveiller et Punir, he dismantles the reductionist conception of power which prioritizes the repressive effect of power, but this turns out to be a useless tool, and the analysis makes it possible to observe the much more complex effects of power. Surveiller et Punir restates the relationship between power and law. The juridical consideration of power highlights the enforcement of law, but in Foucault’s opinion, such enforcement does not regulate social organization. Legal obligation only happens in the very confined political realm of government. The strategy of power is much more insidious than the bare juridical strategy: it penetrates, and at the same time creates, the social body, not only through law but also through other disciplines; and not so much by means of prohibition but rather by incitement, seduction, and the creation of knowledge. In this sense, Surveiller et Punir analyzes the historical materialization of the power-knowledge relationship from the beginning of the nineteenth century. Surveillance and Punishment is not confined to a search for the repressive effects of punitive law but also investigates the positive effects, which are different from punishment. Foucault realized that punishment plays a much more socially complex role: punitive methods are not the result of legal and social structures but rather result from the techniques of power, which are much more complex. The abovementioned writing analyzes the punishment of offences as if it were a political tactic. The eighteenth century question relating to the accused: “do you recognize your responsibility for the crimes you are accused of?”, which means the absolute recognition of indictment’s culpability, was substituted by a general demand of deep and exhaustive knowledge of the defendant: “who are you?”. Fabien Brien and Bernard Harcourt highlight that the confession of the crime motive, and the

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hermeneutic on the defendant’s behavior represents two kinds of control: one soft, which has become generalized, and another hard, akin to the defendant. Both versions of subject’s veridiction are located in the realm of liberalism. After all, social madness of the delinquent has a very short range. Psychiatry and criminology wide social web control, much more extensively. Both sciences do not bring into focus the stealthy criminal monster. In both A History of Madness and Surveillance and Punishment, Foucault agrees that objectivation of social space becomes affected by social institutions, due to some kind of social normativity which differs from juridical normativity. The much more persistent control mechanism does not operate through law but uses gaps in the same law. This mechanism does not follow the rule-of-law principle, but uses regularity and order as parameters of functionality. A system of social control is much more persistent than a juridical one, since social control puts the whole population under vigilant tutelage as if they were minors. On one side, the task of protection and security, and on the other side, its theoretical and juridical justifications operate on the state of minority. In such a way, normalizing power established at the very beginning of the nineteenth century does not operate by law enforcement, but by using social norms and disciplinary control. It is an extra-juridical control that arises out of the loopholes in the penal law, the social contract, and the “separation of powers.”

References Foucault M (2011a) Le beau danger. Entretien avec Claude Bonnefoy. Éditions de l´EHSS, París Foucault M (1961) Histoire de la folie a l´âge classique. Plon, París Foucault M (1966) Les mots et les choses. Una archéologie des sciences humanes. Gallimard, París Foucault M (1969) L´archéologie du savoir. Gallimard, París Foucault M (1975) Surveiller et punir. Gallimard, París Foucault M (2005) A verdade e as formas jurídicas. Editora Nau, Rio de Janeiro Foucault M (2011b) Leçons sur la Volonté de savoir. Cours au Collège de France. 1970-1971 (édition par Daniel Defert; avec Le savoir d´Oedipe). EHESS, Gallimard, Seuil, París Foucault M (2015a) Théories et institutions pénales. Cours au Collège de France. 1971–1972 (édition par Bernard E. Harcourt avec la collaboration de Elisabetta Basso (transcription du texte) y Claude-Olivier Roron (notes et appareil critique)). EHESS, Gallimard, Seuil, París Foucault M (2013) La Société punitive. Cours au Collège de France. 1972-1973 (édition par Bernard E. Harcourt). EHESS, Gallimard, Seuil, París Foucault M (2003) Le pouvoir psychiatrique. Cours au Collège de France. 1973.1974 (édition par Jacques Lagranget). EHESS, Gallimard, Seuil, París Foucault M (1999) Les anormaux. Cours au Collège de France. 1974-1975, (édition de Valerio Marchetti y Antonella Salomoni). EHESS, Gallimard, Le Seuil, París Foucault M (1997) «Il faut défendre la société ». Cours au Collège de France 1976 (édition par Mauro Bertani y Alessandro Fontana). París, EHESS, Gallimard, Seuil Foucault M Sécurité, territoire, population. Cours au Collège de France. 1977–1978 (édition par Michel Senellart). EHESS, Gallimard, Seuil, París Foucault M (2004) Naissance de la biopolitique. Cours au Collège de France. 1978-1979, (édition par Michel Senellart). EHESS, Gallimad, Seuil, París

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Foucault M (2012a) Du gouvernement des vivants. Cours au Collège de France, 1979–1980 (édition par Michel Senellart). EHESS, Gallimard, Seuil, París Foucault M (2001a) L´herméneutique du sujet. Cours au Collège de France. 1981–1982, (édition par Fréderic Gross). EHESS, Gallimad, Seuil, París Foucault M (2008) Le gouvernement de soi et des autres. Cours au Collège de France. 1982-1983, (édition par Fréderic Gross). EHESS, Gallimad, Seuil, París Foucault M (2009) Le courage de a vérité. Le gouvernement de soi et des autres II. Cours au Collège de France. 1984, (édition par Fréderic Gross). París, EHESS, Gallimad, Seuil Foucault M (2012b) Mal faire, dire vrai. Fonction de l´aveu en justice (Édition établie par Fabienne Brion et Bernard E. Harcourt). University of Chicago Press UCL Presss Universitaires de Louvain, Belgique Foucault M (2001b) Dits et écrits, I (1954–1975), II (1976–1988), Gallimard, París, 1994 Foucault, M (2015b) Oeuvres, I (Édition publiée sous la direction de Frédéric Gros, collaboration de Jean-François Delaporte et Philippe Sabot), II (Édition publiée sous la direction de Frédéric Gros, collaboration Philippe Chevallier, Daniel Defert, Bernard E. Harcourt, Martin Rueff, Philippe Sabot et Michel Senellart). Bibliothèque de la Pléiade, París Artières P, Bert JF, Gros F, Revel J (Direction) (2011) Foucault. L´Herne, París Bert J-F et Lamy J (2014) Michel Foucault. Un heritage critique. CNRS Editions, París Brigaglia M (2019) Potere. Una rilettura di Michel Foucault. Editoriale scientifica, Napoli Eribon D (1989) Michel Foucault. Flammarion, París Gros F (1996) Michel Foucault. Presses Universitaires de France, París Gros F et Lévy C (Direction) (2003) Foucault et la philosophie antique. Éditions Kimé, París Gros F (ed) (2002) Foucault. Le courage de la vérité. Presses Universitaires de France, París (2ª éd. Corrigée 2012) Revel J (2010) Foucault, Une pensée du discontinue. Fayard, Paris Sauquillo J (2017) Michel Foucault: poder, saber, subjetivación. Alianza Editorial, Madrid

Frank, Jerome N. Valeria Marzocco

Introduction Jerome N. Frank (1889–1957) was one of the founders of American legal realism. A nonacademic scholar, Frank concentrated his enquiry on the nature of the judge’s decision-making process, underlining its authoritative character. At the same time, he was committed to reforming the teaching model adopted in American Law Schools. His vision led to the “clinical” method of law study, of which he was the first theorist. Frank’s jurisprudence, a product of the climate of philosophical pragmatism and legal antiformalism of the early twentieth century, proposed a radical interpretation of these perspectives, shifting the accent from the rules to the judge. This characteristic developed as a combination of the philosophical, anthropological, and psychological influences that marked his investigations in the field of law. However, it also drew on Frank’s profound knowledge of the American judicial and administrative system. He narrowed his field of specialization to a number of topics in this area, showing a marked interest in aspects connected with the reconstruction of the facts in court, namely, the nature of prejudice and beliefs, the provision and reconstruction of evidence in the Trial Courts, and the role of the jury. Through arguments developed from Freudian psychoanalysis and Piaget’s educational theories, these aspects are the basis of the thesis of the unpredictability of judicial decisions and, ultimately, the falsification of the principle of legal certainty. In the more mature phase of his output, a further field of research emerges, Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_764-1. V. Marzocco (✉) Philosophy of Law, University of Naples Federico II, Naples, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_10

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concerning the relationship between “government of laws” and “government of men” in the context of a reflection on the American democratic model.

Frank and American Legal Realism American legal realism established itself during the 1930s in the wake of the antiformalistic trend that had taken root in jurisprudence under the influence of Holmes (1841–1935) and Pound (1870–1964). The movement’s ambition to reform this tradition is certainly one aspect to be considered, although it is not the most important. Of greater interest are the positions acknowledged by legal realists on a matter raised by Holmes: that of applying the scientific model to knowledge of the law. The above point outline the deep identity of the movement, which goes far beyond the unrealistic portrayal presented in the manifesto published by Llewellyn (K.N. Llewellyn 1931) and offered in the writings that mark the theoretical and academic controversy between Llewellyn and Pound (K.N. Llewellyn 1930, 1931; R. Pound 1931). Despite Llewellyn’s political aim to consolidate the movement around nine fundamental theses (K.N. Llewellyn 1931: 1236–1238), realism is a label that draws together distinct personalities from different schools of thought. This aspect led to a reading of American realism as an expression of a mood, part of the intellectual trends of its time. This view was already credited in the first interpretations, which underlined how the movement concentrated on a “dogmatic rejection of dogmas (. . .) as dogmatic as dogmatic acceptance of them” (R. Pound 1930: 705) and, at times, an amateurish exercise (H. Kantorowicz 1934: 1252 ff.). Despite this, in those same years some scholars saw the search for a reformulation of legal certainty (redefined as “congruency”) as the main topic of interest of the movement (L. Fuller 1934). At its core, this last was a question that could be traced back to Holmes (O.W. Holmes Jr. 1897: 994), who had posited a conception of law as “experience,” whose development can be grasped through the evolution of social and historical factors. On the other hand, it was also an issue already addressed by Dewey (1859–1952). In later developments, within the framework of these influences, legal realism would adopt two different attitudes on the principle of legal certainty. Llewellyn’s standpoint was to see law as a “going institution” (K.N. Llewellyn 1941: 189), but Frank would adopt a different perspective: he was radically skeptical about the possibility of binding the decision-making process of the judge, practical as it may be, to logic.

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The Certainty of Law. Frank on Judicial Decision Making Frank and Llewellyn: The Science of Law and the Social Sciences In the American reformist view developing between the nineteenth and twentieth centuries, the question of the method of legal science was very different from the discussion arising in Europe at around the same time. Due to the nature of the common law legal system and the philosophical influence of pragmatism, reflection on the scientific model of jurisprudence focused on analyzing judicial reasoning and its logic. In addition to the works of Holmes, Dewey’s instrumentalist pragmatism constitutes an essential point of reference on these matters. In his Logical Method and the Law (1924), Dewey addresses the problems of legal reasoning and judicial decision making, subjecting the judicial syllogism to intense criticism. For Dewey the courts are not isolated from social reality: there is “a certain way of looking at and interpreting the facts” in the construction of the major premise of which the current practices and the very experience of the judging subject are part. His attack on the conception of law as a formal rule, with its role in the logic of judicial reasoning, does not go so far, however, as to deny the symbolic value of motivation in law. In his opinion, case law acts as a mediation between the aims pursued in court, in the form of general rules for the interpretation of cases, and the needs emerging at the level of the political, social, and economic institutions (J. Dewey 1924: 24). Dewey’s pragmatism, applied to the law and its logic, is the philosophical premise required by legal realism in order to carry out its task of self-renewal. For one branch of the movement, these philosophical premises lead to an understanding of the process of formalization of a rule as a component of the institutionalization of social regulation (L. Fuller 1934). For Llewellyn, this implies a move away from “paper rules” to “real rules” or “working rules,” which have a fundamental role in solving the dispute because they are the rules of action internalized by judges and officials (K.N. Llewellyn 1930: 442–443). Frank’s contribution offers an interesting perspective precisely on this point. It contrasts with the scientific model (from the social and legal sciences) adopted by the branch of the movement that looks with interest at behavioral psychology and functionalist anthropology. Frank questions the cognitive model of the human sciences, which claims some degree of affinity with that of the natural sciences: “Their attempted generalizations (. . .) are not readily predictable, because of the numerous elusive and accidental factors, including the fortuitous effects of forceful (‘earth-quake’) personalities” (J. Frank 1949a: 210). This led Frank to a radical skepticism about law as a science (J. Frank 1955: 8–9). Following in the footsteps of Dewey and Holmes, he does not share their conclusions on legal certainty (J. Frank 1931a).

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In some areas of realism, Frank sees a tendency to transplant onto the American legal system the method cultivated by Malinowskian (1884–1942) anthropological functionalism, to which the position of Cardozo (1870–1938) is linked, and Llewellyn’s (K.N. Llewellyn and E.A. Hoebel 1941) research is also susceptible. This model claims to inductively derive legal generalizations from the regularities enshrined in the beliefs shared by a social group. But for Frank, these simply cannot boast any substance, either in themselves or by virtue of the ways in which the fact is represented in court. Facts are not subject to any form of generalization, because of the canons of irrationality that Frank sees in the cognitive process that takes place in the decision-making process, which, more broadly, reflects the intuitive nature of human knowledge. Frank was able to represent its traits through one of his most famous metaphors, which associates law with music: intuition emerges as “wordless rationality,” whose translation into arguments is a form of betrayal (J. Frank 1948a: 921–933).

Certainty as a Legal Myth and Uncertainty as a Value In 1930 Jerome N. Frank, a lawyer in New York, published Law and the Modern Mind, a work that aroused great interest among contemporaries from the start. Aligning himself with the same field of criticism of the formalistic logic of judicial reasoning, the ideas he expressed in this volume developed material taken from Freudian psychoanalysis, from theories of education and, in some cases, anthropology. Law and the Modern Mind led to a split in the realist movement between “rule skeptics” and “fact skeptics” (J. Frank 1949a: 74): identifying with this last group, Frank deems the “rule skepticism” stance held by most of the movement to be inadequate. He thus ascribed to the “temporary divorce of Is and Ought” as a position enabling the isolation of facts in their objectivity, but went beyond the conclusion to which this led, affirming a “Distrust of traditional legal rules and concepts insofar as they purport to describe what either courts or people are actually doing” (K. Llewellyn 1931: 1236). In the analysis of the judicial decision-making process, this distrust implied having to reformulate the concept of the formal legal rule, incapable of explaining what the “operative factor in producing court decisions” was (K. Llewellyn 1931: 1237). Realism was underpinned by a language of causality and a variously marked familiarity with the naturalistic outlook, expressed through the behaviorist psychology of the time (B. Leiter 1997). Frank took a very critical stance vis-à-vis the psychological approach ascribed to by a number of scholars: like the research carried out on monkeys and rats, this pseudoscience claimed to adopt the same action/reaction perspective with regard to human behavior by applying the principles of veterinary psychology (J. Frank 1949b: 21).

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Influenced by Freud (1856–1939), but also addressing topics from Piaget’s (1896–1980) developmental theories, Frank is skeptical about the possibility of understanding psychology as a science at all, and right from Law and the Modern Mind, the psychological approach is seen as “a weapon of attack” (Th.W. Arnold 1931: 644) rather than a cognitive model. To this end, Freudian psychoanalysis offers a crucial system of symbols in combination with arguments from anthropology in Law and the Modern Mind, (A. Chase 1979), with the aim of revealing the artificial nature of legal certainty, which is the myth through which Western legal culture has safeguarded a reality (the authoritative basis of the legal phenomenon) by entrusting it to a fiction (its legal rationality) (J. Frank 1930). From this perspective, the authority of law (expressed through the stability of precedents) assumes the function of a “Father Substitute” (J. Frank 1930): it is necessary to be free of it, allowing ourselves to abandon a psychological state (childhood) and civilization in its primordial condition (belief in myths) in pursuit of the goal of professing an adult legal science, following Holmes’s example (J. Frank 1930: 279 f.). These premises led Frank to come to a definition of what the role of certainty is, namely, to conceal the authentic element from which the law draws its authority, the power of decision.

The Judge as a Cadi. The “Court-House Government” and Intuitive “Fact-Finding” In one of the Pound’s writings, the image of the machine and that of the eastern cadi appear as the representation of two opposing models of understanding the judicial decision: the formalism of the rule and the arbitrariness of the will of the individual (R. Pound 1905). The same reference to “Cadi-Justice” is found again in the early thirties, marking the peak in the controversy that pitted Frank against sociological jurisprudence. Law and the Modern Mind was at the center of Dickinson’s (1894–1952) attack on Frank: in his opinion, Frank considers the individual judge’s obedience to the law to be a form of mystical superstition, concentrating the decision-making process on the personality of the judge alone, as happens with the “purely discretionary authority of an oriental cadi” (J. Dickinson 1931: 844–845). Frank’s position on the point leaves little room for doubt. In the construction of a judge’s reasoning, a precedent expresses nothing more than the meaning that the judge, in the case before him, says it expresses: “any case is an ‘authoritative’ precedent only for a judge who (. . .) decides that it is authoritative” (J. Frank 1930: 160). For Frank, it is not (only) a question of recognizing that the law is affected by semantic vagueness, but of affirming that its authority is rooted exclusively in the

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decision of the judge. The one who judges, also because of the presence of a jury, works “as a fallible and variable witness of witnesses,” so much so that “as a ‘factfinder’ [he] is a ‘Cadi’” (J. Frank 1931: 28). On these aspects, which Frank examined further in Courts on Trial (1949), the discussion proceeds even affirming the totally ideological nature of the relationship between the logic of judgment and the certainty of law. Unlike other exponents of realism, Frank focuses on the judicial activity of the Trial Courts, which illustrates the importance of emotional and personal factors in the perception of the fact of the case and how it is reconstructed in the mind of the judge: “The court has to guess what actually happened, basing its own fallible guess on fallible inferences made while listening to and watching fallible witnesses” (J. Frank 1931b: 650). Within such dynamics, the role played by an individual’s emotions is at least as crucial as what emerges from the procedural aspects of a trial. Cases before the lower courts are such that “our present trial method is thus the equivalent of throwing pepper in the eyes of a surgeon when he is performing an operation” (J. Frank 1949a: 85), and Pound is wrong in believing that the jury, in being “lawless,” is “the great corrective of law in its actual administration” (R. Pound 1910: 18). On the contrary, for Frank “The jury makes the orderly administration of justice virtually impossible” (J. Frank 1930: 194). For Frank the only possible reconstruction of judicial reasoning relies on the nature of the hidden factors at play in the depths of the “private mind” of each of those involved: the judge and the jury. Considering the relationship between the fact (F) and the decision (D), “The F which leads to the D is not something which existed before the lawsuit began. The ‘facts’ of a ‘contested’ case, for judicial purposes, are not what actually happened between the parties but what the court thinks happened” (J. Frank 1931b: 649). Recalling the theory of intuitive judgment (J.C. Hutcheson 1929), the decisionmaking process is a reaction to the stimulation from the facts, as realism states, but cannot be reconstructed on the basis of any law of causality (J. Frank 1932: 595). Intuition is the first element to orient the judge towards the decision, the person who manipulates both the rules (R) and the facts (F): “The trial judge (. . .) can begin with the decision he considers desirable, and then, working backwards, figure out and publish an F and an R which will make his decision appear to be logically sound” (J. Frank 1949a: 168). For Frank, this process is also supported by the role of the jury. The jury system highlights issues in the administration of justice in the lower court, radicalizing elements of subjectivity in decision making, and removing them from criteria of controllability by the judge. With his attack on the system of “Court-House Government” in the Trial Courts, Frank affirms that jury makes the cognitive process of decision obscure, negating the principle of the “government of laws” (J. Frank 1930: 177–178, 1949: 131–132) whose meaning must be sought in the need to subject the action of judges and officials to criteria of rational verifiability. Skeptical about the “government of laws” model, Frank thus sets out his own interpretation of the “government of men,” distinguishing its deleterious representation – the jury’s “Court-House Government” – from its ideal model,

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anchored in the profile of a democracy based on the accountability of its stakeholders: “The jury system, praised because it was apparently a bulwark against an arbitrary tyrannical executive, is today the quintessence of governmental arbitrariness” (J. Frank 1949a: 132).

“The Upper Court Myth” Frank’s analysis of the Trial Courts is a point of attack against the realist movement. In the thrall of an “Upper-Court Myth,” American legal theorists are rooted in “the false belief about the unimportance of the trial judge’s activities” (J. Frank 1949a: 222). They continue in the error that had indicated the main field of observation of jurists between the nineteenth and twentieth centuries (J. Frank 1948b). On this point, Frank goes back to the identity of the American legal realism. Although there is a certain meeting of views, perspectives diverge when it comes to stating what happens to supposed legal certainty in the Trial Courts’ decisionmaking process: “this uncertainty – a trial court (not an upper court) uncertainty – is present not only (. . .) when a case is to be tried by a jury, but also when it is to be tried by a trial judge sitting without a jury” (J. Frank 1950: 216). Scholars such as Cook, Patterson, and Llewellyn look down on the justice system, assuming a position that prevents them from seeing that it is at the level of the trial courts that the establishment of the fact on which the Court of Appeals decision depends. Legal realists, who had succeeded in shifting their focus from the rules to the fact, do not grasp the condition of legal uncertainty, not being willing to reflect on the reforms that, in Frank’s view, could modify the procedural fact-finding system in court. These are aspects on which Frank makes a number of proposals, including the introduction of the burden of setting out reasons on the judge of first instance in relation to the reasons that underpinned his own assessment of the testimony (J. Frank 1949a: 202 ff., 132 ff.). In this analysis, the uncertainty and unpredictability of decisions as structural data but also as a value remains firmly in place (J. Frank 1930: 7). Thinking of the position adopted by the movement and explicitly referring to Karl Llewellyn, Frank is sarcastic: “By spending a few nickels on subway-fares for short trips from Columbia Law School, where he teaches, to lower New York City, Llewellyn could have studied in detail the trial courts of that metropolis. He could then have written a book on the anthropology of Tammany-Hall Indians, many of whom are first-rate trial judges” (J. Frank 1949a: 77).

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“Government of Law” and “Government of Men” Frank’s perspective attacks the programmatic role of case law that appears to hold strong in American antiformalism. By attacking predictability, Frank questions legal certainty and, with it, the ideal privilege granted to a “government of laws” over the “government of men.” Pound had entrusted the former with containing the discretionary power of the judging, set up against the “government of men” personified by “the oriental Cadi administering justice at the city gate by the light of nature tempered by the state of his digestion” (R. Pound 1905: 21). It is in this context, marked by the institutional transformations of America in the 1930s, that Law and the Modern Mind, more than any other testimony of the realist movement, “cleared the way for a new set of conceptions and ideals with respect to the relationship of the citizen to his government” (Th. Arnold 1956: 635). As Llewellyn put it, a clear perspective on these aspects could be discerned from the movement’s very beginnings: “All that has become clear is that our government is not a government of laws, but one of laws through men” (K.N. Llewellyn 1931: 1243). Influenced by functionalist anthropology, this view of the system as factcentered had led to a conception of law and government as being part of a single and dynamic institution: “the view of law-and-government as in essence a single institution opens up at one stroke an answer to two problems which have for centuries been eluding effective answer-in-words: that of the relation of rule and discretion, and of the relation of rules and the official” (K.N. Llewellyn 1949: 1296). Despite the nonsubversive message of legal realism, in the late 1930s the movement began to undergo a process of “Frankification” (B. Leiter 2007: 57 ff.). Frank’s views on the decision-making process became the emblem of a school that does not actually exist, endowing it with the responsibility of having given credit to a concept of judicial activity reduced to the mere product of power. Despite this reaction against the movement, Frank’s scientific output proceeded in directions deserving of further study today: Law School education (J. Frank 1933, 1949: 225 ff.), the mechanisms of government administration (J. Frank 1942), and in the mid-forties, philosophical-political themes (J. Frank 1945).

Frank’s Legacy. A Doubting Thinking on Democracy In 1933 Morris C. Cohen (1880–1947) drew attention to the need for awareness of the dangers in emphasizing personalistic elements in the legal realist theory of judicial decision making (M.C. Cohen 1933: 359). In Frank’s view, however, the discovery of the personalistic and emotional factor in the decision-making process was raising a profoundly democratic question: given that government activity concerns the citizens, also when it is the Courts that are acting, it must be accepted that it expresses the actions of fallible men (J. Frank 1945:

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45, 112). Mature acknowledgment of this reality is the only condition that can safeguard the controlling role of the law in a democratic society (J. Frank 1930: 10). Thanks in part to his personal involvement in agencies and administrative bodies with roles delegated by the government (R. Pound 1940), from the late 1930s the “government of men” model assumed for Frank a broader meaning than the relationship between discretion and arbitrariness in the exercise of the jurisdictional role. At the core of Frank’s legacy, there is a “constructive skepticism,” which implies “hostility to dogmatism” (J. Frank 1945: 332). It denotes a philosophical attitude towards the institutions in which the relationships between a plurality of visions of the good undergo a process of (political mediation) and (interpretative) balancing, involving all the protagonists in the system (B.A. Ackerman 1974): I repeat that, in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government (. . .). It is the essence of democracy that the citizens are entitled to know what all their public servants, judges included, are doing, and how well they are doing it. (J. Frank 1949a: 2)

References Ackerman BA (1974) Law and the modern mind by Jerome Frank. Twentieth-century classics revisited. Daedalus 103(1):119–130 Arnold ThW (1931) Law and men. Sat Law Rev Lit, March, 7 Arnold ThW (1956) Judge Jerome Frank. Univ Chic Law Rev 24(1):633–642 Chase A (1979) Jerome Frank and American psychoanalytic jurisprudence. Int J Law Psychiatry 2(1):29–54 https://doi.org/10.1016/0160-2527(79)90029-3 Cohen MC (1933) Law and social order. Harcourt Brace and Co., New York Dewey J (1924) Logical method and the law. Philos Rev 33(6):560–572 https://doi.org/10.2307/ 2179188 Dickinson J (1931) Legal rules: their function in the process of decision. Univ Pa Law Rev 79: 1052–1096 Frank JN (1930) Law and the modern mind. Transaction Publishers, New Brunswick/London, 2009 Frank JN (1931a) Are judges human? I. The effect on legal thinking of the assumption that judges behave like human beings. Univ Pa Law Rev 80(1):17–53 Frank JN (1931b) What courts do in fact. II. Ill Law Rev 26:761–784 Frank JN (1932) Mr. Justice Holmes and non-Euclidean legal thinking. Cornell Law Rev 17(4): 568–603 Frank JN (1933) Why not a clinical lawyer-school? Univ Pa Law Rev 81(8):907–923 Frank JN (1942) If men were angels. Some aspects on government in a democracy. Harper & Bros, New York Frank JN (1945) Fate and freedom. A philosophy for free Americans. Simon and Schuster, New York Frank JN (1948a) Say it with music. Harv Law Rev 61(6):921–933 https://doi.org/10.2307/ 1336139 Frank JN (1948b) Cardozo and the upper-court myth. Law Contemp Probl 13(2):369–390 https:// doi.org/10.2307/1190005 Frank JN (1949a) Courts on trial. Myth and reality in American justice. Athaeneum, New York, 1963 Frank JN (1949b) Legal thinking in three dimensions. Syracuse Law Rev 1(1):9–25

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Frank JN (1950) Modern and ancient pragmatism. John Dewey & Co. v. Aristotle I. Notre Dame Law Rev 24(2):207–257 Frank JN (1955) The lawyer’s role in modern society: a round table. J Public Law 4(1):8–24 Fuller L (1934) American legal realism. Univ Pa Law Rev 82(5):429–462 Holmes OW Jr (1897) The path of the law. Harv Law Rev 110(5):991–1009, 1997 https://doi.org/ 10.2307/1342108 Kantorowicz H (1934) Some rationalism about realism. Yale Law J 43(8):1240–1253 https://doi. org/10.2307/791529 Leiter B (2007) Naturalizing jurisprudence. Essays on American legal realism and naturalism in legal philosophy. Oxford University Press, Oxford/New York https://doi.org/10.1093/acprof% 3Aoso/9780199206490.001.0001 Llewellyn KN (1930) A realistic jurisprudence – the next step. Columbia Law Rev 30(4):431–465 https://doi.org/10.2307/1114548 Llewellyn KN (1931) Some realism about realism: responding to Dean Pound. Harv Law Rev 44(8): 1222–1264 https://doi.org/10.2307/1332182 Llewellyn KN (1941) My philosophy of law. Credos of sixteen American scholars. Northwestern University, Boston Llewellyn KN, Hoebel EA (1941) The Cheyenne way: conflict and case law in primitive jurisprudence. University of Oklahoma Press, Norman Pound R (1905) The decadence of equity. Columbia Law Rev 5(1):20–35 https://doi.org/10.2307/ 1109713 Pound R (1910) Law in books and law in action. Am Law Rev 44(1):12–36 Pound R (1931) The call for a realist jurisprudence. Harv Law Rev 44(5):697–711 https://doi.org/ 10.2307/1331791 Pound R (1940) Contemporary juristic theory. Three lectures. Ward Ritchie Press, Los Angeles

Gandhi, Mohandas Karamchand Tara Sethia

Introduction Mohandas Karamchand Gandhi is popularly seen as a man of action. However, Gandhi’s actions were rooted in his thought. He lived his ideas, making his philosophy a living philosophy. When asked about his message to the world, Gandhi responded, “My Life is my message.” An idea that could not be acted upon for the well-being of humanity had no place in Gandhi’s life. The integrity of his thought and actions is evident from his writings and his life. Gandhi authored several books, including an autobiography, many pamphlets, and thousands of articles on wide-ranging topics, delivered numerous speeches, and corresponded with hundreds of people around the world. His writings are compiled in 98 volumes as Collected Works of Mahatma Gandhi (Gandhi 1999). A selection of these is compiled in a six-volume set, Selected Works of Mahatma Gandhi (Gandhi 1968). Of his voluminous writings, Hind Swaraj ( HS) is widely regarded as Gandhi’s seminal work containing his essential concepts and ideas. In addition, he was the editor of several newspapers including the Indian Opinion (South Africa), Young India, and Harijan (India). Gandhi’s life spanned from October 2, 1869, to January 30, 1948. He was born in Porbandar, Gujarat, in Western India to Karamchand Gandhi and his wife Putlibai. At 13, he was married to Kastur of the same age. After his initial education in India, Gandhi went to England where he studied law at the Inner Temple in London. He Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_860-1. T. Sethia (✉) California State Polytechnic University, Pomona, CA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_11

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was called to Bar in 1891. His life after that took many momentous turns. On his return to India, he failed to practice law. He had “no connections, no touts, no income” (DiSalvo 2012: 27–29). Moreover, the persistent political intrigue offered no hope for a worthwhile legal practice anchored in ethics. Gandhi yearned for an opportunity to escape from such an environment. In 1893, he sailed to South Africa as a legal counsel to Dada Abdullah and Company entangled in a major lawsuit with Sheth Tyeb. Gandhi regarded his experience with this lawsuit as “most valuable” in his practice of law. He learned that facts mean truth, and “once we adhere to truth, law comes to our aid naturally.” Gandhi’s initiatives in resolving the case shaped him as a lawyer. He realized that “the true function of a lawyer was to unite parties riven asunder” (Gandhi 1993: 133–134). This became his guiding philosophy throughout his legal career of nearly two decades in South Africa. Gandhi was opposed to the prevailing practice among lawyers who were simply concerned with winning the case at any cost even at the cost of truth. Moreover, the legal profession in South Africa and India was an accessory to colonial rule as he repeatedly saw law courts benefitting colonial authorities instead of the people. In the process, lawyers continued to make money while prolonging conflict. This to Gandhi was sheer immorality (Gandhi 2009: 57–59). Gandhi’s practice of law and his many experiments in pursuit of social justice for the Indian community in South Africa informed his ensuing thought and actions. Gandhi was very widely read and had an innate gift of learning life lessons. While Gandhi acknowledged the many influences – both Indian and Western – had on him, he named three individuals who left an enduring impact on his life: Leo Tolstoy and John Ruskin through their books and Raychandbhai – a guide and mentor – through his “living conduct” and correspondence (Gandhi 1993: 90). Gandhi returned to India in 1915 where he led numerous nonviolent movements for India’s freedom and unity until his assassination on January 30, 1948, during a prayer meeting.

Gandhi’s Philosophical Framework The key components of Gandhi’s philosophy are swaraj, swadeshi, satyagraha, and Sarvodaya. The fundamental principles underpinning these are satya (truth) and ahimsa (nonviolence). Together, they provide us a framework to understand Gandhi’s philosophy. Gandhi’s thought evolved in the context of modern industrial civilization which regarded “bodily welfare” as the purpose of life, measured human progress in terms of material advancement, and promoted a worldview in which humans had control over nature to satisfy their greed. Gandhi argued that such a civilization was driven by the desire of profit and self-interest, unconcerned with ethics guiding humans to their duty toward fellow humans, thus leading to the exploitation of humans by humans under the global phenomenon of colonialism (Sethia 2012: 58–59). True civilization, according to Gandhi, is characterized by good conduct leading humans

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to their ethical responsibility anchored in self-control enabling them to master their passions (Gandhi 2009: 65), a precondition for developing the practice of nonviolence.

Satya and Ahimsa: Individual and Social Values Truth and nonviolence are two fundamental principles underpinning Gandhi’s thought. His emphasis on the significance and interdependence of these principles is exceptional in the history of modern philosophy. He expounded on their meanings beyond their common connotations. Gandhi’s thought is deeply aligned with truth. However, truth for Gandhi is not a cognitive idea. It is experiential. It is both absolute and relative. Gandhi also regarded truth as the ultimate end of life and nonviolence as an essential means to realize it. Gandhi regarded ahimsa as “the Law of our Species as violence is the Law of the Brute” (Gandhi 1968: 6:156). In a positive sense, ahimsa means “greatest love.” In its negative aspect, ahimsa means refraining from violence. In Gandhi’s own lived experience, ahimsa is an evolving process. It takes practice and training. Gandhi was cognizant of the fact that it is impossible to practice ahimsa in the absolute sense. Violence may be necessary for legitimate self-defense. Gandhi’s insistence on ahimsa was aimed at reducing the violence both at individual and social levels. Gandhi’s idea of ahimsa is “in a class by itself.” Gandhi could discuss its “absolute efficacy” and at the same time “tolerate violence” in certain situations (Parekh 1988: 214). Ahimsa begins with the individual, in one’s heart and thoughts. Its practice requires courage and fearlessness, humility, and kindness. Once it is embodied in individual behavior, it can be extended to social, national, and international levels. Gandhi was convinced “if nonviolence is established in one place, its influence will spread everywhere. . .” (Gandhi 1968; 6: 173). Its efficacy and power can be tested only in the face of violence. Gandhi regarded “ ahimsa and satya are so intertwined that it is practically impossible to disentangle and separate them” (Iyer 2000: 227). Ahimsa is the foundation for the pursuit of truth, the basis of soul-force or truth-force. At the same time, Gandhi was convinced that truth would lead him to nonviolence. Although truth and nonviolence are individual ethics, they can evolve into social ethics. Gandhi saw a “moral link between the order of the soul and the order of society” (Gandhi 2009, Introduction by Parel: xxxv).

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Swaraj: Individual and National Freedom Gandhi envisioned swaraj at two interrelated levels: individual and national. He explained “. . .if we become free, India is free. It is in this thought you have a definition of swaraj. It is swaraj when we learn to rule ourselves” (Gandhi 2009: 73). At the individual level, swaraj means self-rule as in self-discipline or self-restraint. As such, swaraj assumes the agency of the spirit which Gandhi also called the spiritual freedom, the basis for self-realization. This freedom is not given by any external power but acquired through one’s spiritual strength. In this sense, it may also be referred to as the spiritual swaraj. Gandhi regarded individual freedom as the foundation for national freedom. This essential link between individual swaraj and national swaraj makes Gandhi’s vision of freedom not only distinctive and original but also exceptionally powerful. Gandhi demonstrated its originality and potency through his many movements in India, which were aimed at making India free from British rule but relied on individual swaraj of the participants in his campaigns.

Means and Ends Gandhi rejected the political philosophy of ends justifying the means. Instead, he underscored the purity of means. For Gandhi, there is an “inviolable connection between means and the ends as there is between the seed and the tree. . . We reap exactly as we sow” (Gandhi 2009: 79). He explained that foul means cannot lead to a positive end just as one cannot harvest a rose by planting a weed. For Gandhi, constitutional means were not sufficient to realize swaraj from the British. And conventional revolutionary means for him were far from fair and ethical. He recognized the need of force to attain swaraj. However, the force had to be just and worthy of swaraj. Gandhi devised his signature strategy of satyagraha – a moral force to question, reform, and transform the unjust establishments of authority.

Satyagraha Rooted in truth and nonviolence, satyagraha for Gandhi is the only moral means of combating oppression and injustice and for securing rights. As such, satyagraha entails sacrifice of the self, which is “infinitely superior to the sacrifice of others.” A satyagrahi is not bound by man-made laws when in conflict with the just law of truth. A satyagrahi does not compromise truth and nonviolence even at the cost of selfsacrifice. In disobeying an unjust law, a satyagrahi takes the risk of penalty, including death (Gandhi 1960: 30–31). Gandhi’s ashrams (spiritual community)

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were the training grounds for truth and nonviolence. Training required reliance on self-discipline anchored in ashram vows – code of conduct. Satyagraha is effective only when it is aimed at achieving justice through nonviolence. Satyagraha relies on persuasion, dialogue, and negotiations if possible and noncooperation and civil disobedience when necessary. A satyagrahi aims at conversion of heart through love and self-sacrifice rather than coercion through violence. Satyagraha needs no jiujitsu (or jujitsu, a Japanese martial art of fighting). Satyagraha is the art of living and dying (Gandhi 1960: 237). It simply requires selfcontrol. As a nonviolent revolutionary tenet and tactic, satyagraha is regarded as the “weapon of the strong.” When one embraces satyagraha, one sets an example. Gandhi’s concept of exemplar is innovative and is intended to “provide an alternative to the concept of principle in moral philosophy” (Bilgrami 2003: 4162).

Swaraj Through Swadeshi For Gandhi, satyagraha can be effective for attaining swaraj only if it is accompanied by swadeshi. Swadeshi literally means pertaining to one’s own country. It symbolizes self-reliance. Swadeshi movement originated in 1905 following the partition of Bengal by the British and led to boycott of British imports, British education, and the political resignation of Indians from the British-dominated legislative councils. Recognizing its revolutionary import, Gandhi expanded the scope of swadeshi to include replacement of everything foreign with the indigenous. Gandhi gave swadeshi a profound meaning – reliance on one’s own strength – physical, mental, and spiritual. Swadeshi accompanied satyagraha and became an integral part of Gandhi’s pursuit of swaraj. Khadi, the hand-spun fabric, became one of the most effective examples of swadeshi. Its production included cotton growing, picking, spinning, dyeing, preparing the warp and the woof of weaving, and washing. All these activities had to be carried out to achieve self-reliance in the production of khadi. Gandhi himself spun khadi daily and relied on his own spun cloth. Charkha (spinning wheel) became a symbol of swaraj and economic self-reliance. Later, khadi became a model for developing other local industries in India’s 700 villages. Swadeshi also inspired a need-based culture in contrast to modern industrial civilization rooted in greed. This was consistent with his principle of ahimsa. His adoption of loincloth exemplified his commitment to have no more than what the poor Indians could afford. This was at its very core both a political act challenging imperialism with its roots in greed and an empathetic act inspiring Indians to a culture based on needs.

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Sarvodaya: From Swaraj to Poorna Swaraj Sarvodaya or the well-being of all encapsulates Gandhi’s vision of poorna swaraj (complete freedom). After realizing individual and national swaraj, it was necessary to focus on freedom not just for the majority but for all. Gandhi had relied on satyagraha to resist unjust laws, oppressive policies, and/or an established authority. However, poorna swaraj could only be achieved through Constructive Program – the vast range of reforms that Gandhi initiated in India for the well-being of all . These included addressing problems of communal discord, social injustice, illiteracy, and the lack of education. To foster a sense of harmony, Gandhi recommended the cultivation of national unity among all communities, especially among Hindus and Muslims. Similarly, he pursued removal of untouchability as imperative for social harmony. National integration was necessary to make India an inclusive and participatory democracy in which the minorities, the disabled, and the “worst off” population could be empowered. To achieve this, Gandhi proposed a paradigm of oceanic circles, ever widening and never ascending, as opposed to the paradigm of pyramid in which the few people on the top are sustained by the majority on the bottom (Gandhi 2009: 181–183). Under this model, no one is the first or the last. He strove to make women “equal partners” in the fight for swaraj. Concerned with the growing gap between the rich and the poor, Gandhi advocated trusteeship – a voluntary program for sharing by the rich of their excessive wealth for the common good (Mehta: 119–120). To ensure local and self-sustaining economies, decentralization of production and distribution, Gandhi endorsed small-scale industries which would provide local people with employment and empower them (Terchek 1998: 159–160). To promote practical education, Gandhi recommended nai taleem, basic education aimed at the holistic development of mind, body, and spirit in the context of the child’s immediate environment. Similarly, he suggested programs for adult education to promote a greater sense of political awareness. To reform and improve the quality of life in the 700,000 villages of India, which were home to more than 70% of India’s population, Gandhi suggested the revitalization of village panchayats as local self-governing bodies and the development of indigenous institutions to provide basic education. Program for village sanitation, he suggested, must be part of the national agenda to make villages models of cleanliness. This was needed to build awareness not only of health and hygiene but also about the need for clean air, water, and healthy food. Gandhi regarded such constructive programs essential to the process of nation building from the bottom up and empowering all people to realize the vision of poorna swaraj. His quest of complete freedom was also his quest for a harmonious society and for the welfare of all (Parel 2006).

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Gandhi’s Vision of a Nonviolent State Gandhi’s view of nonviolence was not monolithic. He knew nonviolence works differently in different contexts. According to Gandhi, a nonviolent state is possible if the “vast majority” of its people are nonviolent. This calls for a shared responsibility among its leaders and the citizens. They have the responsibility to abide by the ethics of nonviolence. This also means a conscious self-introspection on their part to examine the violence and the injustice they might be tacitly condoning or indirectly supporting in their daily life. The state must fulfill its obligation to encourage and support nonviolence in the life of its citizens. Gandhi was aware that the state’s commitment to nonviolence may not be absolute, and there may be coercion in discharging the “duties” of the state. He was aware of the need for the state to defend its citizens from foreign aggression and protect the rights of minorities to ensure social justice for the benefit of all citizens. Citizens too have the responsibility of defending the state and serving on its armed forces when necessary (Parel 2006: 58). A nonviolent state must not encourage the use of arms. It has the duty to operate in ways that build bridges among its diverse population fostering a sense of national unity by building a climate of mutual trust and cooperation.

Conclusion Gandhi was a practical philosopher. “Philosophy to be worth anything” Gandhi wrote “has got to be applied to one’s life” (Gandhi 1968, 45: 226). His legacy of living philosophy, making his ideas practical, is singularly relevant for our times (Sethia & Narayan 2013: x). In times marked by “alternate reality” and “fake news,” Gandhi’s example prompts us for seeking truth. In the world where violence is raging in every sphere of our lives as individuals, society, and nations, Gandhi’s thoughts and actions demonstrate the significance of ahimsa for conflict resolution and harmonious living. In the realm of modern politics, where ends become the sole focus and means are not a concern, Gandhi shows us why means matter. In the middle of a pandemic where wearing mask, for example, is seen as an infringement on individual freedom, Gandhi reminds us that freedom is not an absolute right. It comes with social responsibility. Gandhi’s signature strategy of satyagraha has been a source of power to powerless and of hope to the hopeless as Gandhi continues to inspire nonviolent movements dedicated to political and social change around the world. Gandhi’s vision of Sarvodaya offers a guidepost to the world’s largest democracies where minorities in the twenty-first century continue to struggle for their rights. Gandhi’s simple lifestyle rooted in the idea of need vs. greed has deep resonance in the wake of challenges associated with climate change, economic meltdown, and rising inequality.

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References Bilgrami A (2003) Gandhi, the philosopher. Econ Polit Wkly, 27 September 2003: 4159–4165 DiSalvo C (2012) The man before the Mahatma: M.K. Gandhi attorney at law. Random House India, Noida Gandhi MK (1960) My non-violence. Compiled and Edited by Sailesh Kumar Bandopadhyaya. Navjivan, Ahmedabad Gandhi MK (1968) Selected works of Mahatma Gandhi. (SWMG), vols 1–6. Navjivan Press, Ahmedabad Gandhi MK (1993) An autobiography: my experiments with truth. Introduction by Sissela Bok. Beacon Press, Boston Gandhi MK (1999) Collected works of Mahatma Gandhi (CWMG), vols 1–98. Electronic Book, Publications Division Government of India, New Delhi. https://www.gandhiashramsevagram. org/gandhi-literature/collected-works-of-mahatma-gandhi-volume-1-to-98.php Gandhi MK (2009) Hind Swaraj and other writings (HS). Edited and Introductory essay (x–lxxv) by Anthony Parel. Cambridge University Press, Centennial Edition, New York Iyer R (2000) The moral and political thought of Mahatma Gandhi. Oxford University Press, New Delhi Mehta U (2008) The multi-dimensional thought of Mahatma Gandhi. Mani Bhavan Gandhi Sanghralaya, Mumbai Parekh B (1988) Gandhi’s concept of ahimsa. Alternatives XIII:195–217 https://doi.org/10.1177/ 030437548801300203 Parel A (2006) Gandhi’s philosophy and quest for harmony. Cambridge University Press, Cambridge Sethia T (2012) Gandhi: pioneer of nonviolent social change. Pearson, New York Sethia T, Narayan A (eds) (2013) The living Gandhi. Penguin, Delhi Terchek RJ (1998) Gandhi: struggling for autonomy. Rowman & Littlefield, Boston

Geiger, Theodor Thora Margareta Bertilsson

Introduction Theodor Geiger (1891–1952) belongs to the generation of refugee scholars from Weimar Germany greatly enriching scholarly thought. Born outside Munich, he fled Germany in 1933 and arrived in Denmark shortly after. He developed an early interest in Scandinavian language and was rewarded a trip to Norway after graduation (Mayntz 1969). In 1939, he received a chair in sociology at the University of Aarhus, the first one issued in Denmark (Agersnap 2000). With the German invasion of Denmark, he had to escape once more, this time to Sweden. Returning to Denmark after the war, he achieved a great scholarship across the social sciences. Characteristic of Geiger’s general approach is to view social phenomena not as static “social facts” but as emergent and processual in forms and appearances. He was a confirmed positivist throughout, while never shunning away from the central importance of analytical concepts guiding empirical research (Bachmann 1955/ 1995; Mayntz 1969). Geiger played an important role in establishing the institutional structure of sociology after the war. With colleagues, he established International Sociological Association and also Scandinavian Journal of Sociology, Acta Sociologica in 1951. The year after he suddenly died onboard the ship bringing him back from an invited lecture tour to Canada.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_861-1. T. M. Bertilsson (✉) University of Copenhagen, Copenhagen, Denmark e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_12

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Stratification, Class, and Social Mobility Geiger’s lifelong academic interests cover a wide spectrum: the genesis and prospects of industrial society, stratification, the topic of class and class antagonism, and social mobility more generally. His first major study of social stratification in Germany (1932) broke the spell of the binary Marxist class antagonism between capitalists and workers. Geiger identified a number of additional dimensions (as size of enterprise, educational qualifications, and firms with or without workers). Stratum rather than class becomes central. Sharing the same objective life conditions may or may not result in developing a common (class) consciousness. He agrees with Marx that an emerging class antagonism is important in the formative periods of industrial society, agonizing the middle classes. Farmers and artisans are in Geiger’s view prone to conservatism, while the newer strata of salaried functionaries risk being caught in the middle of the class antagonism. Still in Germany, Geiger expresses concerns that the uncertain positions of the latter strata make them prone to Nazi sentiments. However, in later studies, especially the groundbreaking one on social stratification in Danish society, based on empirical register data since the sixteenth century, overturns such concerns. On the contrary, the new managerial and organizational strata may in fact break the spells of old class antagonisms. A noticeable observation from the Aarhus mobility study suggests that the new professionals show fewer ambitions to move up the social ladder (Agersnap 2000). Leveling out old hierarchies creates new life options.

Mass Society While in Germany, Geiger significantly contributed to the infected studies of “crowd behavior” flourishing on the European Continent (Borch 2012). Was the “revolutionary crowd” progressive or regressive? With the occurrence of November Revolution 1918, Geiger joined the German Social Democratic Party. The proletariat, he surmised, destroyed the asymmetrical power structure of bourgeois society; it contained a “reservoir” of action that could enfold in two ways: destructive or constructive. The untamed revolutionary crowd “tears apart”; it only exists as negation; it is not a group and has no sense of “we.” But organized as labor unions, student associations, political parties, and so on, the proletariat possesses constructive power to change the course of history. Dissatisfied with the politics of the Social Democratic Party, he left the party in 1932. In his view, the party, caught in an old-fashioned revolutionary rhetoric, was unable to withstand the onslaught of the Nazi movement. The distinction between the active and latent crowd was to reappear decades later in the discussion of postwar politics in industrial (mass) society. The term “mass society” emanated in post-war American sociology but with a new twist. David Riesman’s Lonely Crowd offered a pessimistic picture of modern technological

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societies: isolated and rootless individuals were easy targets of electronic propaganda and populist rhetoric. Again, Geiger voiced his opposition, now in the dispassionate language of sociology. Freed from lifelong bondages of old ties, modern individuals are entangled in a web of overlapping networks: intimate family life, schooling, work life, and political life. The socially isolated individual is a philosophical abstraction. Social interdependence and reciprocity characterize human life from birth to death. Family ties are as a rule more feeling-oriented, although inheritance disputes can quickly change such ties into agonistic interests. As members of labor unions or a political party, we need not know the full family history of one another; common interests link us together. Previous Nazi efforts to emotionalize public life such as the Nation arouse his fears of such efforts. Modern “identity politics” would not evoke his sympathy. Women – a collection of individuals – do not form a social group; their claim to we-ness rests on a negation. Like the proletariat in earlier texts, also women inhabit a “reservoir” of action, the mobilization of which can assume either constructive or destructive behavior. Women (as workers) in modern societies are not a homogenous category but inhabit a multitude of different interests. He offers a plea for emotional asceticism in warning for new “value communities” to arise around easily deployed common causes that can instigate destructive activities in crowds. On a pessimistic note not unlike Max Weber, Geiger fears that modern large-scale societies forming ever more abstract unions – EU, the world society – risk generating a cognitive gulf: ordinary people risk missing out of the cognitive resources needed to grasp rapid social and technological development. With this gloomy light, he is a strong advocate of life-long education and civic training.

On Value Judgment, Ideology, and the Role of Intelligentsia As a staunch positivist, Geiger advances a sharp separation of facts and values, and subsequently between science and ideology. Factual statements are the result of empirical observations of “real” things out there upon which observers trained in science can agree. Value statements are not about objects “out there” but express the emotional states of speakers: “hyacinths smell very good”; “smoking a cigarette in the morning (as Geiger himself appreciated) makes you feel good.” A value statement (what is good and beautiful, morally correct or not) is theoretically speaking meaningless and lies outside the universe of truth/falsity. Hence, there can be no false ideology or false consciousness. Value statements can be “primary” as “hyacinths smell good” while they can also assume a more reflective form; “there are many persons who enjoy the smell of hyacinths.” The latter statement invites to scientific observations as to the number of actual subjects liking hyacinths. Nevertheless, to export qualities of speakers (subjects) into the world of objects is fundamentally an illegitimate endeavor. Geiger labels such efforts as “paratheoretical”; herein lies also the genesis of ideologies.

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To claim that “murder is horrendous” is an instance of “paratheory”; it is not a true neither a false claim. There are societies even today (USA) that approve of such acts as legitimate. Strong moral statements – frequent in criminal law – tend to objectify what initially were emotional states of mind in local communities. An utterance like “hyacinths smell awful” puts a pressure on the speaker to elaborate her lack of disagreement with the majority. As social interaction in general, habitual actions, transmitted via language, help naturalizing evaluative qualities into moral orders across generations. Why some habits and customs come to dominate, while others fall back in oblivion and remain largely unknown. Diverse social interests might have intervened. To claim that customs had “social functions” and therefore were elevated into “laws of nature” is again, in Geiger’s view, to impose alleged objective qualities onto social life. We need take notice of our own ignorance in matters of objectifying moral discourse. Both being critical of orthodox Marxist views, Geiger has a more restricted view as to the role and function of ideology than his colleague Karl Mannheim (Meyer 2001). He is critical of the distinction between “particular” and “total” ideologies. People occupying the same social positions (i.e., professions) tend to foster special interests as to the values of their positions; intellectuals take an interest in the value of “free speech.” However, there is no necessity in such relations but a statistical view of probabilities hold rather. Reflective thought (and education) allows individuals to break out from such captivities. Geiger is skeptical of Mannheim’s evocation of “free-floating intellectuals,” an elevated free space. Ideologies can for a period of time serve special social interests and thus be beneficial for particular groups in power. Religions are examples of quite stable ideologies that have served the interests of priests and church-people over centuries. The Catholic Church is an instance of a belief system having achieved global institutional power but is in Geiger’s view nevertheless an instance of (particular) ideology. Value judgments as to what is good or bad enhance and strengthen group life. Transmitted in space/time via language, particular interests eventually take on “generalized” (totalized) qualities and pretend to speak for humanity. Intellectuals – a group with quite diverse interests – are strategic in generalizing and objectifying value discourse, sometimes even reified as academic disciplines. The practitioners of moral philosophy, art history, and diverse humanity studies cultivate strong professional boundaries in claiming/disclaiming the universality of their own thought and taste systems. Critique of ideological thought systems takes two different forms: theoretical or pragmatic. Philosophers and epistemologists engage in the first kind in discovering logical flaws or false (illegitimate) conclusions drawn from certain premises. The second (pragmatic) kind of critique engages activists in the social sciences. Marx, Nietzsche, Pareto, and more recently Pierre Bourdieu take issue with the “social functions” of objectified value schemes in claiming that these serve the power interests of the privileged. When unveiled, the emancipatory interests of less privileged classes will benefit. Geiger clearly admits (as did Weber) empirical research interests in systematic study (statistical) correlations as to behavioral

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consequences of various belief systems. As he is strongly against affirming ideologies with truth/falsity claims, he is not an advocate of activist social science studies.

Law and Morality The legal order, articulated in and by the legal sciences, is a highly specialized form of social discourse with clear practical consequences. Trained in law, Geiger’s refugee stay in Sweden offered him an opportunity to confront the school of radical legal realism at Uppsala University, strengthening his skepticism of value judgments even further. His own contribution to the philosophy of legal realism resides in the sociological scholarship (Trappe 1978). The development of late industrial societies with far-ranging differentiation and specialization places distrust as the arch of the social order. The thrust of modern technical law is to mediate the forces of such (systemic) distrust. Common values no longer suffice. The severing of law and morality (as facts and values) is a system requirement of late modernity. In an imagined primitive beginning of a social order, habitual conducts more or less taken for granted govern group life. Normative expressions, eventually stated as moral maxims, externalize customs across time and space. We do not know why some customs survive, while others fade away. Beneficiaries have interests in solidifying some customs into “natural law” – as in the case of nobility’s access to land. Law and morality intertwine in customary law. A separate legal order requires that a specialized cadre of legal honoratiores emerges in whose power (and training) lies a further cultivation, not the least rationalization of normative maxims into a legal sphere. Positive (written) law is concomitant with the emergence of state societies with central governing powers monopolizing the saying and execution of law. Modern state law replaces the moral community with an external force. The externalization of law enforced by special functionaries (police and judges) corresponds to the loss of a common value community. Modern state societies need governing, often opposing, value communities. State societies may encourage a religiously imposed moral sphere where church rituals and strong taboos spiritualize values as God’s Kingdom, different from state law. Martin Luther – and especially Immanuel Kant – pulverized a religiously imposed morality advocating an individualized morality based on consciousness alone, an antithesis of state law. Although these two orders occasionally overlap (“though shalt not kill”), they are as often in starch opposition. In a “state of war,” killing one’s enemies is not forbidden but imposed by law. An individual might be violently against law to enforce vaccination on everyone but has to face the consequences, either imprisonment, fines, or else social isolation. Individualized morality cannot command unity in highly differentiated societies but must allow for a plurality of ethical perspectives. Objective ethics, although propagated by various moral philosophies in academia, is in the views of Geiger a chimera. Obligations to follow legal norms can be dressed as modern state morality. However, the obligation

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of legal norms does not reside in such laws having intrinsic moral value but rather in the calculus of risk-taking. The independence of modern law from the moral universe places considerable demands on the functioning of the legal community. Contrary to laymen, judges and lawyers need to be informed of principles governing legal rules and have an obligation to follow them. Geiger draws heavily on the autonomous group morale in operation among highly specialized professionals in general, and among the legal community in particular. Their activities are under permanent scrutiny. Professional careers, especially among jurists, are heavily dependent on the “judgment of peers” the social dynamics of which have severe consequences for ambitious legal practitioners. The legal community is, in Geiger’s view, paradigmatic for professional communities in general and is surprisingly in congruence with recent theories of professions. Complex social control with a multitude of interdependent actors secures over time the grounding of an objective legal order as an interactive social process. A separate moral order can freely operate in private life, thus opening up a spectrum of moral considerations among individuals with widely different life interests.

References Die Masse und ihre Aktion: Ein Beitrag zur Soziologie der Revolution, Stuttgart 1926 Die soziale Schichtung des deutschen Volkes: Soziographischer Versuch auf statisticher Grundlage 1932 [The Social Stratification of the German Population]. Stuttgart, republished 1978 Sociologi. Grundrids og Hovedproblemer [Sociology. Basic Concepts and Main Problems], Copenhagen 1939 Intelligensen, Stockholm 1944 (German edn. Aufgaben und Stelllung der Intelligenz in der Gesellschaft, Stuttgart 1949) Debat med Uppsala om Moral og Ret [Dialogue with the Uppsala School on Moral and Law], Lund 1946, (German edn. 1978) Vorstudien zu einer Soziologie des Rechts. Århus, Acta Jutlandica, 19, 1947 (German edn. Neuwied 1964) Klassesamfundet i Støbegryden. Copenhagen 1948, (German edn. Die Klassen gesellschaft im Smeltztiegel. Köln: Hagen 1949) Den danske intelligens fra reformationen til nutiden: En studie i empirisk kultursociologi [The Intelligentzia in Denmark during 400 Years]. Århus, Acta Jutlandica, 1949, pp. 21 De danske studenters sociale oprindelse, [Social Origin of Danish Students], Copenhagen 1950, med Torben Agersnap (German edn 1995) Soziale Umschichtungen in einer dänischen Mittelstadt [Social Mobility in a Danish Middletown], Århus, Acta Jutlandica, 1951, pp. 33 Ideologie und Warheit: Eine soziologische Kritik des Denkens [Ideology and Truth: A Sociological Theory of Thinking], Stuttgart & Vienna 1953 Die Gesellschaft zwischen Pathos und Nüchternheit. Århus, Acta Jutlandica, 32 (German edn. Demokratie ohne Dogma, München 1963) Arbeiten zur Soziologie: Methode, Moderne Grossgesellschaft, Rechts-soziologie, Ideologiekritik, Selected and introduced by Paul Trappe. Soziologische Texte, 7, Neuwied, Berlin, 1962 On Social Order and Mass Society (Introduction by Renate Mayntz). Chicago: University of Chicago Press, 1969

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Agersnap T (2000) Theodor Geiger: Pioneer of sociology in Denmark. Acta Sociol 43:325–330 https://doi.org/10.1177/000169930004300405 Bachmann S (1955/1995) Theodor Geiger. Soziologe in einer Zeit zwischen Pathos und Nüchternheit. Beiträge zu Leben und Werk. Duncker & Humblot, Berlin Borch C (2006) Crowds and pathos, Theodor Geiger on revolutionary action. Acta Sociol 49(1): 5–18 https://doi.org/10.1177/0001699306061896 Borch C (2012) The politics of crowds, an alternative history of sociology. Cambridge University Press, Cambridge, pp. 9, 20, 103, 110, 121–23, 214, 290, 298–99 https://doi.org/10.1017/ CBO9780511842160 Mayntz R (1969) Introduction. Theodor Geiger: the man and his work. In: Geiger T (ed) On social order and mass society (ed: Mayntz R). University of Chicago Press, Chicago, pp 1–35 Meyer T (2001) Die Soziologie Theodor Geigers. Emanzipation von der Ideologie. Westdeutscher Verlag, Wiesbaden https://doi.org/10.1007/978-3-322-89595-0 Trappe P (1978) Theodor Geiger. In: Käsler D (ed) Klassiker des soziologisches Denkens. Zweiter Band. Von Weber bis Mannheim. C.H. Beck, München, pp 254–85

Gentile, Giovanni Marina Lalatta Costerbosa

Introduction Legal philosophy in early twentieth-century Italy forms a composite landscape of markedly different streams of thought, ranging from natural law theory, in Giorgio Del Vecchio’s neo-Kantian rendition of it, to Santi Romano’s institutionalism, and including Francesco Carnelutti’s general theory of law and the antiphilosophical defense of Roman law that Pietro Bonfante made in a famous and controversial academic keynote address delivered in Rome in 1917. And yet, in the interwar period, this overall picture was further complicated by two new developments, both pushing Hegelian dialectics in a neoidealist direction: one was Benedetto Croce’s historicism, the other the actualism put forward by Giovanni Gentile. Gentile was born in Castelvetrano, Sicily, in 1875, and taught theoretical philosophy and history of philosophy at several universities in Italy. In 1923, as minister of public education under the Fascist government led by Benito Mussolini, he introduced a sweeping reform of the education system. Gentile holds a prominent place in legal culture as well, having distinguished himself for his committed effort to rehabilitate the philosophy of law. These were the dark years, marked by the Fascist regime’s rise to and consolidation of power, a landscape in which there was no choice but to take sides politically, and in which the two philosophers accordingly went in two clearly different Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0_608-1. M. Lalatta Costerbosa (✉) Department of Philosophy and Communication Studies, University of Bologna, Bologna, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_13

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directions: over a long period of rifts and rapprochements, the gap between them grew wider and wider, until Croce penned the Manifesto of Anti-Fascist Intellectuals, published on 1 May 1925, at which point there could no longer be any common ground.

The Law as a Spiritual Reality For Gentile, the law is not a fact, a mere phenomenon in relation to which there can be no meaningful philosophical inquiry (FFD, p. 34). What holds for law also holds for the other categories of the spirit. Rejecting any reductionist, exclusively empirical representation of reality, Gentile plumps for the spirit, for a vision of man as free in relation to nature. Man is not a fact, “for to stand in front of a reality is to think that reality; and thinking is an act, not a fact” (FFD, p. 43, my translation). From this premise – stated in the main work relevant to our discussion, namely, I fondamenti della filosofia del diritto (Foundations of the Philosophy of Law), published in 1916 – we get to the thesis that liberty stems from the unbreakable unity between reality and the subject by whom reality is thought: liberty lies in the full correspondence between subject and object; it coincides with the I, or selfconsciousness. If reality cannot be separated from the subject who thinks it, it does not correspond to fact. Law forms part of the spiritual unity that realizes itself as a process, within which differences come to light, but these are never such that they can break up the unity. These differences are intrinsic, immanent in the unity, which through them “installs itself, and it integrates and actuates” (FFD, p. 55). “The process is dialectical, because the reality of the spirit is itself dialectical” (FFD, p. 63). On this account of history as the life of the spirit, the good corresponds to “the value of the spirit in its dialectical actuality” (FFD, p. 67; cf. GS, p. 52), so much so that the act as a moment in the process of realization of the spirit can be qualified as moral (FFD, p. 67). Evil, for Gentile, is a moment internal to the good, the “negative moment of our effective spiritual reality,” for every true enemy is to be found within (FFD, p. 68). Evil is fuel for the good: in itself, evil is nothing; only as functional to the production of the good is it evil (FFD, p. 70; cf. GS, p. 53). In fact, “the whole reality of an injustice does not manifest (it does not count for the moral reality it is) if not in the conscientiousness that is evaluating it” (FFD, p. 68). Even war can be transfigured into something positive and indispensable (FFD, p. 72; cf. GS, p. 104), a point previously argued by Hegel (a philosopher for whom Gentile held great admiration).

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The Philosophy of Law Is Necessary: Law and Force Investigating the law and its nature means asking what the law becomes against the background of this new “actual” idealism, according to which nothing is real that is not thought in actuality. Even if the law is misunderstood to be a fact, it always implies the act of understanding legal activity, “which is no longer a fact but is rather the principle by which the fact is produced” (FFD, p. 45). In this sense, the philosophy of law is inevitable, even for those who reduce the realm of law to that of facts; and those who are unwilling to concede as much can only “do bad philosophy” (FFD, p. 45). And so it is that philosophy takes on a specific and essential task, a gnoseological one, which is to contribute to the formation of a consciousness that is critical of reality particularly in what concerns our understanding of the moment in the life of the spirit in which lies the source of the legal phenomenon (FFD, p. 46) and which dwells on the social character of the human spirit. What makes this unity possible is force: it is in force that lies the principle of law. But force, for Gentile, is Janus-faced – at once natural and spiritual – a quality in virtue of which it alone can form a constitutive nexus with law. And, in this nexus, force is not “a natural force, determined objectively and without any inherent rationality, but is free spiritual force, which can only realize itself through a universal law, constantly denying any particularity” (FFD, p. 82). “The force that is law is an interior force, the activity or power of the spirit in its intimacy” (FFD, p. 83). The law, then, has an internal face – an interiorly perceived coerciveness – to which corresponds the exterior coerciveness of legal norms. This external coerciveness is not, however, essential to the law. The law may or may not provide for a sanction, but it still ranks as law regardless, for law comes into being whenever a subject (a) is confronted with something that is willed which is other than what he is actually willing (FFD, pp. 94–95) and yet (b) recognizes this expressed will as binding, as law that superintends the will. There is no opposition between the state and the citizen: The state is a society that is interiorly felt to be such by man. There is no ideal dimension set in opposition to a factual one. There is no moral sphere separate from a legal one. There is no subjective law that claims recognition as distinguished from an objective law (FFD, p. 92). As clearly emerges in Genesi e struttura della società ( Genesis and Structure of Society), the ethical conception of the state assumes organicist traits: it is a priori synthetic unity of the body politic, ultimately substantiating itself in the “principle of the leader.”

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Law and Morality The distinction between law and morality is no more than a distinction between stages in the realization of the spirit. The law is what is willed, and is so once it has already been willed: it is, therefore, a will that has already realized itself. Morality, by contrast, is a will in the process of realizing itself, and so a will that has not yet been willed. This framing of the distinction between law and morality should not, however, be taken to suggest that the relation between them is diachronic or that the law is the antecedent and morality the consequent. The law is already present in the moral will: law is morality’s internal moment, interacting with morality according to a dialectical dynamic, in the same way that our willing something makes it already willed (FFD, p. 90). Law differs from morality not only in virtue of its having been willed (as against something in the process of being willed) but also in virtue of its empirical opposition to liberty – for this is what law does as “concreteness of the act of ethical volition” (FFD, p. 99) – as well as in virtue of the circumstances of its arising, meaning that the law comes into being when two wills come into conflict, or “when a self-consciousness is first set in contraposition to another self-consciousness” (ibid.). But the opposition is always abstract, only apparent, concealing the underlying dialectical process that, by contrast, in the manner of Hegel, connects two wills otherwise divided and irreconcilable. As regards the “sameness” of law and morality (FFD, p. 100; cf. GS, p. 59), by reason of which we are always inclined to subject legal activity to moral judgment, it needs to be clarified that “the law exists as law but does not originate as law”: it rather originates as an “ethical act” (FFD, p. 100), and that is why “the law always finds itself facing a will that is ready to judge it morally” (FFD, p. 101). A law can therefore be unjust, but that is not to say that it thereby ceases to be law. “As long as an unjust law remains on the books (it is not repealed), it exists as the will of a state – a will that is immanent in the citizen – and as such its injustice cannot entirely be an injustice: in fact it can be said to be a justice in fieri, one that will gradually mature until the law itself is repealed” (FFD, p. 102). Law and morality are thus closely entwined, dialectically so: the law, in its essence, is a moment in the process of realization of the spirit, which in turn is morally charged. “Morality,” and these are the words with which Gentile closes the appendix to Fondamenti, “is not the whole of which the law is a part, but is the real, effective, concrete act of which the law is simply a moment” (FFD, p. 139).

Toward a State-Centric Legalism From a historical perspective, finally, Gentile ties his concept of law to the concept of an ethical state understood as the condition for the possibility of ultimately attaining liberty (FFD, p. 110), rather than as a hindrance to it (FFD, p. 111). This is a thesis

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that Gentile would not fail to reiterate in the entry titled “Fascism, doctrine of” which he wrote for the Enciclopedia italiana (1931, vol. XIV, p. 847), and which bears the signature of Benito Mussolini. The state, as conceived by Gentile, is a political society in which authority or sovereignty imparts unity to the multitude of individuals associated with it, subjecting them to a common body of law that operates through the state enacting a plurality of particular laws. Once the state is so equated with society, it takes on that peculiar form which enables it to overcome the particularisms of individual interests and the free individualism of the economy. The best concretization of law is that which endows the law with a “corporative character,” making it “a reflection of the more unqualifiedly moral and political character of the state” (FFD, p. 132). The corporative form of the state better corresponds to the will of people who feel itself to be a nation, leading to a celebration of the state as will in action, to its full correspondence with the political dimension (FFD, p. 128). It is into this labored scheme that Gentile ultimately twists the Hegelian conception of the ethical state, moving toward that resolute commitment to Fascism which in 1944 in Florence ends up costing him his life at the hands of the Partisans, who were resisting the regime.

References Di Giovanni P (ed) (2004) Giovanni Gentile. La filosofia italiana tra idealismo e anti-idealismo. FrancoAngeli, Milano Gentile G (1946) Genesi e struttura della società. Saggio di filosofia pratica (postumo 1946) in Opere complete di Giovanni Gentile. Le Lettere, Firenze, 1994: GS (Genesis and structure of society (trans: Harris HS). University of Illinois Press, Urbana, 1960) James Gregor A (2004) Origins and doctrine of fascism: Giovanni Gentile, 2nd edn. Transaction Publisher, New Brunswick Harris HS (1966) The social philosophy of Giovanni Gentile. University of Illinois Press, Urbana I fondamenti della filosofia del diritto (1916) Opere complete di Giovanni Gentile, terza edizione riveduta e corretta. Le Lettere, Firenze, 1961: FFD James Gregor A (2001) Giovanni Gentile. Philosopher of fascism. Transaction Publishers, New Brunswick Lalatta Costerbosa M (2016) Diritto e filosofia del diritto in Croce e Gentile. In: Ciliberto M (ed) Croce e Gentile. La cultura italiana e l’Europa. Enciclopedia Italiana Treccani, Roma, pp 317–324 Petrillo F (1997) Diritto e volontà dello Stato nel pensiero di Giovanni Gentile. Giappichelli, Torino Sasso G (1998) Le due Italie di Giovanni Gentile. il Mulino, Bologna Schattenfroh S (1999) Die Staatsphilosophie Giovanni Gentiles und die Versuche ihrer Verwirklichung im faschistischen Italien. Peter Lang, Frankfurt a.M.

Hägerström, Axel Enrico Pattaro

Introduction Axel Hägerström (1868–1939) was the initiator and most prestigious figure in the philosophical realism of Uppsala, as well as its leading exponent in practical philosophy. Born in Vireda, Jönköping County, Sweden, he taught at the University of Uppsala from 1893 until his retirement in 1933. His inaugural lecture, Om moraliska föreställningars sanning (On the truth of moral representations), delivered on 18 March 1911 from the chair of practical philosophy, was memorable (Hägerström 1966, 35–57): It was the first time in the twentieth century that a metaethical noncognitivist emotivist view about moral values and duties was clearly presented (see Mindus 2009; Eliaeson et al. 2014).

Hägerström’s Reality Thesis At the basis of Hägerström’s metaethics there were a realist epistemology and a realist ontology. In 1908 Hägerström presented his escape from subjectivism in a work whose very title suggests, from the outset, an ambiguous wealth of Kantian themes coupled with realist outcomes. That title was Das Prinzip der Wissenschaft. Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_740-1. E. Pattaro (✉) Università di Bologna, Bologna, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_14

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Eine logischerkenntnistheoretische Untersuchung. I. Die Realität (The principle of science: A logical-epistemological inquiry. I. Reality, Hägerström (1908)). A clear distinction should be introduced between logical reality, for the Swedish realitet and the German Realität, on the one hand, and effectual reality, for the Swedish verklighet and the German Wirklichkeit, on the other. This distinction is being introduced so as to mirror a difference in linguistic usage which occurs in Hägerström’s original texts, but which the English language cannot express with the single word reality, and which Hägerström’s translators and commentators, even those who are native Scandinavian speakers, regularly ignore (see my survey of them: Pattaro 2016, 358–63), thus posing serious obstacles to an understanding of his thought. Realitet (or Realität) is the reality of possibility, and so is a logical reality. Verklighet (or Wirklichkeit) is the reality of an actualized possibility, and so, whatever be the actualized possibility, even that actualized in a fiction, this reality will be an effectual reality. According to Hägerström, through a judgment, the knowing subject ( a) attests ( aussagt, utsäger) the logical reality (determinateness, consistency, non-contradictoriness, Realität, realitet) of the content of a representation, and ( b) judges ( urteilt, omdöme fällas) whether or not the logically real content of this representation also occurs as effectually real in a wider effectually real complex to which the knowing subject refers the content of the representation attested as logically real. A knowing subject apprehends in his consciousness a representation whose content is, for instance, men-who-breathe-through-gills (Hägerström’s example). The knowing subject attests this content as logically real (as determinate, consistent, noncontradictory), and the same content (so attested) will be the object of an affirmative or negative judgment by the knowing subject. If the knowing subject refers the content of the representation to a wider effectually real complex where men do not breathe through gills, then this judgment will be a negative one: The knowing subject judges that the content of his representation (the object of his judgment) occurs merely as represented, merely as logically real, and not as effectually real in the wider effectually real complex where men do not breathe through gills. If instead the knowing subject refers the same representation (men-who-breathethrough-gills) to a wider effectually real complex where men do breathe through gills, then this judgment will be an affirmative one: The knowing subject judges that the content of his representation (the object of his judgment) occurs not merely as represented (not merely as logically real) but also as effectually real in the wider effectually real complex where men do breathe through gills, as in fictions, I would say (Hägerström 1929a, 116, 120; cf. Hägerström 1957, 120, 126–7; more on this in Pattaro 2016, 356–63). Hence, with both judgments, the negative and the affirmative one, the object (men-who-breathe-through-gills) is the same. What changes is the effectually real complex with reference to which this object (which is attested as logically real by both judgments) is judged: with the negative judgment the effectually real complex

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is one where men do not breathe through gills; with the affirmative judgment the effectually real complex is instead one where men do breathe through gills. The widest effectually real complex to which the content of any representation may be referred is the spatiotemporal world of experience. The effectual reality of the world of experience cannot be demonstrated, because any attempt to demonstrate the truth of something (of a representation) presupposes the effectual reality of that world. We can, however, demonstrate that anyone attempting to define the world of spatiotemporal experience as a mere illusion will only produce a collection of senseless words (Hägerström 1929a, 131ff.; cf. Hägerström 1957, 143ff.).

The Unreality of Value and the Ought We may call pseudojudgments those sentences that according to Hägerström are apparent judgments whose subject matter is an impossible thing, and so is logically unreal, or contradictory, a non-object. Their subject matter is a non-entity, a non-thing ( intigt: see Hägerström 1951, 84): It is indeterminate, and therefore cannot be represented, and cannot be a possible object of judgment. The sentences in which pseudojudgments are framed as judgments are only strings of words: Despite their misleading formulation as judgments, they do not express cognitive acts of consciousness. Among the pseudojudgments are not only the statements of metaphysics ( praeterea censeo metaphysicam esse delendam was Hägerström’s motto) but also sentences framed in the form of value judgments and ought judgments, neither of which express authentic judgments but only hypostatizations (or objektiveringen: Hägerström 1917, 69) of feelings or of conative impulses arising within us in a simultaneous association with representations of things or of behaviors (Hägerström 1917, 64 ff.). The associations between feelings or conative impulses and representations are expressed in sentences framed in the form of judgments because the representational element prevails in giving rise to a linguistic expression, and it draws the expression of feeling or of a conative impulse into the expression of the objective determinateness (logical reality) of that which is represented, be it a thing or a behavior (Hägerström 1917, 69–70).

The Ought, the Right, and Norms Explained Ought judgments are pseudojudgments, mere strings of senseless words, but in spite of this they unconditionally reflect a (noncognitive) state of consciousness, so that far from being idiosyncratic, or specific to this or that individual person, they are standardly used by everyone within a language community to express similar states of consciousness: They are supraindividual. Using ought judgments leads us to

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conjure up a world of duty as existing in distinction to the world of facts but parallel to it. When we think of a behavior as required by duty we conceive it as having a particular character: We think that the behavior at issue is, in the given circumstances, right ( rätt). Here the word right is to be kept quite distinct from the word just if we are to have an adequate understanding of Hägerström’s thought concerning the idea of duty: “Rightness” ( rätthet) or “correctness” ( riktighet) are not the same as “justice” ( rättvisa or rättfärdighet). Because commands and prohibitions accompany us from childhood, because they are frequently repeated, and because they are aimed at bringing forth some relatively uniform modes of behavior – no matter what the source of such commands and prohibitions is: family, school, religious power, secular power, the social environment at large – our thinking about certain modes of behavior, Hägerström argues, will bring with it an accompanying perception of an “ought to take place” ( skall ske!) or a “must necessarily take place” ( måste ske!). Since these modes of behavior have always been commanded or prohibited from a variety of sources – from different persons and authorities – and since we have regularly learned these modes of behavior by way of commands and prohibitions, we no longer associate these behaviors with the command or the prohibition of this or that person or authority in particular. The sources of commands and prohibitions have lost their individual specificity: What appears before us is just the visual or sound image of an expression of command or prohibition. Still, even though such imperative expressions have been depersonalized, they do maintain, when connected with the behaviors they refer to, a suggestive force that elicits in us a conative impulse to have the required behavior or avoid the prohibited one. All this happens not with a single person but with all those in the community one lives in. The association of behaviors and depersonalized imperative expressions – such as “This ought to take place!” and “This ought not to take place!” – is produced in all or nearly all members of a community, and each member can and does see the association in the way others speak and behave. It is little wonder, then, that people come to make the hypostatization whereby “ought to take place!” and “ought not to take place!” become objective characters of certain behaviors: We come at the idea of a system of modes of behavior that unconditionally “ought to” or “ought not to” take place. The idea of this system of modes of behavior is the idea of a system of norms, and the idea of right is connected with the idea of such a system of norms (see Hägerström 1917, 82–4, 93; cf. Hägerström 1963, 9–12; Pattaro 1974, 171–3). The word norm thus designates these modes of behavior so conceived. Norms have neither a logical reality nor an effectual reality. By contrast, our belief that they exist beyond ourselves and are objectively binding belongs to our psyche: It is a determination of our psyche. Hägerström also shows that norms are crucially different from commands with arguments that will also be used by Hart (1961) (cf. Pattaro 2005, 133–44).

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The Law in Force Is Made Up of Norms. The Role of the Constitution and the Judge-Made Law According to Hägerström, without a constitution which the members of society regard as binding, and which is regularly observed by those in power, no lasting factual power would obtain in society: Power does not precede norms but instead is created and kept into being by norms. A clear-cut distinction exists between the decisions that sovereigns take in a private capacity and those which they take in their capacity as officials: Only in the latter case will a decision carry the force of law, and this is so because, unlike the decisions that sovereigns take in a private capacity, their official decisions rely on previously accepted constitutional norms. The expression force of law ( rättskraft) designates in Hägerström an effectively operating force capable of binding people concretely (psychologically), thereby determining their behavior (see Hägerström 1961, 72–3, 75–7; cf. Hägerström 1963, 127ff., 223ff.). A norm in force is one that in a given social group is believed to be in force and hence felt to be binding and is observed, especially by the persons whose job it is to administer justice. Hägerström shows that the law as interpreted and applied by the judge is not anybody’s will (the will of legislator, the judge, the legal system, or the like; Hägerström 1917, 16–51). Hägerström does not doubt that when judges settle disputes, they also take into account the textual provisions of the law, among other things, but he does deny that this amounts to actuating or declaring the legislator’s will: “What for the judge is law in force cannot be identical with the legislator’s will.” Law in force is, for Hägerström, the law that judges apply. This law, however, is not identical with the judges’ decisions, either, because the judges themselves understand the law in force to consist of norms that precede and justify their decisions in concrete cases (Hägerström 1917, 16–18; the quotation is from p. 17). As Hägerström observes, in order to understand the judge’s modus operandi, we have to take into account that the common legal consciousness includes the principle under which, whereas the legislator frames rules for social relations to come, the judge issues judgments on relationships existing before such judgments: The judge’s judgment is understood as stating the truth ( pro veritate accipitur), not only with regard to matters of fact but also with regard to matters of law and its correct application (see Hägerström 1917, 25–31, cf. 1ff., 10ff.).

The Idea of a Right According to Hägerström, the idea of a right ( rättsidé) is a variant of the idea of duty: It is a moral idea framed as a duty (and not as a value), in the sense that we understand a right as the right to expect others to do their duty and not as the right to expect them to act in conformance with our own values or interests.

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So the idea of a right can be said to rest on the idea of a general rule that is in force independently of any value ( allmän regel, som gäller omutligt), in such a way that the right-holder grounds in this norm the rightness of the duty-holders’ behavior, even if the right-holder does not value the behavior at issue. A right is commonly held to determine an obligation for a duty-holder, and according to “the idea of duty the rightness of certain behaviours depends on a fixed rule of conduct; and this rule is blind to the real consequences a behaviour will have with respect to one value or another” (Hägerström 1963, 18,19–20, 27–9, 33–5) – The word omutligt (cf. Ibid., 17) properly means “incorruptibly,” which in this context suggests that the rule in question must not suffer from contamination with any value; Hägerström adds to this that the ancient Romans used the expression strictum jus to express the concept of an incorruptible rule (Hägerström 1917, 75–6). The idea of a right as a power is mere fiction, unless a functional legal system equips right-holders with those instruments of power that alone can secure the necessary firmness for these people’s capacity to influence others. It is a matter of fact, in Hägerström’s view, that we have no power ( makt) to make a claim to something unless we consider ourselves capable of influencing others by way of imperative utterances addressed at them, and unless we actually can exert such influence. A power to make claims does not flow simply from the possibility of speaking certain words, because the words so spoken will have to be backed by instruments of power ( maktmedel), for otherwise we cannot hold ourselves capable of influencing other people’s behavior through a claim – at best we can hope a plea will do the job (Hägerström 1963, 57–8). If, on the one hand, Hägerström foils every attempt at reducing rights to de facto powers, on the other hand he brands as scientifically untenable the theory that presents rights as ideal powers. Hägerström is not just presenting the idea of a right as irreducible to an empirical concept: He is also arguing that legal dogmatics cannot offer an account of the law without embracing the idea of a right. As with Hägerström’s concept of a norm, so also in regard to the idea of a right his realism comes out in full. For, on the one hand, Hägerström points out that certain legal concepts are not scientific, as some pretend them to be, and, on the other hand, he states that such concepts cannot be discarded despite their not being scientific. Hägerström shows in this regard that even the theory of rights as legally protected interests cannot avoid using the notion of a right as an ideal power (Hägerström 1961, 120–31; 1963, 81ff.). The idea of a right is not an idle entity in the realm of the law; quite the contrary, it plays a key role (as do the ideas of a norm and of duty with which it is closely linked): It carries out an important imperative or directive function, by affecting individual and collective attitudes, and so also the behavior of law courts, whose task is to protect the factual advantages people are “entitled” to. In sum, the idea of a right belongs to the complex of factors that operate in society and concur in keeping the legal system alive and well. But the converse is also true: When the same idea acts contrary to the ends the legal system is designed to achieve,

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it can ultimately undermine the system and contribute to making it fall apart (Hägerström 1927, 16–7; 1963, 58ff., 71ff.; cf. Hägerström 1966, 182–3, 193).

Transactions Hägerström rejects the common opinion that a transaction consists in a declaration of will; he argues that it consists instead of imperative sentences, and he essentially frames the same problem posed by what J. L. Austin later termed “performative language” (see Hägerström 1961, 100–1, 111ff.; cf. Hägerström 1927, 25ff., 35ff.). A transaction “imperatively expresses an imaginational representation about the coming into existence of rights and duties”; what is being said in carrying out a legal transaction is that certain “legal rights and duties [. . .] must come into existence” (Hägerström 1961, 106). The formula “I am transferring my property right” means [not “Have this thing!” but] “This thing ought to be yours”; likewise, the formula “I am offering this to you” means [not “Take what I’m offering to you!” but] “The rights and duties this offer refers to ought to come into existence”; lastly, the formula “I accept” means [not “Give me what you’re offering to me!” but] “The rights and duties the offer refers to ought to come into being” (Hägerström 1961, 105). The parties to a legal transaction behave as if they were enacting a law between them; and laws “are not imperatives in the common meaning of this term: [They are not] commands” (Hägerström 1961, 104, 112; 1927, 586; 1941, 22ff., 35–6). Hägerström writes that “whoever declares that he is binding himself to another person, who thereby acquires a claim, is aiming at an imperative: I must perform this or that for you” (Hägerström 1961, 104–5, italics in the Swedish original). Hägerström here is not stating “the promisor aims to say,” but “the promisor aims to do something, namely, to set up or create an imperative I must.” And this I must is not so much the meaning as the product of the words “I am binding myself to another.” Hence, in a promise, the words I am binding myself to another mean “an imperative I must (i.e., a duty) ought to come into existence,” and in the promisor’s mind they effectively create the I must, or duty, under consideration. And that is so independently of whether the promise is legally recognized. Rights and duties are ideas and hence are not legal but psychological effects flowing from a transaction and are elicited – by the use of a certain type of language – in individuals duly conditioned by the upbringing they have received and by the social environment around them. Legal effects, by contrast, are factually determined situations that the legal apparatus ultimately imposes in accord with statutes (and with custom, case law, and so on) regulating transactional activity (Hägerström 1961, 105–6).

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Other Investigations by Hägerström Among the most important investigations carried out by Hägerström are the historico-anthropological ones, and specifically noteworthy among these are the ones he devoted to Roman law (see, among others, Hägerström 1927, 1929b, 1941). There is no room to enter into these investigations here. Karl Olivecrona edited the posthumous edition of Der Römische Obligationsbegriff, vol. 2 (Hägerström 1941), and in his own turn conducted some historico-anthropological investigations following the trail blazed by Hägerström. Olivecrona (1953, X– XXVII) figures among the most perspicuous short introductions to Hägerström’s philosophy of law, and in it Olivecrona briefly and masterfully presents as well Hägerström’s investigations into Roman law (see also Faralli 1987).

References Eliaeson S, Mindus P, Turner SP (eds) (2014) Axel Hägerström and modern social thought. Bardwell Press, Oxford, UK Faralli C (1987) Diritto e magia: il realismo di Hägerström e il positivismo filosofico (Law and magic: Hägerström’s realism and philosophical positivism). Clueb, Bologna Hägerström A (1908) Das Prinzip der Wissenschaft: eine logisch- erkenntnistheoretische Untersuchung. I. Die Realität (The principle of science: a logical–epistemological inquiry. I. Reality). Almqvist & Wiksells, Uppsala Hägerström A (1917) Till frågan om den objektiva rättens begrepp. I. Viljeteorien (On the problem of the concept of what is objectively right. I. The will theories). Akademiska Bokhandeln/ Harrassowitz, Uppsala/Leipzig Hägerström A (1927) Der römische Obligationsbegriff im Lichte der Allgemeinen römischen Rechtsanschauung (The Roman concept of obligation in light of the Roman general conception of law), vol 1. Almqvist & Wiksells, Uppsala/Leipzig Hägerström A (1929a) Axel Hägerström. In: Die Philosophie der Gegenwart in Selbstdarstellungen, vol 7. Meiner, Leipzig, pp 111–159 Hägerström A (1929b) Das magistratische ius in seinem Zusammenhang mit dem römischen Sakralrechte (The magisterial ius in its connection with Roman sacral law). A.-B. Lundequistska Bokhandeln, Uppsala Hägerström A (1941) In: Olivecrona K (ed) Der römische Obligationsbegriff im Lichte der allgemeinen römischen Rechtsanschauung (The Roman concept of obligation in light of the Roman general conception of law), vol 2. Almqvist & Wiksells, Uppsala/Leipzig Hägerström A (1951) Hägerström, Axel. In: Ahlberg A (ed) Filosofiskt lexicon. Natur & Kultur, Stockholm, pp 83–86. 1st edn, 1925 Hägerström A (1957) Framställing av den egna filosofien (Presentation of his philosophy). In: Fries M (ed) Filosofi och vetenskap. Ehlins, Stockholm, pp 111–180 Hägerström A (1961) In: Olivecrona K (ed) Rätten och viljan: Två uppsaster av Axel Hägerström (Law and will: two essays by Axel Hägerström). Gleerup, Lund Hägerström A (1963) In: Fries M (ed) Rätten och staten: Tre föreläsningar om rätts- och statsfilosofi (Law and the state: three lectures on the philosophy of law and the state). Bröderna Lagerström, Stockholm Hägerström A (1966) Om moraliska föreställningars sanning (On the truth of moral representations). In: Fries M (ed) Socialfilosofiska uppsatser. Bonniers, Stockholm, pp 35–57 Hart HLA (1961) The concept of law. Clarendon Press, Oxford, UK

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Mindus P (2009) A real mind: the life and work of Axel Hägerström. Springer, Berlin https://doi. org/10.1007/978-90-481-2895-2 Olivecrona K (1953) Editor’s preface. In: Olivecrona K (ed) A. Hägerström, inquiries into the nature of law and morals (trans: Broad CD), X–XXVII. Almqvist & Wiksells, Stockholm Pattaro E (1974) Il realismo giuridico scandinavo. I. Axel Hägerström (Scandinavian legal realism. I. Axel Hägerström). Clueb, Bologna Pattaro E (2005) The law and the right: a reappraisal of the reality that ought to be. In: Pattaro E (ed) A treatise of legal philosophy and general jurisprudence, vol 1. Springer, Berlin Pattaro E (2016) Axel Hägerström at the origins of the Uppsala school. In: Pattaro E, Roversi C (eds) A treatise of legal philosophy and general jurisprudence. volume 12: legal philosophy in the twentieth century: the civil law world. Tome 2, main orientations and topics. Springer, Berlin, pp 319–363

Hart, Herbert Lionel Adolphus Juan Vega-Gomez

Introduction A complete introduction to Hart’s contribution to the field needs to discuss not only his important arguments regarding his inquiries into what the law is, or as it is generally known, his analytical jurisprudence, but also his equally salient and often overlooked studies in the field of what the law ought to be, that is, his normative jurisprudence (e.g., Hart 1963, 1968). This entry will only deal with Hart’s analytical jurisprudence, but more concretely, the principal focus will be on his seminal work The Concept of Law, a work that I reckon most of the novel readers to Hart will be interested in. For this, maybe a good idea is to follow, more or less, Hart’s lead and tackle the problems as they unfold in the book. Therefore, in Section I will try and put Hart’s methodological stance into perspective; Section II discusses the question: How do law and legal obligation differ from, and how are they related to, orders backed by threats, or the coercion issue; Section III will raise the issue of the nature of rules, and finally, Section IV discusses the perennial questions of the relations between law and morality.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0_904-1. J. Vega-Gomez (✉) UNAM, Mexico City, Mexico e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_15

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Hart’s Methodology Hart is a perfect example of bringing to the forefront of jurisprudence the methods of linguistic philosophy prevalent at Oxford and Cambridge in the 1940s and 1950s. One of the most important insights of the method of linguistic philosophy is to dissolve many of the problems placed by the previous ways of doing philosophy in that what is thought to be one problem sometimes turns out to be several problems. According to Hart, the misguided single question we as legal philosophers try to answer is the one related to the inquiry: What is law? Perplexed by the wide variety of answers given to this question by serious thinkers: ones focusing on sanctions, others on what place do rules have in adjudication, and others on the morality of constitutional law, Hart transformed the question into three related recurrent themes that are of concern. First. There is an automatic tendency to relate what the law is to issues of coercion and threats of unpleasant consequences that might be brought upon us if we “break the law.” Having as a background of our explanations the classical example of a criminal law statute, there is even an important and deeper confusion of equating what a legal obligation is to rules that contain a coercive measure in cases of disobedience. Hart considers it is important to deal with these intuitions and poses a first recurrent theme in the question: How do law and legal obligations differ from, and how are they related to, orders backed by threats? Secondly and on the other side of the spectrum, there is a different tendency to associate what a legal obligation is to a moral obligation because both normativities share basically the same vocabulary. We talk about duties, rules, obligations, justice, fairness both in morality and in the law. In many countries, for example, our courts are called courts of justice, and some of our constitutional texts are filled with moral concepts. So, Hart thinks that a second recurrent theme contained in the general question What is law? is a question of the relations, if any, between a legal obligation and a moral obligation, and more importantly, what relations, again if any exist between our legal systems and morality. Thirdly. We just mentioned that there is a tendency to relate what a legal obligation is to threats of unpleasant consequences that might happen if we do not act as we are commanded and a different one that associates what a legal obligation is to a moral obligation. The third recurrent theme in Hart is a corresponding one but focused on the aspects of rules. Regarding the persons that correlate what a legal obligation is to threats of unpleasant consequences, Hart will argue that mere convergence in behaviour and hostile reactions in case we deviate from them is not what characterizes what a social and, more specifically, a legal rule is. Convergent and general behaviour are present even in habits of obedience. But of course a habit of obedience is different from a rule, among the important differences between them being the fact that when confronted with a rule we usually employ an array of normative language not present in habits, for example: we “must” do what the rule requires, it is an “obligation” to perform what is required by the rule, we “should,” or “ought to” do so, etc.

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But the normative language we might employ should not be placed on the other side of the spectrum as moral normative language. This talk of “obligations,” “should,” “ought to” is not necessarily a moral one. So, this prompts the third recurrent theme and question: What are rules? And more specifically what are legal rules? if they are not mere convergent behaviours and also are not connected to the normativity of moral rules. Herein lies one of the most important discussions in the form of Hart’s practice theory of rules and their internal aspect as distinguishing features of social and legal rules. These are the three recurrent questions and problems Hart undertakes to treat as conceptual questions, a task that places the concept of law in relation to the concepts of morality and coercion. Hart seeks to draw borders between these three concepts while explaining what the law is. He considers that there have been important confusions arising from the similarities and differences drawn upon by other theories between these three main concepts. Mainly, but not exclusively, he focuses on command theorists like Austin and their simple model of understanding law in terms of coercion (1832) – and on some versions of natural law theory and their understanding of law in relation to morality. Now, Hart is at pains to immediately clarify one important methodological point. These borders that are to be drawn are not ones to be expected by the way of a definition of law in the sense of criteria for the correctness of the use of concept. For Hart, the concept law is a vague concept having clear cases and borderline ones. Throughout his analysis, he explicitly mentions certain forms of primitive law and international law as borderline cases of law. This aspect of the concept law prompts Hart to argue against the misguided quest to seek a definition of law. So, for Hart the borders that are to be drawn are not by way of a definition, and establishing criteria for the correct use of the concept, it is by explaining a clear case of what the concept of law designates and its similarities and differences with morality and coercion. Talk about the “use of the concept” and how this conceptual task is not one of the establishing criteria for its correct application can seriously mislead the person who opens up The Concept of Law and finds in the immediate first pages of its preface a reference to J.L. Austin and his recommendation that we use “a sharpened awareness of words to sharpen our perception of the phenomena” to which our words make reference. Equally misleading can be Hart’s explicit statement that his book may also be regarded as an essay in descriptive sociology. A plausible way to put this confusion aside is to, again, remember Hart’s linguistic philosophical approach to law. For the linguistic philosopher, our conceptual explanations pass through an analysis of the way the concepts are used and there is not much sense in trying to explain a concept without these considerations playing a key role. Thus the sociological part of his enterprise. But for Hart – specifically in the case of law and its inherit vagueness – this consideration of how the concepts are used is different from one that argues that the end results of our conceptual explanations will be a formulation of the criteria for the correct use of the relevant concept. There is one more issue before we pass on to the substantive aspects of Hart’s theory. The conceptual explanations and theoretical accounts of the relations between the concept of law and the other concepts are part of a Project that is both

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descriptive and general. It is general in that, as Hart claims, it does not have as an objective to explain one or one type of legal system. For Hart, in spite of the many differences in legal cultures we find in the world, the law has taken the same general form and structure. And that is what is to be explained. Hart’s project is descriptive in that the methodology he adopts does not carry with it any justificatory aims but is to be carried out in a morally neutral manner. In his Postscript to The Concept of Law, Hart discusses Dworkin’s alternative methodological approach, remarking that Dworkin’s proposal is different insofar as it is in part evaluative and morally justificatory.

Coercion and the Law To develop his theory, Hart takes as a starting point the ideas of John Austin who, according to Hart, follows the intuition of explaining the law according to the classical case of a criminal law that attaches to an order the threat of unpleasant consequences in case we “break the law.” More concretely, for Austin law can be characterized as commands where a law is simply an expression by one person of the desire that another person should do or abstain from some action, accompanied by a threat of punishment which is likely to follow disobedience. Hart’s immediate reaction to Austin’s account focuses on the sheer diversity of types of law we have to consider in our explanations of what the law is and not only the case of a criminal law statute. For example, we ignore laws that in their content confer private or public powers: private powers to make wills, contracts or marriages and public powers that authorize officials to judge, legislate and administer the law, and others that organize public power between branches of government. Nothing in the sense of unpleasant consequences in case of disobedience can be found in these types of laws. Other types of laws have a totally different origin than a desire that another person should do or abstain from some action, as in the case of customary law. Also of importance is the fact that even criminal law statutes are not exclusively commands that impose duties to their addressees because in their range of application these types of laws can also impose duties on those who legislate them. But Hart’s most pressing point against Austin is the argument that draws on the important distinctions between obligations and orders backed by threats. Hart famously mentions the example of a gunman who says to his victim “Give me your money or your life.” Here, Austin’s conditions are met in the sense that the gunman expresses a desire that the money be handed over, and a threat of punishment exists in case the victim decides to disobey. But of course it would be odd to think of this example as exemplifying the establishment of a law imposing an obligation. The most we can say within Austin’s framework is that the victim was obliged to hand over the money to the gunman, that the victim was coerced into giving up the money. But it would be odd to say that the victim had an obligation. Being obliged or coerced implies focusing on the psychological aspects of the threat in case of disobedience, but Hart rightly argues that these facts about beliefs and

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motives are not necessary for the truth of a statement that a person has an obligation, legal, or otherwise. Even if Austin or someone sympathetic to his argument claims that not beliefs and motives but the possibility of unpleasant consequences that are likely to happen if we disobey is what characterizes what an obligation is, Hart again argues that the analysis has gone wrong: The statements that a person is under an obligation are independent of predictions that sanctions are likely to occur. What is an obligation? Or more concretely, what is a legal obligation? According to Hart, being under an obligation implies the existence of a rule, so it is in Hart’s theory of rules where we might find an answer to the kind of normativity the notion of a legal obligation relies on, a question to which we now turn to.

The Nature of Rules. Hart’s Practice Theory of Rules In Austin’s theory, commands accompanied by threats of punishments are issued by a sovereign who is habitually obeyed by vast portions of society. Hart rightly questions this notion of explaining legal rules as habits of obedience and answers in the negative, due to the fact that rules and habits even though they might share some common traits such as a behaviour that is general, differ in important respects. The most important difference lies in what Hart calls the internal aspect of rules where the general behaviour is taken as establishing a standard to be followed by everyone. In the case of habits, this general behaviour need not be something that the group considers a guide for action. In fact, members of the group may not even know that their behaviour is general. Due to the fact that behaviour in the case of rules and their internal aspect is seen, by those who follow the rules as a standard to live up to, it follows that in cases of deviations, members of the group have a reflective critical attitude and criticize those who deviate while praising those whose behaviour complies with the rule. The internal aspect of rules better explains the wide array of normative language employed when criticizing nonconformity to rules such as You ought to do X, You have an obligation to do Y, or Z is wrong. It would be odd, to say the least, to employ this normative language in cases of habits. If a group, of which I am a member, has a habit of eating barbeque outside on sunny days, and one sunny day I decide not to eat barbeque outside and some other members of the group ask me why I did not eat barbeque that day, I can simply answer that I did not feel like it because I was tired. This simple answer, understandable in the case of habits, is not how we usually respond in cases of nonconformity to rules. In the case of rules, people of the group are apt to criticize my behaviour with normative language, employing concepts like ought, obligation, right or wrong, correct or incorrect. Rules also have an external aspect, but this external aspect is only limited to the convergence of general behaviour the group exhibits, the regularities in their conduct without the element of a standard as a guide to action. This external aspect of rules is a very preliminary one and it is an aspect, according to Hart, shared by rules and habits.

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Therefore, according to Hart, Austin’s theory is mistaken in fundamental ways: A characterization of law as commands backed by threats that are habitually obeyed eliminates the possibility of explaining the normative language of law. Hart’s explanation of rules is not limited to legal rules, but to social rules in general. In what is known as Hart’s practice theory of rules, he claims that what constitutes a social rule is “a form of social practice compromising both patterns of conduct regularly followed by most members of the group and a distinctive normative attitude to such patterns of conduct . . . . called ‘acceptance’”(Hart 1994, p, 255). We will discuss more in detail the type of acceptance considered in Hart’s theory, but for the moment it is important to address an initial worry: In the case of legal rules, this argument may seem very odd to a lawyer who clearly knows that I can be held accountable for disobedience from the moment a law is enacted. In other words, there is no need for any kind of social practice for a law to exist. Therefore, one might reasonably ask: Is Hart’s practice theory of rules an account that also aims to explain what constitutes a legal rule? The answer to this question is yes, but only indirectly, because it first and foremost explains what Hart calls The foundations of a legal system in the form of Rules of Recognition. The Rules of Recognition together with Rules of Change and Adjudication are what Hart calls secondary rules; they supplement a prelegal system that only has primary rules of obligation to conduct their affairs in society. These secondary rules are not obligations for all members of society, but they, in the case of Rules of Adjudication, empower a person or groups of persons to decide on matters concerning the interpretation and application of primary rules and, in the case of Rules of Change, empower a person or groups of persons to amend, repeal, or introduce new rules to the system. The Rule of Recognition is a special one that will be discussed briefly below, but it important to remark that for Hart this union of primary rules and secondary rules is the core of what a legal system is, it is the step from a prelegal system to a legal one. Let’s return to the special case of the Rule of Recognition and its relation to the practice theory of rules and answer the question of what constitutes a legal rule: Unlike rules of change and adjudication, a rule of recognition does not empower a person or groups of persons to carry out a task in the administration or adjudication of law. Rather it establishes certain criteria for the authoritative determination of what is to count as a rule of the system. It is here where Hart’s practice theory of rules is best explained, because this Rule of Recognition is necessarily constituted, as in the case with other social rules by a general practice. In this instance, the practice can be ascribed to officials – although not exclusively to them – who follow these criteria to determine the existence of legal rules in their particular system. The existence of legal rules in that system is established by conformity with those criteria. In other words, rules that attain the status of being called “valid” legal rules do so because and insofar as they comply with all the criteria established in the practiced rule of recognition. In this special practice underlying a legal system, officials adopt the internal point of view of characteristic of rules and criticize cases of nonconformity by other officials. Additionally, the Rule of Recognition is a guide for action regarding

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what is to be considered as valid law for that specific legal system. In other words, and to return to Hart’s way of characterizing his practice theory of rules, officials display a “distinctive normative attitude to such patterns” and “accept” the rule as a guide to action. To return to the lawyers worry and the mention that the practice theory of rules indirectly explains what constitutes legal rules in general, we should add that the lawyer is right in the sense that a valid legal rule, for example, one originating in a statute, can be enforced and recognized as valid independently of a general practice of following that particular rule. So the practice theory of rules does not explain what constitutes those particular valid legal rules. But it does explain what constitutes a Rule of Recognition practiced by officials and this Rule of Recognition in turn explains the validity of those legal rules the lawyer has in mind, legal rules that are considered valid because they meet the criteria established in the practiced Rule of Recognition and may be enforced as promptly as they are enacted. Of course those validated legal rules might regulate an aspect of society that in time might become a general practice seen in normative terms where individuals accept those standards as guides for action and employ a critical reflective attitude in cases of nonconformity. In this sense, the practice theory of rules and their internal aspect also explain an acceptance on the part of nonofficials of validated legal rules, but they do not explain what constitutes them as legally valid. What constitutes them as valid is meeting the criteria established in the Rule of Recognition. Hence, Hart’s notion of the internal aspect of rules and the practice theory has a benefit that is twofold: It explains the foundations of a legal system and what constitutes a rule of recognition, and it also has a methodological insight that better explains legal rules and phenomena from the perspective of a person who accepts legal rules as guides for their action. What kind of acceptance does Hart have in mind in his explanation of the internal aspect of rules? This question is of the utmost importance due to the fact that the answer promises to finally explain the normative language in law that he found Austin’s command theory incapable of explaining. Hart explicitly states: “Those who accept the authority of a legal system look upon it from the internal point of view, and express their sense of its requirements in internal statements couched in normative language. . . .Yet they are not thereby committed to a moral judgement that it is morally right to do what the law requires” (Hart 1994, p. 203). Hart wants to make clear that the acceptance involved in the internal aspect of rules and the practice theory of rules is not necessarily a moral acceptance. What other type of acceptance can explain the normative language in the law? Hart is not willing to give just one kind of reason that explains acceptance, he mentions various possibilities and goes on to claim: “allegiance to the system may be based on many different considerations: calculations of long-term interest; disinterest interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others” (Hart 1994, p. 203). This is indeed somewhat of a strange answer because it looked like Hart was willing to account for the kind of justification involved in the internal aspect of rules that finally explains its normative language. We must remember that there is a

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critical reflective attitude involved in social rules and that deviations are justifiably criticized on the basis of those rules. But here Hart instead of pressing the issue is open to admitting a wide array of considerations that can make the list. This approach runs the risk of not explaining the normativity of law at all – pick your consideration and it can probably make it to Hart’s list. It seems that Hart’s criticisms of Austin’s theory calls for an explanation of what is known as the fundamental sources of normativity where we ask not only what considerations can be adduced as reasons to do what the law requires of us, but on what sort of fundamental reasons those considerations can be explained (Worsnip 2018). They are not moral reasons, Hart immediately argues, but are they prudential? strictly legal reasons? desired based reasons? etc. Unfortunately this last question is not answered in Hart’s theory, even in his later writings and while tackling Dworkin’s criticisms of his practice theory of rules in the Postscript, he insists on limiting the explanation to a list of considerations that can be enumerated as reasons for acceptances, such as acceptance “out of deference to tradition or the wish to identify with others or in the belief that society knows best what is to the advantage of the individuals” (Hart 1994, p. 257). Maybe there is a rejoinder to the Hartian approach in explaining the normative language of law and it has to do with his methodological approach in that his account is a descriptive one that is morally neutral and has no justificatory aims. In this reading, his aim is not to answer the question on the fundamental sources of normativity, but to describe the existence of social and legal rules. Therefore, Hart’s task is not to elaborate upon the merits or demerits of those rules, or even if those rules are justified or not. Put in different words: The account is limited to explain how we have people who accept those rules and use them as guides for action, independently if they belief the reason for accepting is a justified reason or not, therefore the varied list of considerations he insisted upon (Bix 2018, p. 34; Waluchow 2011; Rodriguez-Blanco 2009).

Law and Morality As was mentioned in the beginning of this entry, Hart recognizes an important “intersection of law and morals” (Hart 1958, p. 598; Fuller 1958): Both normativities use the concepts rules, rights, duties, obligations, etc. Also many constitutional texts are full of references to moral concepts and sometimes the interpretation of our constitutions and statutes are expressed in moral language and argumentation. Despite this important intersection between law and morals, the connections between the two are just contingent. Hart at one point expresses the claim as follows: “there are no necessary conceptual connections between the content of law and morality; and hence morally iniquitous provisions may be valid as legal rules or principles” (Hart 1994, p. 268). This has come to be known as the separation thesis. Followers of Hart have struggled with this way of stating the separation thesis in the sense that for some, Hart never denied some necessary connections between law and

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morality (Gardner 2001) and for others, taking the claim literally, we must come to the conclusion that he indeed denied all necessary connections between law and morality (Green 2008). Why the confusion? Because it seems that in The Concept of Law, Hart makes two important concessions concerning necessary connections between law and morality. In the first place, he advances what is called the minimum content of natural law. Given survival as an aim for all human beings, together with the fact that we are vulnerable and need food and other goods to survive, it is necessarily the case that all legal systems have rules that overlap with moral rules that prohibit murder, violence, and theft and that protect a minimum form of property. Hart advances this thesis as one of the natural necessities in the sense that as long as these natural facts about the world and human nature remain the same, the overlap will necessarily obtain. But things one day might be different and we will no longer need some or many of these rules. Hart mentions the example of species of animals that have carapaces that make them invulnerable from attacks by other members of the species. One day maybe this can also be extended to human beings, in which case, we would no longer have a need for legal rules that protect us from these sorts of threats. The second concession is what Hart calls a minimum of justice in law, due to the fact that rules in our legal systems are general in the sense that they refer to a generality of cases and of persons. This generality introduces, into the law, an element of justice and its requirement of “treating like cases alike” where the concepts of impartiality and equality are also used. In the case of law and its general rules, the law is to be applicable, impartially and equally, to all of those that fall under the facts mentioned by the law. To add to the puzzlement, Hart, in The Concept of Law, goes through a list of other possible necessary connections between law and morality (due to authority, influence of morality in law, interpretation, criticism of law, principles of legality and justice, and in legal validity) and even though he answers that most of them reside in a confusion, and that they are not to be stated as necessary connections between law and morality, while discussing the issue of the principles of legality and justice he acknowledges that this possible necessary connection has the same shape as his already mentioned argument of the minimum of justice. He even acknowledges the importance of a wider connection in the sense that rules in law, in order for them to be characterized as rules of social control, must not only be general, they must also be intelligible, prospective, and within the capacity of most to obey (Fuller 1958). This prompts the question: Is his minimum of justice and this broader connection due to the form legal rules take in order to guide conduct, necessary conceptual connections between law and morality? Unfortunately, he ends the discussion stating: “Again, if this is what the necessary connection of law and morality means , we may accept it. It is unfortunately compatible with very great iniquity” (Hart 1994, p. 207). What are we to make of these apparent contradictions in Hart’s way of presenting the separation thesis? One suggestion (Vega 2014) is to take Hart at his word and view him as defending the thesis that there are no necessary connections between

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law and morality regarding the content of law. This strict way of understanding the separation thesis would allow us to make sense of Hart’s insistence that morally iniquitous provisions may be valid as legal rules or principles and his broader claim that iniquitous legal systems are still legal despite being morally iniquitous, but the claim is not exhaustive in other necessary conceptual connections between law and morality, necessary connections regarding, for example, the form rules of law take in order to guide the behaviour of its citizens – other authors within the tradition will go even further and argue for necessary connections between law and morality due to the claims the law makes (Raz 2003). In other words, Hart should have accepted his minimum of justice argument and the connection from the principles of legality and justice as a necessary conceptual connection based on the form rules of law take, because it does not jeopardize his main worry regarding the content of law, we can have general, intelligible, and prospective laws with iniquitous content. Therefore, Hart is to blame for not being clear enough in expressing the limited range of his separation thesis. He should have more clearly stated that the thesis has a limited scope insofar as it only deals with the content of law and should not be taken as excluding all the other possible connections between law and morality, some of which he seemed more than willing to defend.

Concluding Remarks We have two important issues remaining in The Concept of Law. One of them is on the topic of International Law and the other one on Interpretation. International law discussions are better left to other entries and research done specifically in that field, but we can conclude with a few remarks on the problems of interpretation and the nature of Hart’s claims in this regard. At one point while transforming the question What is Law? into the recurrent theme about the nature of rules, Hart not only asks what are the differences between rules and orders backed by threats or between legal rules and moral standards, he also raises the following question: Do courts really apply rules or do they merely pretend to do so? Hart has the legal realists in mind and their insistence that rules play, at best, a secondary role in adjudication. Hart tries to deal not only with the claims of the legal realists – or rule sceptics – he also confronts a different theory called formalism that claims exactly the opposite: Rules not only play a primary role in adjudication, but they exclusively decide legal outcomes. In the formalist view, this is because the role of judges is simply to identify the relevant facts and rules applicable to those facts and then make a logical deduction of the pertinent legal consequences. For Hart, both of these theories have some truth in them due to the fact that legal rules have a core of settled meaning and a penumbra of uncertainty as shown by his example of a legal rule that forbids vehicles in public parks. There will, he claims, be a core of settled meaning for the term “vehicle,” which applies to automobiles. But

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there will also be a penumbra of uncertainty regarding cases like bicycles, roller skates, etc. That there is a core of settled meaning gives some sense to the formalist claims in that sometimes legal rules can simply be applied to certain facts from which legal consequences clearly follow. But in other cases, legal rules will be best characterized as being located in a penumbra of uncertainty where the creativity of legal interpretation must be acknowledged. The sceptic has it wrong in that not all cases are cases involving the penumbra of uncertainty, and the formalist also has it wrong because neither are all cases, cases involving a core of settled meaning and a simple matter of applying a rule to the facts. It is paradoxical that these issues of interpretation have been left to a few and brief concluding remarks, due to the fact that Hart’s claims on the topic of interpretation are probably the most known to students of law not necessarily engaged in legal theory discussions. Even though Hart’s arguments on the topic of interpretation are indeed relevant and worthy of continued discussion, Hart’s intention in this part of the book was not to elaborate a theory of legal reasoning or a theory of interpretation or adjudication, as some authors strangely claim. His aim was a very modest one of trying to answer the following question: To what extent are judges constrained by the law in matters of adjudication? The answer is: to some extent, provided by the settled core of meaning of rules. I would like to thank Wil Waluchow for very helpful comments and corrections.

References Austin J (1832) The province of jurisprudence determined. John Murray, London Bix B (2018) Kelsen, Hart and legal normativity. Revus 34:34 Fuller L (1958) Positivism and fidelity to law: a reply to professor Hart. Harv Law Rev 71:630–672 https://doi.org/10.2307/1338226 Gardner J (2001) Legal positivism: 5 ½ myths. Am J Jurisprud 46:199–227 https://doi.org/10.1093/ ajj/46.1.199 Green L (2008) Positivism and the inseparability of law and morals. N Y Univ Law Rev 83:565– 580 Hart HLA (1958) Positivism and the separation of law and morals. Harv Law Rev 71:598 Hart HLA (1963) Law, liberty and morality. Stanford University Press, Stanford https://doi.org/10. 1515/9781503620612 Hart HLA (1968) Punishment and responsability. Oxford University Press, Oxford Hart HLA (1994) The concept of law. Clarendon Press, Oxford Raz J (2003) About morality and the nature of law. Am J Jurisprud 48:1–15 https://doi.org/10.1093/ ajj/48.1.1 Rodriguez-Blanco V (2009) From shared agency to the normativity of law: Shapiro’s and Coleman’s defence of Hart’s practice theory of rules reconsidered. Law Philos 28:59–100 https://doi.org/10.1007/s10982-008-9032-z Vega GJ (2014) The Hart-Fuller debate. Philos Compass 9:45–53 https://doi.org/10.1111/phc3. 12096 Waluchow WJ (2011) Lessons from Hart. PRO 5:363–383 Worsnip A (2018) Eliminating prudential reasons. Oxf Stud Normative Ethics 8:236–257

Hauriou, Maurice Eric Millard

Introduction Maurice Hauriou (1856–1929), a French legal scholar (administrative law) and legal philosopher, is mainly known to be one of the first (if not the first) to elaborate an institutional theory of law, namely his theory of the institution. A fervent Catholic (attached to Thomist philosophy and natural law), he never departed from an idealistic approach to law grounded in both the force of individual conscience and the existence of a transcendent one. He was a strong proponent of legal philosophy understood in a broad sense, i.e., as a social science concerned with legal technique, speculative philosophy, and history, not to mention sociology (at that time just emerging) and even physics (Poincaré’s thermodynamics). Hauriou’s major contribution to the theory of institutions inspired or is acknowledged by prominent legal scholars from various traditions, such as Santi Romano (1918), Carl Schmitt (1928), and Neil MacCormick and Ota Weinberger (1986), as well as nonlegal philosophers such as Jean-Paul Sartre (1960) and René Lourau (1970). To introduce Hauriou’s main contribution to legal philosophy, it is necessary to present the goals of the institutional analysis he conceived, how he was influenced by other theories, and to follow his investigations from a theory of the state to a theory of the institution.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_958-1. E. Millard (✉) Université Paris Nanterre, Nanterre, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_16

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Goals of His Institutional Analysis and Main Influences on the Theory of the Institution Hauriou is concerned to transcend a descriptive approach to the law, elaborating an explanatory model capable of articulating the state and the law. For him, all the ways to understand the law are interconnected, and the law is grounded in the social medium. Hence his approach is aimed at explicating the social dimension of the state and the law by relying on the concept of power. At the same time, his theory is intended to be fully juridical and appropriated for an account of positive law. Hauriou was strongly influenced by the vitalistic theories propounded by Henri Bergson (1859–1941), and well-acquainted with the work of Émile Durkheim (1858–1917), who defined institutions as follows: “One can call institution all the beliefs and all the modes of behaviour instituted by the collectivity [...]. Sociology is the science of institutions, of their genesis, and of their functioning” (Durkheim 1895, my translation). Hauriou’s sociological and philosophical analysis aims to challenge the thesis of the objective nature of the collective conscience, a thesis that constitutes the nodal point of Durkheim’s theory. Unlike Durkheim, Hauriou lays emphasis on subjectivism and introduces the concept of power, to replace that of the collective conscience. Hauriou’s view is that power is what enables the law to exist and to have an impact over time.

A Theory of the State Hauriou’s theory of the institutions was a continuous work in progress (Broderick 1970). During the first stages (Hauriou 1906, 1910), Hauriou laid the foundation for a broader approach to law, focusing on the explanation of the state, distinguishing two claims in this regard. The first one is that one cannot understand the concept of the state by its purported legal personhood, as a unitary entity. The latter is a construction, and before considering the state’s unitary legal status, one must embrace a pluralistic approach, investigating the way various social forces (economic, political, etc.) come together and balance each other out in forming the state. Prior to the state, some equilibrium must be reached, or some measure of organized power. This equilibrium constitutes prestate law. Hence the state is a dynamic construction shaped by, in Hauriou’s view, such juridical elements as the family, the market, and the contract: namely institutions. Hauriou asserts that the powercentered approach to law need not be systematically set in opposition to an approach based on consent. He denies any explanation of the state as a social contract or as the result of a foundational myth, emphasizing instead the role of power and the crucial issue of its acceptance by citizens, through the institutions.

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The State as an Institution At a third stage, he provided his fundamental account of this vague concept of institution (Hauriou 1925), elaborating a theoretical model which does not focus only on the state but articulates the idea of the group as an organized whole. In his own words: “An institution amounts to an idea of an enterprise [ œuvre] which takes shape and sustains itself over time in a social medium by juridical means; in order for this idea to take shape, a body invested with power is formed, a body starting from which various organs emerge; using different procedural means, the organs direct and regulate the members of the social group, which manifest their communion with one another and are concerned with implementing the idea” (Hauriou 1925; my translation). Hauriou’s theory of institutions articulates three distinct elements: an endeavor, project, or enterprise ( œuvre), that is, what has to be realized, or a raison d’être; the power wielded by an organized government; and the manifestations of communion that mutually engender one another and develop into a hierarchy within the institution. The idea of œuvre is the guiding principle of the enterprise and so of the action carried out in the social medium. For Hauriou, no idea can exist as such, without entailing action, and no action can exist that is not the implementation of an idea. The idea of œuvre encapsulates at the same time, and with no possibility of separation, the purpose and the means by which to achieve that purpose: It comprises a plan of action, and of organization. Moreover, the idea of œuvre is geared toward the future, to that which needs to be done but which cannot yet be determined. “It is through the idea, and within it, that the enterprise is objectivized and acquires a social singularity” (Hauriou 1986, 100; my translation). The idea must undergo a transformation in order to evolve from an objective status to a subjective one, or so that it can become the object of a collective enterprise. Action is necessarily human, and individuals must relate to this idea, whether by (actively) promoting it or (more passively) by subscribing to it. It is because this idea is objective that it can engender subjective actions or acts of adhesion. From the idea of œuvre flows directly the power of organized government, in that it is the purpose of organized government to promote and implement the idea. The subjective reaction that individuals have to the objective idea makes the idea effective, and in this way the enterprise can be said to have an objective status, that is, a social character. Hauriou’s theory mobilizes, restates, and enlarges two classical principles from the theory of the state. His conception of the separation of powers is clearly diametrically opposed to that of Montesquieu: It is a separation which is not structural, but temporal, instituting powers by the succession (and aggregation) of government and adhesion. He distinguishes (chronologically) the three following powers. First, the intuitive competence of an enforceable decision is the power of a minority that has an idea and takes action to implement it by way of a decision: the idea becomes the idea of œuvre, and the nature of this power is foundational rather than contractual. Second, discursive competence means that the idea, as seen by the previous power, will have

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to be scrutinized by way of rational debate: It remains in the hands of a minority of subjects, those who have become cognizant of it. Finally, suffrage, or the power of assent, is the process which allows the idea to move from the sphere of the minority to that of the majority. The majority only reacts to the idea by accepting or rejecting it, once it has been debated or expressed in a form accessible to all. When it comes to the theory of a representative regime, Hauriou considers that representation is not construed as a relationship between persons (the representatives and those being represented) but as a relation between individuals and the idea being represented. Representation requires that the government and the members of the group share the same idea of the œuvre at issue: “A body is nothing without its organs, and it wants by (or through) them; but they will want for it, not for themselves; this difficult question is solved by the principle of representation, which rests entirely on the directive idea” (Hauriou 1925; my translation). Manifestations of communion by the members of the group and the organs of government alike play a crucial role in implementing the institution. This communion indicates the existence of an immediate causal link between objectivity and subjectivity, the collective and the individual, and the group and its members. The three elements that make up an institution are articulated with regard to a fundamental principle that sustains and explains durability in the social medium: the principle of interiorization ( intériorisation). This movement from objectivity to subjectivity is made possible by two successive phenomena that characterize the dynamics of institutions: incorporation and personification. The idea is incorporated by the members of the group, who in turn implement the idea through acts of government and the different procedures available to them. This constitutes the intuitive minority government and is a first interiorization. The idea then is interiorized in a second way: It is personified. This happens when the manifestations of communion become apparent, that is, when the members of the group make the defining idea their own, in Hauriou’s words, “reflected in the individual consciences” (Hauriou 1925; my translation). This latter moment leads to the birth of an institution understood as a body proper: The majority’s adhesion replaces the minority’s intuition. For Hauriou, the law cannot in any strict sense “create” anything; specifically, this cannot be the way an institution is created: Laws exist only in reaction to something. Action works against a major corruptor: time. In order for the group not to dissolve and the idea not to be corrupted by time, it is imperative that a force be deployed to counteract the corruptive effect of time – and this force, according to Hauriou, is the law. Hence, it is not that law creates institutions, but rather that institutions necessarily generate law through the instituted ( institué), as opposed to that which institutes ( instituant), which tends to disappear over time: “Legal rules represent ideas of limits, not ideas of enterprise or creation” (Hauriou 1925; my translation).

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Conclusion Hauriou’s philosophy of law has often been described, even by those who acknowledge it, as idealist and fuzzy (Millard 2015). But as it is, it had great influence on the ideas of legal pluralism, even if it failed to give an appropriate account of the State as a sovereign, made from and by institutions, or of the State as an institution (like and among others).

References Broderick A (1970) The french institutionalists: Maurice Hauriou, Georges Renard, Joseph T. Delos, Harvard University Press, Cambridge (Mass.) Durkheim E (1895) Les règles de la méthode sociologique. Félix Alcan, Paris Hauriou M (1906) L’institution et le droit statutaire. Recueil de législation, pp 134–182 Hauriou M (1910) Principes de droit public. Sirey, Paris Hauriou M (1925) La théorie de l’institution et de la fondation. Essai de vitalisme social. Cahiers de la Nouvelle Journée 23:89–128 Hauriou M (1986) Aux sources du droit; Le pouvoir, l’ordre, la liberté, Bibliothèque de philosophie politique et juridique, Caen Lourau R (1970) L’analyse institutionnelle. éd de Minuit, Paris MacCormick N, Weinberger O (1986) An institutional theory of law, new approaches to legal positivism. D. Reidel Publishing Company, Dordrecht https://doi.org/10.1007/978-94-0157727-4 Millard E (2015) Hauriou. In Pattaro E, et Roversi C (dir.) International treatise of legal philosophy, vol 12, tome 1. Dordrecht: Springer, pp 414–422 Romano S (1918) L’ordinamento giuridico. Spoerri, Pisa Sartre J-P (1960) Critique de la raison dialectique, tome 1: Théorie des ensembles pratiques. Gallimard, Paris Schmitt C (1928) Verfassungslehre. Duncker & Humblot, München, Leipzig

Heck, Philipp Joaquín Garrido

Introduction Philipp Heck was born in St. Petersburg on 22 July 1858. He spent his early childhood in St. Petersburg and Wiesbaden, where he moved at the age of 12. Young Heck began his studies of Mathematics and Natural Sciences in Leipzig but was soon attracted to Jurisprudence, to which he entirely devoted himself for six decades. His itinerary as a Law student, interrupted for a year by military service, followed the cities of Leipzig, Heidelberg, and finally Berlin. According to his own account, it was the late texts of the second Jhering that attracted his attention to Legal Science. His intellectual work had two strands, one historical-legal and the other methodological. He turned to History under the influence of his two great teachers, Heinrich Brunner and Otto von Gierke. However, his work on the history of German law was controversial and received little attention (Bader 1944, 539). It was his second methodological strand of study that made Philipp Heck one of the most prestigious jurists of his time, a time that was marked by the methodological debates that opened up in the field of Jurisprudence due to Germany’s entry into the Age of Codification. Heck’s successful and rapid academic career was consistent with the heyday of German intellectual life at the time. In 1889, he obtained his doctorate under the supervision of Levin Goldschmidt with the doctoral thesis Zwei Beiträge zur Geschichte der Großen Haverei and in the same year he attained his “habilitation” Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0_767-1. J. Garrido (✉) Faculty of Law, University of Seville, Seville, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_17

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qualification in Berlin with his work Das Recht der Großen Haverei under the supervision of Goldschmidt and Gierke. Two years later, at the age of 32, he moved to Greifswald as a full professor, a position he exchanged with Halle the following year, replacing Eugen Huber. In 1901, he settled in the small but intellectually stimulating city of Tübingen to take up the professorship of German Law, Commercial and Exchange Law, and Civil Law. There he became Dean in 1904/ 1905, 1915/1916, 1919/1920, and Rector in 1911/1912. He remained in Tübingen until his emeritus professorship in 1928, surrounded by prestigious colleagues with whom he maintained close ties. Tübingen University hosted the famous school of Interessenjurisprudence, defended by Max v. Rümelin and Heinrich Stoll, promoted by Eugen Ehrlich from 1917 and, with some differences, by Rudolf Müller-Erzbach. However, its most relevant advocate was Heck himself, whose work in Tübingen was awarded the Cross of Honour of the Crown of Württemberg. He took part in the First World War as a reserve officer. In 1936, he joined the Akademie für Deutsches Recht, and in 1938, he received the Goethe Medal for Science and Art. Heck, married to Helene Heck in 1895, fathered a son, Karl Heck, who was to become a judge at the German Constitutional Court. Philipp Heck died on 28 June 1943 at the age of 84.

Heck’s Methodological Approach The foundation of the Jurisprudence of Interests, which, as the basis of the Jurisprudence of Values (Wertungsjurisprudenz), is still of great importance for the legal methodology in Germany today, is inseparably linked to the name of Philipp Heck. His principal works on the Jurisprudence of Interests appeared between 1905 and 1937, following three phases which are usually periodified as 1905–1914 (the foundation of the method), 1914–1933 (development), and 1934–1937 (defense against National Socialism) (Schoppmeyer 2001, 49 ff.). The doctrine did not undergo significant changes in these periods, and Heck’s methodological texts attained scholarly recognition from the very beginning. Heck tried to extend his methodological postulates to the dogmatic areas of Civil Law, namely that of obligations (Grundriss des Schuldrechts, 1929) and rights in rem (Grundriss des Sachenrechts, 1930). Heck’s theoretical contributions must be read from the political context to which he belonged. Clearly conservative and an advocate of the rule of law, Heck was a member of various right-wing liberal parties of both the Empire and the Weimar Republic, but never of the NSDAP. Heck’s relationship to National Socialism has been much discussed. From 1933 onwards, a methodological debate began, leading to the discrediting of the Jurisprudence of Interests. Leading representatives of the new legal worldview, such as Julius Binder, Karl Larenz, Carl Schmitt, and Ernst Forsthoff, identified the liberal features of Heck’s work with the enemies of the new “philosophy”: positivism, materialism, and individualism (Larenz 1937, 274 ff.). Heck’s attempts to adapt his method to National Socialism have fueled views that

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bring him closer to the new regime. But it is also true that he confronted the objective idealism of Larenz and Binder, i.e., the great names of the movement. The Jurisprudence of Interests is largely responsible for the shift in German legal methodology at the turn of the century. To understand the key ideas and premises of the Jurisprudence of Interests, one must first be familiar with the preceding methodology, developed at the beginning and middle of the nineteenth century and linked to the Historical School of law and the science of Pandects (Savigny and Puchta). For this nineteenth-century historicist doctrine, law emerges from the popular spirit or Volksgeist: it is not a disjointed aggregate of norms, but a rational organic whole, a system. Hence, legal decisions that cannot be derived from the law are derived from the system and the concepts and principles contained therein. The Jurisprudence of Interests, originated in the Jurisprudence of Ends (Zweckjurisprudenz), is based on a different concept of Law, which, rather than a product of reason or the national spirit it is of the will of society or the legislator. Law is “erklärte Wille der Gesamtheit” (1914, 14). There is thus a shift from a “rational” or “idealist” conception of law to a “voluntarist-positivist” one. This new conception began with Rudolf v. Jhering, one of the greatest nineteenthcentury Pandectists, who in the third volume of his first monograph, The Spirit of Roman Law at the Various Stages of its Development, broke with the methodology of the time and asserted “life” and not “logic” as the decisive factor in law. Heck’s Jurisprudence of Interests is the most elaborate version of the new conception of law inaugurated by Jhering (and enshrined in his Law as a Means to an End, where he states in the first volume – 1877 – that “The purpose is the creator of all law”). The fundamental premise of the Jurisprudence of Interests is that law must always be derived from a weighing-up of the interests at stake and not from scientific concepts, as had been proposed by the Pandectists or the Jurisprudence of Concepts (it is, however, important to notice that the recent historiographical readings of the famous Begriffsjurisprudenz defend that its methodology was not as geometrical as its critics claimed). According to Heck, the Jurisprudence of Concepts operates with a false “inversion method” (1912, 9), which first forms a general scientific concept from the provisions of positive law, and then “inverts” it and applies it to a case that was not yet known when the concept was formed. The Jurisprudence of Interests no longer works with scientifically constructed concepts and principles, but with a weighing of interests of the individual case. It is “life,” the recurring topos of the time, which Heck intends to serve (although he clearly distanced himself from the “philosophies of life” in vogue at the time) (1932, 24). According to Heck, the term interest should be understood in the broadest possible sense. Interests are “all dispositions of the mind” causal for the creation of law, both material and idealnormative. These include the interests of justice, fairness, and legal certainty. Therefore, the Heckian thesis of the causality of interests for the creation of law does not imply a naturalistic concept of law, nor the idea that legal agents are bound to the interests of the empirical world without the possibility of attending to their own evaluation in the process of creating law.

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The Political Dimension of Method and the Role of the Judge From a legal-political point of view, it has been emphasized Heck’s adherence to modern constitutional requirements. The fact is that Heck constructs his theory in a time, the codification period, which considers the will of the legislator embodied in the law to be supreme, namely in the conflicting interests that each law decides to protect. The legislator is the source of the law and the legal decision-making bodies, i.e., the entire legal profession and especially the judiciary follow the legislator on the basis of a “thinking obedience” (denkendem Gehorsam), in Heck’s famous expression (1912, 19). The clarification of legal decisions must proceed strictly empirically as an “investigation” of the facts that have had significance as “causes for legislative ideas.” The historical investigation of interests thus becomes a fundamental task in the interpretation of norms (a task that Heck details in his Gesetzesauslegung und Interessenjurusprudenz, which appeared in the Archiv für die civilistische Praxis in 1914, a journal of which he was editor from 1902 until his death). But this is not a subjective theory of interpretation in the classical sense. It is not a matter of knowing the legislator’s will; instead, what is sought, is to trace the real conflicting interests that originated the legislative pronouncement. This hermeneutic activity based on factual grounds confers objectivity to this cognitive work (1914, 60, 111). At the center of all of Heck’s legal methodology is the problem of obtaining law through judicial decisions, because these determine most decisively the influence of law on life (1912, 7). The judge is bound to the mandates that have been expressed in the law, which are the expression of the will of the community. This is the point at which Heck and his Jurisprudence of Interests depart from the other great methodological renewal current of the time, the Free Law School (Freirechtsschule: Eugen Ehrlich, Hermann Ulrich Kantorowicz, Ernst Fuchs, Ernst Stampe – although the group does not retain the homogeneity in its positions that has traditionally been given to it). At the center of the discussion is the problem of legal loopholes. For the advocates of the Freirechtsschule, the judge is not bound in these cases by the value judgments of the law, but it is the judge’s own judgements that provide the standard for the weighing of the case (which will have its own law: sua lex 1932, 105). The judge is not here, as for Heck, “thinking assistant” (“denkender Gehilfe”) of the law, but “far-sighted judge king” (“weitschauender Richterkönig”) (1912, 26). On the other hand, Heck links the application of the law as closely as possible to the law in cases of lacunae. This is done by “indirect” verification of the law, in the comparison of cases by analogy or argumentum a contrario with regulated cases. Only if there is no clue can one finally resort to possible “community values” through “self-assessment” (1905, 1141). Heck rejects the fundamental theses of the Freirechtsschule because by detaching the judge from the norm, it authorizes him to create law, thus undermining legal certainty and the identical treatment of similar cases (1933, 7).

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Legal Science Heck famously distinguished between two systems: an external system that refers to the external arrangement of legal material for the purpose of exposition, and an internal system that expresses the factual connection of particular legal ideas, that is, a “system of conflictual decisions.” This connection makes it possible to organize the system based on a classification of general concepts (1932, 149 ff.). But this systematization task is always subordinated to the evaluation of the underlying interests; a deductive conceptual system alike the Jurisprudence of Concepts is rejected by Heck. This conception of the system has earned him criticism from those who consider that individual conflict decisions do not provide a general or comprehensive view of the law (Canaris 1969, 35 ff.). Here again lies a fundamental difference between Heck’s thesis and the Jurisprudence of Values (Wertungsjurisprudenz), for the latter is based on the Kantian or Hegelian belief in a “reason” which transcends positive law and which allows the “idea of a whole” to be projected onto each individual proposition. In contrast to this view, Heck starts from an empiricist-nominalist understanding which does not recognize any “legal idea” over and above the facts. His doctrine is based on a “conflict theory” (Konfliktstheorie): the law does not express a uniform conglomerate of values but results from a kind of state of nature that opens up a field of opposing interests (1933, 13). The influence of Thomas Hobbes and, more closely, of Max Weber, with whom Heck shared his academic training under the joint tutelage of Goldschmidt, is thus apparent (Dorndorf 1995; Schoppmeyer 2001, 160 ff.; Auer 2008, 524). This “conflictual” dimension of the Jurisprudence of Interests also makes it possible to see the differences with the more general teleological jurisprudence, because the latter does not find the law from the empirical needs of the case but arrives at it from a semi-idealized system of ends. This was Heck’s criticism of Larenz when he demanded a teleological foundation of the methodology, thus – according to Heck – coming closer to the postulates of the Jurisprudence of Concepts – as a doctrine that starts from a priori legal postulates. Heck’s method can therefore be described not so much as “Philosophy-free” (as he nevertheless considered it to be: 1932, 25; 1937, 140) but as “Metaphysic-free” (Auer 2008, 525).

Conclusion Heck trusted in the possibility of endowing legal thought with an empirically verifiable rationality that would allow the determination of law based on the interests of the concrete case. He was one of the first to point out the need to consider the conflict of interests in formulating any legal decision. It can therefore be said that he was an early thinker of legal weighting (Abwägungsdenken), which is so much in vogue in legal theory today.

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For Heck, there is no contradiction between obedience to the law and its incompleteness. Although he refers to the judge as a “servant” and in this sense advocates a historical-subjective theory that promotes a methodical and honest approach to the law, in reality, he grants the judge essential freedom in the exercise of his functions. Despite its critics, Heck’s Jurisprudence of Interests denied neither concepts, nor the social, nor life, nor even values. But in order to be normatively authorized, they all have to pass through the filter of legislation or the “thinking obedience” of the judiciary and other law enforcers. This last element bears a political dimension that cannot be neglected when attempting a fair assessment of Heck’s doctrinal contribution.

References Auer A (2008) Methodenkritik und Interessenjurisprudenz. Philipp Heck zum 150. Geburtstag. Z europäische Privatrecht 16(3):517–533 Bader KS (1944) Philipp von Heck. Z Savigny-Stift Rechtsgesch Ger Abt 64:539–545 Canaris CW (1969) Systemdenken und Systembegriff in der Jurisprudenz entwickelt am Beispiel des deutschen Privatrechts. Duncker & Humblot, Berlin Coing H (1968) Benthams Bedeutung für die Entwicklung der Interessenjurisprudenz, und der allgemeinen Rechtslehre. Arch Rechts Sozialphilos 54:69–88 Dorndorf E (1995) Zu den theoretischen Grundlagen der Interessenjurisprudenz: die Beziehungen von Philipp Hecks allgemeiner Auslegungstheorie zu Max Weber und Heinrich Rickert. Arch Rechts Sozialphilos 81(4):542–562 Heck P (1889) Das Recht der grossen Haverei. Müller, Berlin Heck P (1905) Interessenjurisprudenz und Gesetzestreue. Deutsche Juristenzeitung 24:1140–1142 Heck P (1912) Das Problem der Rechtsgewinnung. Mohr, Tübingen Heck P (1914) Gesetzeauslegung und Interessenjurisprudenz. Arch civ Prax 112:1–318 Heck P (1929) Grundriss des Schuldrechts. Mohr, Tübingen Heck P (1930) Grundriss des Sachenrechts. Mohr, Tübingen Heck P (1932) Begriffsbildung und Interessenjurisprudenz. Mohr, Tübingen Heck P (1933) Interessenjurisprudenz. Gastvortrag an der Universität Frankfurt a. M. gehalten am 15. Dezember 1932, Mohr, Tübingen Heck P (1937) Rechtsphilosophie und Interessenjurisprudenz. Arch civ Prax 143:129–202 Hippel F v (1972) Die Tübinger Schule der Interessenjurisprudenz. In: Pleyer J, Schultsz D, Schwinge E (eds) Festschrift für Rudolf Reinhardt. Otto Schmidt, Köln-Marienburg, pp 83–94 Kallfass W (1972) Die Tübinger Schule der Interessenjurisprudenz. Klostermann, Frankfurt a. M Larenz K (1937) Rechtswissenschaft und Rechtsphilosophie. Arch civ Prax 143:257–281 Larenz K (91991) Methodenlehre der Rechtswissenschaft. Springer, Berlin/Heidelberg Manegold J (32017) Methode und Zivilrecht bei Philipp Heck. In: Rückert J, Seinecke, Ralf (eds) Methodik des Zivilrechts – von Savigny bis Teubner. Nomos, Baden Baden, pp 203–218 Rückert J (2008) Vom „Freirecht“ zur freien „Wertungsjurisprudenz“ – eine Geschichte voller Legenden. Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Ger Abt 125/1:199–255 Rückert J (2017) Interessenjurisprudenz, Verfassungswandel, Methodenwandel, Juristenjurisprudenz? Juristen Zeitung 20(72):965–974 https://doi.org/10.1628/ 002268817X15063433200829

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Salgado MJ (2011) La Jurisprudencia de intereses de Philipp Heck. Comares, Granada Schoppmeyer H (2001) Juristische Methode als Lebensaufgabe. Leben, Werk und Wirkungsgeschichte Philipp Hecks. Mohr, Tübingen Schröder J (2010) Philipp Heck und die Freirechtsbewegung. In: Lobinger T et al (eds) Festschrift für E. Picker, pp 1313–1328 Wieacker F (21967) Privarechtsgeschichte der Neuzeit. Vandenhoeck & Ruprecht, Göttingen

Jellinek, Georg Vivianny Kelly Galvão

Introduction Georg Jellinek (1851–1911) was a member of the famous German School of Public Law, founded in the late 19th century. He taught legal philosophy and public law for a long time in Vienna (1883-1889). In 1889, he taught at the University of Basel. He then moved to Heidelberg. At the University of Heidelberg, he was a professor of constitutional and international law and political science, from 1890 until his death. In Heidelberg, he joined Ernst Troeltsch (1865-1923) and the sociologist Max Weber (1869-1920) at Eranos Circle. These scholars were interested in knowing the origins of the forces that drove modern Western capitalism and rationalism. In addition to being a jurist, Jellinek was undoubtedly a political thinker, one of the most prominent thinkers in 19th century European liberalism and one of the leading authors identifying in the State the center of gravity of the theory of law. In this sense, his concept of State self-limitation stands out. Jellinek was a complex thinker who addressed important issues in the field of law. War, the validity of norms, public law, the constitution, positivism, and the nature of law were all areas of inquiry to which the German author made great contributions.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0. V. K. Galvão (✉) Tiradentes University Center, Maceió, Brazil © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_18

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Social and Legal Aspects of the State Fernando de los Ríos – Jellinek’s translator and prologue writer for the Spanish edition of Teoría General del Estado (1900 – Allgemeine Staatslehre) – says that it is necessary to consider the strong influence that the thoughts of jurists Gerber and Gierke had on Jellinek’s ideas (2000a, prologue, p. 13-52). In 1865, the work of Gerber, Grundzüge eines Systems des deutschen Staatsrechts, presents two notions that will be fundamental to the legal theory of the State: the notion of political power as a right of the State and the question of the moral personality of the State. For Gerber, Political Law must be investigated and exposed from an exclusively legal perspective (2000a, prologue, p. 13-52). In 1874, Gierke writes Die Grundbegriffe des Staatsrechts und die neuesten Staatsrechtstheorien and, from the questions raised by Gerber, it opens “a new path for legal ideology”. Gierke recognizes the State’s organic nature and attributes to law the essential function of limiting the external domain of the will within the human community. State and law need each other. The author creates the concept of the existence of organs for absolute public law (political law) to make the idea of personality possible outside the field of private law, since, for him, all law is born from personality. All of these ideas have an influence on Jellinek’s work and on his interest in the scientific treatment of public law. In Jellinek, law is one of many social attributes, an ethical minimum that exists to keep society alive. The law should be created systematically by the same will and the protection and realization of the interests supported by the law becomes the State’s main end. According to Jellinek, the State has social and legal aspects. As to the social aspect, the State is a social construction, the State limited itself (Selbst-beschränkung) by relating itself to citizens. This concept is clearly theorized in Das System der subjektiven öffentlichen Rechte (1892). As to the legal aspect, the State is a subject of law (2000a, prologue, p. 13-52).

Ethical and Legal Order, and the International Law In General Theory of the State, when raising the question of the obligation of law, Jellinek points to the principle of moral self-obligation as the ethical foundation of the legal order. Although he uses an extra-legal property to identify the root of the mandatory force of law, Jellinek takes a more formal position when considering the possibilities for changing constitutional rules (2000a). In Verfassungsänderung and Verfassungswandlung: Eine staatsrechtlichpolitische Abhandlung, of 1906, Jellinek distinguishes reform in the Constitutions from constitutional mutation by the presence or absence of the intention to modify them. Constitutional reform is the change produced through voluntary and intentional actions, whereas in the constitutional mutation there is an absence of the

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intention to change. In this case, the constitutional text remains, formally, intact. Normative acts, customs, interpretation, administrative and parliamentary practices would be examples of means for constitutional mutation. Smend and Heller will deepen the idea of constitutional mutation developed by Jellinek (and elaborated by Laband) in Theory of the Constitution. Another contribution by Jellinek is included in voluntarist and objectivist views about the foundation of International Public Law. In the theory of self-limitation (Jellinek), collective will (Triepel), the consent of nations (Hall, Oppenheim) and the delegation of domestic law(Wenzel), the foundation of international law starts from the will of States. In the basic rule theory (Kelsen), as to the fundamental rights of States (Grotio, Wolff, Pillet, Rivier), in sociological theory (Duguit, Georges Scelle), in natural law (Le Fur), in the theory of necessity (Bentham), as to nationality (Mancini), and as to pacta sunt servanda (Anzilotti), the obligation of international law resides in an element above the States; therefore, they are objectivists. Monists do not deny the possibility of conflict between the legal norms of international law and the legal norms of domestic law. Two solutions emerge from this situation: monism with primacy of international law and monism with primacy of domestic law. The latter reveals a strong influence of the Hegelian notion of the State characterized by its absolute sovereignty. State self-limitation reduces international law to an external representation of state law. According to Jellinek, international law is at the service of States (2000, p. 354). This movement was also adopted by Georges Burdeau, who pointed out the legal value of declarations of law as statements of positive law but restricted its positivity (in the sense of creating law) to the activity of the internal legislative authority. (Burdeau, 1961, p. 21-22).

Subjective Rights Jellinek also contributed to the analysis of subjective rights. He developed the theory of “subjective rights” in his work of 1892, and with the essay of 1895 on the Declarations he made a step forward, explaining how concretely and historically the State self-limitation process took place. Gregorio Peces-Barba (1981, p. 169-253) points out in Erklärung der Menschen- und Bürgerrechte, including the response to Émile Boutmy, Jellinek made a significant contribution to the historical analysis of the origin of human rights. Jellinek presented a new path to the analysis of rights by seeking the historical origins of the rights of man. This critical reflection, within the tradition of Western thought, contributed to an emphasis on the religious dimension of these rights, including the level of formation of their values and ethical principles. It is undoubtedly an important source for possibly redefining the idea of axiological inheritance in the Universal Declaration of Human Rights. The debate between Jellinek and Boutmy over the foundations of the 1789 French Declaration added important nuances to Jellinek’s thinking. According to Jellinek, the birth of the philosophy of the rights of man took place with the Declarations of Rights.

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The French Declaration of 1789, according to Jellinek, reveals political and historical aspects, as well as legal aspects. For him, before the French Declaration, the juridical-political literature only knew the rights of the Heads of States, privileges of class, individuals or corporations. The Declaration would have influenced the French Constitutions of September 3, 1791 and November 4, 1848 to include recognized rights of people (previously known only under Natural Law). Until 1848, most German constitutions talked about subjects’ rights. After that date, the German Assembly began to legislate what the author calls the fundamental rights of the German people (Jellinek, 2000, p. 42). The reference to the German people expresses the crucial connection between subjects’ rights and the relevance of the State. It is but the State as a subject of law that establishes rights for persons as subjects in law. Jellinek criticizes the superficial approach of research on the origin of the French Declaration of 1789. For him, the works of political law only listed the precedents of the Declaration (from the Magna Carta to the American Declaration of Independence) without further investigating the sources that inspired the French. Social contract theory (as the basis for the French Declaration) and the Declaration of Independence of the 13 United States of America (as a model for the French Declaration) were at the center of Jellinek’s reflections on the sources of the Declaration.

The Social Contract and the Origins of the Rights of Man Another point that deserved criticism from the author was the idea of the influence of the social contract on the French Revolution because, for him, Rousseau only presented one principle in the social contract - the transfer of all rights of the individual to society. Any right would follow from the general will. In view of this, there would be no conservation of any individual rights upon entering the State. All civil freedom would be lost. There would be no idea of original right transferred to society to legally limit the sovereign. There would even be freedoms contrary to the State (freedom of religion; right of association). The social contract would not be born of individual rights, but of the omnipresence of the general will, therefore, nothing would be more contrary to the Declaration than the basis of Rousseau's social contract (Jellinek, 2000, p. 45-47). Thus, Jellinek’s interpretation of Rousseau implied a critical view of democratic liberty as opposed to liberal liberties. For Jellinek, liberal liberties were the ability of individuals to conquer a space of personal freedom and it is in self-limitation that this space was delimited by law. As for the influence of the social contract on the French Declaration - it generally points out in arts. 4, 6 and 13 - Jellinek examined the Bills of rights of the Particular States of the North American Union. For Jellinek, in the French parliamentary archives there was already a chapter dealing with the need to establish rights for the people and it was the Marquis de Lafayette who presented this proposal to the National Assembly on July 2, 1789. Although Lafayette, a French aristocrat,

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participated in the War of Independence of the United States of America and the beginning of the French Revolution, Jellinek dismissed the claim that the Marquis had been influenced by the United States Declaration of Independence. According to the Marquis' memories cited by Jellinek, the Declaration of Independence only formulated principles of national sovereignty and rights to change the form of government (Jellinek, 2000, p. 49-53). Regarding constitutional movements prior to the French Revolution, Jellinek pointed out that the Constitutions of the Particular States of the Union were preceded by Declarations of Rights. The first was the Virginia Declaration (Jellinek, 2000, p. 51). On May 15, 1776, the Philadelphia Congress represented the colonies that wanted the separation from the English Crown. Of the thirteen colonies, eleven had joined the rupture, while two transformed the colonial letters granted into Constitutions (Connecticut Letter of 1662 and Rhode Island of 1663). The State of Virginia was the first to adopt a constitution with a Bill of rights between June 6 and 29, 1776 at the Williamsburg Convention. It influenced the other Constitutions and the United States Congress. Jellinek recalls that Jefferson, a citizen of Virginia, was his editor. Thus, the author admits the influence of the Virginia Declaration on the model adopted by the French Declaration of 1789. The English Declarations, on the other hand, did not have as much impact on the model adopted by the French revolutionaries. For Jellinek, both the French and the American Declarations enunciated abstract principles with the same passion. However, the French Declaration, by adopting the American model, would have “fallen short” of it. It would only surpass it in content when, briefly, it dealt with, in art. 10, expressions of opinion in religious matters. And yet, it only proclaimed tolerance and not religious freedom. According to the author, the abstract principles enunciated created organized communities in the United States, while in France, they generated social disturbance (Jellinek, 2000, p. 67-70). Jellinek maintained that English texts (Magna Charta Libertatum of 1215, Petiton of Rights of 1627, Habeas Corpus of 1679 and Bill of Right of 1689) would not remain the foundation of the American Bill of Rights. In addition to the lapse of time, Jellinek pointed out (based on Baneroft - historian of the American Revolution - and Sir Edward Coke - English jurisconsult) that English laws were purely historical, timely and had no intention of recognizing general “man’s” rights. The American Bill of Rights determined the line of separation between individuals and the State, while English laws dealt with State duties (Jellinek, 2000, p. 71). Only two (of thirteen) points referred to the rights of subjects. The people's rights were limited to the idea of restrictions imposed on the Crown (medieval conception - 5th and 15th centuries - visible in the Germanic state in which the people and the prince, being opposed and independent, would need to establish a contractual relationship). English laws only spoke of the old rights and freedoms. The American Declarations recognized a much larger list of innate and inalienable rights for everyone from birth. Since the model adopted by the American Declarations would not come from English law, Jellinek turned to the conceptions of natural law at the time. Rather, such conceptions emphasized that the old conceptions of natural law had not been developed to be confronted with positive

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law (eg, Ulpiano viewed the equality of men by natural law and accepted slavery as an institute of civil law, as well as Locke in the Constitution of the North Carolina) (Jellinek, 2000, p. 77-79). The origin of universal rights “of man” would be in the religious freedom of the Anglo- American colonies, especially in the Congregationism of Brown – at the end of the 16th century in England – the origin of the primitive form of Independentism. It was about the idea of the separation between Church and State, as well as autonomy for each community. The milestone in England for the development of this thought was the submission of the agreement of the people to the General Council of the Cromwell’s Army on October 28, 1647. The agreement, transformed into a project and presented to the English Parliament, contained the proposal to limit the Parliament and leave religious issues to individual conscience. These “settlement pacts” were carried out by the congregational pilgrim priests at the foundation of the English colonies in the new world who created contracts in accordance with their ecclesiastical and political principles. The pacts recognized and guaranteed religious freedom. They were celebrated both in Salem (Massachusetts) founded by Puritans in 1629, and in Providence, founded in 1636 by Roger Williams, based on the ideal that “man’s conscience belongs to himself, not to the state”. In one way or another the pacts regulated only civil matters. From there, the form of direct democracy would have “naturally” emerged (Jellinek, 2000, p. 79). The absolute religious freedom sought by Roger Williams was only officially recognized through the Rhode Island Code (1647) and the Charter (1663) that Charles II granted to the Rhode Island colonies and Providence Plantations. Europe would only experience something like this with the Maxims of Frederick of Prussia in 1740. The principle of religious freedom would have achieved a legalconstitutional consecration in America. The right to freedom of conscience proclaimed the birth of a “man's right”. Jellinek noted that the idea of making such rights positive was not political; it was, however, religious. According to the Jellinek, it was actually Roger Williams, and not Lafayette, who was the first apostle of “human rights” (Jellinek, 2000, p. 80). The strength of historical events helped to emphasize theories of natural law. Jellinek criticized the abstraction of these rights and pointed to the requirement for a list of fundamental rights recognized expressly by the State. Crucial aspects of the theory of the state raised from this perspective. It is the state that recognizes rights in order to allow the implementation of its own functions and powers. With the economic development of the colonies, more measures emerged in an attempt to restrict their economic activities, even in the face of the recognition of American colonists as English citizens. At this time, the idea of freedom of conscience already existed, as well as the recognition that people keep their rights in society - rights recognized by the State and against the State (Jellinek, 2000, p. 80-86). In this regard, the Jellinek’s theory on the State self-limitation shows the absence of intra-systemic limits, as a matter of fact within the dimension of rights recognition, the State capability to limit its action is related to a people civilization degree.

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Attempts to limit colonies spurred the movement to formally declare these rights. These declarations recognized rights to personal freedom, property, conscience, rights to individual freedoms (press, assembly, establishment), they also recognized rights of petition, legal protection, applicable judicial procedure and political guarantees, in general, public rights of individuals. The texts also provided for the principle of the separation of powers and the responsibilities of civil servants, the temporality of occupying positions and limits to their exercise. Sovereignty belongs to the people and the constitution must be formulated by all. Jellinek points to the contradictions in the use of the terms man and freeman, in place of the term citizen (2000, p. 87-89). The original terms gave rise to the denial of humanity by some human groups (by race, gender etc.). While the Americans proclaimed what they already had, the French declared what they wanted to build. This would be the biggest difference between the declarations. So, why did the doctrine of the original rights of man become so important? Jellinek pointed to the strong opposition to monarchies with absolutist tendencies. For him, Locke's doctrine only exercised greater influence after the French Revolution, with the transformations it brought about. The XIX century philosophical theoretical reflection overcomes a monistic perspective toward the Lockean dualistic one. Roman law failed to penetrate England. However, the Reformation and the performance of the Church provoked reflections in the sense of limiting the State (Jellinek, 2000, p. 96). In this way, Jellinek presented a historical and positivist foundation of the rights of man in his 1895 work. His approach is thoroughly coherent with the relevance of the State in the understanding of the subjects’ rights foundations. The history of religious freedom in the first North American colonies impacted the development of the Declarations of rights and these included a series of freedoms already experienced by the American colonies. Therefore, historically recognized liberties became rights through State recognition. As such, Jellinek was moving away from the foundation of rights by jus-naturalist theories and overcoming the notion of “natural rights” through classical positivist and historical arguments. This argumentative conceptual construction in Jellinek’s jus-positivism is, without a doubt, one of the most striking differences between him and his predecessors, such as Gerber and Laband. In response to the theory supported by Jellinek about the contradiction between the Declarations of law and the principles of the Social Contract, Émile Boutmy (1907, p.122) argued that Rousseau's philosophy and the maxims of the Social Contract could have influenced part of the articles of the French Declaration of 1789. According to Boutmy, the Declaration is in no way contradictory to the principles of the Social Contract. The social contract would represent a convention between two characters, one abstract (the totality of individuals) and the other concrete (the unanimity of individuals considered in isolation). The consequences of the Contract would be the constitution of a political body, composed of the State (or sovereign) and citizens (or subjects), and the establishment of the relationship between the members of that political body. The link between them (State and citizens) would consist in the complete alienation of the individual, his personality

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and his assets to the State and then in the reconstruction of the individual by the State, with the guarantee of everything that was necessary to ensure to each one the same enjoyment of rights. That is why the citizen would be freer before the Contract than afterwards (1907, p. 124-125).

Conclusion Like the Declaration, according to Boutmy, the essence of the Contract would be equal rights for all citizens, the foundation of the law with a view to maintaining equality between them and the inexhaustible generality of the law. This would remove any idea of contradiction between the Declarations of law, especially the French Declaration of 1789, and the principles of the Social Contract and Rousseau’s philosophy (1907, p. 125). Is the search for the origin of the 1789 French Declaration at the same time a foundation for a historical vision of human rights? The French Declaration of 1789 should not be reduced to a mere copy of the American Declarations, and this was pondered by Jellinek in responding to Boutmy’s criticisms.

References Georg Jellinek, (1872–1910) 1911 Ausgewählte Schriften und Reden. 2 vols. Edited by Walter Jellinek. Berlin: Häring. —, (1878) 1908 Die sozialethische Bedeutung von Recht, Unrecht und Strafe. 2d ed., rev. Berlin: Häring. —, 1880 Die rechtliche Natur der Staatenverträge: Ein Beitrag zur juristischen Construction des Völkerrechts. Vienna: Hölder. —, 1882 Die Lehre von den Staatenverbindungen. Berlin: Häring. —, (1887a) 1964 Gesetz und Verordnung: Staatsrechtliche Untersuchungen auf rechtsgeschichtlicher und rechtsvergleichender Grundlage. Aalen (Germany): Scientia. —, (1892a) 1964 System der subjektiven öffentlichen Rechte. 2d ed. Darmstadt (Germany): Wissenschaftliche Buchgesellschaft. —, (1895) 1901 The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History. New York: Holt. → First published as Die Erklärung der Menschen- und Biirgerrechte. —, (1900) 1960 Allgemeine Staatslehre. 3d ed., rev. & enl. Bad Homburg (Germany): Getner. —, 1906 Verfassungsänderung and Verfassungswandlung: Eine staatsrechtlich-politische Abhandlung. Berlin: Häring. —, Die Weltanschauungen Leibnitz’ und Schopenhauer’s: Ihre Gründe und ihre Berechtigung. Eine Studie über Optimismus und Pessimismus. Hölder, Wien 1872 (phil. Dissertation, Universität Leipzig). —, Österreich-Ungarn und Rumänien in der Donaufrage: Eine völkerrechtliche Untersuchung. Hölder, Wien 1884. —, Gesetz und Verordnung: Staatsrechtliche Untersuchungen auf rechtsgeschichtlicher und rechtsvergleichender Grundlage. Mohr, Freiburg im Breisgau 1887b. —, System der subjektiven öffentlichen Rechte. Mohr, Freiburg im Breisgau 1892b.

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—, Allgemeine Staatslehre (Recht des modernen Staates. Bd. 1). Berlin 1900; 2. Auflage 1905; 3. Auflage 1914. Costa P., Civitas. Storia della cittadinanza in Europa. 3. La civiltà liberale, 4 voll., Roma-Bari, Laterza, 2001, vol. III: pp. 182-190. Groh K., Human rights and subjective rights: affinities in Max Weber and Georg Jellinek, LondonNew York, Routledge, 2015. Marra R., La religione dei diritti. Durkheim, Jellinek, Weber, Torino, Giappichelli, 2007. La Torre M., La lotta del ‘nuovo’ diritto contro il ‘vecchio’. Georg Jellinek pensatore della modernità, in “Quaderni fiorentini per la storia del pensiero giuridico moderno”, 27, 1998, pp. 117-149. Lepsius O., Georg Jellinek’s Theory of the Two Sides of the State, in Bersier Ladavac N., Bezemek C., Schauer F. (eds), The Normative Force of the Factual. Law and Philosophy Library, Dordrecht, Springer, 2019, pp. 5-28. Loughlin M., Georg Jellinek’s Theory of the Two Sides of the State, Oxford, Oxford University Press, 2010. Stolleis M., Geschichte des öffenlichen Rechts in Deutschland, 4 voll., München, Verlag C.H. Beck, 1988-2012, vol. II. Valera G., Coercizione e potere: storia, diritti pubblici soggettivi e poteri dello Stato nel pensiero di G. Jellinek, in G. Gozzi, R. Gherardi (a cura di), Saperi della borghesia e storia dei concetti tra Otto e Novecento, Bologna, il Mulino, pp. 53-118. Von Bernstorff, J., Georg Jellinek and the Origins of Liberal Constitutionalism in International Law, in “Gottingen Journal of International Law 4 (2012), 3, pp. 659-675.

Kantorowicz, Hermann Ivana Tucak

Introduction Hermann Kantorowicz (1877–1940) was born in Posen and educated (law, philosophy, economics) in Berlin, Geneva, and Munich. In his academic career, Kantorowicz dealt with Criminal Law, Legal History, Legal Theory, and Legal Sociology (Paulson 2008, 16, n. 46). In 1907, he gained the title of Privatdozent in Criminal Law, Philosophy of Law, and History of Law at the University of Freiburg, while in 1928, he managed to get a chair in Criminal law at the University of Kiel despite the obstruction by the German Ministry of Foreign Affairs (The Auswärtiges Amt) (Moses 2015, 132; Würtenberger 2021; Paulson 2008, 16, n. 46). The path to gaining the status of the head of the above department was thorny for him after he had completed the task of providing a report on the responsibility for causing the First World War, which was entrusted to him by the German Parliament (Reichstag). In that report, Kantorowicz concluded that Austria-Hungary and Germany were to be blamed for the war. In this context, his work The Spirit of British Policy and the Myth of the Encirclement of Germany (William Johnson trans., 1931) is particularly interesting. The book was eventually ceremonially burnt by the Nazis (Kantorowicz Carter 2006, 694). His university career in Germany ended, primarily due to his Jewish origin, in 1933 with the entry into force of the “Law for the Restoration of the Civil Service” (Paulson 2008, 16, n. 46). Kantorowicz spent the rest of his life in exile. He first went Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0_886-1. I. Tucak (✉) Josip Juraj Strossmayer University of Osijek, Osijek, Croatia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_19

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to the United States (New School for Social Research of New York), and in 1935, he went to the United Kingdom (Cambridge University) (Würtenberger 2021).

The German Free Law Movement The Free Law Movement (Freirechtsbewegung) emerged in the German Empire at the turn of the twentieth century (Tucak 2019, 682, 683, 687). Members of the Movement criticized the shortcomings of the dominant court methodology of the nineteenth century, pointed out gaps in legislative texts and called on judges to abandon legal positivism/formalism and interpret law in accordance with one’s own sense of justice that should reflect people’s sense of justice (Dubber 1993, 1819–1820). They actually sought to improve the court methodology. Recognizing the necessity of the discretion of judges, the Movement requested instrumentalization of the creativity of judges in order to improve the law (Joerges 1994, 186–187). The initial stage of the movement was marked by a lecture given by Austrian lawyer Eugen Ehrlich in 1903 (Lubben 1988, 90; Kelly 2010, 359; Schmidt 2014, 455). The lecture was entitled Freie Rechtsfindung und Freie Rechtswissenschaft, which enticed Kantorowicz to name the then rising movement. He did it in his book called The Battle for Legal Science which he published in 1906 under the pseudonym “Gnaeus Flavius.” It is in this book that Kantorowicz’s basic ideas on law, legal science, and the role of judges can be found.

Free Law as a Natural Law Kantorowicz held that the concept of law could not be equated with positive state law (Hart 1960, 272; Flavius 2011, 2008–2009; Tucak 2019, 688–691). In his article named Some Rationality about Realism, which was published in the Yale Law Journal in 1934, he summarized the doctrine of free law as follows: Formal law encompassing laws and precedents has gaps that must be filled by law of a general nature. The material that fills legal gaps must contain legal rules. For Kantorowicz, it is a free law in the sense that it is not formalized and that it is in a “state of transition,” e.g., “bills, policy principles, business customs, emotional preferences.” Many of them were shaped by courts within their discretion in making a particular court decision on the ground of a process of will and value judgment (Kantorowicz 1934, 1241). Free law “lives” independently of state law. Moreover, state law is derived therefrom since almost all ideas that were later embodied in the laws originally existed as free law (Flavius 2011, 2010). When it came to choosing a term to denote this phenomenon, Kantorowicz opted for the term “free” which did not prove to be a good choice. Kantorowicz stated that he had found a model for naming the Free Law Movement in a free religious

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movement (Flavius 2011, 2010). The misunderstanding that arose from the chosen name, i.e., that judges can ignore legal rules, followed him until the end of his career and exposed his ideas to harsh criticism (Kantorowicz Carter 2006, 685). Kantorowicz referred to free law as the “natural law of the 20th century” (Flavius 2011, 2009). His concept of natural law is not based on divine morality or reason. Free law as a new natural law emerges exclusively from human experience (Schmidt 2016, 135). Representatives of natural law mistakenly thought, Kantorowicz pointed out, that there were immutable and universal truths supporting the law, that there was one universally valid law, the law was always “individually and historically conditioned” (Flavius 2011, 2008; Grosswald Curran 2001a, 90).

A New Understanding of Legal Science and the Role of Judges Kantorowicz as well pointed to a new understanding of legal science as a source of law. Since the law cannot satisfy all legal needs, legal science should come to its aid (Flavius 2011, 2013; Tucak 2019, 691–692). Legal science thus acquires a new and decisive role. Its task is to remove the dead elements of the law and to support those who are flourishing (Flavius 2011, 2013). As a source of law, it is no longer just “the recognition of the recognized” (Flavius 2011, 2013). Like the law itself, it must be the will (Flavius 2011, 2014). Hence, legal science, like other humanities in the nineteenth century, enters a “voluntaristic phase” (Flavius 2011, 2014). Legal science is no longer “verbal science” and its tasks are not exhausted by the interpretation of established words, but it is deemed as “science of values” in the service of the purposes of social life (Kantorowicz 2006, 91). Kantorowicz and other members of the Free Law Movement propagated the development of a class of creative judges (Flavius 2011, 2024; Joerges 1994, 172; Lubben 1988, 82; Tucak 2019, 692–695). They developed notions by which they criticized the previous understanding of the judicial role as mechanical and less important (Grosswald Curran 2001b, 157). Kantorowicz rejected the then prevailing legal methodology of conceptual jurisprudence, which he described as “literal jurisprudence,” implying that a lawyer can solve any case by “subsumption under the law” (Kantorowicz 2006, 83, 91; Schmidt 2014, 458). It is inappropriate, according to Kantorowicz, as it does not take into account the purposes of the law and the necessities of life (Kantorowicz 2006, 91). However, at the same time, he had a clear position on adjudication contra legem. In his opinion, a trial according to the law (ex lege) should remain dominant (Kantorowicz 2006, 91). The most important area where this permeation should take place is the area of the sine lege trial (Kantorowicz 2006, 92). Therefore, the Free Law Movement is focused on the area that is not covered by legislative acts, i.e., on the interspace between legislative acts (Grosswald Curran 2001b, 158).

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Given that judges no longer have only a mechanical role, the selection of judges is crucial. Moreover, the selection criterion must be their excellence and not only their knowledge of legal rules. Kantorowicz argued that judges were needed who were familiar with the prevailing legal understandings in the nation, and with the life facts and results of law-related sciences (Flavius 2011, 2027). Sociology is described as the “noblest auxiliary science” of jurisprudence (Kantorowicz 2006, 91–92). The battle for legal science, as Kantorowicz accentuated, has not a constitutive but declarative character since it only declares what judges already do and have always done (Flavius 2011, 2007). Authors generally agree that the movement came to an end in 1914, just before the outbreak of World War I (Schmidt 2014, 458; 2016, 125; Herget and Wallace 1987, 417; Tucak 2019, 695–696). The emergence of “institutional nationalism, anti-Semitism and right-wing idealism” certainly contributed to its end (Schmidt 2016, 128; Cf. Schmidt 2014, 458). Hence, Schmidt stressed, the historical moment in which German jurists were in a position to systematically reshape the methodological foundations of law without much fanfare eventually disappeared.

Kantorowicz’s Critique of American Legal Realism In Anglo-American legal circles, Kantorowicz became a well-known name for a critical article named “Some Rationalism about Realism” which he published in the Yale Law Journal in 1934, during his work at the New School for Social Research (Hart 1960, 270). H.L.A. Hart described it as a call to common sense at the time when American legal realism and its “rule scepticism” were at their peak (Hart 1960, 270). In this article, Kantorowicz rejected the status of the forefather of the American legal realism movement, which some attributed to him, including Karl Llewellyn (Grosswald Curran 2001a, 70; Llewellyn 1934, 10; Kantorowicz 1934, 1242). Despite Kantorowicz’ s explicit denial of the progenitor status, these ideas were revived by Herget and Wallace in their influential 1987 article marking the Free Law Movement as the “fully elaborated source” of American legal realism (Herget and Wallace 1987, 401). According to Herget and Wallace, their findings contradict the thesis that American legal realism is “the only original American contribution to jurisprudence” (Herget and Wallace 1987, 400). It can be said that Kantorowicz’s criticism of American legal realism boils down to two arguments: “the law is not a body of rules but of facts” and that legal science is not rational and normative but natural science (Capestany 1999, 144; Kantorowicz 1934, 1240, 1248). Kantorowicz denied these postulates. He opposed the views of realists that law is an empirical science with its methods: “observation; the purpose, foretelling effects” (Kantorowicz 1934, 1248). According to Kantorowicz, legal science is a cultural science that is not governed by the laws of nature but is subject to human action governed by laws (Kantorowicz 1934, 1248). Legal science “tries to transform the given law into a more or less consistent system of rules” (Kantorowicz

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1934, 1248). According to legal realists, “the Law is not a body of rules, not an Ought, but a factual reality” (Kantorowicz 1934, 1243). It is “the real behaviour of certain people (. . .) especially of the judges who make the Law through their decisions, which, therefore, constitutes the Law” (Kantorowicz 1934, 1243). On the other hand, Kantorowicz believed that “the law is not what the courts administer but the courts are the institutions which administer the law” (Kantorowicz 1934, 1250). Only because judges respect the law can lawyers predict what decisions they will make. Other sources of court decisions are unknown and will always remain as such (Kantorowicz 1934, 1250).

The Definition of Law In 1938, Kantorowicz became the editor of Oxford History of Legal Science, a threevolume edition that was to cover the history of legal science from the Far East to South America, from its very beginnings to the Imperial Codices (Hughes 1960, 1002). This project was never completed as Kantorowicz died while working thereon. The only thing he managed to complete was the introduction which was published 18 years after his death in a small book entitled The Definition of Law (Paulson 2008, 16, n. 46). The efforts of A.H. Campbell, who supplemented Kantorowicz’s text with notes and references to the literature, were of decisive importance for the publication (Hart 1960, 270). It is worth emphasizing that this essay is not about the history of law but about the study of law and criticism thereof (Hart 1960, 270). In this essay, Kantorowicz wanted to determine the subject of this extensive history. His approach to the issue of the definition of law was actually its rejection (Hart 1960, 270). He found that the adequacy of the definition did not depend on its conformity with some “imagined essence” (Hart 1960, 271). For Kantorowicz, the chosen definition cannot be “true or false in itself,” it must be “fruitful” and “useful” for a particular science (Kantorowicz 1980, 7). It must connect what needs to be connected and separate what needs to be separated (Kantorowicz 1980, 7). In particular, this means separating law from customs and morality. That was his “conceptual pragmatism” (Hart 1960, 271; Kantorowicz 1980, 5–10). Kantorowicz highlighted that his definition of law conceived as a subject of historical legal science would be useful only if it serves as a basis “for a universal history of every known type of legal thought and legal science” (Kantorowicz 1980, 21). The result of such a deliberation is the following definition. “A body of rules prescribing external conduct and considered justiciable” (Kantorowicz 1980, 21). Kantorowicz’s essay is an example of a “linguistic, analytical approach” which has been further developed by legal scholars such as Glanville Williams and H. L. A. Hart (Hughes 1960, 1002–1003). According to Grosswald Curran, Kantorowicz was among the first to point to “the contextuality of meaning and in taking an anti-essentialist, semiotic approach to legal analysis.”

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References Capestany EJ (1999) The revolution of legal realism against formalism (Holmes) and the counterrevolution of Kantorowicz. Pers Derecho 40:139–146 Dubber MD (1993) Judicial positivism and Hitler’s injustice. Columbia Law Rev 93:1807–1831 https://doi.org/10.2307/1123061 Flavius G (Kantorowicz H. pseudonym) (2011) The battle for legal science. Ger Law J 12(11): 2005–2030 Grosswald Curran V (2001a) Romantic common law, enlightened civil law: legal uniformity and the homogenization of the European Union. Columbia J Eur Law 7:63–126 Grosswald Curran V (2001b) Rethinking Hermann Kantorowicz: free law, American legal realism and the legacy of anti formalism. In: Riles A (ed) Rethinking the masters of comparative law. Hart, Oxford/Portland, pp 66–91 Grosswald Curran V (2001c) Fear of formalism: indications from the fascist period in France and Germany of judicial methodology’s impact on substantive law. Cornell Int Law J 35(1): 101–187 Hart HLA (1960) Reviewed work: the definition of law by Hermann Kantorowicz, Campbell AH, Goodhart AL. Philos Rev 69(2):270–272 https://doi.org/10.2307/2183516 Herget JE, Wallace S (1987) The German free law movement as the source of American legal realism. Va Law Rev 73(2):399–455 https://doi.org/10.2307/1073069 Hughes G (1960) The existence of a legal system. NY U L Rev 35:1001–1030 Joerges C (1994) History as non-history: points of divergence and time lags between Friedrich Kessler and German jurisprudence. Am J Comp Law 42(1):163–193 https://doi.org/10.2307/ 840731 Kantorowicz Carter F (2006) Gustav Radbruch and Hermann Kantorowicz: two friends and a bookreflections on Gnaeus Flavius’ Der Kampf um die Rechtswissenschaft (1906). Ger Law J 7(7): 657–700 https://doi.org/10.1017/S2071832200004922 Kantorowicz H (1934) Some rationalism about realism. Yale Law J 43:1240–1253 https://doi.org/ 10.2307/791529 Kantorowicz H (1980) In: Campbell AH (ed) The definition of law. Octagon Books, New York Kantorowicz H (2006) Borba za pravnu nauku (Pravna znanost i sociologija: Legal Science and Sociology, 1911, 79–115), Dosije, Beograd, 2006 Kelly JM (2010) A short history of western legal theory. Oxford University Press, Oxford Llewellyn K (1934) The constitution as an institution. Columbia Law Rev 34(1):1–40 https://doi. org/10.2307/1115631 Lubben SJ (1988) Chief justice Traynor’s contract jurisprudence and the free law dilemma: Nazism, the judiciary, and California’s contract law. South Calif Interdiscip Law J 7:81–132 Meyer-Pritzl R, Lettmaier S (eds) (2021) Hermann Kantorowicz’ Begriff des Rechts und der Rechtswissenschaft, 1st edn. Mohr Siebeck, Tübingen. Online verfügbar unter https:// ebookcentral.proquest.com/lib/kxp/detail.action?docID=6468302 Moses JA (2015) The war guilt question: a note on politics and historiography in the Weimar Republic. Aust J Polit Hist 61(1):128–134 https://doi.org/10.1111/ajph.12091 Paulson SL (2008) Formalism, ‘free law’, and the ‘cognition’ quandary: Hans Kelsen’s approaches to legal interpretation. Univ Queensland Law J 27(2):7–39

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Schmidt KI (2014) Der “Formalismus-Mythos” im deutschen und amerikanischen Rechtsdenken des frühen 20. Jahrhunderts. Der Staat 53:445–473 https://doi.org/10.3790/staa.53.3.445 Schmidt KI (2016) Law, modernity, crisis: German free lawyers, American legal realists, and the transatlantic turn to ‘life’, 1903–1933. Ger Stud Rev 39(1):121–140 https://doi.org/10.1353/gsr. 2016.0014 Tucak I (2019) Pravna misao Hermanna U. Kantorowicza i vrijeme nacionalsocijalizma [Hermann U. Kantorowicz’s legal thought and the era of national socialism]. Collected papers of Zagreb Law Faculty 69(5–6):681–714. This entry relies heavily on this article (especially chapters: the German free law movement; free law as a natural law; a new understanding of legal science and the role of judges) Würtenberger T (2021) Kantorowicz, Hermann. International encyclopedia of the social sciences. Encyclopedia.com. 16 Jun 2021 https://www.encyclopedia.com

Kelsen, Hans Gregorio Robles

Hans Kelsen was born in Prague in October 11, 1881, in a Jewish family. His father, Adolf Kelsen (1850–1907), was born in Brody (Galizien). He was the owner of a lamp manufacturing company; he died in Vienna. His mother, Auguste (Löwy, in her maiden name), was born in Neuhaus (Bohemia) and died in Bled. Hans had three siblings: Ernst (Prague 1883–London 1937), Gertrude (Vienna 1886–Hertford, UK, 1951), and Paul Friedrich (1898–Vienna 1975). In 1884, the family moved to Vienna. Hans Kelsen lived there until 1930 when he joined the University of Cologne. Kelsen did not particularly excel at the Gymnasium. By then, however, he already showed a strong intellectual curiosity: he was attracted by literature and, especially, by physics and mathematics. His decision to study at the Faculty of Law and Political Sciences at the University of Vienna (Alma Mater Rudolphina) was motivated by a pragmatic reason: the range of professional possibilities offered to lawyers. He started his undergraduate studies in 1901, and in 1906 he received his doctorate (as it was habitual in these days, after having successfully passed some examinations: the rigorosa, not via a dissertation). His days in this faculty were a major disappointment for the young Kelsen: the different disciplines were characterized by a mixture of sundry approaches. He did not meet a proper legal method. Law professors would expound their subjects in class as well as in their books, jumbling reasonings of all kinds: they would mix together normative, historical, sociological, economic, philosophical, theological, and even biological approaches. Kelsen felt already in those days that a true Legal

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2020, https://doi.org/10.1007/978-94-0076730-0_432-1. G. Robles (✉) University of the Balearic Islands, Palma, Spain © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_20

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Science, with its own methods and object, was conspicuously absent. This early impression will give a distinctive mark to the work he would develop throughout his life, for – as we shall see – his goal was no other than to elaborate a Legal Science that would be at the same level as other sciences, that is, with its own object and methods. Edmund Bernatzik was a professor in Constitutional Law who was characterized by his wit, as his critiques to Austrian constitutional law and the Austrian Constitution showed. Leo Strisower was a professor of International Law and Legal Philosophy; it was in his lectures on the History of Legal Philosophy, of which Kelsen was a frequent attendee, where Kelsen learned that Dante Alighieri was the author of a prominent book of political philosophy: De Monarchia. Kelsen asked Strisower whether it was possible to write an essay on Dante, but Strisower advised against the endeavor, first, because an extensive bibliography on the Italian poet was already available and second because he thought it was more convenient to study courses properly and to prepare for exams. Yet, Kelsen did not follow his professor’s advice: he longed to find something which, in the context of his legal studies, gave him enough incentives. This is how Kelsen wrote his first book, Die Staatslehre des Dante Alighieri, published in 1905 in a series run by Bernatzik. After finishing his law degree, Kelsen suggested Bernatzik the possibility of obtaining his certification to teach at the university, but the latter replied suggesting that it was much better for him to prepare for the bar or for the judiciary: there were already too many Jewish scholars at the university, he said, and this was not helpful. On the other hand, his family’s financial situation was harsh and worsened when Kelsen’s father died in 1907. Kelsen worked as a practicing lawyer and also taught in several institutions. In spite of the difficulties, Kelsen decided to write his Habilitationsschrift under the supervision of Georg Jellinek (1851–1911), unquestionably the most important professor in public law at Heidelberg. Kelsen asked for a scholarship, which he obtained after applying three times (probably, says he in his “autobiography,” because he was the only applicant). From 1908 to 1919 he spent several semesters in Heidelberg, as well as in Berlin, attending Gerhard Anschütz’s (1867–1948) seminars. These visits were often interrupted, as he needed to provide financial support to his family. He practiced law and taught in different institutions, and even taught Military Law. Despite the difficulties, those were happy years for Kelsen: the feeling of opening his own path, by engaging with the work of numerous authors and doctrines of General Jurisprudence and Theory of the State, represented to him a great intellectual pleasure and an intense vital experience. Although Kelsen refers to Jellinek as his “cherished professor” (Allgemeine Staatslehre, 1925, Prologue), their relationship was not as good as one would expect. The likely cause is the young Kelsen’s critique to Jellinek’s conception of the “two faces” of the State. For this author, a General Theory of the State must account for those two “faces”: social and legal. He claims this in his magnum opus: Allgemeine Staatslehre (1900). Jellinek divides this work into an “Introduction” and two basic sections: The Social or Sociological Theory of the State and The Legal Theory of the State. For Kelsen, Legal Science must only be concerned with the latter: from a legal point of view, the State is equivalent to the legal order itself.

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Kelsen passed his examination in 1911 with a major essay entitled: Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze (J.C.B. Mohr, Tübingen 1911). He obtained his venia docendi for the subjects of “Staatsrecht” (Public Law) and Legal Philosophy. This work is decisive for understanding the birth of the Pure Theory of Law, which Kelsen developed throughout his life. It is an essentially polemical work: in it, Kelsen critiques the main contributions to the Theory of Law and the State, dominant in his days. The center of his interests was constituted by methodological issues. Kelsen argues especially against the psychologistic and sociologistic trends developed within legal positivism. He distinguishes being or facticity (“sein”) from duty or normativity (“sollen”), between causal disciplines and normative disciplines. Legal Science is a normative, not a causal science. The separation between form and content leads him to champion methodological purity, albeit in this work the expression Reine Rechtslehre is absent (it is not, however, in Kant’s Metaphysik der Sitten, as well as in Stammler’s Theorie der Rechtswissenschaft, 2, ed., 1923). The work is divided into three “books.” The first (Preliminary Investigations) deals with the basic questions of legal method. In this part, one can perceive certain neo-Kantian and phenomenological influences. Kelsen studies the differences between the laws of natural sciences and norms, the distinction between moral law and legal norm, and concludes with an examination of the relation between the causal-teleological perspective and the legal perspective. The second book focuses on the logical-objective ways in which legal norms exist; he criticizes the concept of legal psychologism (theory of the will: imperativism). The third book is longer. It derives from the preceding books. It scrutinizes the subjective legal forms: legal duty and, as derived from it, subjective right. In this work, Kelsen is determined to build the General Theory of the State. He defends the need to give up on the public law/private law duality, for he claims that all law is State-made law. Provided that the State – from a legal point of view – is equivalent to the legal order, the General Theory of the State (“Allgemeine Staatslehre”) is equivalent to the General Theory of Law (“Allgemeine Rechtslehre”). This explains why Kelsen’s analyses are not limited to the “law of the state” or “public law” (i.e., to constitutional or administrative law). They are also applicable to private and criminal law. It examines law in its integrity and complexity. The reception of the Hauptprobleme was scarce and cold. It was briefly commentated (Kant-Studien 17, 1912) in the context of a review of the bulk of the hitherto available literature on German philosophy. Its author, Oscar Ewald, underscores the influence of neo-Kantianism. It appears that this motivated Kelsen to be more deeply familiar with neo-Kantianism, especially Hermann Cohen’s. The Hauptprobleme also drew the attention of Friedrich Tezner and Franz Weyr. In July 1911 he teaches Constitutional and Administrative Theory at the “Exportakademie des k.k. österreichischen Handelsmuseum” (since 1975, “Wirtschaftuniversität Wien”). During those years, before the war, Kelsen published book reviews as well as some works leading to what would later become The Pure Theory of Law: Zur Soziologie des Rechts (1912); Politische Weltanschauung und Erziehung (1913); Rechtsstaat und Staatsrecht (1913); Über Staatsunrecht (1913); Zur Lehre vom

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Gesetz im formellen und materiellen Sinn (1913); and Zur Lehre vom öffentlichen Rechtsgeschäft (1913). In 1914, the First World War breaks out. Kelsen was recruited in August. He becomes ill, with pneumonia. Once recovered, and due to his condition of jurist, he is destined to work in an office. One day he receives an order to present himself before General Stöger-Steiner. The latter, angry, rebuked Kelsen for having published an article in a journal of military law without his permission. Kelsen had long ago written the article and gave it to one of his companions. Kelsen had forgotten about it, but his colleague had it published. Once clearing up the misunderstanding between the Kelsen and the general, the latter offered the former to be his legal counsellor. Little after, the General was named Minister of War. These circumstances changed Kelsen’s destiny: he became acquainted with the entire political and military class, continued his studies, and was now treated as an “excellent jurist.” When the war was over, Bernatzik told him that his luck had changed: now it was much easier to get a professorship at the Vienna Faculty. One thing to highlight from those years is the debate he held with Eugen Ehrlich (1862–1922), then Rector of the University of Czernowitz. Ehrlich published his best-known work in 1913: Grundlegung der Soziologie des Rechts. He criticized the traditional way in which jurists practiced legal theory and claimed that legal sociology was the true Legal Science. In a nutshell, Ehrlich championed precisely those theses to which Kelsen opposed. In 1915, Kelsen published a long review of Ehrlich’s book where he defended his stances and criticized Ehrlich harshly. The debate is now considered to be the paradigm of the normativism and sociologism divide, between the perspective of the jurist and that of the sociologist. In November 1918, Kelsen was nominated ausserordentlicher Professor, and after Bernatzik’s death in 1919, ordentlicher Professor and judge of the Constitutional Court. When the war was over, Chancellor Karl Renner (1870–1950) set up a commission of lawyers charged with the task of writing a draft of a constitution. Kelsen was one of its members. He concentrated, especially, on the chapter dedicated to constitutional and administrative guarantees. To do so – he claimed – he relied on two institutions of Royal origin: The Reichsgericht and the Administrative Court (Verwaltungsgerichtshof). “The latter, without substantive modifications, could be incorporated. The Reichsgericht was transformed into a real Constitutional Court – the first of its kind in the history of Constitutional Law. Until then, no court had existed with competence to declare the invalidity, with general effects not limited to the concrete case, of legislation due to its unconstitutionality” (Hans Kelsen im Selbszeugnis, 2006, p. 69). In early May 1919, Kelsen integrated the Deutschösterreichischer Verfassungsgerichtshof, created by law in January 25, 1919, replacing Bernatzik, who passed away in March that same year. A year after, he practiced as a judge of the Constitutional Court, created by the 1920 Constitution, until 1929. A group of young scholars, later known as the “Vienna School,” began to gather around Kelsen. Kelsen run a private seminar; its meetings were held usually at his private domicile, 23 Wickenburggasse, on Sundays during the afternoon. At the

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seminar, the discussions were about the work of its members: Adolf Julius Merkl and Alfred Verdross, also Fritz Sander, Leonidas Pitamic, Fritz Schreier, and Felix Kaufmann, among others. What was characteristic of this group was not that its members shared the same ideological or scientific stance but the common interest in debating their theoretical concerns. Kelsen was a liberal scholar who, although a strong and rigorous defender of his own positions, never wanted them to prevail because of his mere auctoritas. The 1920s were for Kelsen and the Vienna School a prodigious era in terms of scientific production. In 1920, Kelsen published Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu reinen Rechtslehre. J.C.B. Mohr (Paul Siebeck), Tübingen 1920. The same year he published an important study on Marxism: Sozialismus und Staat. Eine Untersuchung der politischen Theorie des Marxismus. C.L. Hirschfeld. Leipzig 1920. In 1922 he also published another monograph in which he champions the identification between law and the State and criticizes the possibility of a sociological concept of the State: Der soziologische und der juristische Staatsbegriff. Kritische Untersuchung des Verhältnisses von Staat und Recht. J.C.B. Mohr (Paul Siebeck), Tübingen 1922. Three years after, he collected all his studies on the State and published his monumental Allgemeine Staatslehre. Julius Springer. Berlin 1925. In the prologue to this latter work, Kelsen avows that his purpose is to produce a Theory of the State “from the standpoint of methodological purity.” He affirms that, in undertaking this task, he feels close “to that scholarly tradition in Germany whose most prominent representatives were Karl Friedrich von Gerber, Paul Laband and Georg Jellinek (. . .) Their method was influenced, in a more or less conscious and consequent fashion, by the Kantian critique of reason: dualism of being (sein) and duty (sollen); substitution of hypostasis and metaphysical postulates by transcendental categories as conditions for experience; transformation of absolute antitheses (for qualitative and trans-systematic) into relative differences, quantitative, intrasystematic; move from the subjective sphere of psychologism toward the sphere of logical-objective validity: these are the essential parts of this method, and the guidelines of my theoretical endeavour.” The work is divided into three “books.” The first is about the “essence of the State.” After criticizing the Theory of the State, understood as sociology and politics, he advances his basic idea: The Theory of the State is the Theory of the Law of the State; the State is the Law. The second is about statics, the validity of the State order, which is tantamount to the validity of the legal order. The third discusses dynamics, the creation of the State order, which is tantamount to the creation of the legal system. A summarized version of Allgemeine Staatslehre was published as a short volume entitled Grundriss einer allgemeinen Theorie des Staates. Als Manuskript gedruckt. Wien 1926. This work was translated into several languages, Spanish, French, Italian, Chinese, Japanese, Portuguese, Czech, and Hungarian; this contributed to the expansion of Kelsen’s ideas about law. Among the works published by Kelsen in the subsequent years, his Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus. Pan-Verlag Rolf Heise. Charlottenburg 1928 and, above all, his Vom Wesen und

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Wert der Demokratie, 2. Auflage. J.C.B. Mohr (Paul Siebeck). Tübingen 1929 stand out. During the 1920s the scientific production of Kelsen’s school members was also quite relevant. Kelsen himself referred to Adolf J. Merkl as a “genius of legal thought” and as the “co-founder of the Pure Theory of Law.” And he can, indeed, be considered as such, given his decisive contribution to the idea of the hierarchical structure of the legal order (which he fully elaborated following Bierling’s footsteps) in different works: Die Lehre von der Rechtskraft entwickelt aus dem Rechtsbegriff (1923); “Prolegomena einer Theorie des rechtlichen Stufenbaues” (1931); and Allgemeines Verwaltungsrecht (1927). Alfred von Verdross came up with the concept of “constitution in a logical-legal sense,” thus giving a proper definition to the idea of a basic or fundamental norm (Grundnorm). He also contributed to one of the basic dogmas of the Pure Theory of Law, the principle of monism of the legal order on the basis of International Law. His most important works are Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (1923); Die Verfassung der Völkerrechtsgemeinschaft (1926); and years later, Völkerrecht (1937). Republished in several subsequent occasions, this work would become an essential treatise on International Law. Another important disciple of Kelsen was Fritz Sander (1889–1939), with whom he had a complicated relationship. Kelsen constantly supported Sander’s career until he got a professorship at the University of Prague. It was then when Sander, in his Kelsens Rechtslehre. Kampfschrift wider die normative Jurisprudenz (1923), accused Kelsen of plagiarism. In response, Kelsen accused himself. The official verdict was that “not the least reproach could be made” against Kelsen. Kelsen explained Sander’s behavior relying on psychoanalysis (he was a member of Sigmund Freud’s seminars). The Pure Legal Theory was developed in the vicinities of Vienna, in Brno (Czech Republic). Its most conspicuous representative was Franz Weyr (1879–1951), with whom Kelsen maintained a strong friendship. The Vienna school also received foreign scholars: the Spanish Luís Recaséns Siches and Luis Legaz Lacambra, the Danish Alf Ross, the German Julius Kraft, the French Charles Eisenmann, the Dutch Marinus Maurits van Praag, the Japanese Tomoo Otaka, and the Polish Wiktor Sukiennicki. Kelsen received an invitation from the University of Cologne to become part of the Law Faculty. It was in 1929 when he decided to leave Austria; the cause: the attacks he received due to a procedural issue regarding matrimonial exemptions. Deeply upset and disappointed, he decided to start anew. The 3 years he spent in Cologne (1930–1933) were very good for him and his family. He was asked to be a professor of International Law. He had only hitherto studied the subject in a tangential manner. He then spent those 3 years studying International Law. In 1932 he was elected dean. Yet, everything was over by April 1933: he learned through the press that he had been removed as professor. He thought of leaving Germany and moved to Geneva to the Institut Universitaire d’ Hautes Études Internationales. He encountered, however, one problem: how to get a visa. “Given that I was a pacifist and the author of the Democratic Constitution of

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Austria, it was pretty certain that I would be deported to a concentration camp.” He tried to get the visa without success. Unexpectedly, he received the visit of an individual who told him that, as a member of the Nazi party, he could get the precious visa. “It was in this way that this man, selflessly saved my life. I never got to know his name” (Hans Kelsen im Selbszeugnis, p. 83). During that period Kelsen published some studies, among which Wer soll der Hüter der Verfassung sein? (1931) stands out, also Théorie générale du droit international (1932), as well as several studies on Plato and Aristotle. Kelsen’s financial situation was not as good in Geneva as it was in Cologne, but he did have plenty of time to do research. In 1934 he publishes his best-known and most widely read work: Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik. Franz Deuticke. Leipzig & Wien. In this first edition, all the essential components of the Pure Theory of Law are expounded. It is a positivist theory, characterized by its formalism and normativism. It is a “geometry of the legal phenomenon,” its object the legal forms. These are only able to be examined from the basic legal form, which is the legal norm. Critically, the objective is to purify Legal Science from every possible extra-legal aspect – hence the adjective, “pure” – especially from those of a sociological and psychological kind, as well as those of an ideological nature (critique of natural law as a manifestation of political ideologies). Regarding its more positive aspects, the book starts with legal statics. Here Kelsen theorizes formal legal concepts from the notions of legal norm (Rechtssatz). This is a “hypothetical statement” that links, through the notion of ought to (sollen), a factual hypothesis (concretely, an illegal fact) with a legal consequence (concretely, a sanction). Kelsen does not separate what could be seen as a common place in the legal positivism of his days; here the influence of authors such as Binding, Thon, or Bierling is evident. His method is normativist: it extracts, directly or indirectly, legal concepts from the concept of legal norm. These concepts, because they are formal, are universal, applicable to any positive legal system. The illegal act is a hypothetical legal fact. The legal duty is the one the adjudicator has; that duty entails a secondary legal duty, addressed to the addressees of the norm for them not to perform the illegal act. The sanction is the second element of the norm and consists in the privation of a legal good: the illegal act is imputed directly or indirectly to one or many of the persons responsible for that act. The subjective right is the possibility that the legal order gives a person to have the duty holder to comply with such duty. A person is a unitary construction of a group of norms, a group to which acts, responsibilities, and sanctions are attributed. The State is the legal order itself. Legal dynamics is the category in charge of creating and applying law. The pyramidal structure of the legal order (Stufenbautheorie) allows us to account for the internal organization of the norms according to hierarchical criteria. The superior norm of the legal system is the constitution; the constitution applies to legislation, and legislation to executive decrees, as well as to the rest of the norms emanating from the administration. Together with these norms of a general character, individual norms are situated at the inferior steps of the construction: judicial decisions (precedents), administrative acts, and contracts among private persons. The base of this stepped edifice is formed by acts of application or execution of other

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norms. Regarding the question why legal norms are valid, it is answered: because their validity derives from superior norms. When we reach the constitution, we also find an answer; but the answer is not provided by positive law, because its validity, its legal bindingness, is presupposed; it is valid because it starts from the assumption or hypothesis that there is a non-posited, hypothetical norm, which says that it is legally binding to obey the constitution. It is the fundamental or foundational norm (Grundnorm). An important part of Reine Rechtslehre is intended to “deconstruct” the so-called legal dualisms that, for Kelsen, were manifestations of iusnaturalistic stances. He begins with a criticism of the natural-and-positive-law dualism; he also attacks the distinction between public and private law, objective and subjective law, State and law, domestic law, and International Law. The final part of the book delves into a theory of legal interpretation, according to which the norm is a framework that is open to different alternative interpretations, all of which are “correct” and among which the judge chooses one. Such decision cannot be justified scientifically. This means that it has an “irrational” character. Legal Science must limit itself to the description of the different interpretive possibilities. In 1936, Kelsen was awarded with an Honoris Causa Doctorate by Harvard University and the University of Utrecht. From October 1936 to February 1939, he spent a “short and not very happy time at the German University in Prague” (Hans Kelsen im Selbszeugnis, p. 87), together with his academic duties in Geneva. Due to some death threats by the Nazis, he decided to abandon his attempt to get a professorship at the aforementioned university. During those days, Kelsen focused on something which attracted his attention since his days in Vienna: anthropology. In 1939 he submitted his Vergeltung und Kausalität to a Dutch press. This work, however, would not be published but until 1946. When the Second World War broke out in 1939, Kelsen was convinced that the German army would invade Switzerland. This was the reason why in May 1940 he and his family moved to the United States. They reached New York early in the summer. First, he was awarded with a scholarship and worked at the New School of Social Research. He hoped Harvard would hire him after 2 years of teaching, but the university President had different plans. “This fiasco – Kelsen avowed – humiliated me deeply, for having been awarded with an honorary doctorate from Harvard, I would have expected a better treatment” (Hans Kelsen im Selbszeugnis, p. 93). In 1942, Kelsen received an invitation to become a visiting professor for 1 year at the University of Berkeley California. It was in this university, specifically in the Department of Political Science, where Kelsen found a tenured position. His professorship was named “International Law, Jurisprudence and Origin of Legal Institutions.” In 1945 he was named ordinary professor. He was 64. For the first time in his life, he owned a house. In 1945 Kelsen published his General Theory of Law and State. Harvard. In this book Kelsen sought to engage with Anglo-Saxon literature on his topics of interest, adapting his ideas to the American mentality as much as possible. In 1950 he

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published The Law of the United Nations. London-New York and in 1952, Principles of International Law. New York. In 1960, the second edition of Reine Rechtslehre, Franz Deuticke, Wien, is published with an addendum on “The Problem of Justice.” This edition is significantly different from the first, not only in its length but in its perspectives and contents: it is more voluminous and complex. Notwithstanding these differences, it keeps the theory’s basic principles: positivism, formalism, normativism, separation of sein and sollen, norms hierarchies, etc. However, differences in terms of the detail with which the analyses are undertaken are significant. Unlike the first edition, no explicit formulation of the concept of legal norm can be found in the second. Kelsen now limits himself to defining the generic concept of “norm”: “By ‘norm’ we mean that something ought to be or ought to happen, especially that a human being ought to behave in a specific way” (p. 4). Although the duality to be (sein)/ought to (sollen) is kept, and that Kelsen holds that it is the latter (ought to) what defines any type of norm, also the legal norm, he still distinguishes different kinds of norms, each of which is characterized by a modal verb: sollen but also können (can) and dürfen (may). In order to save the concept of legal norm expounded in the first edition (factual hypothesis and legal consequence connected through the logical link “ought to” – sollen), Kelsen introduces the difference between complete or independent (selbständige Normen) norms and incomplete or dependent norms (unselbständige Normen). The treatment of legal concepts is more profound than in the first edition and, in some respects, different. Consider some examples. Whereas in the first edition efficacy (Wirksamkeit) is a condition for the validity of a legal order and not for individual norms, in the second edition, efficacy is seen as a condition of validity of the legal system in toto as well as a condition of validity of individual norms. This is a move inclined toward legal sociologism to American legal realism. Also, the theorization of subjective rights is more profound than in the first edition, and they are now considered independent entities, and not mere derivations of a legal duty. In 1971, in the context of the commemoration of Kelsen’s 90th birthday, the Hans Kelsen Institute was founded in Vienna, with the purpose of disseminating and continuing the legacy of this great jurist, thus contributing to the development of legal studies and, especially, to legal theory. Kelsen passed away in Berkeley in April 19, 1973. His wife, Margarete, had passed away in January, the same year. After Kelsen’s death, several of his works have been edited and published, among which the following three stand out. First is Allgemeine Theorie der Normen. Manz. Wien, 1979. In this book, Kelsen examines norms in general, of which the legal norm is a species. This work is unfinished, so one can put into doubt whether the author had accepted the text as is. It has the peculiar feature that, of all Kelsen’s books, it is the one with the highest number of references: 142 pages of references of a total of 362. It has 61 chapters, all of them very brief, divisible (the index does not divide the book in this way) into three sections: theory of the norm (in general, any kind of norm, not just the legal norm) (37 chapters); “norm and statement” (chapters 38–49); and “logic of norms”

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(chapters 50–61). Regarding this latter aspect, it must be underscored that Kelsen categorically denies the possibility of applying logic to norms, for these are always expressions of an act of the will. Second is Die Illusion der Gerechtigkeit. Eine kritische Untersuchung der Sozialphilosophie Platons. Manz. Wien, 1985. As the subtitle indicates, it is a treatise on Plato’s social and political philosophy, about his concept of justice. Third is Secular Religion. A Polemic Against the Misinterpretation of Modern Social Philosophy Springer. Wien/New York, 2012. Kelsen finished this work in 1964, but he ultimately prevented its publication and had to compensate the academic press for its expenses. One can only guess why. In its preface, Kelsen states his intentions: “This book is directed against the attempt made by several authors to interpret the most important works in social philosophy, especially philosophy of history, in modern times, (. . .) as theology in disguise (. . .), and to interpret certain political ideologies of our time as ‘secular religion’” (p. 3). [Summary of Gregorio Robles, Hans Kelsen. Vida y Obra. Civitas, Navarra 2014] Works of Hans Kelsen: Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatz (1911, 1923); Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu einer reinen Rechtslehre (1920); Sozialismus und Staat. Eine Untersuchung der politischen Theorie des Marxismus (1920); Der soziologische und der juristische Staatsbegriff (1922); Allgemeine Staatslehre (1925); Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus (1928); Vom Wesen und Wert der Demokratie (1929); Wer soll der Hüter der Verfassung sein? (1931); Théorie générale du droit international public (1932); Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik (1934); Vergeltung und Kausalität (1941); Law and Peace in International Relations (1942); Society and Nature. A Sociological Inquiry (1943); Peace Through Law (1944); General Theory of Law and State (1945); The Law of the United Nations. A Critical Analysis of Its Fundamental Problems (1950); Principles of International Law (1952); Théorie pure du Droit (1953); What is Justice? (1957); Reine Rechtslehre. Mit einem Anhang: Das Problem der Gerechtigkeit (1960); Allgemeine Theorie der Normen (1979); Die Illusion der Gerechtigkeit (1985); Secular Religion (2012). Other works are as follows: H. Kelsen, A. Merkl, and A. Verdross, Die Wiener rechtstheoretische Schule (1968) and HANS KELSEN- WERKE, herausgegeben von Matthias Jestaedt in Kooperation mit dem Hans Kelsen-Institut: Band 1 (2007); Band 2, I and II (2008); Band 3 (2010); Band 4 (2013); and Band 5 (2011).

Further Reading Carrino A & Winkler G (Hrsg) (1995) Rechtserfahrung und Reine Rechtslehre, Wien. Dreier H (1990) Rechtslehre, Staatssoziologie und Demokratie bei Hans Kelsen, Zweite Aufl. Baden-Baden.

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Dreier H (2001) Rezeption und Rolle der reinen Rechtslehre, Wien. Jabloner C (2013) Methodenreinheit und Erkenntnisvielfalt. Aufsätze zur Rechtstheorie, Rechtsdogmatik und Rechtsgeschichte. Hrsg von Th. Olechowski und Klaus Zeleny, Wien. Jabloner C und Stadler F (Hrsg) (2001) Logischer Empirismus und Reine Rechtslehre. Beziehungen zwischen dem Wiener Kreis und der Hans Kelsen – Schule, Wien - New York. Jestaedt M (2008) Hans Kelsens Reine Rechtslehre - Eine Einführung, in: H. Kelsen, Reine Rechtslehre, Studienausgabe der 1. Auflage 1934. Hrsg von M. Jestaedt, Tübingen. Jestaedt M (Hrsg.) (2013) Hans Kelsen und die deutsche Staatsrechtslehre, Tübingen. Jestaedt M (2017) Ein Klassiker der Rechtstheorie. Die `Reine Rechtslehre´aus dem Jahre 1960, in: H. Kelsen, Reine Rechtslehre, Studienausgabe der 2. Auflage 1960. Hrsg von M. Jestaedt. Tübingen. Jestaedt M (2019) Wiener Summe. Die `Allgemeine Staatslehre´ als Kelsens vollständigstes Werk, in: H. Kelsen, Allgemeine Staatslehre, Studienausgabe der Original Ausgabe 1925. Hrsg von M. Jestaedt. Tübingen. Legaz y Lacambra L (1932), Kelsen. Estudio crítico de la Teoría pura del Derecho y del Estado de la Escuela de Viena, Barcelona. Losano M (1981), Forma e realtà in Kelsen, Milano. Olechowski T (2020) Hans Kelsen. Biographie eines Rechtswissenschaftlers, Tübingen. Paulson SL & Paulson BL (2000) Normativity and Norms. Critical Perspectives on Kelsenian Themes, Oxford Walter R, Jabloner C und Zeleny K (Hrsg) (2008) Der Kreis um Hans Kelsen. Die Anfangsjahre der reinen Rechtslehre, Wien. Walter R, Ogris W & Olechowski T (2009) Hans Kelsen: Leben - Werk – Wirksamkeit, Wien.

Kollontai, Alexandra Signe Arnfred

Introduction Alexandra Kollontai (1872–1952) was a Russian revolutionary, minister, diplomat, and socialist feminist thinker. From 1908 to 1917, in political exile from the Tsarist regime, she traveled in Europe as a political agitator. In this period she wrote her first essays and fiction stories on love and politics, and on connections between the private and the political. Returning to Russia she became part of the first revolutionary government, headed by Lenin. Before long, however, their different political priorities and styles became apparent. Kollontai was an internationalist, and like Rosa Luxemburg she believed in the creative force of proletarian mass movements for changing not just state and politics, but also daily lives. She was a leading force in setting up a specific women’s organization within the Bolshevik Party. In 1921 she acted as a spokesperson for the Worker’s Opposition, critical of Lenin’s top-down political style. In 1922 she was removed from the Soviet Union, posted as a diplomat in Norway, later Sweden, and in 1945 she was called back to USSR, living her last years in Moscow.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_893-1. S. Arnfred (✉) Roskilde University, Roskilde, Denmark e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_21

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1899–1917: Political Activist and Agitator with a Focus on Women’s Lives Kollontai grew up in a liberal-minded upper class family in St Petersburg; her father was a general. She married young; her son was born 1894. In 1898 she left her family for Switzerland, studying Marxist economics. Nevertheless, all of her life she maintained a close relationship with her son. In 1899 she returned to Russia, a lady of the bourgeoisie, secretly however a political activist and writer. In 1908 she was forced into political exile in Europe, on the run from the Tsarist police. From 1908 to 1914, most of the time she lived in Berlin and Paris, traveling from there to other European countries as a Social Democratic speaker and agitator. With the outbreak of World War I she was expelled from Germany, from 1915 living mainly in Norway. Kollontai was a very good-looking woman with a charismatic personality, prolific as a political speaker, spellbinding her audience. In this period she gained international acclaim as an orator of great talent and in many languages: Russian, German, French, and English, later also Norwegian and Swedish. The period before 1914 was a time of internationalism and unity of the European working class movement. The German Social Democratic party had a leading role, and as for working class women, Clara Zetkin (1857–1933) was the key political organizer and theorist. During these early years Zetkin acted as a mentor for the younger Kollontai.

1917–1922: People’s Commissar for Social Welfare; Head of the Zhenotdel; Disagreements with Lenin Having oscillated between the Menshevik and the Bolshevik fractions of the Russian Social Democratic Party, Kollontai in 1915 joined the Bolsheviks. On her return to Russia in 1917, after the February Revolution, she worked closely with Lenin. When after the October Revolution the first Soviet Government was put in place, Kollontai was appointed People’s Commissar (Minister) of Social Welfare. As a People’s Commissar she was responsible for change of laws in various fields pertaining to family and welfare, partly in order to limit the influence of the Church, and partly in order to introduce welfare measures for people in need, orphaned children, and pregnant mothers among them. Nevertheless, after just half a year, along with other left wing members of the cabinet in protest against the Brest-Litovsk peace treaty March 1918, she resigned from her position as a minister. This was the starting point of her disagreements with the Leninist line, to be continued in following years. The Bolshevik left wing saw in the separate peace between Soviet Russia and imperial Germany the beginning of “Socialism in one Country” politics, and thus a betrayal of internationalist solidarity with working class struggles elsewhere. At this point in time, with fierce class struggles in several European countries, a world revolution was still on the agenda.

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Kollontai nevertheless continued with Party work, predominantly engaged in work among working class women, preferably at district and factory levels, in direct contact with the women; this was where she learnt about women’s lives and their ideas. Along with other Bolshevik women she worked incessantly for persuading Party bosses to allow a separate Party section for work among women. This was an uphill struggle; Party men labeled such work bourgeois feminism, seeing it as undermining the unity of the working class. Nevertheless, in 1919 Kollontai and her co-fighters obtained the necessary support, and the Zhenotdel was created (Farnsworth 1980). The Zhenotdel had representatives in each of the Commissariats to protect women’s interests. From 1920 to 1922 Kollontai worked as director of the Zhenotdel. Kollontai’s second head-on disagreement with the Leninist line of the Bolshevik Party happened in 1921, when at the tenth Party congress she acted as a spokesperson for the Workers’ Opposition. The Opposition was a critique of Lenin’s so-called New Economic Policy (NEP), in which he diverted from the principle of collectivism, which had been the ruling order during the Civil War period (1918–21), going back to a more bourgeois style of one-man expert leadership of industry and production, drawing on economic and practical expertise by persons from the previous ruling class. The Workers’ Opposition feared that the collective spirit and the dynamics of the revolution thereby would be lost, and Kollontai in addition feared a reemergence of old style gender relations of dominant men and dependent women. In her arguments for the political position of the Workers’ Opposition, she insisted on socialism as rooted in lived experience: The vanguard of the class (i.e., the Party) can organize the revolution, but socialist society as such must be constructed bottom-up, building on experience and struggles of working class men and women. In this line of thinking Kollontai was inspired by Rosa Luxemburg: “Socialism will not be and cannot be inaugurated by decrees; it cannot be established by any government, however admirably socialistic. Socialism must be created by the masses, must be made by every proletarian” (Luxemburg 1918/ 2010, 252). Kollontai criticized Bolshevik Party bosses for treating trade unions as organizations for teaching workers principles of socialism, the Party bosses themselves being the teachers. No, she said, this is not how it is; top-down command does not make it, “[communism] can be created only in the process of practical research, through mistakes, perhaps, but only by the creative power of the working class itself” (Kollontai 1921/ 1977, 187). Lenin and Trotsky had different opinions. Significantly, in the ensuing discussion Trotsky spoke of “the dictatorship of the Party,” not the dictatorship of the proletariat, as classical Marxism has it. Kollontai and the Workers’ Opposition were thoroughly rebuked and ridiculed; the response from Lenin was a decree banning future fractioning within the Party. Kollontaj was removed from all positions of responsibility, including her membership of the Executive Committee of the Komintern and her directorship of the Zhenotdel. The following year she was exported out of the Soviet Union returning only on visits, until after the end of

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World War II, when – now an old woman – she was allowed to live again in the Soviet Union.

Socialist Feminist Thinker In some respects the exile years in Europe – including a trip to the USA in 1915 – was a peak period in Kollontai’s career. She was young, she was beautiful, she was sharp and engaging in her political address, audiences loved her. In this period, in addition to political speeches and pamphlets, Kollontai also wrote fiction stories, often working through problems and dilemmas in her own life, and she wrote essays. In essays and fiction, problems and issues of gender relations and meanings of emotions and love are predominant. Kollontai was exceptional in her time, because she insisted on connections between the private and the political, along with the necessity of changing power relations of gender along with changing power relations of class. Power relations of gender she saw as prevalent everywhere in society, manifesting itself not just in economic and political power, but also in the minds and feelings of men and women of all classes. One area where she perceived it clearly and where she also objected to it in her own life was the ways in which women came to see themselves through the eyes of their husband or lover: how the male gaze determined the self-conception of a woman. Kollontai wanted women to rely on their own merits, to see themselves with their own eyes. Kollontai was a socialist and a marxist; nevertheless, in order to develop her ideas she sought inspiration from nonworking class authors. In the late nineteenth and early twentieth centuries women fiction writers wrote about women’s dilemmas between love and work. Kollontai read their books, applying their thinking to working class women’s situation. In her essay “The new woman” (1913), she describes the unmarried working class woman as the new woman of the future. Brought up in a male-dominated world, the new woman has to fight not only capitalism’s subjugation of the working class, to which she belongs, she also has to fight her own inclination to let her life be determined by relations of love: “She is constantly fearful that the power of feeling might [induce] her to become the shadow of the husband, might tempt her to surrender her identity, and to abandon her work, her profession, her life-tasks” (Kollontai 1913/ 1977, 89). Kollontai’s heroine is the woman who relies on herself and her work, and who – even in an intimate relationship – maintains her independence of her husband/lover, emotionally as well as economically. However, coming thus far is not plain sailing, it is a constant struggle. “The old and the new struggle in the souls of women in permanent enmity. Contemporary heroines therefore must wage a struggle on two fronts: with the external world and with the inclinations of their grandmothers dwelling in the recesses of their beings” (ibid. 102). Kollontai developed her socialist-feminist thinking in a new round of essays and fiction writings in the first year of her Norway exile, 1922–23. In the fiction stories, published in Russia in 1923 as “Love of the worker bees,” she presents in a fictional

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form her critique of the New Economic Policy (NEP), focusing on its implications in terms of re-traditionalizing gender relations. The essays have as a common title “Letters to the working youth.” Here Kollontai again makes it a point to pull down the distinction between the private and the political, arguing for the need to extend the arena of political struggle to private lives, and also the other way round: bringing emotions from private lives into politics. In her essay “Make Way for the Winged Eros” (1923) she develops a notion of “love” beyond the conventional idea of marital love between a man and a woman, into an idea of love-comradeship as a strong and creative social force: “The new communist society is being built on the principle of comradeship and solidarity. Solidarity is not only an awareness of common interests; it depends also on the intellectual and emotional ties linking the members of the collective. For a social system to be built on solidarity and cooperation, it is essential that people should be capable of love and warm emotions. . . . All these ‘warm emotions’ – sensitivity, compassion, sympathy and responsiveness – derive from one source: they are aspects of love, not in the narrow sexual sense, but in the broad meaning of the word. Love is an emotion that unites and is consequently of an organizing character” (1923/ 1977, 285). Kollontai is hopeful and optimistic about the future: “With the realization of communist society,” she says, “love will acquire a transformed and unprecedented aspect. . . . Love potential will have increased, and love-solidarity will become the lever that competition and self-love was in the bourgeois system” (ibid. 290). Kollontai’s lofty ideas about love-comradeship and love-solidarity in the collective were not much appreciated by her fellow Bolsheviks. In 1923 her “Letters to the Working Youth” were fiercely and hatefully criticized by women of the Bolshevik party in the increasingly harsh climate of political debate in Moscow and Leningrad (Clements 1979). The openness toward new ideas and new ways of life, characteristic of the first years after the 1917 Revolution had come to an end. Kollontai’s last intervention in Soviet debate, commenting in 1926 on a new family law, was partly criticized, partly bypassed in silence; she was already marginalized. In 1924, she realized with sorrow and pain that a book published in Moscow, on the history of organizing of women in Soviet Russia, did not even mention her name – she, who had been the soul and the driving spirit of the women’s organization (Farnsworth 2010). The maneuvers of political erasure, plentiful during the Stalin era, had begun.

1922–1945: Soviet Diplomat. Confinement and Acquiescence In October 1922 Kollontai was assigned to a post in the newly established Soviet representation in Oslo, Norway. She was happy about the assignment, because she needed a break, but in no way did she expect to be a diplomat for the rest of her life. Seeing herself as a spokesperson for women’s politics rather than as a promoter of trade arrangements of Norwegian herring to Soviet Russia (her initial task in Norway), she wanted to get back to writing and politics. In Paris and in Berlin her stories and essays were very well received. In Paris 1923 a selection of short stories

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and essays had been published with illustrations by Matisse, and in Berlin 1925 her “Love of the worker bees” (in German “Wege der Liebe”) was published in large editions with much acclaim. After 3 years in Norway, also having arranged for Norway’s de jure recognition in 1924 of the Soviet Union (as one of the very first countries to do so), she asked for resignation from her diplomat job. This was granted in the spring of 1926, initially in terms of a long-term leave of absence to be spent in Baden-Baden, a German health resort. The year 1926 seems to have been one of uncertainty in Kollontai’s life. In letters to European friends she considers the possibility of quitting the Soviet Union and the Bolshevik Party for a life as an independent writer somewhere in Europe (Kollontay 1977). On the other hand, quitting the Party was not easily done, neither in practical nor in emotional terms (Clements 1979). Her personal and political identity was tied up with the Russian revolution; the Bolshevik Party was her home. Most likely she realized that her options were limited, and that after all continued life as a diplomat might be a lesser evil. Kollontai’s uncertainties are exposed in her substantial corrections in July 1926 to the autobiographical text: The Aims and Worth of my Life (Kollontai 1926/ 1972), which few weeks before she had sent to a German editor, as a contribution to a book of autobiographies of prominent European women. In the original text there is very little on her more controversial views on sexual politics, and nothing on her disagreements with the Leninist line regarding Brest-Litovsk and the Workers’ Opposition. Nevertheless, in the final, corrected version the text is even further sanitized, erasing also all mention of individual positions and achievements. At this point in time, in 1926, Kollontai was assigned to a new diplomatic position in Mexico. Dutifully she traveled to Mexico, at the same time stepping back from feminist-socialist politics publicly and on the Soviet scene. How she conducted her personal life is another matter. But she took care to be on good terms with Soviet power, which increasingly meant Stalin. When after a few months in Mexico she realized that her health could not endure the thin air of Mexico City, she asked for a retransfer as ambassador to Norway, which was granted. In 1930 she was moved to Stockholm, as Soviet ambassador to Sweden. In Norway as well as in Sweden, Kollontai had large and friendly local networks. In Norway she turned the Soviet embassy into a cultural center, a meeting place for writers, actors, musicians, and intellectuals with native and foreign politicians (Hauge 1971). Also in Sweden she was very popular, with large networks of friends. She was much respected as a clever and efficient diplomat, counting among her achievements her role in bringing an end to the Finnish so-called Winter War against the Soviet Union (November 1939–March 1940) and likewise – toward the end of World War II – in securing a separate Finnish-Soviet peace in September 1944, including post-war Finnish independence. Kollontai’s daily life as a Soviet employee was, however, not easy. Her subordinate staff was spying on her, sending reports back to Moscow, and every so often she was called to Moscow on duty. The worst was in July 1937 and July 1938, during the years of Stalin’s terror, when most of Kollontai’s comrades from the revolutionary days were murdered. Her apprehensions before both of these trips are documented in letters to her Swedish

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best friend Ada Nilsson, whom she asks to take care of her personal papers and documents in case of her death. Both times she did, however, return to Stockholm. In her life as a diplomat, Kollontai was the official representative of the Soviet Union, however much she might disagree with Stalinist politics. She made an effort to maintain friendly personal relations with Stalin – a fact that most likely saved her life. But also, to the end of her life, she took pride in seeing the Soviet Union as a workers’ state: nationalized industry, a planned economy, and a social welfare program. In 1945–73 years of age and half-way paralyzed from a stroke in 1942 – she was called back to Moscow, where she spent the last years of her life editing her diplomatic diaries. These diaries – two large volumes – were published in Russia 2001, parts of them later published in German (Kollontai 2003), Swedish, and Norwegian.

Conclusion Kollontai’s writings were exceptional in her own time, and they are so even today. Her thinking was rediscovered and appreciated by the New Women’s Movements of the 1970s, when her writings were again translated and published/republished. Still, however, the ideas that Kollontai sketched out regarding broader notions of love, and of love-solidarity as a social force, have not really been developed since she introduced them 100 years ago.

References Clements BE (1979) Bolshevik Feminist. The life of Aleksandra Kollontai. Indiana University Press, Bloomington Farnsworth B (1980) Socialism, feminism and the Bolshevik revolution. Stanford University Press, Stanford Farnsworth B (2010) Conversing with Stalin, surviving the terror: the diaries of Aleksandra Kollontai and the internal life of politics. Slav Rev 69(4):944–970 https://doi.org/10.1017/ S003767790000992X Hauge K (1971) Alexandra Mikhailovna Kollontai: The Scandinavian Period 1922–1945. PhD dissertation, University of Minnesota Kollontai A (1972) The Autobiography of a Sexually Emancipated Woman, foreword by Germaine Greer. London: Orbach and Chambers. Text first published in German: Autobiographie einer sexuell emancipierten Kommunistin, 1926; the original manuscript with last-minute changes published 1970 with afterword by Iring Fetcher, München: Rogner & Bernhard. Reference in text to essay: ‘The New Woman’, written 1913, published in Russian 1918 as part of The New Moral and the Working Class

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Kollontai A (1977) Selected Writings, introduction and commentaries by Alix Holt. London: Allison & Busby. References in text to The Workers’ Opposition, published in Russian 1921, and ‘Make Way for Winged Eros’, published in Russian 1923 Kollontai, A. (2003). Mein Leben in der Diplomatie. Aufzeichnungen aus den Jahren 1922 bis 1945. Herausgegeben von Heinz Deutschland. Dietz Verlag, Berlin Kollontay A (1977) Kära Kamrat! Allarkäraste vän! Selected letters, commentaries by Britta Stövling. Gidlunds, Stockholm Luxemburg R (2010) Socialism or Barbarism: The selected writings of Rosa Luxemburg, edited by Paul le Blanc and Helen C. Scott. London: Pluto Press. Reference in text to “The Founding Convention of the German Communist Party”, Berlin 1918

Laski, Harold J. José Luis Monereo Pérez

Introduction Harold Joseph Laski (Manchester 1893 – London 1950) was an “organic” intellectual—in the Gramscian sense of the term—who linked his activity of theoretical and scientific thinking to the demands of the labour movement and the political practice of British Labour and of socialist thought more broadly. He was one of the most eminent and influential intellectuals and political philosophers of his time, swinging from pluralism to opinions closer to critical reformist socialism (at the time heavily influenced by Marxist theory). In this sense, Laski played a dual role in his capacity as a prestigious professor of political science and as éminence grise of the Labour Party (of which he served as chairman between 1945 and 1946). During his stay in the United States (beginning in 1916), he participated in the foundation of the New School in New York, and within the frame of his collaboration and friendship with Felix Frankfurter he advised Franklin D. Roosevelt, with whom he shared the ideology of the New Deal and the need to give a prompt answer in beating back the totalitarian and imperialist understanding of Adolf Hitler’s German government.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0. J. L. M. Pérez (✉) Universidad de Granada, Granada, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_22

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Fabian-Inspired Social Liberalism Needless to say, Laski was one of the great renovators of philosophy and political science in the first half of the twentieth century, this owing to his deep knowledge of the history of political and legal thought. He was aware of the role of intellectuals in society; thus, he wrote his books based on his active experience in political life, interpreting changes and suggesting measures to be adopted. This gave meaning to his life of fighting for his ideals, placing all his knowledge at their service. He gradually adopted a more critical understanding of capitalism and its future, rejecting the dogmatic philosophy of individualistic liberalism, based on unsupportive and “possessive individualism.” In so doing, he waged a battle in the field of philosophical political ideas and political action, at a later stage without challenging the Marxist vision of capitalism in the search for and defence of a peaceful pathway towards socialism. He made it his own practice to live out Weber’s maxim that “one has to get to work and respond, as a man and as a professional, to ‘everyday needs.’ This is simple and straightforward if each one finds the demon who pulls the strings of his life and pays obedience to him.” He published an important academic work (The Problem of Sovereignty, 1917), after which would come additional ones, especially what can be considered the most significant work of political philosophy of his first stage, A Grammar of Politics (1925). Progressively, his studies became increasingly functional to the demands of direct political intervention (which is the case, to a lesser extent, for his work Communism [1927], and more so for Democracy in Crisis [1929], The State in Theory and Practice [1935], and The American Democracy [1948]). His efforts to get democratic socialism to break through in Europe and the United States were not as successful as he had predicted for the postwar world. Hence his disappointment at the error of his prediction, and a certain dose of disenchantment with the possibility of realising a socialist society through the wide participation of citizens—not converted into a simple ill-organised “mass”—that would overcome unequal capitalism (“liberal socialism”). Laski was a professor of political theory at the London School of Economics, as well as at Harvard, Yale, and other Northern American universities, and did intense teaching and lecturing in various countries. He belonged to the executive of the Labour Party. During his stay in North America, he and his wife, Frida, joined the Boston Group, which was a “platform for the army of the good”: he was a suffragist, supporting the Intercollegiate Socialist Society, later renamed League for Industrial Democracy (an organisation similar to the London Fabian Society) and the Women’s Trade Union League. In the 1920s he joined the Fabian Society and in 1926 took over Graham Wallas’s tenure (mentor to the young Laski, and one of the first members of the Fabian Society) in the School of Economics. It is quite significant that the best work of his early period, A Grammar of Politics, was dedicated “to the London School of Economics and Political Science and its founders, Sidney and Beatrice Web.”

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From 1916 onwards, and for many years, he would maintain a significant correspondence with Oliver Wendell Holmes Jr. (until his death in 1934), a renowned progressive justice of the United States. He would later join the Labour Party. His position was initially moderate to progressively become more critical and yet closer to nondogmatic Marxist thought: this is evident after the publication of his work Communism in 1927, although he is particularly critical of the doctrine that later came to be called “real socialism,” which would emerge out of so-called Soviet Marxism. All of this led him to lead an important dissident trend within the Labour Party. In May 1936, Laski collaborated with John Strachey on the project the publisher Victor Gollancz initiated to create a Left Book Club, of which Laski and Strachey were cosponsors. This group had great influence among Labour intellectuals until late in the 1930s. Against this backdrop, he actively intervened in favour of women’s suffrage and support for a United or Popular Front and solidarity with the Spanish Republic. Many left-wing Fabian socialists had come to the same conclusion of an active response in solidarity, faced with the hesitant position of Labour leaders, paralysed by the fear of world war. In the 1940s, he continued to participate in the Labour Party’s policy design, beginning with the important resolution on the general orientation policy (The Old World and the New Society), which was approved in the conference of 1942. It was a statement of objectives for a socialist world reconstruction through the legal channels of parliamentary democracy. It was deemed to be the most appropriate political formula for solving the inherent plurality of human existence (which extended to all the broad aspects of political, social, economic, and cultural life). Democracy respected such pluralism and provided a shared space for its free expression within an open framework for deliberation (deliberative democracy) and political decisionmaking (in turn reflecting the necessary unity in the diversity of interests and values). It was based on tolerance (Hans Kelsen) and respect for the adversary and minorities, with rules of the game, kept to a bare minimum, that all political and social actors would play by. This programme maintained a lasting peace based on the agreement between the great powers, public control of the economy, full employment, the universalization of social services (social insurance legislation), and a comprehensive educational policy. The connection among all these elements of the programme became even more evident in light of S. W. Beveridge’s social liberalism, outlined in his two wellknown reports on employment and social security (based on J. M. Keynes’s contributions). In those years, the intervention continued to be persistent, given the very close relationship between the Labour Party and the Fabian Society, bearing in mind that the latter sought to reorganise society through a vigorous intervention by the state.

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Sovereignty and Pluralism in Laski To Laski, the state, as a particular association, is the apex of the entire modern social structure, whose special nature lies in its supremacy over all other forms of social grouping. The state is a way of organising collective life in a given society. It is the cornerstone of social structure: it shapes the form and character of millions of human beings, whose destiny is entrusted to it, and is key to social order, but it is not identical to society. This is the purely realistic understanding of the state, which should not be confused with Laski’s supposed attachment to political realism in the narrowest sense, as he always affirmed the primacy of interests over values, as well as of international law over national laws. In the modern world, the state is a territorial community in whose name certain agents exercise sovereignty, the latter understood as the legal power to issue orders without having to submit to a higher authority. The orders thus issued constitute laws, which bind all those who fall within the state’s jurisdiction. In a democratic society, the fact that the law emanates from sovereign power is not enough for it to be accepted, even when it is presented as an effort to achieve a just result (“legitimate power”). Its claim to command obedience is based on human judgment on the legitimacy of such claims. To Laski, citizens have the right to have their wishes taken into consideration, and these conditions must be respected by any state that claims to be worthy of obedience. When these conditions are not respected, those citizens who suffer from such a lack of legitimacy have the right to deny that the state is the guardian of their interests, which gives justification for disobedience. According to Laski, the law can only be considered such when the recipients are willing to cooperate in its application. In the framework of such a pluralist theory of the state, which the first Laski fully accepted, he stated that its foundation lies in the denial that an association of people within the community inherently enjoys supremacy over any other existing association. Pluralism is an attempt to recognise the individual conscience as the only and true origin of a law that requests the obedience of its subjects; it means recognising that there is no jurisprudence worthy of such a name that tries to separate the idea of law from justice. According to pluralistic political and legal philosophy, the state is an organisation like any other, to which the performance of certain functions is entrusted; thus the character of these functions does not imply the right to sovereignty, as realism brings him to admit that this would amount to conferring unlimited authority on ordinary and fallible men. As to the international perspective, Laski adheres to Kelsen’s conception expounded in his well-known work Das Problem der Souveränität (2nd ed., 1923), in Principles of International Law (1952), and in the work of I. L. Kunz and Verdross, in which that conception is echoed. He then highlights that the supremacy of international law over state law must be affirmed, such that the community of states—what has been called the civitas maxima—dictates laws that stand supreme over all other laws. To him, the states would, as it were, be

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“provinces” of this civitas maxima, whose authority stems from the rules that are considered necessary to maintain common international life. According to Laski, a legal theory that does not start by establishing the purpose of the law cannot give meaning to its claim to obedience, without which the elaboration of legal norms is useless. In his opinion, formalist conceptions have been completely superseded by historical events, despite the fact that the traditional theory of the state has been built under the understanding that it would be definitive. Historical events were putting things in place, and the construction of a new legalpolitical order was underway. It is necessary to come up with a political philosophy not based on the nation-state but rather aimed at creating a cosmopolitan order in which said national state in the international political situation is gradually reduced to a “province.” The age of Grotius was coming to an end. In the future, it would be necessary to build the fundamental notions of international law not based on the relationships between states, but rather on national laws as a system derived from the norms of international law. In such a new order it will not be possible for any state to have absolute and unappealable powers; rather, they will be much more similar to those of a “province” in a world federation, with authority in a certain area, beyond which there will be strict limits. To Laski, the evolution of the government of states was increasingly dismantling the categories within which the nation-state had tried to enclose it. The “universal state,” whatever its structure and degree of decentralisation, excludes the separation of multiple and isolated sovereignties, as the functions that influence the life of society have to submit to the collective and concerted decision of men. To Laski, modern science and the current economic organization had made the world a set of interdependent elements: this leads him to theorise “the principle of supremacy of cosmopolitan needs over national requirements.” The first Laski was indeed an extreme pluralist fighting against the Hegelian case for the establishment of an absorbing state: “any society,” he says, “is essentially federal in nature. The State is, formal law apart, one with other associations, and not over and above them. Its legal imperatives succeed by being in a creative relationship with those which other associations lay down for their members. What it should largely seek to register as the law is the body of demands it encounters among them which represent the largest total of satisfaction in society.” According to Laski, the monist theory of the state—whereby the modern state is a sovereign one, an independent entity as opposed to other communities, projecting its will over them and excluding any other internal or external will—is at odds with some of the deepest and most common experiences and conditions of humankind. The contemporary state imposed a pluralist conception of power, as opposed to the monistic one, thus breaking with the model of formal rationality. Public opinion cannot be assumed to be homogeneous, nor can the will of the state be simply described as its deliberate expression without further ado. He maintains that the construction of a full international order requires the abandonment of state sovereignty. Furthermore, a good theory of politics must start from the incompatibility of the sovereign state with the world economic order and emphasise that the state is the guardian of class relations that prevent us from achieving a richer civilisation. However, it should consider that the sovereignty of

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the state cannot be abandoned while its power is still available to capital owners. He pointed out that this is precisely why the League of Nations had failed, since for it to have an actual chance to succeed, it would have been necessary to prevent it from deeming war a legitimate instrument of foreign policy. To avoid this, it is crucial to abandon the idea of sovereignty, because until this elimination has been achieved, no serious cohesion can take place at the international level. Due to his excellent theoretical background and his direct political experience, Laski was aware that extreme pluralism was unfeasible for the governance of a society as complex as that of developed capitalism. His conception, as it emerges from his work, is to be understood in the framework of a broader reflection on the modern theory of the state and on the troubled democracy and the parliamentary system crisis in the interwar period, as well as on the growing role that interest organizations play in the policymaking process. Laski denounced the traditional liberal theories’ fiction of a unified will for the realization of general interest (the undifferentiated common good), arguing that such an artifice had the serious drawback of neutralizing, blurring, and even making existing plural interests disappear. Hence, a dual mechanism was added to complement parliamentary democracy so that it could overcome its insufficiencies: the recognition of areas of social autonomy for groups, on the one hand, and on the other the establishment of specific professional or corporate representation mechanisms (secondary or tertiary professional or labour chamber, economic councils with members representing social groups, having advisory or decision-making functions on certain issues, etc.). This represents a dual integration of socioeconomic interest groups both in the political-legislative process and in the governmental and administrative ones. As regards the former, propositions for corporate representation were made, involving functional or professional representation techniques (or representation by interests) of a professional or union nature, aiming to link interest groups with legislative decision-making. Laski himself was highly influenced by two intellectual currents of professional or corporate representation: at the level of political philosophy with its link with Fabian socialism (and to a lesser extent with union socialism), and at the legal-political level through the solidaristic theory of Leon Duguit, who had considerable influence on Laski. In the first third of the twentieth century, proposals for the establishment of professional or economic chambers proliferated (based on the distinction between a social and a political parliament). This was a political response to the crisis the liberal parliamentary system was undergoing at that time, with the increasing displacement of the single-class state by the plural-class state, as a reflection of the loss of the illusion of the idea of the substantial homogeneity of a supposedly “undifferentiated” population. This is the crisis of the liberal project, which is above all the crisis of parliamentarism, with a critical final act at the end of a period of (apparent) security, before a period of dizzying transformations. The plural-class state opens up new penetrating interventions and public processes for planning private economic, social, and cultural activities, which led to a politicization of economic life. Therefore, consensus on goals and collective action, due to their heterogeneity, is more difficult to achieve than with homogeneous groups. On the

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other hand, it is clear that Laski openly rejected any authoritarian (fascist corporatism) or allegedly «democratic» (“guildism”) version of integral corporatism, which would involve the replacement of a political parliament, inherent in modern democracy, by social or economic parliaments, or even chambers or union corporations. Laski was more inclined to establish economic parliaments or economic councils, their functions either merely consultative or authoritative only to a limited extent, and serving to complement, rather than replace, classic channels of parliamentary democracy.

A “Gradualist” Socialism In one of his most important and influential works (written in 1924–25), A Grammar of Politics, he embraced a “gradualist” socialism from a utilitarian perspective, claiming individual rights and autonomy for voluntary social groups (professionals, unions, trade groups, and churches) against the Leviathan state, embodying William James’s pluralism. To Laski, the state is an organisation aimed at applying the law and maintaining order in society, coordinating the activities of other voluntary associations and organizing relations at the international level. He was very impressed with Otto von Gierke’s conception of the legal personality of industrial and religious organizations—as it gave them the ability to defend their rights and independence, as opposed to the situation in the Middle Ages—and at the same time to demonstrate that trade union organizations have a similarly autonomous position in contemporary society. In this work, he came to reject guildist socialism for being unfeasible, as well as the Webb spouses’ proposal to create two parliaments: a political one and an economic one. However, he still argued for the political pluralism of groups as a counterweight to the power of the state. Thus, the work carries a clear Fabian undertone, supporting state intervention to carry out economic and social reforms and at the same time the decentralization of political power and the right of producer and patient interest organizations to control and cooperate in the organization and administration of the welfare state or public service. On the legal front, very evident in this work was the influence of Duguit. Laski intended for there to be “consensual revolution” (a legal reform through a social state as an essential element for a social-democratic transformation) as an alternative that would avert civil war and confrontation on a world scale. Indeed, he hoped for the real possibility of carrying out a peaceful transition to democratic socialism in England. This implies respect for democratic rules and conciliation with a minority disagreeing with radical reform measures. Peaceful change is necessary because revolution, like war, in its violent form, is an infinite tragedy and must be avoided. However, the hope for lasting peace and collaboration between the various powers seemed to disappear to a great extent with the death of the American president Franklin Delano Roosevelt, in whose capacity and goodwill Laski had placed great hopes.

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During the Second World War, he would be the actual leader of the left wing of the English Labour Party, even though he was part of the party’s executive committee, and in 1945 he even reached the chairmanship. Anyhow, Laski celebrated the Labour government’s triumphs in domestic policy (social security, social services, etc.), and maintained a critical position regarding the moderate stance in foreign policy. In 1949 he resigned, refusing to be reelected as a member of the executive committee of the Labour Party. At the same time, with liberal states governed by the rule of law against the backdrop of the crisis of liberalism, extreme pluralism was overcome; this caused Laski’s thought to evolve in interaction with such a climate of social discontent, thus marking a shift to the “second Laski.” To a certain extent, the overcoming of “naive” pluralism (for its extremeness and lack of correspondence with internal and external political reality) would have to wait a few more years: in 1938 he expressly declared that he had abandoned pluralistic principles in the Fabian sense (Parliamentary Government in England). At the end of the 1920s, the misconceptions of an optimistic conception of pluralism were revealed, given the primacy of organizations with economic interests over the powers of the democratic state in organized capitalism and their ungovernability and the slippage of corporate pluralistic theories towards authoritarianism. This can be seen not only on the level of doctrinal reflection but also in the political practice represented by the more or less explicit agreements of the great economic organizations with the conservative parties. From that moment onwards, the “Fabian” Laski of 1925 gave way to the Laski of the critical endorsement of Marxism. However, with Marx, he always believed that a socialist society could be built in England without a violent revolution (Democracy in Crisis [1934], Chapter 4: “The Revolutionary Aspiration”). In any case, although Laski rejected Fabian socialism, he always retained one of its assumptions: unlike guildist socialism—the kind espoused by those concerned about excessive concentration of power in the hands of the state, who moved towards decentralizing corporatism—he always attached extraordinary importance to state intervention, without prejudice to its advocating the establishment of decentralized democratic procedures. Such was the kind of socialism that in the English state, suitably extended and reformed, saw the machinery with which to achieve all the needed reforms. In this respect, the second Laski could still stand behind the idea of a democratic social state, enhancing the function of nationalised companies that the administration of public services.

Conclusion Such an inclination towards Marxism had already been expressed before in works such as The State in Theory and Practice (1935), and even earlier in Democracy in Crisis (1933), which is an expanded version of the Weil Seminars he held in April 1931 (see Laski’s preface to the work). However, Laski always maintained that in a

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democracy, citizens must always be allowed to intervene actively, thereby guaranteeing “the capacity of continuous initiative” (Graham Wallas). In these works, Laski takes into account the non-neutral character of the state, rejects its idealistic understanding as a servant of the common good, and affirms that the history of law cannot be understood without seeking its roots in the modes of economic production.

References Laski HJ (1917) Studies in the Problem of Sovereignty, Yale University Press, New Haven. Laski HJ (1925) A Grammar of Politics, Allen and Unwin, London. Laski HJ (1927) Communism, Williams and Norgate, London. Laski HJ (1933) Democracy in Crisis, University of North Carolina Press, Chapel Hill. Laski HJ (1935) The State in Theory and Practice, Allen and Unwin, London. Laski HJ (1938) Parliamentary Government in England, Viking, New York. Laski HJ (1948) The American Democracy: A commentary and An interpretatation, Viking, New York. Laski HJ (1952) The Dilemma of Our Times, Allen and Unwin, London.

Further Reading Laski HJ (1919) Authority in the Modern State, Yale University Press, New Haven. Laski HJ (1920) Political Thought In England From Locke to Bentham, Oxford University Press, London, 1961. En la versión de Estados Unidos (1920), Greenwood Press, Publishers, Westport, Connecticut, 1973. Laski HJ (1921a) Karl Marx: An Essay, The Fabian Society, London. Laski HJ (1921b) The Foundations of Sovereignty and Other Essays, Harcourt, Brace, New York. Laski (1930) The Dangers of Disobedience and Other Essays, Harper and Brothers, New York. Laski HJ (1931) An Introduction to Politics, Allen and Unwin, London. Laski HJ (1932a) “La conception de l’État de L.Duguit”, en Archives de Philosophie du Droit et de la Sociologie Juridique, núm.1. Laski HJ (1932b) Studies in Law and Politics, Yale University Press, New Haven. Laski HJ (1936) The Rise of European Liberalism: An Essay in Interpretation, Allen and Unwin, London. Laski HJ (1937) Liberty in the Modern State, Penguin Books, Harmondsworth. Laski HJ (1940a) The American Presidency: An Interpretation, Allen and Unwin, London. Laski HJ (1940b) The Dangers of Being a Gentleman and Other Essays, Viking, New York. Laski HJ (1940c) Where Do We Go From Here?, Penguin Books, Harmondsworth. Laski HJ (1941) The Strategy of Freedom: An Open Letter to American Youth, Harper and Brothers, New York. Laski HJ (1943) Reflections on the Revolution of Our Time, Viking, New York. Laski HJ (1944) Faith, Reason and Civilization, Viking, New York. Laski HJ (1949) Trade Unions in the New Society, Viking, New York. Laski HJ (1951) Reflections on the Constitution, Manchester University Press, Manchester. Best GD (2004) Harold Laski and American Liberalism, Transaction Publishers.

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Freeden M (1986) Liberalism Divided: a Study in British Political Thought 1914-1939, Oxford University Press. Holmes-Laski Letters (1953) The Correspondence of Mr. Justices Holmes and Harold J. Laski, volume I 1916-1925, Edited by Mark De Wolfe Howe Hoover Kenneth R (2003) Economics as Ideology: Keynes, Laski, Hayek, and the Creation of Contemporary Politics, Rowman & Littlefield Publishers. Kramnick I Y, Sheerman B (1993) Harold Laski, Allen Lane/The Peguin Press, New York-London. Martin K (1953) Harold Laski. A Biographical memoir. Víctor Gollancz, London. Monereo Pérez JL (2004) La democracia en crisis: Harold J.Laski, Ediciones de Intervención Cultural/El Viejo Topo, Barcelona. Monereo Pérez JL (2002) La filosofía política de Harold J. Laski, Estudio preliminar a La Gramática de la Política. El Estado moderno (1925), edición J.L. Monereo Pérez, Granada, Comares, pp. XV-CIV.

Lenin, Vladimir I. Csaba Varga

Introduction In the history of Marxism, Lenin was the first to attempt to transform doctrines into practice. And while the cruel use of law to enforce political interests may have accompanied the history of mankind, Lenin was nevertheless one of the most conscious thinkers to experiment and, so to speak, theorize revolutionary legislation, the application of law to not par excellence legal purposes (Varga 1982), as well as ultimate directness by which practical targets should be reached via law – a denaturation that necessarily destroys any moral support to legal action. From the point of view of Bolshevism, Leninʼs position brought success, but from the point of view of the development of mankind, it all became an experience of terror, of denial of rights. What is more, from the perspective of the logic of Russiaʼs history, the fact that the tsarist past was continued by Leninist Bolshevism has made it impossible that trust in the law as a precondition for any functioning law and thus any genuinely legal culture may be formed (Varga 2019).

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2020, https://doi.org/10.1007/978-94-0076730-0_435-1. C. Varga (✉) Faculty of Law, Pázmány Péter Catholic University, Budapest, Hungary Institute for Legal Studies, Hungarian Academy of Sciences, Budapest, Hungary e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_23

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Preludes In 1917, the revolutionary upheaval in Russia forced Lenin to make numerous reactive decisions. Unlike Karl Marx and George Lukács, Lenin was not only a law-graduate but practiced law as well. Keeping an expressly hostile attitude towards the legal profession as a result of his failure as a lawyer, he copied Marx, who “appears predisposed simply to ignore the question of law as peripheral [. . .]. Marx’s jurisprudential thought is often premised upon a critique of law per se, and what he has to say tends to be overwhelmingly negative in character” (Vincent 1993, 371). In addition, there was also a possible doctrinal grounding which, although it could have initiated a new and truly theoretical – ontological – direction of research, served only to generate devastating consequences in a politically driven environment. For Nor did the writings of Marx and Engels seem to offer much beyond a paralyzing legal nihilism. [. . .] The nihilism of this confused vacuum was exacerbated by the view, forcefully insisted to by Engels, that because law was the world view of the bourgeoisie it was only the most backward sections of the socialist movement that voiced their demands in legalistic terms. (Beirne 1990, ix–x)

Its message was repeated as a commonplace by Lenin’s contemporary Soviet-Russian theorists: “Religion and law are the ideologies of the suppressing classes, the latter gradually replacing the former” (Гойхбарг 1924a, b, 8). By degrading law to mere ideology and transforming it into a political agenda, something more than simple ontological reconstruction has taken place. For thousands of years, law has served as the supreme factor of social integration. Throwing law back into the ethereal realm of illusions annuls its very civilizing power. Or as described by the famous Lukácsian History and Class Consciousness (1923) in expectation of a revolutionary revival after the Hungarian Soviet Republic fell, by becoming mentally freed from the bourgeois spell of “the law,” revolutionaries will disengage from the law’s psychical effect. This is to say that effects conventionalized always come from inside, from consciousness (de)formed for triggering exactly such effect. The Marxist tradition of seeing a degradation in law has manifested on three levels: one, the lawʼs almost anarchist nihilization; two, its reduction to a simple carrier of communication; and three, its omission from strategic planning perspectives. Considering that “Lenin’s views on law [. . .] appear [. . .] as weapons [. . .] in the service of particular aims [. . .] from different wars and different epochs of combat technology” (Burbank 1995, Abstract), his occasional opinions are not to be treated as parts of an overall theory. Rather, they are hic et nunc directives by a leader on duty. When “class struggle” became a rallying call for Lenin, he anticipated resorting to whatever instrument, illegal or legal (LCW 5, 454–467). Targets may have changed by 1905 from bureaucracy to bourgeois legality. For instance, in 1914 he criticized the opportunists “making a fetish of the necessary utilisation of bourgeois parliamentarianism and bourgeois legality, and forgetting that illegal forms of

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organisation and propaganda are imperative at times of crises” (LCW 21, 15–19). Fighting Liberals and Social Democrats, he stressed that “law” should not be fetishized. Moreover, Russia had no kind of “law” that was widely accepted by the public as the basis of social cohesion analogous to the law in the bourgeois world. That is, the western prestige of law is unknown in Russian reality, which stands for the “omnipotence of the bureaucracy.” Lenin never reckoned with law’s potential for Russia: for him, law remained negative, interventionist, and repressive. When in 1917 he wrote The State and Revolution, he promised the “complete destruction of the bureaucracy” (PSS 33, 117) and “direct class struggle” at a time when the Mensheviks and Social Revolutionaries fought legally for the Constituent Assembly to convene and authorize legislation (LCW 25, 196–197). What the proletariat needed was “only a state which is withering away, i.e., a state so constituted that it begins to wither away immediately, and cannot but wither away”; a state “which is ‘no longer a state in the proper sense of the word’” (https://www.marxists.org/ebooks/lenin/state-and-revolution.pdf, II/1 and V/4). What happened from the alleged symbolic moment when the battleship Aurora’s gun fired a blank shot, signaling that a new world would be born? Nearly 50 years old, captivated by the idea of destroying czarism and building a communist society, Lenin prepared for such a moment throughout his life. Anyone in St. Petersburg walking to the Peter and Paul Fortressʼ Trubeckoy Bastion prison can appreciate the lives of those dreaming day and night, nurturing their singular goal. As early as on December 22, 1917, Lenin echoed what Georgi Plekhanov had declared at the Russian Social-Democratsʼ Second Party Congress while framing their program in 1903: “ salus populi suprema lex – salus revolutionis suprema lex.” – that is, “the success of the revolution is the highest law. If it were necessary for the success of the revolution to restrict the effect of one or another democratic principle, it would be criminal to stop at such a restriction” (LCW 42, 48). That is, whatever tool that achieves the goal is sanctified.

The Events On the first four hundred days, 1033 decrees, proclamations, and the like were issued, and 596 more in the following year. Of these, Lenin formulated the decrees on Peace and on Land on the first day of the revolution to “pacify and satisfy” amidst “economic chaos and a peasant revolt.” The purpose of those decrees was to draw the peasantry to the revolutionariesʼ side by overthrowing the old establishment by abolishing land ownership. As recalled in late 1922, this, “unlike any other laws, [. . .] though very imperfect from the technical and perhaps also from the juridical point of view, nevertheless, provided the peasants with all that was vital and essential for them, and ensured their alliance with the workers” (LCW 45, 390–395). Otherwise expressed, by satisfying the most urgent demands of the population, these laws simultaneously legitimized and consolidated the new power, now protecting it by the support of the vast majority of the people, too.

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Imitating normative contents, they were drafted in form of declaration, entrusting the selection of subjects and methods (of who and how to act) to arbitrary local initiative, while preacknowledging any final (random) outcome with the seal of law. Thereby part of the overall socio-economic transformation was entrusted to spontaneity, to local devoteesʼ wanton choices. What was important to Lenin was that “the peasants should be firmly assured that there are no more landowners in the countryside, that they themselves must decide all questions, and that they themselves must arrange their own lives.” Hence, he had to nurture “the general stream of revolutionary creative work”. All in all, according to Lenin, “[w]e must be guided by experience; we must allow complete freedom to the creative faculties of the masses” (LCW 26). In the course of all this, the duality of issuing decrees (for propaganda, agitation, mobilization) while preserving sheer arbitrariness (whenever it could help the cause) began its career. “Decrees are instructions which call for practical work on a mass scale.” From their practice, enormous experience could be accumulated over time. “If we treat matters in this way we shall acquire a good deal from the sum total of our laws, decrees, and ordinances. We shall not regard them as absolute injunctions which must be put into effect instantly and at all costs” (LCW 29, 209). For “Russia is vast, and local conditions vary.” Therefore, “the local Soviets, depending on time and place, can amend, enlarge and add to the basic provisions worked out by the government” (LCW 26). Instead of guiding, momentary decree-issuing launched legal processes. The provided legal authority was a mere framework, filled in by the arbitrary practice it generated. Its logic was undefined generality in terms of law and random variations produced in actual practice. Formal institutional arrangements also had to be made. The first was the reform of courts in January 1918, through which “[w]e transformed the court from an instrument of exploitation into an instrument of education” (LCW 26, 464). With further decrees, they served continuity and revolution at the same time, that is, reorganization favorable to further progress: the old professional staff was taken over and reference to old rules allowed, but the decrees encouraged measures that furthered revolutionary justice. Leninʼs target was to “enforce the will of the proletariat, apply its decrees, and in the absence of a suitable decree, or if the relevant decree is inadequate, take guidance from your socialist sense of justice, ignoring the laws of the deposed governments.” Heralding the communist communitarian self-management derived from their Utopianism, the tenet of “every citizen is a judge” became a party program by early 1919: “anybody can act as a judge basing himself on the revolutionary sense of justice of the working class” (LCW 29, 182). The tenet of popular participation applied to public administration as well (LCW 25, 420–421; 27, 272–273). Pro tem, law-generated dysfunctions also had to be cured: stopping the laws’ proliferation; building “uniform legality” out of the chaos of concurrent regulatory bodies; and forcing back the mob-terror produced by the “revolutionary sense of justice” into the bottle of “discipline and observance of the law.”

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Leninʼs actions alternated between the extremes. In 1918, with Bolsheviks fighting for unrestricted legislative power, Lenin refused “bourgeois formalism” (while Trotsky invoked the inadequacy of “conventional parliamentary machinery”). In a very short order, he had to manage the dysfunctions of increased and uncontrolled decree-production and arrange the necessary changes for curing them. As also expressly emphasized, “But be is a poor revolutionary who at a time of acute struggle is halted by the immutability of a law. In a period of transition laws have only a temporary validity; and when a law hinders the development of the revolution, it must be abolished or amended” (LCW 27, 519). By June 1918, Russia had fallen to pieces. Reminiscent of feudal particularism, dozens of self-standing quasi-governments with competing regimes reminiscent of once small feudal states came into being. Fragmentation was aggravated by a “chaotic pile-up of organs [. . .] with the natural desire of each of them to be higher than all the rest [. . .]. Everyone gives orders, and no one carries any orders out” (Вишняк 1919, 9). The chaos of momentary actions/reactions split the elementary tissues of social cohesion. The urge to force success through destruction ended in a kind of violent lawlessness, with rule of force substituting to any rule by the law. From a rhetorical point of view, the first of the two stages was a period of revolutionary decrees addressed to the people. In order to mobilize them for purposeful free action, decrees legitimized both the course, and the results, of action – in addition to legitimizing the revolution itself. A couple of months later, their propaganda language was replaced by bureaucratic language, by March 1918 becoming exclusively bureaucratic, as a return to the prerevolutionary professional style. By late March in 1922, civil war with strikes, famine, and unemployment was a threat to the very survival of the revolution. Marching through chaos had to end: “‘The phase of propaganda by decrees’ is over” (LCW 36, 574). Some legality was to be interposed between licentious total anarchy and “bourgeois formalism.” Lenin demanded from the judiciary “to ensure the strictest discipline and self-discipline of the working people” (LCW 27, 217) while, as a security check, all counterproductive factors like elements of informality and versatility with ability to directly respond to political changes also had to be built in. In sum, Lenin merged law with revolutionary expediency, into the changing reactions to changing demands of the dayʼs political constellation. The never ceasing use of terror resulted in demoralization and growing inefficiency, avoiding responsibility at all levels, with competences abandoning service to the public. For those in charge of managing the legal machinery with state administration and public services involved, the fear of retaliation based on arbitrary criteria became the prime motive of deliberation over whether to act at all. Shortly they had to decree that law was law so it would be obeyed, but in the end nothing proved effective. For instance, with age-old bureaucratic routine they rediscovered that it is the inspectorsʼ inspector who had also to be inspected but, eventually, no cure-all helped. Indeed, super-controlling super-control remained the final panacea – “departments are shit, decrees are shit. Find people, check up on work – these are everything.” (PSS 44, 369) – for “[t]he essential is not in

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institutions, not in reorganizations, not in new decrees, but in the selection of personnel and in checking performance” (LCW 36, 574). The greatest problem was how to guarantee the unity of law. Can any sense of law evolve when unrestrained arbitrariness is also encouraged? After all, by May 1922, Lenin expressed frustration experiencing law as “Kaluga or Kazan law” and instituted prosecutorial oversight so that “uniform all-Russian law” could finally rule. At the last minute he had no choice but to discover the ethos of law for himself as well, as “[u]nless we strictly adhere to this most elementary condition for maintaining the uniformity of the law for the whole Federation, it will be utterly impossible to protect the law, or to develop any kind of culture” (LCW 33, 364, 365, 365 & 366). According to Burbank (1995, 37–44), the first month of “antibureaucratism” (calling for mass actions) passed into “antiformalism” (fearful of losing confrontations within the Constitutional Assembly) from December 1917 on. Accordingly, this time Lenin opined that “[w]e’ll tell the people that its interests are higher than the interests of democratic institutions. There’s no need to go back to the old prejudices, which subordinated the interests of the people to formal democratism” (PSS 35, 137). General famine ensued within months. At this point – at the last minute indeed – Lenin may have begun to realize how his idea of Utopia was destructive as it made society defenseless. He then returned to the “major real task: administration, organization and supervision,” looking for “more exact juridical formulations” and also for “more exact observance of the law” (PSS 36, 165–208).

The Nature of Bolshevik Law For Lenin, “Laws are political measures” (LCW 23, 48). Such a reduction amounts to denaturation, disowning the law’s autonomy. A law entirely politicized is simply dictatorship, unrestricted power founded on sheer violence, void of rules. But this is what Lenin professed from 1906 on: “authority untrammeled by any laws, absolutely unrestricted by any rules whatever, and based directly on force. The term ʻdictatorshipʼ has no other meaning but this” (LCW 10, 247). And he continued to reassert this in the midst of the revolution, claiming that “Dictatorship is rule based directly upon force and unrestricted by any laws. The revolutionary dictatorship of the proletariat is rule won and maintained by the use of violence by the public against the bourgeoisie, rule that is unrestricted by any laws” (Lenin 1970, 12). Externally, this is revolutionary expediency, and internally, arbitrariness, where revolutionariesʼ alleged morality substitutes for law, and pure interest, for morality. Or, as stressed, “[o]ur morality stems from the interests of the class struggle of the proletariat” (LCW 31, 291–292). In a final reduction, state machinery transformed into the Bolshevik partyʼs executive arm. Law became party product. Thereby a given private club transubstantiated into the public entity that ruled without having to account for its actions responsibly.

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At the same time, the law remained interwoven with violence and terrorism, and this was to limit any genuinely legal effect. “It seems never to have occurred to Lenin that the root of [. . .] troubles lay in the fact that the whole system was based [. . .] on force and not on law” (Kolakowski 1978, 489). The unceasing sense of danger it generated must have caused individuals to call upon his/her defensive coping mechanisms. And with the accumulation of effects, public and private action fell prey exactly to this compelling need for defensiveness, by shifting the responsibility onto others. Brutality and terrorism was a central constituent of Leninʼs tactics throughout his life. As early as in 1891, when the Volga famine led his sister to give a helping hand, he turned away by cynically rejoicing that the czarism would at least be unveiled more strikingly (Беляков 1958, 80–82). He opted for mass terror in 1905, because he derided individual terror as not effective enough. So he optimized its potential up to the stage when, as Nikolai Krylenko concluded, “We must execute not only the guilty. Execution of the innocent will impress the masses even more.” When contemplating action, terrorism was Leninʼs first preference. Violence became his usual procedure: the first, the customary means, when he stepped in, thus ruling out, so to speak, the chance of other, more peaceful and more political ways being considered at all. Terror and/or discretionary adjudication complemented even regulatory measures. When drafting the Criminal Code, he insisted that The courts must not ban terror—to promise that would be deception or self-deception—but must formulate the motives underlying it, legalise it as a principle, plainly, without any make-believe or embellishment. It must be formulated in the broadest possible manner, for only revolutionary law and revolutionary conscience can more or less widely determine the limits within which it should be applied. (LCW 33, 358)

Eventually law and terror could switch places at any time. After all, Terror became with [Lenin] an administrative technique, a simple way of solving problems and achieving results when conventional means failed; armed with terror, the Vecheka served as the Partyʼs all-purpose agency, as the short cut to a given end. (Leggett 1981, 169–170)

As Lenin declared by 1917, nothing is exempt from direct subordination to the revolutionary cause, including what the Soviets themselves may have issued. The irony of the drama closed when the Bolsheviks, having won uncheckable power of decree-issuing, practically arrived back where they departed from 2 weeks ago, a parody of the hated Muscovite patrimonial absolutismʼs ukaz-government. Moreover, even decree-government became privatized in that, instead of the monarch as the stateʼs representative, the Bolshevik party as an entity having no constitutional standing and responsibility but being fully autotelic and selfdependent, moreover, ready to self-reproduction, was to rule. Thereby, within some weeksʼ time, the style of the revolutionary exercise of power became a simulacrum, or rather a copy, of pre-1905 tsarist times. All in all, what Lenin built was a law perverted into a complementation of its own denial. In fact, Lenin conspired against his party as well, when he organized his

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terrorist organization, the Cheka, and then freed it from any responsibility. As to state actions, insensitively to forms or ordered frameworks, he valued revolutionary activism and efficacy exclusively. Lenin issued decrees – himself, unassisted, conspiratorially. For many a time, Lenin drafted and signed them, then made them co-signed and published within hours by Yakov Sverdlov of the Congress of Soviets.

“Legalized Lawlessness” The revolution generated chaos, and common sense was silenced. Indeed, Utopianism mixed with unrelenting autotelism had to lead to the idée fixe of “Dictatorship [that] is a state of intensified war. [. . .] Until the final issue is decided, this awful state of war will continue. And we say: ‘ À la guerre comme à la guerre; we do not promise any freedom, or any democracy’” (July 5, 1921, in LCW 32). After all, as initiated by him, a “civil war [was] fought with legalized lawlessness” against the people themselves (Pipes 1986). From the moment of seizing power, revolutionary courts were established annihilating “the enemy” so much indiscriminately that some when before March 1918, Peopleʼs Commissar for Justice Isaac Steinberg dared openly ask Lenin why he did not call his office the Peopleʼs Commissariat for Social Extermination. For, in addition to revolutionary courts, the Chekaʼs specialized terror machine was established on December 5, 1917 (and institutionalized throughout the country by September 1918), with victims selected according to labels like “enemies of the people,” “hidden enemies,” or “suspect social origin.” As a matter of fact, tribunals were endowed with “a complete liberty of repression [. . .] not bound by anything in selection of punishment [. . .and having. . .] no procedure but shooting,” while the Cheka could proceed to reach “final decision [. . .] with no appeal against it [. . .and. . .] with no rule settling either the jurisdiction or the procedure” (Крыленко 1923, 100, 205 & 322–323). According to data available for 1934–1935, 51.1% of the judges were in want of relevant training, 41.7% had approximately six months’ and 1.8% one-year of legal coursework, with only 5.8% being law graduates. Of all, 84.6% of lower court and 62.2% of higher court justices attended at least elementary school. The end result is breath-taking: 200,000 red terror victims in addition to 2,000,000 executed from 1917 to 1923, in striking comparison to 14,000 victims for the last half-century of czarism.

Personal Features Leninʼs own scholarship shares some common features with Marx in that their “whole approach is one of vindication, not investigation, but it is a vindication of something proclaimed as the perfect truth with the conviction not of the scientist but

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of the believer” (Jaspers 1950). His personality type is “aggressive, authoritarian, and completely detached from the values of the Western civilization,” a “pathological [whose] abnormality is only apparent from a democratic point of view” (Barbu 2000, 262 & 263). This may have been self-reinforcing in that he “disorganized and destroyed in order to seize power and, in turn, used power to disorganize and destroy” (Possony 1964).

The End of the Game In 1921, the Kronstadt rebellion was a denial of the Leninist outcome. Its blood sacrifice stood for a genuine democracy with self-determination but without any ruling party. By making law a servile companion of politics, it lost its distinctiveness and became an instrument of political manipulation. Thereby “Leninʼs idea of law as a manipulable instrument of politics deprived it of the ‘majesty’ and the aura of ‘justice’ that could have made law, over time, an effective arm of the socialist state in Russia” (Burbank 1995, 43–44). Such failure was predetermined by the first moments of Leninʼs revolution as, ab initio, the overthrow of the parliamentary regime, the call for land seizures, and individual justice all served the rejection of both recourse to law and trust in the law. Everything, and everything else, was dominated by arbitrariness. Thereby law became a potential threat to anyone governed by it. Even today, international development agencies, either charitable or mentoring, are cautious about advising Russia on anything to be drafted in the form of legal regulation. Three decades after the Soviet Union fell, Russian scholars cannot anticipate much more than progress toward a kind of dual state: prerogative and normative dictatorship in matters of political interest, on the one hand, and classical rule of law wherever the matter is politically irrelevant, on the other. It is worth noting that post-Soviet legal scholarship is mostly silent about the issue. Instead, it is concerned with exploring Christian roots within a new Russian discipline, called “culturology,” in the hope of a (new) normalized future.

Conclusion Lenin’s oeuvre was, from the law’s viewpoint, its extreme and inexorable instrumentation for power engineering, first in the Russian political theory of Marxism, based on the antecedent of anarchism, and then as a tragic end in the Bolshevik revolutionary practice of one of the world’s largest countries. Forced by state violence, various normative settlements can be effected, but not all of them is able to serve social integration. In terms of the adequacy of purpose and means, Lenin’s legal ideal and practice proved to be the next derailment following an ossified

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tsarism, and at the same time an alarming historical example of the neglect of the law’s own needs.

References Barbu Z (2000) Democracy and dictatorship: their psychology and patterns. Routledge, Abingdon Beirne P (1990) Editor’s introduction. In: Beirne P (ed) Revolution in law: contributions to the development of soviet legal theory, 1917–1938. Routledge, New York, pp i–xiv Беляков АА (1958) Юность вождя: Воспоминания современника В. И. Ленина. Мол. гвардия, Москва Burbank J (1995) Lenin and the law in revolutionary Russia. Slav Rev 54(1):23–44. https://doi.org/ 10.2307/2501118 Гойхбарг А Г (1924a) Основы частного имущественного права. Красная новь, Москва. [Partial translation in https://thecharnelhouse.org/2016/04/14/marxism-and-legal-theory/] Гойхбарг А Г (1924b) Хозяйственное право Р.С.Ф.С.Р. Vol. I: Гражданский кодекс, 3-е изд. Государственное издательство, Москва. [Partial translation in https://thecharnelhouse. org/2016/04/14/marxism-and-legal-theory/] Jaspers K (1950) Marx und Freud. Der Monat 3(36):141–150 Kolakowski L (1978) Main currents of Marxism: its rise, growth, and dissolution, vol 2. Clarendon Press, Oxford Крыленко НВ (1923) Cудоустройство РСФСР. Юрид. изд-во НКЮ, Москва LCW = Lenin V I collected works. vol 1–45. https://www.marxists.org/archive/lenin/works/cw/ index.htm Leggett GH (1981) The Cheka: Leninʼs political police. Clarendon Press, Oxford Lenin VI (1970) The proletarian revolution and the renegade Kautsky. Foreign Language Press, Peking Pipes R (1986) Legalized lawlessness: soviet revolutionary justice. Institute for European Defence & Strategic Studies, London Possony ST (1964) Lenin: the compulsive revolutionary. Regnery, Chicago PSS = Ленин В И (1968) Полное собрание сочинений. Изд. пятое. vol 1–55. Изд. Политической Литературы, Москва. http://uaio.ru/vil/vilall.htm Varga C (1982) Lenin and revolutionary law-making. Int Rev Contemp Law (1):47–59. {Reprint in: Varga C (ed) (1993) Marxian legal theory. The international library of essays in law & legal theory: schools 9. Dartmouth/The New York University Press, Aldershot/New York, pp 515–527} Varga C (2019) Lenin and the law: a case-study on the borders of legal normality. Cent Eur Polit Sci Rev 20(75):131–179 Vincent A (1993) Marx and law. J Law Soc 20(4):371–397. https://doi.org/10.2307/1410207 Вишняк МВ (1919) Большевизм и демократия. Narodopravstvo, New York

Llewellyn, Karl Nickerson Tomohiko Shiina

Introduction Llewellyn, Karl Nickerson (1893–1962) was an American jurist and the chief reporter of the Uniform Commercial Code. Born into a Welsh family in Seattle, Llewellyn was raised in Brooklyn, New York. In his teens, he spent 3 years in Mecklenburg, Germany. In 1915, the German government awarded him the Iron Cross (second class) for military service in the First World War. He received LL.B. (1918) and J.D. (1920) degrees, both from Yale. After 2 years of legal practice and part-time teaching (1920–1922), Llewellyn held professorate at the law schools of Yale (1922–1925), Columbia (1925–1951), and Chicago (1951–1962). He was also invited to lecture at the University of Leipzig (1928–1929, 1931). Meanwhile, Llewellyn made an unprecedented contribution to the modernization of American commercial law through his work as a principal drafter of the Uniform Commercial Code (1937–1952).

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0_436-1. T. Shiina (✉) The Institute of Comparative Law in Japan, Chuo University, Tokyo, Japan © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_24

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A Symbolic Figure of the Realist Movement Llewellyn is widely considered to be the representative theorist of the Realist Movement. Being a matter of debate, the Movement has often been presented as an intellectual wave of eastern academic lawyers in the 1920s–1930s. Attacking an outmoded jurisprudence called “formalism,” the Realists generally shared the following views on the nature of law and adjudication (Llewellyn 1931:1235–1250). (i) Rule-Skepticism. In most cases, legal rules do not accurately correspond with how a judge decides on a case. One cannot foresee court decisions based only on what an applicable rule verbally says. Thus, a lawyer needs to know various factors to expect an outcome of litigation (Frank 1949). (ii) Scientism. In order to discover the true grounds of a decision, legal study needs to be informed by objective social sciences including psychology, sociology, economics, etc. (iii) Instrumentalism. Law is a means to an end. A rule is a tool used by lawyers, especially judges, to fulfill a social goal. If a law is found practically useless, it needs to be duly remade. On this score, Pound’s idea of “social engineering” was the precursor to this view (Pound 1942). (iv) Predictivism. A prediction of what courts will do in future cases constitutes an essential part of legal study. On this point, the Realists were under the manifest influence of Holmes (Holmes 1897:460–461). Llewellyn applied these views to his major works in a conspicuous manner. In the Bramble Bush, he adopted a vividly behavioristic approach in articulating the nature of law. “[The] doing of something about disputes . . . is the business of law. And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law. What these officials do about disputes is, to my mind, the law itself.” (Llewellyn 1960a:3). In the Common Law Tradition, Llewellyn transformed his early rule-skepticism into what he finally called “the Grand Style.” What actually decides a case on appeal if a rule does not? According to Llewellyn, an experienced judge reaches a just conclusion by identifying “fact-pattern” of the case with her “situation-sense” (Llewellyn 1960b). While sporadically criticized as cryptic, the book has become a classic on the institutional study of appellate judging.

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A Pioneer in Legal Anthropology American law in the twentieth century was marked by the advent of interdisciplinary methods of legal study, the most influential of which might be “law and economics.” The Realist Movement is commonly assumed to be an intellectual root of the modern interdisciplinary approaches. The Cheyenne Way, which Llewellyn co-authored with anthropologist E. Adamson Hoebel, adopted a meticulous case law approach to investigate how the Cheyenne Indians resolve their conflicts (Llewellyn and Hoebel 1941). The book is still highly regarded as a classic of “law and anthropology.”

Realism in Commercial Law Since the first publication in 1952, the Uniform Commercial Code has been adopted by all 50 American states and promoted the harmonization of laws across the country. The Code has been regarded as the crowning achievement of Llewellyn’s career. The policy of the Code incorporates his ideas about how law is supposed to work in the interest of business practice. From a brief experience in banking law (1920–1922), Llewellyn understood that the drafter’s mission was to build a system of standards which would serve an autonomous progress of trade, not hamper it (Twining 2012:303–304, 316). Thus, the statement of a legislative goal reflects a uniquely instrumental understanding. Section 1-102(2) of the 1952 official text specifies that “underlying purposes and policies” of the Code include “(b) to preserve flexibility in commercial transactions and to encourage continued expansion of commercial practices and mechanisms through custom, usage, and agreement of the parties.”

Legacy Llewellyn’s interest covered a wide range of subjects. Among others, an institutional analysis of judging, insights about non-state (customary) law, effective lawyering, and the limit of law in society are crucial to the legal study of the twenty-first century. Sixty years from his death, Llewellyn continues to be a rich source of inspiration for legal scholars of later generations.

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References Dagan H (2013) Reconstructing American legal realism & rethinking private law theory. Oxford University Press, Oxford. https://doi.org/10.1093/acprof%3Aoso/9780199890699.001.0001 Frank J (1949) Law and the modern mind, 6th edn. Coward-McCann, Inc, New York Holmes OW (1897) The path of the law. Harv L Rev 10:457–478. https://doi.org/10.2307/1322028 Hull NEH (1997) Roscoe Pound and Karl Llewellyn: searching for an American jurisprudence. University of Chicago Press, Chicago Leiter B (2005) American legal realism. In: Golding MP, Edmundson WA (eds) The Blackwell guide to the philosophy of law and legal theory. Blackwell Publishing, Oxford, pp 50–66 Llewellyn KN (1931) Some realism about realism: responding to dean Pound. Harv L Rev 44: 1222–1264. https://doi.org/10.2307/1332182 Llewellyn KN (1960a) The bramble bush. Oceana, New York Llewellyn KN (1960b) The common law tradition: deciding appeals. Little, Brown & Co., Boston Llewellyn KN (2011) In: Schauer F (ed) The theory of rules. University of Chicago Press, Chicago. https://doi.org/10.7208/chicago/9780226487977.001.0001 Llewellyn KN, Hoebel EA (1941) The Cheyenne way: conflict and case law in primitive jurisprudence. University of Oklahoma Press, Oklahoma Pound R (1942) Social control through law. Yale University Press, Yale Twining W (2012) Karl Llewellyn and the realist movement, 2nd edn. Cambridge University Press, Cambridge. https://doi.org/10.1017/CBO9781139151085

Lundstedt, Anders Vilhelm Roger Cotterrell

Introduction The juristic ideas of Vilhelm Lundstedt (1882–1955), professor of private law at Uppsala University from 1914 to 1948, exerted great influence in his native Sweden, and were widely discussed beyond, during the first half of the twentieth century. He was active not only as a legal theorist but as a legislator in the Swedish parliament, a campaigner on social and legal issues, an influential and charismatic teacher, and a prolific contributor to the press (Sundell 2005). All these varied activities were seemingly unified by his highly original ideas about law. His writings are probably unique in the literature of juristic theory in the ferocity of their unrelenting criticism, and indeed dismissal, of virtually all orthodox legal concepts. In place of such concepts Lundstedt advocated what he saw as an entirely new, rigorously realistic understanding of law as a mechanism of cause and effect to be directed to the maintenance of social peace and human flourishing in a community. This understanding, in turn, required a reimagining of the role of the jurist, and a practice of “constructive” jurisprudence. Judges, legislators, and lawyers should treat law not as a set of abstract concepts to be elaborated and systematized but as a “machinery” of social control to be directed to promote the welfare of the particular community to which it relates.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_779-1. R. Cotterrell (✉) Queen Mary University of London, London, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_25

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Lundstedt’s Legal Realism Lundstedt’s thought, deeply influenced by the ideas of the philosopher Axel Hägerström, was characterized by hostility to what he termed legal “metaphysics” – that is, reliance on legal concepts not related to observable realities that could be examined scientifically in terms of cause and effect. Metaphysical thinking which, in Lundstedt’s view, pervaded all existing jurisprudence, could never be a basis for recognizing the reality of law as a purposive practice and as the fundamental guarantee of social life. He advocated discarding such concepts as “rights,” “fault,” “guilt,” “liability,” and even “legal rule” whenever serious attempts to analyze the nature of law were being made, since such concepts lacked grounding in social reality. Outside Sweden, Lundstedt’s proposals for what might take the place of rejected legal metaphysics have generally been poorly understood although he saw them as essential to his work. Like his fellow Swedish legal realist Karl Olivecrona, he has been mainly understood as engaged in philosophical debate about the nature and place of conceptual analysis in legal theory. But while Olivecrona stressed the enduring psychological power of legal ideas and so their necessity despite their “unreality,” Lundstedt’s aim in abandoning such concepts in legal theory was to pave the way for a clear-eyed understanding and practice of law that would be explicitly directed to pursuing social welfare. Lundstedt’s denial of theoretical value in orthodox juristic ideas, coupled with the often fiercely dismissive style of his critiques of the writings of other legal theorists, contributed to his being characterized as the most “extreme” Scandinavian legal realist. Other varieties of legal realism, in the United States as well as in Scandinavia, similarly criticizing the “unreality” of legal ideas, typically sought not their abandonment but better recognition of their political or psychological significance. Lundstedt’s apparent total rejection of these ideas, coupled with the widespread failure of critics, at least outside his own country, to understand the constructive side of his legal theory (strongly colored by its national context), led to his work often being marginalized in international legal theoretical debate. Like the American legal realists, Lundstedt sought to study law in terms of behavior rather than normative ideas. Up to a point, his thinking seems congruent with the naturalistic claim of the American realist Felix Cohen (1935: 823) that any legal word “that cannot pay up in the currency of fact. . . is to be declared bankrupt, and we are to have no further dealings with it.” But Lundstedt distanced himself from American legal realism which he saw as unable to free itself from legal ideology (that is, from ideas that, in Cohen’s phrase, could not “pay up in the currency of fact”). It is typical of Lundstedt’s combative style that he gives one of the clearest checklists of his own key concepts to assert this distancing (1956: 393–4). The American realists, he claimed, did not analyze (i) legal ideology (and the use in traditional jurisprudence of an ideological “method of justice”); (ii) the fallacy of “belief in legal rules”; (iii) the need for a “constructive” jurisprudence; (iv) the importance of “the common sense of justice” in the functioning of “legal

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machinery”; and (v) the “method of social welfare” to inform a realistic legal science. Each of these ideas, the essential components of Lundstedt’s legal theory, requires elaboration.

Justice and the Legal Machinery Traditional jurisprudence relies on what Lundstedt calls the “method of justice.” Law is assumed to aim to do justice by fairly assessing guilt, blame, or just deserts. But if justice were to be seriously sought it would require an infinite range of personal circumstances and contextual conditions to be taken into account, and judgments made about all of them. In practice, only a limited range is considered as a basis for decision. Pursuing justice cannot be the real project of law. That project is ultimately to maintain, as a coherent working system, the machinery of, for example, criminal, tort, and other legal fields which is needed to guarantee social peace and facilitate constructive social interaction in a community. The method of justice, invoking ideas that cannot be grounded in reality, mystifies law’s actual social purposes. Law must be reconceptualized around these social purposes. While it will take account of popular beliefs about justice, it cannot be governed by them; it must be guided by realistic evaluations of communal welfare as a whole. Law must discard all metaphysics. Although legal practice refers to “rules,” law cannot be conceptualized even in terms of rules. Legal rules gain significance only to the extent that in practice they are part of the information or technical guidance that aids the working of what Lundstedt terms the “legal machinery” (1956: 316–27). This latter concept envisages law as a vast apparatus of behavior – not only official and institutional mechanisms by which social control is organized and implemented, but also, and crucially, the psychological predispositions established in the regulated population which induce them to play their part in the legal machinery as compliant but free and active citizens. Thus, the idea of legal machinery links legal officials’ conduct and citizens’ consciousness together in its perspective on law. Lundstedt thus recognizes the great significance of psychological orientations for the legal machinery. Even if justice is a chimera and so cannot be a foundation of law, a “common sense of justice” present in the community is very important in supporting the legal machinery. The existence of such a communal sense presupposes long experience, across generations, of social stability. For citizens, the common sense of justice informs their belief in “rights” and in the security of contracts and property. The legal machinery’s officials (e.g., legislators, judges, administrators) must take full account of this sense of justice, even though it cannot determine the ultimate policies to which law should be professionally directed. Indeed, the common sense of justice is itself typically shaped by the long-term stability of law. It can operate constructively only in the context of an effective, functioning legal machinery in a society. Hence, when that context is absent, as Lundstedt thought it was in international relations (1925; 1933), nothing exists to direct ideas of justice and rights into

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channels that serve a community interest, and disastrous consequences can follow. Thus, he insisted that international law was ideological, not grounded in reality. Instead, the reality was of nations locked in competition and conflict that, lacking stabilizing international legal machinery, often led to war, with all combatant states sure of their “justice” and “right,” and of their enemies’ lack of these.

Social Welfare and Constructive Jurisprudence The remaining key concepts of Lundstedt’s legal theory – the “method of social welfare” and “constructive jurisprudence” have to be understood, at least in part, in the context of the Swedish society in which he wrote. The method of social welfare is, for him, what should guide all legal activity in place of the discredited method of justice. He explains it only in the sketchiest of terms (1956: 136–49). Social welfare is what people generally seek in terms of security and peace, an adequately cohesive society in which class conflict has been dulled or superseded, productive conditions for economic activity, a strong sense of communal well-being in which every individual can participate, and state policies to promote all this. How could such a sketch be fleshed out? Surely the metaphysics Lundstedt sought to expel from legal theory reenter here with the importing of some ex cathedra philosophy of social evaluation? But he denies any appeal to metaphysics. Lundstedt’s position is that social evaluations to guide law are indeed necessary but they require no appeal to abstract theoretical ideas ungrounded in social reality; they have “no ethical colouring whatever” (Bindreiter 2016: 395). They will be merely pragmatic valuations based on political judgments about the best means to secure, in a particular time and place, the generally sought conditions of social welfare as sketched above. Constructive jurisprudence is the activity of jurists and legal officials organized to contribute to and practically implement such judgments. Lundstedt is explicit that realistically minded jurists and legal officials, who are the people professionally most intimately involved with the legal machinery, are the members of society best fitted to promote social welfare in practice. International assessments of Lundstedt’s work have very rarely related it to its national context. And his two essential English language works (1925; 1956) present his legal theory as in no way tied to this context. But it has been argued that his method of social welfare partly presupposes this context and his assertions of its realistic, non-metaphysical character can only be understood in relation to this (Cotterrell 2016). During the period through which he wrote, an idea of national mutuality and solidarity came to dominate Swedish politics and government, as a taken-for-granted basis of policy. As a working idea it could be elaborated and adapted to changing circumstances, as Lundstedt clearly envisaged his idea of social welfare would be. Both Swedish socioeconomic policy and Lundstedt’s social welfare method could properly be seen by their adherents as matters of everyday politics and pragmatic evaluation in changing circumstances, rather than

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applications of a philosophical system. This is not to say that Lundstedt’s theory should be explained away as a reflection of its Swedish context. But putting it in historical context may suggest how it should be viewed beyond that context.

Conclusion Thus, his work might be seen as perhaps the most radical of all efforts in jurisprudence to pursue a legal realist project. It attempts to explain law in entirely nonnormative terms. The concept of legal machinery is a device to downplay consistently the normativity of rules, treating them theoretically as merely technical guidance or information (like the rules in a manual for building or maintaining a machine). In Lundstedt’s thought key values of traditional jurisprudence are reinterpreted in functional terms: justice as a range of sentiments to be taken into account in the working out of social welfare; security as the social stability that everyone seeks; communal solidarity as the self-evident precondition of societal advance. In this context, Lundstedt presents the jurist’s role as not centrally to manage, systematize, and order legal doctrine, but to steer law actively with vision, in socially beneficial ways. He provides one model of what an analysis of law understood entirely in behavioral terms, decentering orthodox legal conceptualization, might look like. Perhaps, like all such models, it reflects historical conditions that inspired it, and it should be assessed both in relation to those conditions and beyond them.

References Arvind TT (2013) Beyond “Right” and “Duty”: Vilhelm Lundstedt and the social function of legislation. Theory Pract Legis 1:33–57 Bindreiter U (2016) Anders Vilhelm Lundstedt: in quest of reality. In: Pattaro E, Roversi C (eds) Legal philosophy in the twentieth century: the civil law world. Springer, Dordrecht, pp 379–400 Cohen FS (1935) Transcendental nonsense and the functional approach. Columbia Law Rev 35: 809–849. https://doi.org/10.2307/1116300 Cotterrell R (2016) Reading juristic theories in and beyond historical context: the case of Lundstedt’s Swedish legal realism. In: Del Mar M, Lobban M (eds) Law in theory and history: new essays on a neglected dialogue. Hart, Oxford, pp 149–166 Lundstedt AV (1925) Superstition or rationality in action for peace? Arguments against founding a world peace on the common sense of justice: a criticism of jurisprudence. Longmans, Green, London Lundstedt AV (1933) The responsibility of legal science for the fate of man and nations. N Y Univ Law Rev 10:326–340 Lundstedt AV (1947) Law and justice: a criticism of the method of justice. In: Sayre P (ed) Interpretations of modern legal philosophies: essays in honor of roscoe pound. Oxford University Press, New York, pp 450–483 Lundstedt AV (1952) Law and justice. Almqvist & Wiksell, Stockholm

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Lundstedt AV (1956) Legal thinking revised. My views on law. Almqvist & Wiksell, Stockholm Munro CR (1981) The Swedish missionary: Vilhelm Lundstedt. Jurid Rev:55–77 Sundell J-O (2005) Vilhelm Lundstedt – a biographical sketch. Scand Stud Law 48:465–478 Zamboni M (2002) Law and legal politics: Vilhelm Lundstedt and the law-maker function. Associations 6:35–61

Luxemburg, Rosa M. Carmen Barranco Avilés

Introduction Rosa Luxemburg (Rozalia Luxemburg, 1870–1919), born in Zamość (Poland) in a wealthy Jewish family highly committed to children education, was a distinguished figure of the German social democracy, the co-founder of the Spartacus League together with Karl Liebknecht, and eventually killed in Berlin as a result of the repression under the social democratic government following the January Communist Revolt in 1919. When she was a child, her family moved to Warsaw looking to improve a diminished fortune and to dodge the conflict between Jewish Orthodoxy and the anti-Jewish sentiment in the town (Ettinger 1986, 6). Nevertheless, hostility against Jews was ongoing in Warsaw as well, where she experienced segregation at school and the Christmas Day pogrom of 1881. Hard worker, arrogant, and even aggressive, continuously controlling her limp, she soon joined illegal socialist groups. Ceaselessly within the framework of an intense political activity in socialist forums, with special influence in Poland, Russia, and Germany, in 1889, Luxemburg left Poland to study in Zurich (her doctoral dissertation concerned The Industrial Development of Poland) and a marriage of convenience in 1897 granted her the German nationality, allowing her to settle in Berlin.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_439-2. M. C. B. Avilés (✉) Universidad Carlos III de Madrid, Getafe, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_26

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The main feature of Rosa Luxemburg is the critical attitude present in her thought and writings, which made her an uncomfortable comrade, at times refused, at times forgotten, and often reinterpreted and mystified (Arendt 1966). Among others, she argued with Lenin, broke with Bernstein and revisionism, and criticized Marx from a Marxist perspective. A defender of the role of the mass against elite prominence in the proletarian revolution, she refused revisionism, inasmuch as to her mind, the postwar legal reforms improving working conditions reflected that the state had been taken over by capitalism and her position against workers’ participation in the First World War led to Espartaquisme or Luxemburgism as a split of the Social Democratic Party of Germany in favor of a global socialism (Nye 1994, xviii).

Democracy Luxemburg maintained a radical concept of democracy against the bureaucratic experience both in Russia and in Germany. According to the author’s thought, socialism represents the best chance for democracy to survive at her time (Luxemburg 1900, 88; Nettl 1966). Democracy for Luxemburg is neither the bourgeois democracy nor can it be expressed in the decision of an enlightened elite, which would mean dictatorship. This is one of the keys to understanding her position against both German social democracy and Lenin. The role of the vanguard of the proletariat and the meaning of the right to selfdetermination were two points of discussion with Lenin (Luxemburg 1918). As workers were represented as incapable of developing a political consciousness, Lenin defended the leadership of the party in the organization and the achievement of power. However, Rosa Luxemburg regarded the prominence of the mass as a condition to keep into consideration the needs of the workers and to obtain their emancipation, the aim of the revolution (Mattick 1978, 32). Even acknowledging the intellectual role of the party, spontaneity was seen as an unavoidable ingredient of the revolution. From Luxemburg’s point of view, the right of nation to self-determination, apart from giving it a metaphysical allure, does not shed light on the demand of the abolition of classes and the full legal equality of all citizens before the law nor on linguistic rights and local self-government. Additionally, nationalism hides the antagonism between classes in the society by depicting the nation as a homogeneous entity. According to Luxemburg, from a socialist perspective, the nationality question concerns class interests, and workers’ national question is not the same thing as bourgeois nationalism. Her position in relation to nationalism expresses a point of view both on imperialism and in relation to democracy. The defense of the latter includes the rights to free speech, free press, and freedom of association and of assembly but not necessarily “the right of nations to self-determination” (Luxemburg 1909, 1910).

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Reform or Revolution Rosa Luxemburg rejected revisionism as an opportunistic method and warned against labor reforms that could cause troubles inasmuch as they could “stop the collapse of the capitalist system” (Luxemburg 1908, 47). As a matter of fact, Bernstein described trade unions, social reforms, and the political democratization of the state as the tools for a progressive realization of socialism. From Luxemburg’s perspective, these instruments were aimed at the interest of capital in a context where the state became capitalist and thus unsuitable for controlling the development of the economy in a socialist way. Furthermore, the improvement in the living conditions of the working class pursued by revisionism implies the attenuation of class antagonisms (Luxemburg 1900, 75). In the alternative between reform and revolution expressed by revisionism, Luxemburg defended the revolution through democracy, which implies seizing power through a proletarian control over both means of production and the decision on the distribution of wealth, for which mass strike is considered to be a powerful and indispensable device.

The Woman Question Rosa Luxemburg did not regard woman question as different from socialist struggle (Abrahams 1989, 48–56). The author was not a feminist at all, and she addressed critical commentaries to women from dominant classes; to her mind it was even more conservative and oppressive than men and socially useless except for the reproduction of the dominant classes themselves. Her defense on women’s suffrage is presented as a class concern and as a consequence of the actual participation of socialist women in politics. The right to vote for Luxemburg is the final right but just as part of a broader political participation. Given the maturity of proletarian women and their active role in society, “disenfranchisement of women,” and monarchy, were relics of the past, both still alive inasmuch as “powerful tools of anti-popular interests” with a “place among the most important tools of capitalist class domination.” The exclusion of the proletariat is functional to capitalism, seeing that women had always been enemies of militarism, monarchy, and indirect taxation (“the organized robbery of tariffs and taxes on foodstuffs,” Luxemburg 1912) among other institutions.

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Imperialism Luxemburg refused imperialism from the perspective of the defense of universal interests of the workers against an everywhere oppressive capitalism. This argument is also present in her works against the Germanization of Poland (Luxemburg 1900). In the author’s opinion, imperialism moves the “source of surplus value” from western workers to foreign lands (Nye 1994, 41; Luxemburg 1913). To a large extent, imperialism is the response of capitalism that prevents its collapse by improving workers’ living conditions in Europe at the cost of workers’ exploitation from other parts of the world. The maneuver is doubly regressive from the point of view of the revolution since, in addition to serving as an escape for the crises, it makes the workers identify their interests with those of the bourgeoisie, blurring their class consciousness. Her position with regard to imperialism, on the other hand, highlighted by the criticism of various German campaigns, acquires clarity by means of her opinion on colonial oppression, in addition to her understanding of nationalism and her rejection of participation in the war that led to the segregation of the Spartacist League. In relation to the national issue, Rosa Luxemburg offers tools to distinguish bourgeois nationalism from nationalism related to democracy. The breakdown of the Socialist International, largely caused by national sentiments – which Rosa Luxemburg, unlike her comrades, had tried to approach from materialism – eventually turned the workers’ movement into a nearly entirely national one.

Conclusion Rosa Luxemburg was a woman concerned with her times. There is no finding a whole system of thought in her work, but there can be found concrete answers to the pitfalls on the road toward the emancipation of the proletariat. The originality of her thought lies in her freely searching for those answers, without feeling influenced by either of the two major lines of interpretation of Marxism at the times she lived in. Her radical conception of democracy; her firm belief that oppression was a universal condition of all workers in which all other traits such as nationality, sex, or ethnicity were included; and the goal of putting an end to capitalism through revolution place the author at odds with Lenin’s dictatorial drift and against German social democracy compliance with the schemes of capitalism.

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References Abrahams R (1989) Rosa Luxemburg. A life for the international. Berg, Oxford Arendt H (1966) A heroine of revolution. The New York review of books, October 6, 1966. In: Bianchi, Be Turchetto M (eds) Rosa Luxemburg. Nel centenario di L’accummulazione del capitale. DEP July 2015, no. 28, pp 136–151 Ettinger E (1986) Rosa Luxemburg: a life. Beacon, Boston Luxemburg R (1908) Social reform or revolution. In: Scott H (ed) The essential Rosa Luxemburg. Haymarker Books, Chicago, 2008, pp 4–104 Luxemburg R (1909) The national question and autonomy. In: Davis HB (ed) The national question. Selected writings by Rosa Luxemburg, Monthly Review Press, New York, 1976, pp 101–288 Luxemburg R (1910) In defense of nationality. https://www.marxists.org/archive/luxemburg/1900/ nationality/index.html. Accessed 30 Apr 2018 Luxemburg R (1912) Women’s suffrage and class struggle. https://www.marxists.org/archive/ draper/1976/women/4-luxemburg.html. Accessed 30 Apr 2018 Luxemburg R (1913) The accumulation of capital (ed: Stark W and trans: Schwarzschild A). Routledge and Kegan Paul, London, 195. https://www.marxists.org/archive/luxemburg/1913/ accumulation-capital/. Accessed 30 Apr 2018 Luxemburg R (1918) The Russian revolution. Workers Age Publishers, New York, p 1940 Mattick P (1978) Anti-bolshevic communism. Merlin, Monmouth, 1935, pp 19–48 Nettl JP (1966) Rosa Luxemburg. Oxford University Press, New York Nye A (1994) Philosophia. The thought of Rosa Luxemburg, Simone Weil and Hannah Arendt. Routledge, London

Olivecrona, Karl Knut Hans Oscar Vergara

Introduction Karl Olivecrona was born in Uppsala (Sweden) on October 25, 1897, the fifth of six children, into a family with a long tradition of legal and public service. From 1915 to 1920, he studied law at Uppsala University. There he was especially interested in the teaching of Vilhelm Lundstedt, professor of private and Roman law, who was his lecturer from 1918 to 1919. Lundstedt introduced him to the Philosophy of Law of Axel Hägerström, who was then teaching practical philosophy at the same university. From 1920, he began to attend Hägerström’s seminars on criminal law, which were decisive in his choice of an academic life, since they led him to question legal positivism early on, considered at the time to be the scientific theory of law. Since there was no specific teaching of the Philosophy of Law, Olivecrona specialized in civil procedural law, following the advice of Lundstedt, who was his doctoral thesis advisor (defended in 1928), in which he studied the legal person from a conceptual, historical, and critical perspective. In 1933, he won the chair of Civil Procedural Law at Lund University with a paper on the burden of proof, in which he criticized the prevailing view according to which a civil judgment consisted of a decision on the existence or nonexistence of a subjective right (his point of view was that sentences help guide human behavior). He remained in Lund until his retirement, in 1964, and while there produced a significant body of scholarly work, in the fields of both Philosophy of Law and Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0_1012-1. O. Vergara (✉) University of Coruña, A Coruña, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_27

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Procedural Law. Aware of the impact that his legal-philosophical thinking might have, Olivecrona almost always made sure, with just a few rare exceptions, to publish his work in English and German. To properly understand Olivecrona’s thought, it is useful to see it from the perspective of his teachers. Hägerström had developed a strong criticism of the old conceptual structure of law but had done little to provide an alternative answer. Lundstedt had done so, through his method of social welfare, but Olivecrona was not persuaded by this. Therefore, he decided to undertake an in-depth analysis of the fundamental legal concepts, the fruit of which was his 1939 book Law as Fact. One of his most original contributions to the Theory of law was in the theory of independent imperatives. He would later publish a small book on this subject entitled Lagens imperativ (1942), of which there are German, English, and Italian versions. Meanwhile, in 1940, as the events of World War II unfolded, he published his Om lagen och staten and its German version Gesetz und Staat, in which he puts special emphasis on the aspect of force that, essentially, in his opinion, characterizes law. Following on from these ideas (although not as a consequence of them), he soon published two other small books and their corresponding German versions (England oder Deutschland? in 1941, and Europe und Amerika, in 1943), in which he advocated (for fundamentally economic reasons) German hegemony over the European continent, a position he would soon retract (1944). Following in the footsteps of Hägerström, Olivecrona, throughout his academic life, carried out some historical-legal-anthropological studies through which he intended to prove his psychosocial hypotheses about law, such as Das Werden eines Königs nach altschwedischem Recht (1947) or Three Essays in Roman Law (1949), to which the economic argument, in The Problem of the Monetary Unit (1957), should be added. In a certain sense continuing on from the ideas contained in these studies, in 1962, he published an important article on legal language, “Legal Language and Reality,” with ideas that he would later develop in the second edition of Law as Fact (1971). Although in this book he remained faithful to the foundations laid out in 1939, rather than a second edition, it should properly be considered a completely new book. A first version of this work appeared in Swedish in 1966, entitled Rättsordingen (there was a second edition in 1976). In keeping with this title, the Italian edition, translated by Enrico Pattaro, is entitled La struttura dell’ordinamento giuridico. Olivecrona made many other contributions to the Philosophy of Law, including “Realism and Idealism” (1951) and “The Imperative Element in the Law” (1963–1964). In the last stage of his work, he devoted special attention to the history of the Philosophy of Law, with works on Grotius, Pufendorf, Jhering, Locke, and Bentham, among others.

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Scandinavian Legal Realism as an Alternative to Legal Positivism Olivecrona did not consider that his thinking could be placed purely within legal positivism. Although its characterization is the subject of debate, Olivecrona considered that the most reasonable position was to use the expression “legal positivism” in accordance with the original meaning of the notion of Rechtspositivismus, that is, as the idea of the Law as an expression of the will of a supreme authority. From this point of view, the Natural Law Theory/Legal Positivism dichotomy ceases to be exclusive, so that it is not necessary to consider every theory that rejects Natural Law as being positivist. This is the case, notably, for those theories, such as those of Leon Petrażycki, Hägerström, and Olivecrona himself, which reject the idea that the law is the expression of a will. Thus, Scandinavian realism, as understood by Olivecrona (the Scandinavian realist Alf Ross does not share this opinion), came to be configured as an alternative to the traditional Natural Law Theory/Legal Positivism dichotomy. In his opinion, legal positivism had not managed to eliminate certain metaphysical elements which have their earliest origin in primitive magical beliefs, according to which the will can have certain effects, through formulaic language, on the assumed suprasensible world of the law. Although he did not develop his own ontology, Olivecrona assumed the justification given by his teacher Hägerström, particularly in his book Das Prinzip der Wissenschaft, in which he tries to show, from the principle of non-contradiction, that reality is ultimately determined by the space-time context. Thus, while the scientific picture of the world is built up in agreement with this context, so that it can be said to be true, the metaphysical worldview can only be considered void, because it is based on a set of meaningless feelings and representations. The only thing that it is possible to build on the basis of these are combinations of words that only appear to have meaning. Eloquently enough, Hägerström adopts the following motto for his “Selbstdarstellung” or selfexposure (translated as “A Summary of My Philosophy” in one of the English anthologies of Hägerström’s works: Philosophy and Religion, 1964): “praeterea censeo metaphysicam esse delendam.” The Uppsala School, founded by Hägerström, is situated in an international context of an anti-metaphysical reaction (mainly against German idealism), in which it agrees with other movements, without prejudicing their specificities, such as the neorealism of G.E. Moore, the logical positivism of the Vienna Circle, or the Russian sociological positivism of V.I. Sergueyevich. There is a very specific parallel between the legal thought of Hägerström (also considered to be the founder of Scandinavian legal realism) and the psychological theory of law of L. Petrazhitsky. Their respective figures also have interesting affinities, due to the fascination and influence that both exerted on the theory of law of their respective countries, and even beyond them. As Enrico Pattaro has pointed out, Scandinavian realism is the only school of the Philosophy of Law that is directly and immediately affiliated with one of the

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philosophical movements that form part of contemporary neo-empiricism (the Uppsala School). This is what could justify Olivecrona’s attempt to distinguish his “legal realism” from legal positivism. For Olivecrona, “realism” means taking all legal phenomena as part of the existing social order, that is, as purely factual. When concepts such as the “binding force of Law,” “subjective rights,” or “legal duties” are correctly analyzed, their exclusively factual or psychological referent emerges and the problems in Philosophy of Law dissipate into thin air, according to Olivecrona.

Legal Language and Reality Olivecrona was one of the first philosophers of Law to turn legal language into one of the central tenets of the theory and philosophy of Law. For this reason, his attention was immediately drawn to what John L. Austin called “performative utterances,” echoing them in his essay “Legal Language and Reality” (1962). According to Austin, it is a fallacy to claim that an utterance can only be used to describe or determine a certain state of affairs, which means the utterance may be true or false. In his opinion, an utterance can also be used to do things, such as naming a ship, getting married, donating a watch, etc. Austin calls this dimension of language “illocutionary,” which is complemented by the locutionary dimension, whose purpose is to say things, and the perlocutionary, whose purpose is to cause things. Now, for the expressions to be happy in an illocutionary sense, a series of assumptions must be met, both formal and effective. Olivecrona maintains something similar when he affirms that, in the legal field, performative utterances are used to create rights and duties, legal relationships and properties. This requires the observance of certain formal requirements that must be met if those expressions are to be effective. But this effectiveness, for Olivecrona, is purely psychosocial, in Austinian terms we would say perlocutionary. For Olivecrona, to think that it is possible to create something with words belongs to the patterns of magical thinking. Indeed, following Hägerström, Olivecrona draws attention to the ancient connection between the law and magic. This explains, in his opinion, the need to comply with certain formalities and ceremonies, such as (these are cases that he analyses) sales under Roman law, the election of a king under ancient Swedish law, the marriage ceremony in force in Sweden during the Middle Ages, the appropriation of land in Iceland by the Norwegians, certain legal acquisitions among the Kikuyu Kenyans, etc. For Olivecrona, the purpose of performative language is not to confirm something, but to make something happen in the supposed suprasensible sphere of the law. That is why it is not addressed to anyone, but is impersonal. Despite the fact that belief in magic has fallen aside, legal language, according to Olivecrona, has continued to maintain its effectiveness on human behavior, since it has not lost its original suggestive character. In reality, the primary function of legal language is not to reflect reality – as in his opinion natural law intended – but to

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shape it. Legal language is, therefore, the most appropriate tool to set the signals (he uses the traffic light metaphor) that are necessary to guide human behavior in a complex society. Although there is some hesitation on this point in relation to his early writings, Olivecrona asserts that words like “right” or “duty” are “hollow words” that have no meaning at all, not even an imaginary entity. Hence, the utterances that contain them can be neither true nor false. But this does not prevent such words from being absolutely functional in law, so they are difficult to replace. Two assumptions are required for this: that the utterance that shapes a right or a duty be perceived as formally correct (in this sense, it also fulfils a related informative function) and the existence of some type of conditioned response in the recipient of the legal language. Following Austin, John R. Searle — and, after him, Neil MacCormick and Ota Weinberger — have affirmed that there are acts that cannot be explained in merely perlocutionary terms, since not all facts can be reduced to facts in the empirical world. In his view, there are equally objective facts that presuppose the existence of certain human institutions: they are “institutional facts.” However, Olivecrona does not share this opinion, which came to his notice shortly before the publication of the second edition of Law as Fact without being able to submit it for discussion, and maintains the need for a purely empirical explanation of legal language that reduces its effectiveness to its perlocutionary, or psychosocial, effects.

Legal Rules One of Olivecrona’s most original contributions to the Theory of Law is his idea of legal rules as independent imperatives. He calls them that because he conceives of them as independent of the personal context that characterizes individual orders or mandates, which he considers his prototype. Olivecrona criticizes the idea that legal rules constitute a supposed will of the State, which cannot be detected empirically if one seriously analyzes the legislative process. A legal rule has two elements: one representative (ideatum) and another imperative (imperantum). The latter is designed to produce a feeling of respect for the law in its recipients. The traditional formalism involved in enacting a law is at its service. In his opinion, the way in which a rule is promulgated functions as an imperative signal, and it is essential, given the absence of a personal suggestion context, as happens with individual mandates. Both legal rules and moral rules are, for Olivecrona, independent imperatives. What, then, is the difference between them? He does not believe that it lies in their content, which often overlaps. In fact, and without this implying an ethical objectivism, he considers that legal rules are largely a concretion of the moral principles in force within a given political community, although not all moral rules are legally relevant or significant. Therefore, there is a general moral commandment that requires the law to be followed. The main difference between the two types of rules lies in the fact that while moral rules appeal directly to the conscience

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(psychologically), legal rules are primarily rules related to the organization of state coercion, that is, rules that are largely directed to the regulation of the activity of public officials. Olivecrona links the question of the legal validity of rules with that of its obligatoriness or binding force. It is not, in his opinion, an empirical determination, but a value judgment, which amounts to stating that they ought to be followed. But justifying this value judgment can only be done by resorting to a supposed right to dictate rules that, ultimately, needs to be based on Natural Law. However, for Olivecrona, the only scientifically relevant property is that relating to the effectiveness of the legal rules. From this point of view, which is purely external, enacting and proclaiming a text as law in accordance with the constitution is nothing more than a means of influencing people’s minds and, through them, their behavior. Olivecrona compares the legislative apparatus to a hydroelectric power station that transforms the current of respect enjoyed by the Constitution into new power lines, or laws. Thus, the political struggle is nothing more than the struggle for those positions from which the control panel is activated. It is a complex piece of machinery that goes through various phases and in which many people are involved. It is not possible to verify an authentic will behind it other than standardized formulas of the type “le Roy (la Reyne) le veult.” In order for the Constitution’s power of suggestion to pass into law, it must enjoy social legitimacy. In a material sense, all political communities have a constitution, which for Olivecrona consists of an organization and distribution of public power. Formerly, as was the case in the Roman Republic, the respect accorded it was based on magical-religious beliefs. Consequently, the drafting of laws had to have favorable auspices, since otherwise it was understood that the people did not need to observe the law. For Olivecrona, religion and law developed together from their earliest beginnings, which are unknown, since the known points of the legal phenomenon always constitute modifications of a previous regime. Over time, this link between the legislative process and religion gradually disappeared, until only the form remained, which, thanks to acquired (psychological) habits and various control mechanisms, outstanding among which is the systematic application of force, has managed to maintain its effectiveness.

Rights and Duties as Imperative Signals Olivecrona rejects both the natural law doctrine and the various positivist theories on subjective law, which he intends to overturn. For Olivecrona, natural law confuses the natural feeling of power that the supposed ownership of a right entails with an objective reality. However, he does not find the various proposed legal positivism theories satisfactory either, such as the will theory (in the Friedrich Carl von Savigny and Bernhard Winscheid versions); the interest theory (Jhering); the theory that understands the law to be the obverse of a duty (in the versions of Jeremy Bentham and John Austin) or Ernst Zitelmann’s representation theory.

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Olivecrona’s work is more in line with the approaches of Petrazhitsky and Hägerström, who deny the reality of the notion of subjective right on the basis of a psychological explanation. However, the approaches of Lundstedt and Ross seem insufficient to him. In his opinion, it is not possible to determine any fact to which the notion of subjective right can refer. But this is not necessary, because words not only serve to describe reality but also to guide behavior. Specifically, the word “right,” although it does not have any meaning (at least for the later Olivecrona), has a mainly directive function that is analogous to that of a red traffic light or that of a fence that delimits a piece of land. If, on seeing them, I refrain from continuing to drive or from going on to the land, when faced with a subjective right, I refrain from interfering with it. Rights, in short, are above all (and without prejudice to other functions) easily understandable imperative linguistic signals that serve to guide human behavior. For this, two conditions are necessary: that the statement containing the word “law” be correct (in the sense that it is thought to be correct) and that the legal machinery works effectively by regularly applying coercion. The pressure from the regular exercise of force makes it possible to sustain the effectiveness of the legal system, as magical thinking did in its day, with which it was closely linked. Although buying a pack of cigarettes, says Olivecrona, is something quite different from a Roman mancipiato, both acts basically share the same belief in nonexistent ties and imaginary powers. The above is applicable mutatis mutandis, to the notion of legal duty. Indeed, if “subjective right” is a hollow phrase that, therefore, lacks meaning but that generates in its holder and in others the belief in a certain power (which is merely illusory and responds only to a psychological feeling of power in the subject), the phrase “legal duty” inversely produces the belief in the existence of a subjection that is equally illusory and that arises from a psychological feeling of subjection. Olivecrona rejects any other explanation of this notion.

Law as an Organized Force Olivecrona’s demystifying analysis also touches on another central notion of law: that of the binding force of law. In accordance with his ontological postulates, he can in no way share Hans Kelsen’s opinion according to which legal rules are capable of producing “ought to be” connections between two facts of any nature other than purely causal ones. But he does not accept other opinions more similar to his point of view either. Thus, he refuses to identify the binding force of law with the threat of harm in the event of noncompliance, since this would be like affirming that there is a binding rule that prohibits one putting one’s hands in the fire. He also criticizes confusing the binding nature of legal rules with the fact of feeling bound by them, since this is equivalent to saying that they do not bind those criminals who do not feel themselves affected by them. Lastly, he does not accept (unlike Ross) the explanation of the binding force of legal rules in terms of what judges are likely to

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do, because, if it is possible to foresee it, this is because the judge understands that they have an obligation to stay within the rules. In reality, Olivecrona believes, the “binding force” of the Law is nothing more than a hollow expression, like the expression “squared circle,” which cannot be represented mentally. Those words that are derived from “obligation,” “obligatory,” “obligatoriness,” etc., are imperative expressions similar to “subjective right,” “law,” etc., and are aimed at provoking certain behaviors in their recipients. There are several factors that contribute to this effect: education, morality, propaganda, and fear of sanctions, although all of them (including morality) are based on the regular exercise of coercion through the law. Coercion is the energy that, properly channeled and monopolized by the Law, keeps the entire machinery of social control running. The law is nothing other, for Olivecrona, than organized force, rules about the use of force addressed to judges and officials. This, although the originality of this thesis is disputed, is one of the most distinctive points of Olivecrona’s theory of law.

Conclusion Olivecrona’s theory of law constitutes one of the most solid and coherent attempts to take the empirical analysis of law to its final consequences, as a consequence of its direct connection, through the Uppsala School, with philosophical positivism, so that, if these presuppositions are accepted, it could be affirmed that the Olivecronian theory constitutes a true overturning of the traditional formalist legal positivism. In any case, his conception of legal rules as independent imperatives, the denial of their binding force, and his conception of law as an organized force constitute unique contributions to the theory of law of the twentieth century. On the other hand, where the aforementioned assumptions are not accepted and the program of reducing all law to mere empirical facts is not shared, his theory becomes biased and thus constitutes no more than the absolutization of one of its facets, taking the part as the whole, leading to an empiricist form of legal positivism.

References Åquist L (2008) Some logico-semantical themes in Karl Olivecrona’s philosophy of law: a non-exegetical approach. Theoria 74:271–294. https://doi.org/10.1111/j.1755-2567.2008. 00025.x Arnholm CJ (1962) Olivecrona on legal rights. Reflections on the concept of rights. Scand Stud Law 6:11–31 Bjarup J (1978) Skandinavischer Realismus: Hägerström – Lundstedt – Olivecrona – Ross. Alber, Freiburg Fries M (1941) Das subjektive Recht und der Realitätsbegriff. Einige Worte anlässlich Docent Marc-Wogaus Bemerkungen gegen Professor Olivecronas Schrift ‘Gesetz und Staat’ (Om lagen och staten). Theoria 7:135–140

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Golding MP (2005) Rights, performatives, and promises in Karl Olivecrona’s legal theory. Ratio Juris 18(1):16–29. https://doi.org/10.1111/j.1467-9337.2005.00283.x Jori M (1976) Karl Olivecrona e il problema de la scienza. Riv Tr Dir Pr Civ 2:732–760 MacCormack G (1974) Law as fact. Arch für Rechts-Sozialphilosophie:393–411 Marc-Wogau K (1940) Über die Begriffe ‘bindende Kraft des Rechts’, ‘Rechtspflicht’ und ‘subjektives Recht’. Bemerkungen zu Karl Olivecronas Kritik dieser Begriffe. Theoria 6:227– 237 Olivecrona K (1939) Law as fact, 1st edn. Munksgaard, Copenhagen Olivecrona K (1940) Gesetz und Staat. Munksgaard, Copenhagen Olivecrona K (1951) Realism and idealism. N Y Univ Law Rev 26:120–131 Olivecrona K (1962) Legal language and reality. In: Essays in jurisprudence in honor of Roscoe Pound. Bobbs-Merrill Company, Indianapolis/New York, pp 151–191 Olivecrona K (1963–64) The imperative element in the law. Rutgers Law Rev 18:794–810 Olivecrona K (1971) Law as fact, 2nd edn. Stevens, London Olivecrona K (2000) Memorie autografe. In: di Olivecrona K, Castignone S, Faralli C, Ripoli M (eds) La realtà del diritto: antologia di scritti. Giappichelli, Torino Pattaro E (1983) Olivecrona’s theory of imperatives. In: Kangas U, Aarnio A et al (eds) Essays in legal theory in honor of Kaarle Makkonen. Finnish Lawyers’ Society, Helsinki, pp 223–237 Spaak T (2014) A critical appraisal of Karl Olivecrona’s legal philosophy, Springer, Dordrecht Strömholm S (2008–09) Karl Olivecrona: continuity and breach of tradition. Juridisk Tidskrift:62–73 Vergara O (2004) El derecho como fenómeno psico-social. Un estudio sobre el pensamiento de K. Olivecrona. Comares, Granada

Pashukanis, Evgeny Bronislavovich Bjarne Melkevik

Introduction Evgeny Bronislavovich Pashukanis (1891–1937) – in Russian, Евгений Брониславович Пашуканис – and his theoretical writings have gained an important place in the history of legal philosophy, the critical theory of law, and the Marxist philosophy of law. His emblematic book, The General Theory of Law and Marxism. Attempt of a Critique of the Basic Legal Concepts (1st edition 1924, 2nd 1926, 3rd 1927, and German translation/adaptation in 1929), continues to spark admiration and praise as well as debates and controversies to this day. Pashukanis was born on February 11, 1891, in the town of Staritsa, Tver province, in a bourgeois family. His father, Bronislav Frantsevich, was a practicing medical doctor, born in Lithuania, and his mother, Sofiya Pavlovna, was a Russian from Saint Petersburg. In 1906, the Pashukanis family moved to St. Petersburg where his father became professor of medicine at the State University of Saint Petersburg. His mother became a member of the Russian Social Democratic Labour Party (RSDLP) in 1903. The mother’s brother was Martyn Lyadov, a professional revolutionary who also became a member of RSDLP in 1903 and was said to have been a close collaborator to Lenin. At the age of 17, Pashukanis became a member of RSDLP too and was soon elected as a delegate to the Central Committee of the Social-Democratic Workers’ and Students’ Youth in Saint Petersburg. After graduating from the Lentovsky Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_448-1. B. Melkevik (✉) Faculty of Law, Laval University, Quebec City, QC, Canada e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_28

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Gymnasium, in 1909, Pashukanis entered the Faculty of Law (Jurisprudence) of Saint Petersburg State University. But he soon had to emigrate to Germany, as he came under police supervision as a participant in the anti-tsarist student movement. He continued his studies in 1910 at the Ludwig Maximilian University of Munich where he devoted his time to study law and political economy. More importantly, he studied Marx and Western-Marxism away from what Marxism had become in Russia. The years spend in Germany had a profound influence on the intellectual development of Pashukanis, as he became acquainted with Western legal philosophy. In 1914, he defended his doctoral dissertation, “Statistics of Law Violations Related to Labour Protection.” Pashukanis then returned to Russia and worked until 1918 as a freelance translator of books from German to Russian, at the same time as he was publishing his own articles. He is said to have joined the Russian Communist Party (founded 1912) Bolshevik faction of the Douma in a protest in 1914 against World War I. From 1914 to 1918, however, Pashukanis was closer to the Mensheviks, and, in 1917, more specifically to the Menshevik-Internationalists. He only joined the Russian Communist Party (Bolshevik) – RKP(B) – in 1918. He then began working as a “popular judge” in Moscow, and he was a member of the Cassation Tribunal at the All-Russian Central Executive Committee. In 1919–1920, he was the head of the department of justice of the Donispolkom. From 1920 to 1923, Pashukanis worked in the People’s Commissariat for Foreign Affairs as deputy head of the economic and legal department. He was there Chairman of the Commission on the Deprivation of Russian Citizenship of Persons Living Abroad, which oversaw a mass deprivation of citizenship. According to some estimates, about two million people were deprived of their citizenship based on their political activity against the regime. Pashukanis was also sent as an adviser to the Soviet embassy in Berlin and participated in the preparation of the Rapallo Treaty, concluded between the RSFSR and Germany in April 1922. In 1922, along with the well-known lawyer, legal theoretician, and professor, Peter Stuchka (Pyotr Ivanovich Stučka; 1865–1932), Pashukanis organized a section of the general theory of law and the state of the Communist Academy. In collaboration with Stuchka and Vladimir Adoratsky, he edited the first Marxist “Encyclopedia of State and Law” in three volumes in 1925–1927. Afterward, his career could be said to be more political, though Pashukanis never left the academic world. He was a member of the editorial boards of many legal and political journals, such as “Revolution of Law,” “Soviet Law,” “Bulletin of the Communist Academy,” “World Economy and World Politics,” and he was the editor of the review, “The Soviet State.” He authored more than 100 intellectuals works on the general theory of law, state, and international law, history of law, and political doctrines. In 1927, Pashukanis became a full member of the Communist Academy and a member of its presidium – later one its vice-president. In 1936, he was appointed Deputy People’s Commissar of Justice (vice-minister) of the USSR, and he headed the scientific and methodological council under the People’s Commissariat of the USSR. He was also a very influential member of the group of editors writing the

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Soviet Constitution of December 5, 1936 – also called the “Stalinist Constitution,” which reinforced the repression and the despotism in the USSR. Pashukanis was arrested on January 20, 1937 by The People’s Commissariat for Internal Affairs (NKVD) and held in jail for 7 and a half months. On September 4, 1937, when he was 46 years old, he was sentenced to death by The Military Collegium of the Supreme Court of the USSR (VKVS) on invented charges of “participating in a counter-revolutionary terrorist organization.” The verdict was carried out on the same day, and he was reportedly shot in the neck in the cellar of the NKVD headquarters, Lubyanka (Moscow). His remains were transported to the New Donskoy cemetery the same day. On March 31, 1956, Pashukanis was officially rehabilitated by the VKVS, the same institution that sentenced him in 1937.

1924 and “The General Theory of Law and Marxism” Pashukanis’s main work, The General Theory of Law and Marxism, published in 1924, is a masterpiece of legal philosophy. Pashukanis began the drafting of this work in 1920 and 1921 in Berlin. This book can be situated inside Western Marxism, as Party-Marxism and State-Marxism are totally absent. In this book, Pashukanis announces that he wants to do for “law” what Karl Marx has done for political economy in writing The Capital. As Marx criticized the basic concepts of political economy, Pashukanis criticizes basic legal concepts like “legal subjects,” “legal norms,” or “legal relations.” In the same way as Marx with his analysis of political economy pretended to say something about society and social reality, Pashukanis intends to say something about law as social relations and the material reality of law. In Marxian terms, the mentioned legal concepts belong to the material reality of society and are attached to the “production” and “reproduction” of society. Where Marx writes about “commodity fetishism,” Pashukanis writes about “legal fetishism.” In other words, as political economy fetishizes “the commodity,” legal theory (and any ideological or political conception of the law) fetishizes “the law.” The signification is that the “law” as an element of the material reality of society presents itself as independent and autonomous in necessary social relations. To believe that law is or relates primarily to ideology (F. Engels) or form an object of political will (Lenin) is thus a form of “fetishism,” argues Pashukanis. There is for Pashukanis no doubt that political economy studies something which really exists, and that the Marxist theory of law should equally study law as something existing. Therefore, his theory defends that all abstractions of the law should be studies to expose the real social forces taken place by them. He understands the study of law as an examination of what is happening in the existing social relations and in the social conditions of ordinary people. Pashukanis also defends that if you really want to change anything in a society, you can only do so by letting the people themselves change their social relations and their social conditions. Nobody else can do it for them.

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Pashukanis uses the term “legal form” as an expression of how social actors themselves create their “equality” and how other actors cannot intervene to create “equality” for them. The “legal form” is created as a social relation, analogue to commodity exchange, and located in the relationships between commodity owners. It is a form of equivalence that reflects the historical, economic, and political conditions where exchanges of legal positions take place. “Once the form of equivalent relationship exists, this means that the form of law exists, that the form of the public, i.e. state authority exists, which therefore remains for a period even when classes no longer exists” (1924: p. 47). In this way, Pashukanis identifies the “legal form” as built on equality between free and autonomous actors, and if the principle of equivalence is not respected, there is no law anymore. The withering away of state and law, as defended by Marx, can only take place “in reality” and is not object for political volition. If Pashukanis rebuts the view that law is capable of being manipulated by some dominant social classes, like the Bolsheviks, he also believes that planification and economic policy is more an economic strategy than a legal relation.

The Shift of Pashukanis’s Theory and the Development of Stalinism To “do as Marx did” has nothing to do with what Marxism became after the death of Marx (1883). Party-Marxism and State-Marxism had nothing to do with what Marx defended. Pashukanis introduced himself in 1924 as a Marxian trouble-shooter. We do not have any proof that he had read György Lukács’s (1885–1971) “History and Class Consciousness” (1923), nor Karl Korsch’s (1886–1961) “Marxism and Philosophy” (1923). But the philosophy of Pashukanis quickly took a different path. From 1925 to 1929, he repeatedly retracted from his 1924 position, and from 1929 to his death in 1937 he showed his fidelity to an orthodox Stalinist conception of party control of the law. The second edition of The General Theory of Law and Marxism (1926), without the original subtitle, and the article “Lenin and Problems of Law” (1925), are good examples of this change. In the book, Pashukanis added a preface and changed many parts of the text to praise Party-Marxism and its ideological approach to law. In the Lenin article, he argued for an approach to law loyal to the Party. The ways that Pashukanis characterized the Party-takeover of Russia is a good illustration of his growing adherence to an ideology-conception of law. In 1924, Pashukanis writes that Russia is a non-capitalist society and that the Bolsheviks agents are working to change it into a capitalist one. In 1925, he says that Russia is a society under “cultural re-education.” In 1926, Russia is rather a society trying to develop a new type of society. In 1927, he defends that Russia is constructing a “socialist ideology,” and, the same year, that Russia is engaged in a “revolutionary ideological period.” Gradually, Pashukanis abandoned his materialistic

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understanding of law for an ideology-conception where the outcome is the rise of a “proletarian law” in the hand of the new oligarchy. Joseph Stalin took power in the USSR after the death of Lenin in 1924. In 1928 and 1929, all powers were in his hands. The political and legal conditions then changed radically and Pashukanis followed the stream. He was an active promoter for cleaning universities of unwanted professors. For legal philosophy and for legal theory, the consequence of the Stalin period was submission. Pashukanis was one of those theorizing this submission under two central concepts: zakonnost (fidelity to State-law) and partijnost (fidelity to the Party). Legal theories, including his own, he argued, should be understood and promoted within the scope of these two concepts. Pashukanis became a champion of planning legislation and State-law – in other words, he defended a zakonnost philosophy of law. The requirement of partijnost in legal philosophical matters became particularly important to him. The fidelity to the Party (and to Stalin and the Stalinist autocracy) was a political and moral obligation, and no writing on legal philosophical matter divergent from this could or should be permitted. All of Pashukanis’s writings from this time mirror this submission.

Conclusion: After Pashukanis Nobody cried when Pashukanis disappeared in 1937. Many legal scholars in the USSR even felt a huge relief. His books disappeared from the bookshelf and the libraries in the USSR, and his name was forgotten. It is in the West, beginning in the 1960s, that Pashukanis made his comeback. The third edition of his main book was translated in many languages, and later the original edition was also translated to English. Pashukanis became a precursor to critical legal theory. Many contributions to critical legal theory from that time made a reference to Pashukanis. Between 1970 and 1990, in the effort to renew the Marxists theory of law, Pashukanis and P. Stuchka became philosophical pioneers of that movement. Today, Russian legal philosophers are reclaiming the history of legal philosophy of their country and are revaluating Pashukanis as one of their “great legal philosophers.”

References Beirne P, Quinney R (eds) (1982) Marxism and law. Wiley, New York Beirne P, Sharlet RS (eds) (1980) Pashukanis: selected writings on Marxism and law. Academic Press, London Butler WE (ed) (1996) Russian legal theory. New York University Press, New York Melkevik B (2010) Marxisme et philosophie du droit. Le cas Pashukanis. Buenos Books, Paris

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Pashukanis EB (1929) Allgemeine Rechtslehre und Marxismus, Versuch Einer Kritik des Juristischen Grundbegriffe. Verlag für Literatur und Politik, Vienne; reprint: Verlag Neue Kritik, Frankfurt, 1970, (Archiv Sozialistischer Literatur 3) Pashukanis EB (1951) The general theory of law and Marxism, 3rd edn translated from Russian. In: Editorial Committee of the Association of American Law Schools, Soviet Legal Philosophy. Harvard University Press, Cambridge, pp 111–225. (With, Pashukanis: “The Situation on the Legal Theory Front. (Some Results of the Debate)” (1929), idem, pp. 237–280) Pashukanis EB (1980) The general theory of law and Marxism. In: Beirne P, Sharlet RS (eds) Pashukanis: selected writings on Marxism and law, 1st edn. Academic Press, London, pp 40–131 Sharlet RS (1968) Pashukanis and the commodity exchange theory of law, 1924–1930: a study in soviet Marxist legal thought, Non-Published Thesis, Indiana University Sharlet RS (1974) Pashukanis and the rise of soviet Marxist jurisprudence, 1924-1930. Soviet Union 1(2):103–121 Sharlet RS (1977) Stalinism and Soviet legal culture. In: Tucker RC (ed) Stalinism: essays in historical interpretation. Norton, New York, pp 155–179 Varga C (ed) (1993) Marxian legal theory. New York University Press, New York Zile ZI (ed) (1970) Ideas and forces in soviet legal history, statutes, decisions and other materials on the development and processes of soviet law. College Printing and Pub. Co., Madison

Pound, Roscoe Tomohiko Shiina

Pound, Roscoe (1870–1964), American jurist and dean of Harvard Law School (1916–1936).

Sociological Jurisprudence From the 1890s to the 1910s, Pound – in his formative years as a legal thinker – saw American judges repeatedly invalidate reformist labor legislation. The opinions stated that the Constitution’s guarantees of “property” and “liberty of contract” were so fundamental to both parties of employment that legislative curtailment of those freedoms, however benevolent the purpose might be, was beyond the legitimate authority of the state. As one of the leading progressives of the time, Pound strenuously opposed these rulings. His learned criticism of the conservative judicial method developed into “sociological jurisprudence,” his most well-known juristic idea. Pound believed that adhering to outmoded concepts was nothing but a symptom of nineteenth century intellectual formalism, under which abstract notions tended to be regarded as philosophical absolutes. This approach, he felt, was theoretically unfit for a rational study of law in a country as rapidly industrializing and densely

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_450-1. T. Shiina (✉) Faculty of Management and Law, Aomori Chuo Gakuin University, Aomori, Japan e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_29

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populated as the United States. His aversion to abstraction led him to endorse the emerging theory of “pragmatism” as the foundation of down-to-earth legal thinking. Pound asserted the administration of justice should be judged by its practical effect on people’s lives, not by doctrinal consistency with old precedent. He recommended jurisprudence become more “sociological,” taking accurate account of the social reality to which law was applied. He wrote, [t]he sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than assumed first principles; for putting the human factor in the central place and relegating logic its true position as an instrument. (Pound 1908: 609–610)

The legacy of sociological jurisprudence can be seen in the “Brandeis brief,” which cited socioeconomic studies and data in addition to legal principles. It is named after one of Pound’s friends, Louis D. Brandeis (1856–1941), an appellate advocate who later became a justice of the Supreme Court of the United States.

“Social Engineering”: The Task of Law The width and depth of Pound’s knowledge of Western legal thoughts, as demonstrated in his Jurisprudence (Pound 1959) and the other works, was at the highest level of his generation. Through insightful analysis of laws and legal institutions, he masterfully distilled his concept of law, incorporating his pragmatist worldview. According to Pound, law in the modern era was a “means” to be used in “social engineering”. Legal precepts were put into concrete use by “social engineers” – lawyers and especially judges – to realize various social objectives. Full achievement of all the policy goals, however, was thought to be practically impossible, mainly due to opposing values and a scarcity of resources. The fundamental task of law was seen as maximizing the satisfaction of conflicting human wants and interests with minimal sacrifice. Having lived amid the growing national economy as well as the social turmoil of two World Wars, Pound saw the essence of law as a secular instrument to facilitate “an adjustment of relations and ordering of conduct as will make the goods of existence, the means of satisfying human claims to have things and do things, go round as far as possible with least friction and waste” (Pound 1942: 65). As this remark shows, his view of the character of law was collectivist and utilitarian. He drew inspiration from two forerunners: Jeremy Bentham’s positivist concept of legislation and Rudolf von Jhering’s instrumental conception of law. While Pound’s insight into the nature of law was mostly instrumentalist, he never fully subscribed to the thesis that a law belongs solely to the material dimension of “fact” or “is”. Rather, he believed it could not be completely separated from an aspirational element of “value” or “ought”. His position on this “fact-value” debate was thought to isolate him from the American “legal realism” movement in the 1930s. Nevertheless, Pound subscribed to much of the realist’s functionalist

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jurisprudence, notably that of Karl Llewellyn. Later in his career, though, Pound put more emphasis upon a normative concept of justice, which he called “the ideal element in law.”

References Pound R (1908) Mechanical jurisprudence. Columbia Law Rev 8:605. https://doi.org/10.2307/ 1108954 Pound R (1942) Social control through law. Yale University Press, New Haven Pound R (1959) Jurisprudence. West, St. Paul

Radbruch, Gustav Hidehiko Adachi

Introduction Gustav Radbruch (1878–1949) was a German legal philosopher, criminalist, and politician. In his short essay, “Statutory Lawlessness and Supra-Statutory Law” (1946), he denied the validity of National Socialist “law,” which was influential in German legal practice, but has since been disputed. It is up for debate whether his argument in the essay is consistent with his works published before 1945. Further, it is questioned whether his non-positivistic claim is persuasive at all. Gustav Radbruch was born on November 21, 1878, in Lübeck, Germany. In 1898, he began studying law in Munich and later pursued further studies in Leipzig and Berlin. He obtained his doctorate in 1902 in Berlin under the supervision of a reform criminologist, Franz von Liszt. In the following year, he acquired his habilitation qualification (a certificate to teach at a university) in 1903 in Heidelberg under the supervision of Karl von Lilienthal, who had been a student of Liszt’s. From 1903, he taught at the University of Heidelberg as a lecturer, and from 1910 continued as a professor without a civil servant status (außerordentlicher Professor). In March 1914, Radbruch moved to Königsberg after the University of Königsberg offered him a position as a professor without a civil servant status. During the First World War, Radbruch voluntarily served as a paramedic for the Red Cross and was later called up as an infantryman. Immediately after the end of the war, he joined the Social Democratic Party. In May 1919, he received a call from Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_452-1. H. Adachi (✉) Faculty of Law, Kanazawa University, Kanazawa, Japan e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_30

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the University of Kiel asking him to teach as a professor without a civil servant status. Subsequently, in October 1919, he became a full professor of criminal law there. Radbruch held a seat in the German Reichstag from 1920 to 1924. During this time, he was minister of justice twice in the cabinet of Josef Wirth and Gustav Stresemann. During his term as the minister, he drafted laws that permitted women to become jurors and judges. Furthermore, the Juvenile Court Act was promulgated by the German legislator based on his draft. He had also planned a new criminal code that was shaped by the idea of humanity (abolishment of the death penalty, introducing the concept of criminal from conviction, etc.) and the von Liszts’ idea of purposeful punishment. Although this draft was not enacted, it had considerable influence on the reforms of German laws (Neumann 2020, 3). In May 1926, he accepted an offer from the University of Heidelberg and later moved there. In 1932, he published Legal Philosophy (Rechtsphilosophie), which was later recognized as his primary work. Based on the Enabling Act (Ermächtigungsgesetz) of March 24, 1933, which permitted the cabinet, in effect, Adolf Hitler, to create laws, the Nazi government issued “The Law for the Restoration of the Professional Civil Service” (Gesetz zur Wiederherstellung des Berufsbeamtentums) on April 7, 1933. Radbruch was one of the first university professors to be dismissed under this law for political reasons. In 1945, he returned to the University of Heidelberg as the first dean of the Faculty of Law. Upon his death on November 23, 1949, in Heidelberg at the age of 71, he left many works. Among these, a short essay titled “Statutory Lawlessness and Supra-Statutory Law” (Gesetzliches Unrecht und übergesetzliches Recht) in 1946 became famous. Radbruch gradually developed his theory of law. This development is roughly divided into two periods: before 1919 and in and after 1919. These periods are based on his construction of elements (or principles) of the idea and purposes of law. The theories that he developed during the first period surround two elements of the idea of law: purposefulness and legal certainty, as well as two possible purposes of law: individual and collective. During the second period after 1919, Radbruch elaborated a concept of law comprising three elements of the idea of law, of which two elements were used during the first period along with justice as equality. The three possible purposes also include the two purposes of the first period as well as the “transpersonal purpose” of law (Adachi 2006, 37). Regarding the second period, it is still debated whether Radbruch significantly changed his theory after the Nazis came into power in 1933.

Legal Philosophy (1932) Following the fundamental doctrine of the South-West German Neo-Kantianism – especially those of Wilhelm Windelband, Heinrich Rickert, and Emil Lask – Radbruch starts Legal Philosophy by defining what he perceives as what is given (Gegebenheit). To the unreflecting mind, what is given seems to be a mixture of men, things (Dinge), and values. He indicates four types of attitudes with which we

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view what is given, : value-blind, evaluating, value-relating, and value-conquering. The value-blind attitude, which is the attitude of natural science, views what is given without evaluation and distinguishes reality from value. The evaluating attitude, the attitude of the philosophy of values, attributes values to reality. The value-relating attitude, the attitude of cultural science, views reality that is related to values. The value-conquering attitude, the attitude of religion, affirms whatever exists. Radbruch relates legal philosophy to the evaluating attitude and legal science to the valuerelating attitude (Radbruch 1950, 49–52). According to Radbruch, legal philosophy is a science concerned with the value or idea of law. However, he does not distinguish value and idea from one another. In light of the South-Western Neo-Kantianism, he regards justice, the value attributed to relations between persons, as the normative idea of law. Referring to Aristotle, he considers equality as the essence of justice and distinguishes between two kinds of justice: commutative justice (ausgleichende Gerechtigkeit) and distributive justice (austeilende Gerechtigkeit). Commutative justice is valid between equal persons and demands absolute equality between goods or services. Distributive justice is valid between unequal persons and demands relative equality between persons. In essence, one should treat equal people equally and different people differently, according to their differences. Radbruch assumes that distributive justice is the prototype of justice because commutative justice presupposes an act of distributive justice. However, the idea of law cannot be fully explained by distributive justice. Distributive justice leaves two questions open. On the one hand, it does not say who is to be treated equally and unequally, and on the other hand, it only states the relation between different persons but not how to treat them (Radbruch 1950, 72–74). To answer these two questions, it is necessary to determine the purpose (Zweck) of law. Radbruch indicates the traditional triad of ultimate values: ethical, logical, and aesthetical; the good, the true, and the beautiful. The ethical value can be attributed to individual and collective personalities, and the logical and aesthetical values to human works. According to these “substrata,” Radbruch distinguishes between three kinds of values: individual, collective, and work. First, he argues that law can only serve the ethical value. That is, law can only serve individual and collective values directly by granting rights so that they can both comply with their moral duties (Radbruch 1950, 86). Second, law can serve the true and the beautiful indirectly if the true or the beautiful are the purpose of the actions of individual or collective personalities. Radbruch assumes that law cannot serve all these values equally, and therefore it is necessary to decide which value should have priority over the other two values. In this way, he distinguishes between individualistic, trans-individualistic, and wholly trans-personal views of law. Based on his theory of value-relativism, which was influenced by Max Weber (Radbruch 2003, 207), Radbruch argued that there would be no absolute answer to the question regarding which view we should take, but that every law should be at least purposeful. Therefore, “purposefulness” (Zweckmäßigkeit, suitability for a purpose) is the second element of the idea of law (Radbruch 1950, 90–97).

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The third element of the idea of law is “legal certainty” (Rechtssicherheit). Because law is “the order of living together,” it must be the order over disagreements between different views on law. Radbruch states that “if no one can determine what is just, somebody must lay down what is to be legal” (Radbruch 1950, 108, 117). It follows that legal certainty requires the law to be positive, which means that the enactment of law by an agent is necessary. It also follows that a judge is bound to consider all enacted laws valid. It is the professional duty of a judge to ask only what is legal, not if it is also just (Radbruch 1950, 119). The value-relating attitude is derived from the historical method (Geschichtswissenschaft) developed by Heinrich Rickert. Radbruch interprets this method in a unique manner. According to his interpretation, culture encompasses all activities related to values: “[c]ulture is not the realization of value, but it is whatever has significance (Bedeutung) or meaning (Sinn) for the realization of values” (Radbruch 1950, 50). He considers law (Recht) as a cultural phenomenon and justice as the value or idea of law. He states that law is “the reality, the meaning of which is to serve justice” (Radbruch 1950, 75) or “an attempt at the realization of the idea of law” (Radbruch 1950, 147). This concept of law leads Radbruch further into considering the science of law, which can be defined as the science concerned with positive legal order. To be more precise, in its interpretive practice, jurisprudence is less concerned with the will of the legislator (subjective theory of interpretation) and more with the objective meaning of laws and the legal order in light of a value-relating attitude (Radbruch 1950, 140–141). Furthermore, legal science is an “individualizing science.” In a “teleological sense,” law encompasses the totality of legal decisions. Its purpose is to decide particular cases. Legal scholars are interested in statute (Gesetz) not because it is a general statement but because it is “a summarization of many individual statements by way of an economy of thought” (Radbruch 1950, 150).

Radbruch’s Formula (1946) In his short essay published in 1946, which was based on the experience of the Nazi regime, Radbruch argued that the whole of National Socialist law was not a law in the sense of his concept. His argument was accepted in judgments over acts committed under the Nazi regime and was later called “Radbruch’s Formula.” This formula was also referred to in judgments on the Berlin Wall Snipers during the time of the German Democratic Republic until 1989. This formula comprises two sub-formulas. The first one is often called the “intolerable formula” and the second one the “betraying (or disavowal) formula.” According to the intolerable formula, an intolerably flawed law (unrichtiges Recht) is not valid. However, Radbruch argues that it is impossible to draw a distinct line between intolerably flawed laws and simply flawed laws. His emphasis lies in the second part of his formula – the betraying formula. It states the following:

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One line of distinction, however, can be drawn with utmost clarity: Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely “flawed law,” it lacks the very nature of law completely. For law, including positive law, cannot otherwise be defined as a system and an institution (Satzung) whose very meaning is to serve justice. Measured by this standard, whole portions of National Socialist law never attained the dignity of valid law. (Radbruch 2006, 7)

Radbruch gives three examples of National Socialist laws that lack the very nature of law, which are the kind of enactments through which the National Socialist Party claimed the whole of the state for itself, thereby flouting the principle that every political party represents only a part of the state, statutes treat human beings as sub-human and deny them human rights, and caveats threaten with the same punishment, which is often death, thus disregarding the varying gravity of offenses (Radbruch 2006, 8). The first two cases are examples of laws that did not treat equals (human beings, political parties) equally, and the third case is an example of laws that did not treat different persons (i.e., offenses) according to their differences. As Radbruch indicated in the betraying formula, this formula is based on the concept of law that Radbruch had proposed before 1945. However, it is unclear if there is room to interpret whether the aforementioned three examples of National Socialist laws are in place to serve justice in the sense of formal distributive justice. From the viewpoint of National Socialism, which is an extreme example of the transindividualistic view of law, the National Socialist Party would have been different from other parties and “Aryan” would have been different from “non-Aryan”; therefore, different treatment of these groups was justified. All offenses against National Socialism would have been the same; therefore, equal treatment of these groups would be justified. It is at least fair to assume that there is a gap between Radbruch’s concept of law and the betraying formula on the one side and its application to National Socialism laws on the other.

Discussion and Conclusion Regarding Radbruch’s formula, internal and external criticism can be distinguished from one another. The internal criticism is centered around the coherency between the formula and what Radbruch argued before 1945, while the external criticism is centered around the significance of the formula itself. In Legal Philosophy, Radbruch claimed that judges are bound to consider all enacted law valid. However, in the essay “Statutory Lawlessness and SupraStatutory Law,” he claimed that a “whole portion of National Socialist law never attained the dignity of valid law.” There seems to be a divergence between these claims, and this divergence gives reasons for some authors to theorize about Radbruch’s “Damascus experience” (von Hippel 1951, 36) or “conversion” (Hart 1958, 616). However, it must be noted that in 1932, Radbruch argued that judges are bound by all enacted laws. This implies that judges are not bound by legislator’s

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acts, which do not fall under Radbruch’s concept of law. The latter view is concerned with the case that he discussed in the betraying formula of 1946, in which Radbruch claimed that the National Socialist law was “not merely ‘flawed law,’ it lacked the very nature of law completely.” It follows from this that judges were not bound by those laws. Therefore, there is no divergence mentioned above. The core of the question is whether the National Socialist law was a law that complied with Radbruch’s concept of law in 1932. Here, if this law would not comply with Radbruch’s conception, then it would never be legally valid. However, Legal Philosophy lacks an explicit argument for this question. One argument may be based on the principle of proportionality. Radbruch indicated three substrata: individual personalities, collective personalities, and human works, to which absolute values of the truth, the good, and the beautiful can be added. Even if the legislator and judges had a trans-individualistic viewpoint and preferred a collective personality (e.g., the state or a particular party) to individual personalities and human works, the principle of proportionality could forbid them from burdening the latter two substrata unnecessarily or unreasonably. A reconstruction of Radbruch’s ideas of law in the principle of proportionality framework – and therefore in the model of principle (Sieckmann 2009, 21) – is debatable. Legal positivists can object to Radbruch’s concept of law and his betraying formula on the claim that law and morality must be separate. Hart criticized Radbruch for considering the fact that a rule may be said to be valid as the answer to the final moral question: “Ought this rule of law to be obeyed?” (Hart 1958, 618). This question is concerned with the contemporary dispute between legal positivism in the sense of the claim for the necessary or contingent separation of law and morality on the one hand and non-positivism that affirms a necessary connection between law and morality on the other. Radbruch’s concept of law, that is, that law is “the reality, the meaning of which is to serve justice” or “an attempt at the realization of the idea of law” clearly supports non-positivism (Alexy 2018, 238; Dreier 2015, 228; Paulson 2015, 155). Robert Alexy, who furthers the theory that law necessarily claims to correctness and affirms non-positivism based on this thesis, also considers Radbruch as an early representative of this thesis (Alexy 2018, 240). Radbruch’s theory is therefore still worthy of reference for the contemporary dispute between positivism and non-positivism.

References Adachi H (2006) Die Radbruchsche Formel. Nomos, Baden-Baden Alexy R (2018) Gustav Radbruchs Rechtsbegriff. In: von Arnauld A, Augsberg I, Meyer-Pritzl R (Hrsg) 350 Jahre Rechtswissenschaftliche Fakultät der Christian-Albrechts-Universität zu Kiel. Mohr Siebeck, Tübingen, pp 237–249 Dreier R (2015) Zur Kontinuität der nichtpositivistischen Rechtsphilosophie Gustav Radbruchs. In: Borowski M, Paulson SL (Hrsg) Die Natur des Rechts bei Gustav Radbruch. Mohr Siebeck, Tübingen

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Hart HLA (1958) Positivism and the separation of law and morals. Harv Law Rev 71:593–629. https://doi.org/10.2307/1338225 Neumann U (2020) Rechtsphilosophie im Spiegel der Zeit: Gustav Radbruch (1878–1949). Juristen Zeitung 75:1–11. https://doi.org/10.1628/jz-2020-0386 Paulson SL (2015) Zur Kontinuität der nichtpositivistischen Rechtsphilosophie Radbruchs. In: Borowski M, Paulson SL (Hrsg) Die Natur des Rechts bei Gustav Radbruch. Mohr Siebeck, Tübingen, pp 152–182 Radbruch G (1932) Rechtsphilosophie, 3 Aufl. Leipzig. English Edition: Radbruch G (1950) Legal philosophy. In: The Legal Philosohies of Lask, Radbruch, and Dabin (trans: Wilk K). Harvard Quelle & Meyer, University Press, Cambridge, MA, pp 43–224 Radbruch G (1946) Gesetzliches Unrecht und übergesetzliches Recht. Süddeutsch Juristen Zeitung 1:105–108. English Edition: Radbruch G (2006) Statutory Lawlessness and Supra-Statutory Law (1946) (trans: Paulson BL, Paulson SL). Oxford Journal of Legal Studies 26:1–11. https:// doi.org/10.1093/ojls/gqi041 Radbruch G (2003) Entwurf eines Nachworts zur “Rechtsphilosophie” (um 1947). In: Dreier R, Paulson SL (Hrsg) Gustav Radbruch Rechtsphilosophie: Studienausgabe, 2. überarbeitete Aufl. C. F. Müller, Heidelberg Sieckmann JR (2009) Reconstructing relativism. An analysis of Radbruch’s philosophy of law. Arch Rechts Sozialphilos 95:14–27 von Hippel F (1951) Gustav Radbruch als rechtsphilosophischer Denker. Schneider, Heidelberg

Rawls, John Rex Martin

Introduction From the time John Rawls (1921–2002) became an adult to his retirement from his university chair (in 1991), an ongoing and demanding challenge – physical as well as intellectual – threatened Western political institutions. The theoretical side of this challenge was advanced by Fascism/Nazism, on the one hand, and by Marxism, on the other. Although these theoretical challenges were significantly different from one another, they had certain points of agreement: They concurred in a deep contempt of parliamentary government and an intolerance for political controversy (disdaining the idea of a “loyal opposition” or any acceptable difference of opinion from the official line); and they had no commitment to or respect for the idea of the rights, human or constitutional, of individuals. These challenges are the wellspring of Rawls’s political thinking. He believed that they were not being effectively met by utilitarianism, the dominant political and moral theory in the Anglo-American world at the time he began his reflections. In the preface to the 1999 revised edition of his Theory of Justice (originally published in 1971), Rawls says that he “wanted to work out a conception of justice that provides a reasonably systematic alternative to utilitarianism.” He continues:

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_790-1. R. Martin (✉) School of Law and Politics, Cardiff University (Wales), Cardiff, UK Department of Philosophy, University of Kansas, Lawrence, KS, USA e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_31

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The primary reason for wanting to find such an alternative is the weakness . . . of utilitarian doctrine as a basis for the institutions of constitutional democracy. In particular, I do not believe that utilitarianism can provide a satisfactory account of the basic rights and liberties of citizens as free and equal persons, a requirement of absolutely first importance for an account of democratic institutions. (Theory of Justice 1971 (rev. edn.), xi–xii)

These few remarks serve to locate Rawls within the tradition of modern political thought. What is not so clear, however, is the importance of his theory in the 50 or so years since the original publication of Theory of Justice. Quite simply put, John Rawls was the dominant philosophical theorist of justice in the last 30 years of the twentieth century (as regarding both political justice and economic justice), certainly in the English-speaking world and in much of western Europe. The present entry will first take up the main arguments for Rawls’s ideas about justice (as embodied in two main principles); then it will discuss the “original position,” as Rawls called it. This is a device for structuring these arguments and for determining a preference for Rawls’s candidate principles of justice over utilitarian alternatives. After that, I will lay out the lines of Rawls’s “new theory” of justice – the one associated with his second book, Political Liberalism (Political Liberalism 1993, 1996) – and to indicate how Rawls thought this new theory solved the main problem he had seen in his own earlier theory of justice.

The First Principle: Equal Basic Rights and Liberties Although Rawls intended his Theory of Justice to provide a “convincing account of basic rights and liberties, and of their priority,” Rawls admits he did not successfully achieve this objective until 10 or so years later (Theory of Justice 1971 (rev. edn.), xii). Accordingly, I shall draw on Rawls’s 1980 Dewey Lectures and his 1982 Tanner Lecture as providing the best account of, and arguments for, his first principle of justice, the principle of equal basic liberties. Rawls claims (in these lectures) that for every individual citizen there are two fundamental capacities or powers and, correspondingly, two “higher-order interests” in the realization of those capacities. Thus each person has, over that person’s entire life, (i) an interest in being able to formulate, revise, and live according to some particular conception of the good, and (ii) an interest in exercising his or her “sense of justice” and being motivated by it, providing others do so as well. The notion of the two powers of the citizen is understood to include the idea that in a democratic society citizens are both equal and free. Here, each person is conceived as having the two powers at a sufficient level to be able to be a fully contributing member of society over that person’s entire adult life (or, at least, the working years). In having these powers at some such level, all the citizens are on the same footing. This, then, is the grounding idea behind Rawls’s notion that the citizens are equal: They are equal in having reached what might be called this

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same minimum threshold level (see Theory of Justice 1971 (rev. edn.), sect. 77, and Political Liberalism 1993, 19, 74, 79–80). Rawls uses the idea of the two powers and the corresponding interests of the citizen to ground his elaboration of the concrete basic liberties that each citizen is to have equally. He identifies which liberties and rights – which protected ways of acting or of not being injured – should be among the basic constitutional rights, or among the most weighty rights, by considering what he calls “two fundamental cases.” Thus, those liberties that are part of or a means of achieving the first interest (the conception of the good interest) constitute the first of these cases, and those that are a part of or a means of achieving the second (the sense of justice interest) constitute the second of the “two fundamental cases.” By way of illustration, Rawls offers liberty of conscience and freedom of personal association as examples of liberties justified under the first interest (the conception of the good interest). The argument here is simply that people would not be able to have or live according to their own particular determinate conception of the good, whatever it was, and in particular would not be able to revise any such conception, without liberty of conscience or freedom of personal association. He offers freedom of political speech and of assembly as examples under the second interest (the sense of justice interest). Rawls conceives this interest as being exercised in a democratic institutional context. The main argument, then, is that people could not live cooperatively with fellow citizens, on terms of equality and mutual respect, under a unified and stable scheme of democratic political institutions without having a practice of free political speech in place there. And the same could be said about freedom of political assembly. The basic liberties constitute, in effect, a determinate and well-defined set. Most of the liberties on this list would be justified in Rawls’s schema as coming under either one or the other of the “two fundamental cases.” Or they could be justified as falling under both cases (as all four of the liberties named in the previous paragraph presumably could be). Finally, some liberties (or protections from injury) fall under neither case directly but are, nonetheless, necessary for the proper and adequate exercise of those that do so fall. For example, the due-process rights to such things as fair trial or the rights to bodily integrity (rights that specify not being assaulted and possibly maimed, not being tortured, and so on) are justified as necessary to the full flourishing of the liberties justified in the “two fundamental cases.” For Rawls, then, all the liberties (and noninjuries) specified so far should be counted among the basic constitutional rights. These basic liberties and rights, like the conception of the constitution of which they are a part, are not founded “on basic (or natural) rights.” Rather, Rawls says, the “foundation is in the conceptions of the person and of social cooperation most likely to be congenial to the public political culture of a modern democratic society” (Political Liberalism 1993, 339). Thus, we arrive at Rawls’s first principle of justice: “Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is

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compatible with the same scheme for all; and in this scheme the equal political liberties [e.g. the right to vote and to campaign], and only those liberties, are to be guaranteed their fair value” (Political Liberalism 1993, 5).

The Second Principle: Distributive Economic Justice Unlike the case with his first principle, Rawls thought that the account and formulation of his second principle of justice, as found in A Theory of Justice (1971), was substantially sound. So I shall confine myself to what he said there about economic justice and to elaborations that he subsequently made. Rawls’s account begins with the fact that people have different natural endowments and are born into and grow up in different social circumstances. No one can be said to be responsible for these factors in their own case. Nonetheless, factors such as natural endowment and initial social circumstance are not negligible; they powerfully affect a person’s life prospects, advantageously for some and disadvantageously for others. Indeed, they are among the main sources of inequality between people. Rawls’s argument sets out from this point. He first develops the idea of “democratic” equality of opportunity – conceived as (1) the taking of remedial steps, conscientiously, to reduce the initial differential in advantages that accrues to individuals, arbitrarily, from their starting points in life. State-supported primary and secondary education (of good quality and at no cost to the individual student) would be an example of such a step. The leading idea here is to try to make people somewhat less unequal at the point where they actually enter into adult life, as citizens and as workers, and to make sure that everyone there, so far as possible, has the basic capabilities required to be contributing members of society. Rawls believes that an absolute equality of opportunity with respect to such starting points can never be achieved. And it is precisely where fundamental equality in starting points is not fully and strictly achieved, or cannot be, that concern for reducing the inequality of resultant outcomes is in order. Thus, Rawls introduces a further idea to complement equality of opportunity (point 1 above) and to complete the line of argument. Rawls calls this new idea the “difference principle,” which adds two further remedial steps to the picture: It adds (2) the principle of everyone’s continual benefit, which in turn is constrained by the idea that, where there are several mutually improving (that is, optimally efficient) options available, (3) we should choose that option (choose that optimally efficient point) which, among all such points, most reduces the inequality in outcomes between the topmost and bottommost groups. The object of this three-step process is to reduce, ideally to minimize, the gap between persons by taking account of both starting points and end results. The difference principle can be represented, practically speaking, as proceeding through a series of stages: first satisfy standards of mutual benefit (and of efficiency)

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and then pay special attention to raising the material prospects of those less well-off (as measured in terms of average income prospects over a 10-year period, say). This repeated pattern continues at each stage until we reach a point at which no further mutually improving moves is possible; at this point, ideally, those least well-off (the bottom 20%, say) have here their greatest benefit (without making any group worse off in the process). We must first assume here, as does Rawls, that we start from a hypothetical point of strict equality between people. This “origin point” does not, of course, describe the way things actually are; rather, it is used merely to orient and clarify our thinking. And, second, we must assume that so long as the benefit of the least well-off group could possibly be higher, that of the other groups could also be higher, right on up to the optimum or goal point. The object of this second assumption is to identify a zone or context in which the procedure (the repeated pattern described earlier) can operate, with full effect, to achieve its intended end. We have completed our sketch of Rawls’s argument for his second principle of justice, the principle of distributive economic justice, and have given some idea of how it might be put into practice. It remains now only to state that principle succinctly: “Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society” (Political Liberalism 1993, 6; also Theory of Justice 1971 (rev. edn), 72, 266). Rawls has identified two principles as central to political liberalism – the principle of equal basic rights and liberties, and a principle of economic justice, which stresses equality of opportunity, mutual benefit, and egalitarianism. What’s distinctive about his main arguments for these two principles is that Rawls represents them as taking place ultimately in an ideal arena for decision-making, which he calls the “original position.”

The Original Position Rawls’s contractarian method of justification is very complex. I shall be able to mention only a few of its main features here. One feature that is often emphasized – and that Rawls continued to include even in his later writings – is that the “parties” to the contract are placed (in what he calls the “original position”) behind a thick veil of ignorance. Here, they are instructed in their subsequent reasoning to ignore their own particular traits (traits that distinguish them from most or, at least, many other people), to be unaware of (or to ignore) their actual place in society, to be unaware of their society’s place in history or in institutional evolution, and so on. The point of the metaphor of the veil is to indicate that the parties should remove sources of bias or irrelevance from their deliberations.

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In simplest terms, the original position is an arena for deliberation and decision about principles of justice; its various features are meant to frame and constrain the debate about such principles. “The idea of the original position is to set up a fair procedure so that any principles agreed to will be just” (Theory of Justice 1971 (rev. edn), 118). Rawls envisions two main roles for the original position. In its first role, the original position is to serve as a screening device for the candidate principles, that is, principles taken from a short list of main, historically available theories of justice – such as Plato’s republic, various versions of utilitarianism, and so on. Here, the features of the original position serve as a checklist against which the candidate principles are to be measured and to be assessed. Let me illustrate the force of this first role (screening) with an example. An avowedly racist principle would probably not pass through the filter afforded by the features of the original position. If people contemplated living in a multiracial society under that principle, it is clear that some of them would be seriously disadvantaged, indeed deeply harmed, by its operation. Everyone who took on, by hypothesis, the role of these injured parties would have to veto the racist principle; thus, it could not meet the requirement of unanimous agreement. Since anyone (given the veil of ignorance) could be in such a role, the racist principle would be decisively ruled out. For similar reasons, it is likely that caste system principles or slavery principles would not survive the initial screening either. In short, some principles (for example, moral egoism or Plato’s republic, with its endorsement of slavery) are going to be filtered out by the various features of the original position, and removed from any further consideration. But other principles, the various versions of utilitarianism, for example, might remain in contention after being examined under the conditions set by publicity, unanimity, the veil of ignorance, and so on. They have passed through the initial screening. This means simply that these principles can be formulated and argued for under the constraints of the original position. Unlike the discredited principles, these principles will have purchase there. Where persons have an equal status (as parties to the deliberation) and each has equal claim to shares of primary goods (including such things as liberties, opportunities, income, and wealth), the parties – as representing such persons in the original position – would prefer a mutually beneficial outcome. And they would prefer one that reduced the difference in income between the top-most and bottom-most group over one that increased that inequality. To do otherwise would be to opt for a surplus of inequality, that is, an inequality without compensating benefits. Such a choice would unnecessarily perpetuate or increase inequality; any such choice would be unreasonable and unjustifiable. The idea is that, even after mutual benefit is assured, one should continue to use egalitarianism as a standing constraint on beneficial options, functioning often as a tiebreaker of sorts. Here, among available options, that efficient and mutually beneficial outcome which reduces inequality is to be preferred.

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In sum, I think Rawls’s straightforward arguments for each of his two principles would fare well in the original position construct. These arguments could be formulated and would hold up, under the constraints identified there. They would pass the screening test of the original position. This brings us to the second main function of the original position: to rank the remaining eligible candidates, after the preliminary screening has been accomplished (See Theory of Justice 1971 (rev. edn.), 16 for the point about ranking). In performing this second role, of ranking, the parties rely on the balance of reasons (determined in light of assessments that could be reached in the original position) to decide which of the remaining eligible candidates is best. If they can do so unanimously, there should be no real doubt about that particular ranking. Here, we encounter the most memorable argument from A Theory of Justice, the famous maximin argument (as found in chapter 3, the chapter entitled “The Original Position”). This argument actually presupposes and builds on the arguments allowed and the assessments reached, in the screening process, for the various candidate principles there. We can put the line of reasoning in the maximin argument quickly and intuitively, as follows. Behind the veil of ignorance and given the high degree of uncertainty there, each individual thinks that, since they do not know how or where they might end up, things should be set up in the principles they select, each person having a veto, so that the worst controllable outcome for any one of them is the best of the available set of worst outcomes. This line of reasoning, which has its home in rational-choice theory, is sometimes called maximin reasoning, that is, reasoning literally on the principle of maximizing the minimum. The outcomes, which the maximin argument ranges over, are in fact generated by the main competing principles under review – by justice as fairness (Rawls’s own theory), on the one hand, and by its strongest competitor, the principle of maximizing average utility, on the other. It is these particular outcomes, sets of characteristic outcomes as determined by these competing principles, which the maximin argument then chooses between. Rawls’s view is that utilitarians and others, especially in the setting afforded by the original position, would allow the sacrifice or the serious weakening of some of the demands of justice as fairness, or would do so for some people at least. Here, the argument focuses, in particular, on the loss of equal basic liberties of the sort enshrined in the first principle (see Theory of Justice 1971 (rev. edn), 135, 137; also, xiv and Sect. 49). And it is this fact that marks the primary ground, in Rawls’s view, for preferring the principles of justice as fairness over their presumed closest competitor. Thus, the maximin test provides what, in the context of the original position, is a compelling reason for ranking the two principles, as a set, above the principle of average utility. Rawls later came to see that the line he had taken here engendered no real argument for the second principle as such, certainly not for the difference principle. Thus, he later suggested that a two-stage original position argument, based on two distinct comparisons, was needed to supplement the initial original position argu-

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ment of chapter 3 in Theory of Justice (see Theory of Justice 1971 (rev. edn), 1999 preface, at p. xiv). Rawls developed this two-stage argument in Justice as Fairness (hereafter Justice as Fairness 2001), part III. The first stage (the “first fundamental comparison,” as he called it) is like the one we have just been considering. But the second “fundamental comparison” is considerably different. Here, Rawls compares his two principles with what he calls a mixed conception of justice. This conception includes both the equal basic liberties and the notion of fair equality of opportunity, in each case exactly matching the language of Rawls’s two principles. But in place of the difference principle, the mixed conception substitutes the principle of maximizing average utility with respect to such matters as economic and social positions, income, and wealth. Finally, Rawls constrains the operation of average utility here by requiring a baseline, in what he calls “a social minimum,” below which no person is to be allowed to fall. Clearly, this mixed theory is not a utilitarian theory, but it includes a utilitarian feature. The mixed conception allows for a comparison of average utility directly with the difference principle. Even more important, the mixed principle (with its standing commitment both to equal basic liberties and to fair equality of opportunity) is impervious to the maximin argument that had sunk the principle of maximizing average utility in the “first fundamental comparison.” And the social minimum baseline makes it impossible for any person to fall (under average utility) to an intolerable economic level (Justice as Fairness 2001, 98). The crucial line Rawls now takes is to argue that the difference principle is distinct from the idea of a social minimum and that it sets a higher standard of well-being for the least well-off group (say, the bottom 20% of wage earners) than does the social minimum. But how it sets that higher standard is the heart of the matter. The difference principle requires that as some working groups – some income groups – improve their prospects, others do so as well; certainly, none are to become worse off. Thus, in a relatively affluent society (of the sort we find in a typically complex contemporary economy), the least well-off groups (people who work but are relatively poor) can expect that they will rise above the floor set by the notion of a social minimum. This is so because the difference principle is driven, not by any idea of a minimum or floor, but by the idea of reciprocity, the ideal of continual mutual benefit as constrained by egalitarianism (see Political Liberalism 1993, 16–17). Of course, there have been many criticisms of Rawls’s book; it has been widely discussed, both favorably and unfavorably. Over the years, Rawls responded to many of the criticisms. Indeed, he appears to have become dissatisfied with the shape his theory had taken in 1971 and had retained for about a decade afterward. He began to rethink that theory. Beginning with his Dewey Lectures in 1980, he began to reconfigure his entire justificatory account. A number of important changes have occurred as he has moved further from positions he had occupied in A Theory of Justice.

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Rawls’s New Theory In his more recent writings, Rawls assumes that there is and is going to be, in a continuing free and open society, an irreducible pluralism of reasonable comprehensive moral and religious and philosophical doctrines. In these writings, then, he seems especially concerned with the problem of assuring political stability in a pluralist or multicultural social environment. Rawls gives this current preoccupation – and his new theory of justice – its most complete elaboration in his second book, Political Liberalism. Perhaps, the most significant feature of this book is that Rawls takes the public political culture of a contemporary democratic society to be the deep background of the entire theory. Rawls says that the leading ideas out of which the political conception of justice is to be constructed and by reference to which it is to be justified are implicit in that culture (Political Liberalism 1993, 13, 15, 175, 223). In the new account, the principles of justice that emerge as preferred (from among a small set of historically available candidate principles) are the principles that are best supported by the background democratic ideas. The preferred principles are the principles most appropriate to the basic ideas there (ideas such as the two moral powers and the citizens’ corresponding fundamental interests, and the importance of mutual benefit as constrained by egalitarian considerations). Rawls thinks that the best-supported principles will be his own two principles of justice, understood now as political principles. Or, to be precise, he thinks the preferred set will actually be a “family” of principles, among which are included the two he emphasized. The members of this “family” have three main features in common. (1) Certain familiar rights, liberties, and opportunities are to be singled out and specified and maintained; (2) a certain priority is to be given to these rights, etc., over against “the claims of the general good [understood aggregatively] and of perfectionist values”; (3) measures to help citizens make effective use of these rights, etc., by having an adequate base of income and wealth, are to be set in place. In Rawls’s account, the justification of the political conception proceeds in two main stages (see Political Liberalism 1993, 64–65, 140–141, 385–388). The first stage is the one I have focused on up to now. This first line of justification (justification from democratic principles in a democratic context) is said by Rawls to be “freestanding,” in the sense that it draws only on these background democratic ideas, presumably already shared to a large degree by fellow citizens. What Rawls calls overlapping consensus is a second stage of political justification in which the already established “freestanding” justification is endorsed from the respective points of view of a variety of comprehensive ethical doctrines, such as Kant’s moral theory or Mill’s utilitarianism, and religious doctrines, such as contemporary Catholic Christianity. On this view, the political conception (as supported by freestanding justification) is a common focal point – a “module . . . that fits into and can be supported by various reasonable comprehensive doctrines that endure in the society regulated by it” (Political Liberalism 1993, 12; see also pp. 145, 387).

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Overlapping Consensus Is overlapping consensus a utopian notion (as some have claimed)? Rawls attempts to deal with this issue by showing how it is possible to move from a mere political modus vivendi to a consensus over a detailed set of constitutional essentials, the features of which “all citizens may reasonably be expected to endorse’” (Political Liberalism 1993, 217). The sort of political consensus Rawls had in view would come about as the agreed-upon area of rights and practices widens; it would come about as the ground under that area deepens, as convincing political reasons for having such arrangements, reasons that go beyond the mere utility of a modus vivendi, gain acceptance and are taken on board. And it would come about as a public political conception of justice, with these deeper reasons as justification and with greater focus and definition, which gained widespread support. An overlapping consensus would arise where the great bulk of citizens could affirm, upon reflection and given experience, that the governing principles and institutional essentials of the existing public political conception were compatible (or could be made so) with the various comprehensive moral and religious and philosophical doctrines that they individually held, in each of their respective cases (see Political Liberalism 1993, 160; also pp. 187–8, 210). Such affirmation is not far-fetched, where we assume that the existing support for a given public political conception, or close-knit family of such conceptions, is already widespread and long-lived. The general run of citizens in that society do not think the perspectives they have individually are incompatible, in general or in principle, with the institutional essentials there. Here, it is not so much that various comprehensive doctrines (understood as “isms”) converge on a single public political conception of justice; rather, it is that lots of citizens, coming from diverse perspectives, do. In this latter case, we would, nonetheless, have an overlapping consensus, of a quite definite and interesting sort. Such an overlapping consensus would, of course, occur gradually; it would take time to gel (see Political Liberalism 1993, 160 n. 25). None of this shows that an overlapping consensus will occur: Nothing is guaranteed. It shows merely that such a consensus plausibly could occur, in the way Rawls envisioned (see Political Liberalism 1993, xlvii–xlviii). Its occurring in that way is not utopian. The shared public political conception we are concerned with, given its starting point in democratic political culture, would focus on a “family” of liberal conceptions. Any family of liberal conceptions that had the Rawlsian two principles at its continuing center would exhibit a high degree of internal stability; such an order would be less likely to be overturned by divisive issues (see Political Liberalism 1993, 167–168). But if a democratic political conception is stable in the way indicated, one might well wonder what more an overlapping consensus of the various competing moral and religious doctrines alive at the same time could add to that rather high degree of stability.

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What overlapping consensus provides is not political stability per se, but rather “stability for the right reasons” (see Political Liberalism 1993, xxxix, xliii, 388 n. 21, 390, 391, 394; and “The Idea of Public Reason Revisited” (1997), as reprinted in Collected Papers 1999, at p. 589). By this, Rawls meant stability for the right moral reasons. A public political conception, simply on its own, is always a consensus within and from public reasons; in the case at hand, the reasons are appropriate to a liberal democratic society. As such, it lacks a certain dimension: It lacks deep moral credentials of the sort afforded by a comprehensive critical moral theory. Thus, one goal, in Rawls’s view, of critical moral justification would be to give freestanding political justification the particular kind of moral grounding that it otherwise lacks. The only form a full justification could take in a morally and religiously pluralistic society and still have authority outside a narrow circle of partisan sentiment would be as an overlapping consensus – with the public political conception as focus – of these various ethical and religious doctrines. If it could be established as a matter of public fact (based on settled judgments of compatibility by the great bulk of citizens) that various of the main present-day comprehensive moral doctrines and religious faiths all endorsed, each for its own reasons, one and the same public political conception of justice, then that particular conception, a freestanding one, in Rawls’s view, would be fully and publicly accredited by the standards of these various comprehensive doctrines. Thus, even in the face of a continuing and very likely ineradicable pluralism, we would have achieved stability, as provided by a public political conception, and for the right reasons (as provided by an overlapping consensus, and not a mere compromise, among the various relevant critical moral doctrines). It was this problem, of moral justification under conditions of pluralism, which A Theory of Justice had conspicuously failed to solve. Rawls assumed in A Theory of Justice that, since his preferred principles of justice came out on top in the contest with utilitarianism and with perfectionist values, values such as Platonic aristocracy or Nietzschean elitism, these principles would in effect be endorsed by everybody and for the same reasons. Thus, these principles would become the moral theory or part of the moral theory of any well-ordered society whose principles of justice were constructed in the original position behind the veil of ignorance, subject to the constraints of publicity and unanimity. Ultimately, then, it is this almost universal convergence upon a single justifying moral theory that underwrites Rawls’s account of stability in A Theory of Justice. Such uniform acceptance, Rawls now says, is inconsistent with the idea that a pluralism of reasonable comprehensive moral and religious doctrines, at least in any modern political society committed to free and open discussion, is here to stay (see Political Liberalism 1993, xvii–xx, xxvi, xlii, 4, 36–37, 129, 144). And overlapping consensus, one of Rawls’s new ideas in Political Liberalism, was called upon to repair this self-professed defect. The job of overlapping consensus is to provide an independent, critical, moral grounding for the public political conception itself and for the inherent stability afforded by that conception. Overlapping consensus (whatever marginal increase in

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stability it might afford) is directed by Rawls primarily at the issue, not of stability, but of critical moral justification.

Conclusion and Summing Up Over time, Rawls became dissatisfied with the approach he had initially taken in Theory of Justice, and he began to reconfigure his theory in new and interesting ways. He moved the focus away from his own two principles and toward a “family” of liberal principles (which included his two principles as one possible option). And he developed a background theory for justifying this family of principles that did not require people to come to any sort of unanimous foundational agreement. Rather, the issue of justification could be approached from a number of different angles, and this would work out all right, he argued, if a sufficient overlapping consensus developed over time. This new theory (as developed in Political Liberalism) solved the main problem Rawls had seen in his own earlier theory of justice. It did so by taking account of the “fact” that there is very probably going to be an irreducible and continuing pluralism of ultimate moral and religious beliefs. In his Law of Peoples (Law of Peoples 1999), Rawls then took this new theory (which he calls political liberalism) and tried to outline a constructive place for it in the international order that emerged after the Second World War. One notable feature of this emerging order is its modification of the traditional international relations’ view of states. A number of restrictions were imposed on the sovereignty previously granted to states. Among the most important of these constraints are the prohibition on waging war except in self-defense (or in collective defense or even sometimes in the international enforcement of human rights), the claim that certain standards (standards of jus in bello) are to prevail in the conduct of wars, the idea that human rights are to be respected internally, and finally the notion of a duty to aid deeply impoverished or “burdened” societies.

References Rawls J (1999) A Theory of Justice, Harvard University Press, Cambridge, MA (original edition – 1971, Harvard University Press, Cambridge, MA). All citations are to the 1999 revised edition Rawls J (1999) Collected papers, edited by Freeman S, Harvard University Press, Cambridge, MA Rawls J (2001) Justice as fairness: a restatement, edited by Kelly E, Harvard University Press, Cambridge, MA. A publication of Rawls’s lectures on political philosophy at Harvard during the 1980s, based on the lecture set of 1989 Rawls J (1993), Political liberalism, Columbia University Press, New York, hardbound (1996 paperback). All citations are to the 1996 paperback Rawls J (1997), The idea of public reason revisited, originally published in University of Chicago Law Review 64 (summer 1997) at pp 765–807, reprinted in CP, pp 573–615, and elsewhere Rawls J (1999) The law of peoples with “The idea of public reason revisited”, Harvard University Press, Cambridge, MA

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Further Reading Martin R (2017) Rawls, In Boucher D, Kelly P (eds) Political thinkers: from Socrates to the present, 3rd ed. Published by Oxford University Press, pp 604–624. (A source for the present entry; a helpful list of Further Readings is found on p 622 of this book)

Ross, Alf Rafael Hernández Marín

Introduction The jurist and philosopher Alf Ross (Alf Niels Christian Ross) was born in Copenhagen on 10 June 1899 and died in Virum, near Copenhagen, on 16 August 1979 (officially, Ross died a day later, according to Evald (2014: 5), biographer of Ross). As a philosopher, Ross made contributions to various branches of philosophy: to political philosophy, to moral philosophy, to the philosophy of mind, and even to the study of logic. As an example of his contribution to logic, one should look to his article “Imperatives and Logic” (Ross 1941). It was there that Ross coined the term “Jørgensen’s Dilemma” to refer to the thesis, formulated in 1938 by the Danish philosopher Jørgen Jørgensen, according to which the traditional notion of logical consequence implies the impossibility of a logic of norms (this thesis can be expressed in the form of a dilemma: either the traditional notion of logical consequence is abandoned or the logic of norms is impossible). This problem is still the subject of debate today. In that same article, Ross exposed what has come to be known as the “Ross paradox”: the inference from the imperative “slip the letter into the letter-box!” to the imperative “slip the letter into the letter-box or burn it!”, an inference that Ross considered invalid, but demanded by a logic of imperatives based on the notion of satisfaction. As a lawyer, Ross dealt with issues belonging to various branches of law. In particular, he wrote about international law, constitutional law, and criminal law. Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0_644-1. R. H. Marín (✉) Professor Emeritus, Universidad de Murcia, Murcia, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_32

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However, Alf Ross is known primarily as a philosopher of law. His contributions include the following: a classification of various types of antinomies between legal norms, his analysis of problems of interpretation of law caused by phenomena of ambiguity, his thesis regarding the term “right of ownership” as a meaningless expression but serving as a point of connection between different legal norms, and what Ross himself called “a puzzle of constitutional law” caused by the selfreference of the legal norms governing constitutional reform. However, these scholarly contributions were, arguably, the product of concerns of the moment. On the other hand, the notion of legal norm and the subject of the science of law were the object of Ross’ almost permanent interest. Ross’ position around these issues varied substantially over the years. But there is an almost constant idea, observable with greater or lesser intensity in most of his main legalphilosophical works: the idea that authentic science is science, natural or social, capable of providing explanations and making predictions of the relevant phenomena. In addition to this idea, he claimed that legal science had to be an authentic science.

Neo-Kantian Stage Science explains and predicts phenomena from generalizations or laws. For this reason, already found in his first book, Theorie der Rechtsquellen. Ein Beitrag zur Theorie des positiven Rechts auf Grundlage dogmenhistorischer Untersuchungen, published in 1929, there are passages that suggest universal applicability, in all sectors of human knowledge, of what Ross called, with neo-Kantian terminology, “generalizing method.” However, and perhaps because of a confusion between language levels, in this work, Ross attributes a theoretical character, not only to legal science but also to its object of knowledge, to the legal norm. For Ross interprets or analyzes the norm, the Sollen, “A ought to be” as follows: “If it is not A then it is the penalty and if it is A then it is not the penalty.” Thus interpreted, the Sollen “A ought to be” is not essentially different from the sentence “A is,” since both sentences are assertive, that is, true or false. There is little evidence of Hans Kelsen’s influence on Ross, but quite the opposite, and this despite the fact that Ross wrote Theorie der Rechtsquellen after having studied with Kelsen in Vienna from 1924 to 1925 and although Ross dedicated the book to Kelsen. On the one hand, the universal applicability of the generalizing method, as Ross called it, clashed with the neo-Kantian and Kelsenian idea of the specificity of normative knowledge, although Ross intended this work to save that specificity. And, on the other hand, Ross attributed to the Sollen a kind of assertive discourse that clashed with the prescriptive character that Kelsen has always attributed to the Sollen. However, the Ross’s work in legal philosophy does show some Kelsenian influence, sometimes directly, but also, even simultaneously, by direct criticism of the Austrian jurist.

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The estrangement with Kelsen was greater over the next two decades. For the original Danish text of Theorie der Rechtsquellen was rejected in the academic field when it was presented by its author at the University of Copenhagen for a doctorate of law. This incident led to Ross’s meeting with Axel Hägerström in Uppsala, where Ross earned a doctorate in philosophy thanks to the German translation of that thesis. During these years (approximately, from 1930 to shortly before 1950), Ross became a prominent member of the Uppsala school, which was the origin of Scandinavian legal realism.

Realistic Stage In this period, Ross wrote two of his most important works. The first is a 1933 book, Kritik der sogenannten praktischen Erkenntnis. Zugleich Prolegomena zu einer Kritik der Rechtswissenschaft. This work, which is inspired by the noncognitive moral theory of Hägerström, to whom the book is dedicated, was regarded by Ross himself as his main contribution to philosophy. The second work is Virkelighed og gyldighed i retslæren. En kritik af den teoretiske retsvidenskabs grundbegreber [Reality and validity in the theory of law. A critique of the fundamental concepts of the theoretical science of law], with which Ross obtained in 1934 the doctorate of doctor of law at the University of Copenhagen, though not without some difficulties (see Evald 2014: 114 and following). This Danish work, with some omission and also with some important additions, in particular, with the addition of ideas put forward by Ross in a recension, also in Danish, of the first edition of the Reine Rechtslehre of Kelsen (Ross 1936), was translated into English with the title of Towards a Realistic Jurisprudence. A Criticism of the Dualism in Law, published in 1946. At this time, Ross no longer attributes assertive meaning to the Sollen. Ross now adopts the same conceptual position as Kelsen, as he includes within the concept of Sollen two distinct notions, without distinguishing between them, even though they are mutually independent: the semantic notion of prescription and the ontological notion of ideal entity. On the other side, Ross accepts the postulates of Hägerström about reality, namely, that the only world that exists is the real world, the world of facts happening in space and time. Legal norms must belong to this world, according to Ross. And since he does not distinguish, as Kelsen does, the notions of practical prescription and ideal entity, Ross concludes, on the basis of the proposition that legal norms cannot be ideal entities, that legal rules cannot have prescriptive sense. Ross goes even further by stating more broadly, perhaps by the influence of logical positivism, that propositions that are neither true nor false are meaningless. The only perspective that can be adopted, according to Ross, against the expressions he calls of “practical modality,” such as “value,” “duty,” “obligation,” etc., and the judgments or sentences in which these expressions appear is that of considering them as facts related to other facts. Such expressions are, according to Ross, manifestations or effects of irrational psychic phenomena; specifically,

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manifestations of behavioral attitudes, consisting of experiences of a psychic impulse associated with the representation of a thing or a behavior. As a result, legal science is a branch of the disciplines that study human behavior, a branch of psychology and sociology. And legal dogmatics must be conceived, as Ross argues in this period, as a science that studies legal norms, not as ideal entities that speak of rights and obligations, but as facts psycholinguistics.

Neopositivistic Stage Ross’s thinking takes a radical turn during the 1950s. During this decade, Ross published numerous works revealing that the Danish jurist had moved away from Hägerström and his views were moving closer to Kelsen again. At the same time, Ross was influenced by one of the most vigorous philosophical movements of the time, neopositivism or logical positivism. These are the sources from which Ross’s most important work published in this period is nourished, which is also his most famous and influential work, Om ret og retfærdighed. En indførelse i den analytiske retsfilosofi [On law and justice. An introduction to analytical legal philosophy]. This book was published in 1953, and the English translation, On Law and Justice, in 1958, although there are some differences between the original and the translation. The differences between the two versions are most apparent in the second chapter of the book. The title of this chapter in the Danish work is Begrebet “gældende (dansk) ret” [The concept “(Danish) law in force”]. In translation, the same chapter is titled The Concept “Valid Law.” And, throughout the chapter, the English translator always translates “valid” as the Danish gaeldende, corresponding to the German geltend(es) (in Danish, there is also the expression i kraft, which means, like gældende, “in force”). As a result of Hart’s critical remarks (1959), Ross has repeatedly lamented this unfortunate translation. In this work, Ross endorses the conception of philosophy and the conception of science defended by neopositivism, and tries to apply them to the philosophy of law and the science of law. Applying to the legal field the thesis held by neopositivists with regard to philosophy, Ross argues that the philosophy of law does not have a specific object coordinated with, and different from, the object of the science of law in its various branches. The object of the philosophy of law, Ross says, is not the law, nor any part of it, but the science of law and its logical apparatus, especially its conceptual apparatus. The philosophy of law, Ross argues, is the logical analysis of the language of the science of law. (Although it should be noted that some of Ross’ contributions cited at the outset, and contained in the work now discussed, such as the classification of various types of antinomies of the legal norms, their analysis of certain problems of interpretation of law and its analysis of the term “right of ownership” are analyses of the language of the law itself, not of the language of the science of law.) Ross’ conception of the science of law in Om ret og retfærdighed is also different from that advocated by Ross in the previous period. In this work, Ross divides the

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science of law into two major groups of science: (a) legal sociology, which studies legal phenomena or law in action and (b) legal dogmatics, or science of law strictly speaking, which studies legal norms as content of abstract ideas or as conceptual content (as propositions, you could say). Legal dogmatics are in turn subdivided by Ross into several branches: science of comparative law, history of law and legal dogmatics in the strict sense, which deals with the law currently in force in a given society, for example, Danish law currently in force. In principle, it would be possible for the philosophy of law to deal with any of these sciences. But, with different arguments, Ross justifies the reduction of the task of the philosophy of law to logical analysis of the language of legal dogmatics in the strict sense, in particular, the logical analysis of the language of Danish legal dogmatics in the strict sense. And the objective of this analysis must, Ross argues, turn that discipline into a science according to the neopositivist model of the factual sciences, who use the method of observation and verification to control the truth of their statements. Among the various concepts or terms of Danish legal dogmatics in the strict sense there is one that, according to Ross, appears in all the statements of that science: the concept or term “Danish law currently in force,” which appears in the sentences of the following form: “Norm N is Danish law currently in force.” This sentence is the object of Ross’s logical analysis. With regard to the notion of norm, Ross’ analysis in Om ret og retfærdighed is contradictory. On the one hand, Ross asserts, as has been pointed out, that it is the task of legal dogmatics in the strict sense to study legal norms as conceptual content (such as propositions). On the other hand, in classifying the different types of expressions, Ross includes the norms between expressions he calls “directives” and states of these that they do not have a semantic meaning, because they are not true or false. Ross would save this contradiction years later, by publishing his book Directives and Norms in 1968. In this play, Ross captures the essentials of the linguistic analysis of R.M. Hare, who distinguishes two parts in the sentences: the phrastic/neustic. This allows Ross to argue that the norms or prescriptive sentences do have semantic sense. Well, his thesis seems to be that the significant part of the sentences is the phrastic, a part that is common to assertive sentences and prescriptive sentences. For this reason, prescriptive sentences are significant, similar to assertive sentences, even if they have different meaning. The notion that Ross discusses below is that of “Danish law.” According to Ross, all the norms that make up Danish law belong to two classes: norms of conduct, addressed to private individuals, and competence norms. With regard to competence norms, Ross offers, like Kelsen, different interpretations, not equivalent to each other, of those norms. Based on these interpretations, Ross resolutely states: “The norms of competence are reducible to norms of conduct.” Plus, the norms of conduct, Ross claims, are not actually aimed at private individuals. Because, according to Ross, “the real content of a norm of conduct is a directive to the judge, while the instruction to the private individual is a derived and figurative legal norm deduced from it.”

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These arguments enable Ross to conclude that all Danish legal norms are in fact directives whose addressees are the Danish judges. These norms order Danish judges to exercise physical force, if certain facts determined in the norm itself take place. This thesis, which can be called “prescriptivist, in a strong sense,” is the same as that held by Kelsen and is inspired by it, as Ross himself acknowledges. However, the arguments put forward by Ross in defense of this thesis are different from those offered by Kelsen. Another notion, according to Ross, found in Danish legal dogmatics is the notion of to be in force. According to Ross, a Danish legal norm is in force if, and only if, the norm is felt as binding and is therefore followed by the persons to which it is addressed. Since these people are the Danish judges, Ross’s thesis is that a Danish legal norm is in force if, and only if, Danish judges follow it because they feel bound by it. That (Danish) judges follow a (Danish) legal norm because they feel bound by it means, according to Ross, that the (Danish) judges apply that rule. Ross therefore asserts that the application of the law by the judiciary is the effectiveness that a legal norm has to have to be in force. In accordance with the ideas set out above, it would be possible for N to be a Danish legal norm, but not in force. However, in Directives and Norms, Ross introduces a modification to his theory that eliminates this possibility. Ross defines a norm as a impersonal directive in force; in this way, the property of to be in force becomes an essential element of the concept of the norm. On the other hand, Ross obscures his theory; since the classification of norms as impersonal directives, that is, as directives lacking a clearly defined sender and receiver, seems to contradict their thesis that (Danish) legal norms are addressed to (Danish) judges. The last notion to be analyzed is that of “currently,” which is included in the expression “currently in force.” As Ross argues in Om ret og retfærdighed (and said in the terminology of this work, where Ross does not consider the property of to be in force to be an essential property of the legal norms), a sentence saying that a norm is in force must be understood as referring to hypothetical future judicial decisions. Ross’s thinking can be expressed as saying that “being in force at the time t” means “being applied at a time t1 after t.” Consequently, the statements of the science of law by antonomasia, that is, of legal dogmatics in the strict sense, become predictions about the future behavior of judges, thus being verifiable statements and, therefore, scientific, according to the postulates of the neopositivist concept of science.

Alf Ross and the Pure Theory of Law Along with the idea of the unity of science, the other axis around which Ross’s thought revolved over the years was the work of Hans Kelsen. After a first stage under the influence of Kelsen and a second stage away from him, in the third and last stage of his life, Ross elaborated a legal theory (which is the best known of his theories) very close to that of Kelsen. Up to the point that almost all the main theses of the pure theory of law appear in it.

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The core of the pure theory of law is the notion of a legal norm. According to various theses held by Kelsen, a legal norm is characterized by four properties: it is an “ought to be,” addressed to judges and related to the exercise of coercion, effective and authorized by a legal norm. On the other hand, Kelsen defines an “ought to be” as the meaning of an act of will directed at the behavior of another. In this way, an “ought to be,” in addition to being a prescription, has two essential characteristics according to Kelsen: it has an ideal nature, because it is the meaning of an act, and it has a positive character, since its existence depends on a human act. And, since every legal norm is an “ought to be,” legal norms and law have, according to Kelsen, an ideal, but at the same time positive, nature. This conception, insofar as it considers law as something ideal, but which owes its existence to man, is similar to that held by Karl R. Popper concerning what Popper himself called the “third world.” The assertion that law is both positive and ideal is precisely what characterizes the so-called iuspositivist doctrines as opposed to the iusnaturalist ones, on the one hand, and as opposed to the realist conceptions of law, on the other hand, which conceive law as a fact, as the title of one of Karl Olivecrona’s books says. Such a conception may be erroneous, but it is not inconsistent, as some of Kelsen’s critics, including Olivecrona himself, believed. And it is precisely this conception of law, as something that is both positive and ideal, which underlies after the qualifier of “pure” that Kelsen applies to his own theory of law and after the disqualification of “meta-legal,” of strange to the law, which Kelsen applies to any theory about nonpositive norms or about historical, sociological, etc., facts. This notion of purity (Reinheit) had been anticipated by Rudolf von Ihering in 1854. In addition to purity, the other distinctive feature of Kelsen’s theory, which is also characteristic of the entire Vienna School, is the dynamic conception of law. This conception is embodied in the fourth property that Kelsen attributes to the legal norm, the property of being authorized by another legal norm or, in Kelsen’s own words and put forward in 1882 by Adolf Lasson, the requirement that law must be established in accordance with the law. With the exception of this fourth property that Kelsen attributes to the legal norm, the notion of the legal norm offered by Ross in the last stage of his thought presents the same elements that characterize Kelsen’s legal norm, although sometimes for different reasons. For instance, according to Kelsen, a legal norm is an ideal entity since it is the meaning of an act of will. Ross, on the other hand, conceives a legal norm as an ideal entity in a more direct way, by qualifying it as a conceptual or spiritual content. Kelsen and Ross consider authentic legal norms to be prescriptions addressed to judges and related to the exercise of coercion. But they hold different views on the relationship between these legal norms and other legal norms. Kelsen claims that all other legal norms are not autonomous or are parts or fragments of the norms addressed to judges. Ross, on the other hand, distinguishes in the rest of the legal norms between norms of competence and norms of conduct addressed to private individuals. Regarding the norms of competence, Ross claims that they are reducible to norms of conduct addressed to private individuals. And, with respect to these

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norms, Ross argues that they are deductible from the norms of conduct addressed to judges. However, neither Kelsen nor Ross justifies any of these theses. Finally, for both Kelsen and Ross (in Directives and Norms), effectiveness is an essential feature of legal norms. But, according to Kelsen, a legal norm (a genuine legal norm, addressed to the judges) can be effective in two ways: either because the judges comply with it by imposing a sanction on those who carry out the behavior contemplated in its factual assumption, or because the opposite behavior takes place, namely behavior that avoids the sanction. For Ross, on the other hand, a legal norm is effective, or is in force, only when the judges fulfill it because they feel bound by it.

References Evald J (2014) Alf Ross. A life. Djøf Publishing, Copenhagen Guastini R (1993) Alf Ross: une théorie du droit et de la science juridique. In: Amselek P (ed) Théorie du droit et science. PUF, Paris, pp 249–264 Hart HLA (1959) Scandinavian realism. Cambridge L J 17(2):233–240. https://doi.org/10.1017/ S0008197300007650 Hernández Marín RL (2015) Norma y significado en Alf Ross. Anal diritto:367–382 Holtermann J v H (2014) Naturalizing Alf Ross’s legal realism: a philosophical reconstruction. Revus 24:165–186 Pattaro E (2009) From Hägerström to Ross and Hart. Ratio Juris 22(4):532–548. https://doi.org/10. 1111/j.1467-9337.2009.00439.x Ross A (1936) Den rene retslæres 25-aars jubilæum. Anmeldelse af Hans Kelsen, Reine Rechtslehre [Jubilee of the 25 years of the pure theory of law. Recension of Hans Kelsen Reine Rechtslehre]. Tidsskr rettsvidenskap 49:304–331 Ross A (1941) Imperatives and logic. Theoria 7(1):53–71 Ross A (1953) On law and justice. Oxford University Press, New York. 2019 Spaak T (2014) Alf Ross on the concept of a legal right. Ratio Juris 27(4):461–476. https://doi.org/ 10.1111/raju.12054 Squella A, Vernengo RJ (dir.) (1984) Alf Ross. Estudios en su Homenaje. Rev ciencias Soc 25 (monographic issue)

Russell, Bertrand Chandrakala Padia

Introduction Bertrand Arthur William Russell (1872–1970) was a British philosopher, logician, mathematician, political activist, and essayist. He was an authoritative exponent of the pacifist movement on a planetary scale. Russell’s contribution to the history of the philosophy of law and social philosophy concerns in particular the erosion of personal freedom and creativity, the overexploitation of our natural resources, the bureaucratic state administration, and the continued domination of the capital over labor.

Human Beings and Their Creative Potentialities Russell’s philosophy can be described as a coherent whole. In his thought, concepts such as freedom, peace, and socialism arise out of his passionate concern for the human individual regarded as a being endowed with specific faculties which are not necessarily related to his class, status, or position. Russell had an abiding faith in humankind and their enormous creative potentialities, and he is anguished to see that these powers are denied a chance to flower under contemporary institutions, social order, and cultural values. The pressure of Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2022, https://doi.org/10.1007/978-94-0076730-0_956-1. C. Padia (✉) Department of Political Science, Banaras Hindu University Varanasi, Varanasi, Uttar Pradesh, India © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_33

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these visible and non-visible sociocultural forces makes individuals forget their own real needs, and they therefore became tireless crusaders for things which are not really necessary, a pursuit which leads in the end, to catastrophic wars. It is this painful awareness which underlies his theory of impulses in his Principles of Social Reconstruction. He says, “All human activity springs from two sources: impulse and desire.” But impulse is, in his view, little more basic than mere desire, for what makes desire gain in power and insistence is its link to impulse. There are places in Russell’s writings which may lead the superficial reader to complain of incongruence. Thus, in the work just referred to, at one place Russell regards impulse and desire as the only springs of human activity; and at another, suggests that “the activities of men may be roughly derived from three sources: instinct, mind and spirit.” How is this consistent, first only two, and then three clear bases of human action? This incongruence, however, can easily be explained with a little more careful study of the text.

Instinct and Mind According to Russell, instincts are the basic equipment of the mind. Each of them is a natural tendency to attend to a particular class of objects, and to feel and behave with regard to them in a more or less determined way. For example, the instinct of curiosity not only makes us wonder – or experience the feeling of uncertainty – with regard to unfamiliar objects, but also makes us actively do something to remove this uncertainty and to come to know the thing in question. In adult life, however, the actual operation of an instinct does not involve the three elements of knowing, feeling, and conation in equal measure. It is, for instance, quite possible for people to make their instinct of curiosity work in a quite impersonal way, that is, not really for the sake of removing the discomfort of their own uncertainty, but because the unknown object fascinates them by virtue of its potential relevance to a theory or to the larger interests of human knowledge taken generally. Such a working of curiosity, Russell says, gives rise to the life of the mind. In other words, though the two are surely not identical, instinct can come to be assimilated to what is known as mental life, to lose its initial otherness, and enable us to temper the sharp binary of instinct and mind. Similarly, if people can manage to exercise their instinct of protective love in such a way that they come to feel as intensely for others’ children as for their own, the result will be the dawning of the life of the spirit. One may, therefore, say with reason that in Russell’s thought instinct, mind, and spirit are not three exclusive entities, but only varying modes of the working of instincts. Their working, however, does not need any alien force. Every instinct has its own built-in source of energy: that is, its inherent conative aspect or impulse. Yet the objects that this energy may aim at, and the way it tries to secure them have to be picked and regulated by conscious and self-critical thought.

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Creative Impulses and Reason The awareness of an end of some value or charm produces desire. Desire itself is related to need. We desire only that which we need or do not already have. These needs themselves are linked in other ways. They may relate to the life of the spirit, but quite as easily to the life of instinct (or mind). In any case, that which makes human life dynamic is the fact that we have needs and also the energy to try to meet them. So impulse and desire-relating may be, to the merely instinctive, or to the life of mind or spirit-be, said to be the basic sources of all human activity. The multiplicity of the determinants of our behavior is thus duly tempered. Russell, however, does not stop at this point. He sees it clearly that though the gratification of an impulse always makes us immediately happy, the later and explicit consequences of such indulgence can often be bad. Thus, he divides impulses into two kinds: the creative and the merely possessive. The exercise of a possessive impulse can lead to conflict with others quite easily, for the attitude of possessiveness to relate a man to a thing that the others are at once denied free access to it. Every possession, indeed, tends to be exclusive and encourages divisiveness. On the other hand, a creative impulse is not at all subject to such vitiation. True, an artist’s creative impulse is not at all subject to such corruption. True, what artists create is their doing; but the artistic creations are necessarily meant for contemplation by and enjoyment of others. Even an object of craft is useful to others. Thus, a creative impulse may truly be said to draw people out of themselves and to put them, so to say, at the service of others. Russell is, therefore, convinced that an important aim of any social reconstruction should be to liberate our creative impulses. He does not, however, exaggerate the value of impulse in opposition to reason; and in no way does he underestimate the value of reason in politics. Russell openly says: “It is common to speak of an opposition between instinct and reason. . . . But in fact the opposition of instinct and reason is mainly illusory. Instinct, intuition or insight is what first leads to the beliefs which subsequent reason confirms or confutes. . . . Reason is a harmonizing, controlling force rather than a creative one.” In other words, reason is, in Russell’s view, necessary for regulating the non-rational forces of human nature. Nor does he think that it is too much to expect an average person to let reason and social considerations regulate the working of his or her instincts. It is indeed a fact, says Russell, that “A man’s needs and plans and desires are not confined to his own life. If his mind is comprehensive and his imagination vivid, the failures of the community to which he belongs are his failures, and its successes are his successes: accordingly, as his community succeeds or fails his own growth is nourished or impeded.” The creative impulses may be said to make for the awareness of the truth of the interdependence of the individual and society.

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Socialism and Capitalism But how can these impulses be allowed freer play unless we remove what bars their way? It is in this context that Russell affirms his faith in socialism and criticizes the present capitalist system. Capitalism, he protests, provides no outlet to people’s creative impulses and only creates a gulf between what they would like to do – in response to their creative needs, urges, and desires – and the activity they have to undertake to keep their body and soul together by working for a capitalist. Under a capitalist system, the purpose of workers is not to create at the bidding of their inner nature but simply to produce whatever they may be asked to do for the sake of earning wages. In Russell’s words: “The work becomes merely an external means to a certain results, the earning of wages. . . . And so the process of production, which should be one instinctive cycle, becomes divided into separate purposes which can no longer provide any satisfaction.” Moreover, capitalism may be said to breed a wrong kind of philosophy, that is, the belief that the way to happiness lies only in the acquisition of ever-greater wealth. This is why people keep struggling breathlessly to amass wealth and power by giving free play to their possessive impulses and predatory tendencies. Russell is indeed right when he says: The emphasis is on material goods, not on freedom, self-direction and outlet for creativeness. The private capitalist has become an unduly anarchic survival, preserving for himself alone a form of liberty which the rest of the community has unavoidably lost.

Russell adds that capitalism is also wasteful of human resources because it expropriates those material resources with a reckless prodigality which entails almost a certainty of hardship for future generations. Russell challenges the very basis of capitalism, that is, the right to private property. What is, however, distinctive of his way of thinking is his studied opposition to the belief that acquisition of ever greater wealth is the pre-eminent urge of human nature. This belief, he protests, makes for indifference to the need for individual growth in accordance with one’s inherent talent and aptitude. Here, Russell is in the company of thinkers such as Karl Marx, Antonio Gramsci, Herbert Marcuse, and Steven Lukes. He insists on the need to provide due channels of release to men and women’s creative energies by humanizing the whole industrial process and by making it accordant with the basic needs of men and women for fellowship in creativity. This is why Russell inclines to socialism. But he sees it clearly that a truly advantageous transition to socialism cannot be a matter of just replacing one system with another, and that the advent of socialism has to be prefaced with, or accompanied by the creation of conditions that offer ample room for the creative growth of individuals. It is this cautionary thought which determines Russell’s choice of the kind of socialism he comes to prefer. State socialism does not find favor with him for the simple reason that a mere transfer of property claims from the individual to the state can produce a perpetuation of the wages system, and also a kind of bureaucratic state capitalism. Russell is convinced that equalization of wealth without equalization of power would be an achievement of little value. The greatest

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evil which can arise under state socialism, however, is that the entire realm of human consciousness may become subject to dictates of the state. However irrational these may be, honest and right-thinking individuals would find it impossible to oppose them. At the same time, Russell sees no sense in anarchism either. He refuses to believe that human freedom demands a total abolition of authority. Nor can he accept the idea of using violence or any kind of terrorist campaign for achieving ends, for such ways are bound to disturb peace and upset conditions required for the exercise of man’s creative powers. Russell also objects to syndicalist methods, for he believes that an excess of violence, strike, and sabotage is detrimental to the establishment of a true socialist society. However, he is sympathetic to such objectives of the syndicalist as safeguarding the interest of the producers, substituting industrial action for political action, and provision for freedom in work as opposed to excessive emphasis on mere material welfare.

Marx and Marxism Russell is both a thoughtful critic and admirer of Marx. He appreciates the following emphasis of Marx: economic motivation in politics; the ideal of social change through the conquest of power by those who are not possessed of capital; and the idea of social acquisition of the means of production on a national or universal scale. On the other hand, Russell protests against Marx that it is neither necessary nor probable that the course of history will always move on a dialectical path, and that it is equally unlikely that dialectical change will assuredly lead to a happy ending. Nor is Russell willing to believe that history is determined merely by the objective forces of production, or that all human institutions and beliefs are, in the final analysis, products of economic conditions. He argues that history is also determined by quite a few non-economic factors, such as the influence of exalted personalities. The concept of class war is also unacceptable to Russell, for if it is pursued as an ideal, it is bound to breed hatred. Thus even Marxist ideology fails to satisfy Russell’s passion for a just and creative social order. Consequently, he is led to propose a few devices of his own. One of these is industrial federal democracy. Russell regards this as a promising way to do away with autocracy or tyranny and to provide labor with a degree of direct interest in economic processes. In his own words: “If we are to retain any capacity for new ideas . . . the monarchial organization of industry must be swept away. All large business must become democratic and federal in their government.” Russell expresses surprise at the fact that while men and women have struggled so much to achieve political democracy, so little has been done to introduce democracy in industry. He hopes that “by this system many men might come to feel again a pride in their work, and to find which is now denied to all but a fortunate few . . . it is only by some such method . . . that the free growth of the individual can be reconciled with the huge technical organizations which have been rendered necessary by industrialism.”

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Russell is, therefore, naturally led to argue in favor of trade unions and to sympathize with their goals and objectives, namely, an increase of leisure and diminution of hectic work, as against mere increase in the quantity of production. Leisure is clearly necessary for the exercise of one’s creative impulses. This is a recurrent emphasis of Russell. He lists the four essential requirements of an adequate industrial system, that is, productivity, economic security, distributive justice, and the ultimate furtherance of creativity rather than possessiveness. He does not forget to emphasize that “the fourth is the most important object to be aimed at.” This is also why Russell regards guild socialism as the best of all workable systems, for it alone tries to secure maximum freedom and stimulus for workers through functional representation in Parliament and self-government in industry. Some of Russell’s own words may here be cited with advantage: “National Guildsmen have always remembered the importance of freedom for more than their collectivist predecessors. Their systems of balance between the rival powers of the Parliament and Guild congress is designed to secure political freedom. Their system of self-government in industry, as opposed to bureaucratic management by state socialists, is designed to protect the interest of the workers in any industry both nationally, in the general problems of the industry, and locally in all matters that can be decided locally.”

Rights and Education It would, however, be wrong to believe that this is enough to meet the requirements of an ideal political system of Russell’s conception. He sees it clearly that, as is borne out by the case of the Third World countries, the mere production of certain institutional devices such as communal ownership and industrial federal democracy cannot promote creativity unless the individual’s own ability to respond to these changes is developed. A mere introduction of constitutional rights has not changed the hierarchical nature of society in these countries. People, here, have not just learnt to avail themselves of these rights; what they lack is education. To Russell, the aim of education should be an all-round fostering of the “critical faculties” and the “capacity to judge” independently unaided by the crutches of ideas and notions which are apparently friendly, yet in reality deceitful. Our present education systems, Russell adds, are not so oriented. They do not quicken our mental powers; they are only vehicles of indoctrination. Russell says: “Certain mental habits are commonly instilled by those who are engaged in educating; obedience and discipline, ruthlessness in the struggle for worldly success, contempt towards opposing groups, and unquestioning credulity, a passive acceptance of the teacher’s wisdom. All these habits are against life. Instead of obedience and discipline, we ought to aim at preserving independence and impulse. Instead of ruthlessness, education should try to develop justice in thought. Instead of contempt, it ought to instill reverence. . . . The worst evil which arises out of present educational system is the fact that education is treated as a means of acquiring power over the pupil, not as a means of nourishing his own growth.”

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Russell, therefore, seeks to devise a new system of mental training, more suited to the needs of the new society. He insists on promotion of the scientific spirit so that people may be enabled to follow the direction of their own creative impulses. He goes to the extent of saying that no road to social reconstruction can be securely paved, and no political theory adequate unless equal attention is paid to children as to men and women. It is interesting to see how Russell’s attitude to our present educational system and capitalism relates to his analysis of war. Our teachers hold on to their way of looking at things and abhor disagreement; the capitalist, it is obvious, cannot think of parting with his wealth. It is this possessiveness and this indifference to sharing and accommodation that lie at the root of our tendency to wage war against other countries. Russell declares: “Capitalism does very much to promote wars . . . wars would probably be less frequent and less destructive if private property was abolished. . . . For my part I feel convinced that any vital progress in the world depends upon the victory of international socialism.” Again, in his work on China, Problems of China, he declares: “The concentration of world’s capital in a few nations, which by means of it are able to drain all other nations of their wealth, is obviously not a system by which permanent peace can be secured. . . . Under the existing economic system, a nation’s interest is seldom the same as that of the world at large, and then only by accident . . . the essential evil of the present system. . . . is production for profit instead of for use . . . Hence, arise competition and exploitation and in international relations . . . peace alone can never be secure until international Socialism is established throughout the world.”

The Opposition to War and the Russell Tribunal Bertrand Russell was a pacifist. According to him, the best government is a world federation of free states. He opposed the participation of the United Kingdom in the First World War. Because of his position, he was first dismissed and then he lost his professorship at the Trinity College of the University of Cambridge. Finally, in 1918, he was incarcerated for 6 months in Brixton Prison, since he protested against the intervention of the United Kingdom in the conflict. In the years immediately preceding the Second World War, Russell was an advocate of a policy of pacification. He aimed at a dialogue with the Nazis to prevent a new conflict, but in 1940 he recognized the impossibility of dealing with Hitler. Russell called his position “relative pacifism”: he believed that war was an evil, but also that, in extreme circumstances (e.g., since Hitler threatened to occupy the whole of Europe), war itself could be the lesser evil. Russell spent the 1950s and 1960s engaged in political causes primarily related to nuclear disarmament and opposing to the Vietnam War. The 1955 Russell-Einstein Manifesto was a document calling for nuclear disarmament and was signed by 11 of the most prominent nuclear physicists and intellectuals of the time.

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In 1961, Russell was tried and sentenced to prison for 2 months, after his arrest at a demonstration in London against the proliferation of nuclear weapons. Considered his advanced age (he was 89), the judge offered him to be released in turn for his promise of “good behavior,” but Russell refused. He also relinquished his privilege, as a Peer of England, of being exempted from arrest without the authorization from the House of Lords. In 1966–1967, Russell worked with Jean-Paul Sartre and many other intellectual figures to form the “Russell Vietnam War Crimes Tribunal” to investigate on the conduct of the United States in Vietnam. He wrote a great many letters to world leaders during this period.

Conclusion Russell’s thought cannot be put under any rigid category of political or legal thought, be it utilitarianism, individualism, liberalism, or socialism. His views often touch the border regions of different ideologies and schools. But his main emphasis is clear and consistent. Whatever political system we may choose to devise, human individuals must be educated and enabled to cultivate their creative powers. The volume or power of an aggregate is not an alternative to individual excellence.

References Alan R (1990) Bertrand Russell: a political life. Penguin Books, Harmondsworth Chomsky N (1971) Problems of knowledge and freedom: the Russell lectures. Vintage, New York Demopoulos W (2013) Logicism and its philosophical legacy. Cambridge University Press, London/New York Eames ER (1989) Bertrand Russell’s dialogue with his contemporaries. Southern Illinois University Press, Carbondale Griffin N (ed) (2003) The Cambridge companion to Bertrand Russell. Cambridge University Press, Cambridge Ironside P (1996) The social and political thought of Bertrand Russell: the development of an aristocratic liberalism. Cambridge University Press, Cambridge Jules AA (1988) Bertrand Russell. The University of Chicago Press, Chicago/London Julka KL (1977) The political ideas of Bertrand Russell. Associated Book Agency, Patna Mayoral P, Rosa M (1975) Bertrand Russell empirista: las ideas. Universidad Nacional Autónoma de México, México City Monk R (1997) Bertrand Russell: the spirit of solitude: 1872–1921. Vintage, London Monk R (2001) Bertrand Russell: the ghost of madness: 1921–1970. Vintage, London Padia C (1992) Liberty and social transformation. A study in Bertrand Russell’s political thought. Heritage Publishers, New Delhi Pigden Charles R (ed) (1999) Russell on ethics: selections from the writings of Bertrand Russell. Routledge, London/New York, p 1999 Potter MK (2006) Bertrand Russellʼs ethics. Continuum, London Russell B (1920) Socialism and liberal ideals. English Review ii:505–506

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Russell B (1922a) Our knowledge of the external world. George Allen & Unwin Ltd., 1st edn., 1914, 2nd edn, London Russell B (1922b) The problem of China. George Allen & Unwin Ltd., London Russell B (1934) Freedom and organization. George Allen & Unwin Ltd., London Russell B (1980) Principles of social reconstruction. George Allen & Unwin Ltd., London, I ed. 1916 Slater JG (1994) Bertrand Russell. Thoemmes Press, Bristol

Schmitt, Carl Carlo Galli

Carl Schmitt (1888–1985). German jurist. He always qualified himself as a jurist, but the radicality and the innovative character of his scientific performance have made him a reference point for the twentieth century debates not only on public, constitutional and international law, but also for political science, and for the history of political thought and of institutions.

The Main Features of Schmitt’s Thought Schmitt’s work can be described as an answer to three challenges: the political crisis of the State, the theoretical crisis of rationalist Positivism, and the affirmation of Hans Kelsen’s juridical science, based on the objectivity and comprehensiveness of norms’ inner logic. Schmitt maintained a distinction between Law and reality, laws and politics. The real does not contain any order or norm in itself; and the Law has not in itself the strength to become real. But he brought these distinct fields in relation to one another through the “decision” (Entscheidung), made by different subjects: the judge, the sovereign, the people. The “decision” makes the law effective in the “concrete facts,” that can take place as “cases of exception” (Ausnahmezustand). The decision

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_408-1. C. Galli (✉) Department of History and Cultures, University of Bologna, Bologna, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_34

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is an act that can realize an always transitory mediation between the abovementioned opposite fields. Therefore decision is part of the Law, not exterior to it. Schmitt’s position is based on the anthropologic pessimism inspired by French and Spanish counter-revolutionary thinkers, preventing him from thinking of reality as a self-realization of the Spirit, and adhering to a positivist thought based on contingency. His Catholic orientation (Schmitt 1923b) provided a scientific point of view that allowed him to articulate an innovative conception of Law. Schmitt opposed Idealism, Immanentism, and Liberalism because he did not believe that the law can simply emerge from history or from parliamentary debate; he opposed Marxism, because he did not conceive of Law just as the mirroring of power; he opposed Scientism, Positivism, and Functionalism because he regarded Law as neither a function of society, nor as a simple facilitation of social needs, nor as a simply rational command of the State; he opposed Normativism and Formalism, because Law is always incomplete and does not coincide with its inner logics; lastly he opposed the discourse of Natural Law and Moralism. Consequently, Schmitt criticized both Kelsen and Hermann Heller, both the legal Positivists and the Neo-Kantians. He conceived Law in a historical, determined, concrete, genealogic, and dynamic way, and was therefore far from both rationalism and irrationalism. This is why Schmitt requires a constant distinction between Law ( jus; Recht), the law (lex; Gesetz), and decrees (Massnahme, Verordnung): the first is the Idea that becomes a concrete legal reality only through decision; the second is a legal norm produced by an established power; the third is a technical administrative measure.

Early Juridical Writings Schmitt’s early writings are focused on the penal law. He rejected the idea that one could deduce the universality of a formal concept (“guilt”) from empirical facticity (intention or negligence as “types of guilt”) (Schmitt 1910). He therefore argued that it is necessary to presume the duality between factual reality and juridical form. This position was only seemingly a Neo-Kantian one, since Schmitt was preoccupied with detecting a “bridge,” a concrete and effective mediation between the ideal and the real, the interior and the exterior dimension of action. The link is provided by the concept of “end” (Zweck): the individual’s exterior action is the “position of an end,” the concrete realization of an act of willing. When this act is in conflict with the objective will of society, that is, with the penal law, then it turns into “guilt.” Schmitt next dealt with the problem of decision in legal practice, when a judge faces a “concrete case” (Schmitt 1912). Through the concept of Als ob, due to Hans Vaihinger, and through a criticism of Gustav Radbruch’s “static” Neo-Kantian conception of the norm, he concluded that judgment cannot mechanically derive from the logical development of the norm and from the interpretation of the law as an act of the will, presumed to be subjectively or objectively rational. Rather, the judgment is a “fiction,” an ad hoc construction whose aim is to realize concrete ends: in this case, the judge must make a decision liable to be shared by

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“the other judge.” So doing, Schmitt made a distinction between the interpretation and the judicial decision, the logics of the norm and the practical moment, the Rechtslehre and the Rechtspraxis. His aim was to assign a central place to the implementation of the Law (Rechtsverwirklichung) and the principle of legal determinacy (Rechtsbestimmtheit), that is, the concreteness of legal life, which differs from the abstract “legal security” (Rechtssicherheit), the mere conformity to the norm. Schmitt further developed this topic through a philosophical discussion of the relationship between Recht and Macht, Law and Power (Schmitt 1914). Law coincides with neither the fact nor with power; the Law must be implemented, starting from the assumption that between Recht and Macht it is necessary to build a mediation that depends upon the State’s “sovereign decision.” The Idea of Law, therefore, precedes the State and is not identifiable either with the State or with the law; at the same time, the Idea of Law cannot be implemented without the State. Schmitt, therefore, sided neither with mediation nor with immediacy, neither with Formalism nor with power politics. Rather, politics is the junction between the Idea of Law and contingency and has therefore a metaphysical importance: the modern age and its political outcome, the State, cannot work either without transcendence, that is, the Idea, or without its realization through decision.

Decision, Secularization, Constitution These issues became crucial during the Weimar period, when Schmitt established a strong connection between sovereignty, decision, and the constitutional order. In Dictatorship (Schmitt 1921) he makes a distinction between the system of norms and the concrete implementation of Law through its suspension (“commissarial dictatorship”) or its ex novo establishment through the “sovereign dictatorship.” By now, politics gains a fundamental role in Schmitt’s discourse, even if this role is not characterized in an anti-legal fashion: the political decision is the only way through which Law is implemented. It is the origin of political-juridical orders. These arguments are systematized in Political Theology (Schmitt 1922), where the controversy with Kelsen is stronger. Schmitt’s fundamental suggestion is that the Idea of Law must be implemented in a particular situation. This takes place through the intervention of sovereignty, which is defined as “the decision on the case of exception,” namely, with regard to the concrete “extreme case.” The extreme case falls outside the norm; however, it must be brought into the legal system: this end is pursued through decision, rather than through formal reasoning. The decision establishes a division that produces concrete unity. The decision does not derive from specific contents. What is essential is rather the presence of a personal subject, the sovereign, who takes the responsibility for the decision. Just like exception and decision, the sovereign is outside the legal system, while being part of Law; both the “case of exception” and decision precede and explain normality.

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Neither Positivism nor Kelsen understood that the decision on the exception is part of Law, and not simply its “external precondition.” Kelsen in particular carried to the extremes the modern conception of law as impersonal, rationalistic, technical, and self-sufficient. In Schmitt’s view, Kelsen ignored that Law is not a closed system of security; rather it is open both to the extreme case and to transcendency, to the Idea of Law and to its concrete implementation by the sovereign decision. As a consequence, according to Schmitt, the modern age cannot be regarded as a complete secularization of transcendence, that is, as the triumph of rationalism and of positive science. Rather, it is necessary to understand the metaphysical structure of the modern age. For realizing the Idea of Law, a decision is needed: that means that transcendence cannot be secularized through reason and technique. Modern history and progress are nothing but subsequent shifts from one metaphysics – and its corresponding political form – to the other, from Theism to Deism to Pantheism to Atheism, that is, from the monarchy legitimized by the Divine Law to the Liberal State, from the Democratic State to the world of technique. The modern age is “the epoch of neutralizations and de-politicizations” (Schmitt 1929), but does not succeed in its goal: the final outcome, the end of metaphysics, is not a neutral, rational order, but a disordered reality inhabited by conflict, a reality that can be temporarily reduced to order only through decision. Decisionism holds together the general theory of Law, the critique of the modern age and the critique of progress. Here again, Schmitt was on a collision course with Kelsen, who had denied the scientific relevance of metaphysics, i.e., of the concept of God and the State. As to the link between secularization and exception, Schmitt distanced himself also from Hegel, whose Protestant progressivism he had always criticized, and from Weber who was bound to individualistic rationalization, much more than Schmitt himself. In contrast to Weber, Schmitt criticized modern rationalism and its main political outcome, namely, Liberalism. He contested the bourgeois belief that the law can be created through rational discourse, within the parliament (Schmitt 1923a). Legal Formalism and political individualism – that he already criticized as unable to act politically (Schmitt 1919) – share the same incapacity of understanding the origin of concrete orders. In this regard, Kelsen replied to Schmitt that the justification of parliament rests on the functional necessity of a representative order in which the law could be produced through relativizing compromises. In Constitutional Theory (Schmitt 1928) Schmitt distinguished between the Constitution and constitutional laws: only the latter can be suspended by the constituted powers in case of emergency, as the article 48 of the Weimar constitution stated. On the contrary, the fundamental decision that established and oriented the whole legal system is an act made by the subject of the constituent power, that is – in democracy – by the people. The Constitution is the decision of the people concerning the modality and the form of their own political existence. Consequently, it is the “material” origin of the State’s political unity. Only secondarily the Constitution is the organization of public powers according to a political idea: the bourgeois liberal Constitutions, for instance, are based on the security of individual rights and on the division of the State powers. Thus, the Constitution concerns the political

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status of the people rather than a legal principle. To say that a State has a constitution is incorrect: rather, the State is the constitution of the people in their concrete existence, and in their concrete rights. The political essence of the constitution is organized in two different principles: identity, that is, the presence of the people in itself, and representation, that is, the production of an artificial unitary political form; in other words, on national democratic homogeneity and on the parliament. The liberal-democratic State, like the Weimar Republic, is a mixed form where different and even opposite legal principles coexist: first, the democratic factor of homogeneity and equality, which is recognized through the establishment of the referendum (Schmitt 1927) and of the social rights of the citizens; second, the liberal, juridical-formal rights and securities. In this way, Schmitt separated, in principle, the constitution and the State, democracy and liberalism. Similarly, he distinguished between legitimacy and legality: the former is not located in the State – which, in the age of legal positivism has become the place of formal legality – but rather in the constituent decision of the people. Legitimacy is not simply a pre-legal value but is a decision for a concrete political-legal form (Schmitt 1932a).

The State, the “Political” and the Crisis of the Weimar Republic Through the notions of decision and constitution, Schmitt relativized the State. The State is for him a historical and contingent order. It assumes different configurations according to the forms taken by the decisive political will whence it originates: jurisdictional State, governmental State, administrative State, legislativeparliamentary State. The latter defines itself as “rule of law,” while in truth any State is such. Besides, the State is neither “stable” nor legally “close.” Its very goal is to be unitary, inclusive, and to neutralize internal political conflicts; but it can succeed by means of a decision. Thus, the political unity is grounded in and crossed by division and exclusion, which are implicit in the decision. This anti-formalistic and anti-individualistic drive and this tragic vision of reality had a backlash on political theory in The Concept of the Political (Schmitt 1932b). Here Schmitt stated that the essence of politics does not lie in the power and in the institutions of the State, but rather in the “friend-foe” relationship. This is a radical conflict that precedes the State and the institutions, and transcends any possibility of a rational dialogue among the contenders. The “political” is not a field, as the ethical, the economical, the esthetical; on the contrary, political oppositions, that is public and not merely personal conflicts, may form in any field. The “political” is the conflicting, concrete and nonrational structure of reality. In Schmitt’s legal thought, this structure is defined as and represented by exception; as a legal system originates from the decision on the exception, likewise the political order originates from the decision on the opposition. In Schmitt’ view, Liberalism does not understand that the

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“political” is the origin of State politics, and tries to escape it by transforming it into competition and discussion. Later on (Schmitt 1938a), Schmitt credited Hobbes – that he later reads in theological-political, rather than decisionistic terms (Schmitt 1944) – for having laid the foundations of the modern State with the aim of finding a way out of the civil wars of religion, and for having based the state not only on the contract, but also on myth and decision. Nonetheless he criticized Hobbes for the rationalism, individualism, and positivism prevailing in his thought. Through the Enlightenment and Liberalism, these features depoliticized the State, turning it either into an impersonal machine, unable to defend itself from its enemies, or into a pure technical power, deprived of any juridical dimension. Every order, the State included, which arises from the “political,” namely, is oriented against an opponent. And every order must be able to recognize, in order to eliminate it, that hostility can always emerge again. The source of legitimacy is precisely the management of the “political” through the constituent decision and through the exercise of sovereignty. The “political” is potentially an ever-present challenge within the State and in international relations: both the internal peace and the universal peace are an ideological construction. Once again, Schmitt lined up against Kelsen’s formalism and universalism and, more broadly, against supranational organizations (Schmitt 1940). Through sovereignty the modern State has exercised, for some centuries, the monopoly of the “political,” but when the State is depoliticized then subjects different from the State can become the bearer of the “political,” in a more and more “pluralistic,” conflict-ridden, scenario. Thus, the “political” entails a further relativization of the State because other subjects can be its bearers, like, for instance, the Partisan, charged with an extremely intense and concrete, that is, “telluric,” polemic character, which differs from the absolute and rootless conflictual character of the revolutionary by profession (Schmitt 1963). With these concepts, Schmitt read the final crisis of Weimar as the suicide of a State. Expanding its activity to the whole society, the Weimar system transformed itself into a “total State out of weakness” (Schmitt 1931) succumbing in the face of the pluralism of party politics, economical and bureaucratic powers, and in the face of the resulting “polycracy.” Schmitt made an appeal to the original legitimacy of the republic, that is, to the popular decision for a liberal and democratic State, to defend it from internal enemies, namely, extremist parties. He suggested that the legislative power not be entrusted to the Parliament, which was paralyzed by the “negative majorities,” but to the President of the Reich, elected by the people, based on article 48 of the Constitution (Schmitt 1932a). The State cannot simply be grounded in the principle of legality because, in this case, legitimacy would be undermined by legality and the enemies of the Constitution would have equal chances to legally take the power. But only the subject of sovereignty, that is, the State and not the Länder, have this power of exclusion, as Schmitt stated in the Lipsian Staatsgerichtshof in 1932, where he represented the Reich against Prussia, defended by Heller (Schmitt 1940).

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As a consequence, Schmitt depicted a “total State out of energy” (Schmitt 1958), namely, an authoritarian post-liberal State. In his conception, however, this State would still be democratic because it is plebiscitary in character, and would still remain within the framework of the Weimar constitution. This would be a less extended State than the one which is “total out of weakness,” and able to keep together the legal form and the political force of deciding on the enemy, of creating internal unity by excluding the anti-systemic forces and of depoliticizing the economy. Schmitt’s proposal was opposed by Kelsen, that wanted to entrust the defense of the constitution not to the “neutral” power of the President, namely, to the executive power, but rather to the jurisdictional power of the Constitutional Court, in order to avoid the politicization of the Constitution.

The Nazi Era Schmitt’s endorsement of the Nazi regime was opposed also by some components of the regime itself, and this induced him to stop writing about internal politics after 1936. It also provoked his imprisonment by the Allies from 1945 to 1947, the expulsion from teaching, and a long-lasting damnatio memoriae. Schmitt justified his turning point with the necessity to recognize the new regime born out of the election of 5 March 1933, which in his view was a plebiscitary exercise of the constituent power that gave birth to a new provisional constitution, the “Enabling Act” of 24 March 1933 (Schmitt 1933). Schmitt’s Nazi production is marked both by continuity and discontinuity. The hostility to formalism, liberalism, and parliamentarism persists; whereas what’s new is the effort to exit decisionism and to develop a “thinking of the concrete orders,” or of the legal systems, partially borrowed from Maurice Hauriou and Santi Romano (Schmitt 1934). Therefore, in this phase, the legal concreteness is not based on decision, but rather on concepts such as the “popular identity based on race,” the “people,” the Führung (that takes the place of sovereignty), in opposition to the formal equality and the “impersonality” of modern laws. Thus, the idea of legal concreteness shifts toward an organicism coupled with anti-Semitism. In turn, the role of the people changes: they become passive, while the “political” is managed by the Party and its Leader, which are not organs of the State. Having by now lost the monopoly of the “political,” the State remains as an administrative system, whereas the nation expands, beyond the State, in the dimension of the Empire (Reich), that exercises hegemony in a “Great space” (Grossraum) closed to foreign political and economic interventions (Schmitt 1939). Schmitt’s goal was to contribute to the redefinition of Nazi international law. However, these concepts are different from that of a Lebensraum grounded in race. Toward the end of the Nazi era (Schmitt 1944), Schmitt saw legal science, which was still concrete and vital in Hegel and Savigny, turning itself into pure technique, as a consequence of the prevailing bourgeois and liberal “State of laws” and of positivism; legality and legitimacy become antithetical and no longer

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complementary concepts, and under pressure from the growing administrative needs to which the State is subdued in the twentieth century, legality turns into the domain of decrees. The critique of liberalism and positivism becomes a critique of the entire Modern age and of its dynamics, looking for something able to withhold them: namely, as Schmitt says quoting Saint Paul, a Katechon.

The “Nomos” In the last phase of his work, Schmitt went back to international law, which he had engaged with years before, with an anti-universalistic approach (Schmitt 1926). In The Nomos of the Earth (Schmitt 1950) he gave a reinterpretation of the relationship between Law and politics in the Modern age that combines the historical and the spatial dimensions, further developing some older theses (Schmitt 1942). Particularly, Schmitt suggested that maritime political powers look at the world as a smooth space, to be covered on the basis of the principle of liberty and commerce, whereas the continental powers are the bearer of a sense of the border, of limit, of order. The nomos is a “Measure” (it cannot be translated with “the law”) that is “right” not as a natural right but just turning the original appropriation and the division of the land into a juridical principle of order (Ordnung), that is also an orientation and a localization (Ortung). The nomos is not legality, but rather legitimacy; it is not a set of international treatises, but rather the political-juridical origin of the concrete orders of the globe. Therefore, the nomos derives only marginally from geopolitics: its meaning is a juridical-political rather than a natural-geographical one. Every time is characterized by a nomos of the Earth; the modern age is grounded in the crisis of the Medieval spatial order, the respublica christiana, not only due to the civil wars of religion but also to a “spatial revolution.” In fact, the discovery of America ushers in a void of order in the historical scenario: the void space of the Oceans, and the void space of the new continent, appropriated and divided by the European powers. From the initial imbalance follows a reorganization of the world space that improves through different stages, from the tracing of amity lines in sixteenth century up to the Treaty of Utrecht (1713) and that continues up to the beginning of the twentieth century. This nomos of the Earth, the jus publicum europaeum, is based on the balance between Land and Sea (between continental States and England) and on the difference between Europe and the rest of the world: that is between the State and the non-State. In the European spaces the “just war” of the Christian Middle Ages turns itself in the “limited war,” a military clash between States that recognize themselves reciprocally as justi hostes. In the non-European spaces, on the contrary, there are unlimited hostilities because the State does not exist there. The nomos is therefore the last conceptualization of the “concrete Law,” which is paradoxical in this case as well. Schmitt had demonstrated that the exception explains the norm, and that the unity of the State is based on the division produced by decision; now he demonstrated that the modern State system exists because

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outside Europe there is the non-State. Colonies are central to the modern configuration of power rather than peripheral. In Schmitt’s view, the crisis of the jus publicum europaeum and of the related nomos of the Earth is determined by the victory of the universalist ideology of the Anglo-Saxon maritime powers over the concrete pluralism of sovereignties, that is, by the triumph of economics and techniques over State-based politics. As a consequence of universalism, the war as a right of sovereignty is criminalized and the “just war” reemerges in the moralistic and discriminatory form of the “international police” against the “rogue States” (Schmitt 1938b). But the Eurocentric nomos has not been substituted by a new order: Schmitt took the world dualism between the East and the West during the Cold War as a clash between two universalisms (capitalist liberalism and communism), none of which is able to produce a concrete order (Schmitt 1951).

Conclusions Schmitt’s interpretation of Law is realistic but not positivistic, metaphysical, and, at the same time, historical; the genetic role of the exception and the drive toward form and order make Schmitt’s thought both authoritarian and potentially revolutionary. Schmitt’s scientific contribution lies specifically in his deep, genealogical gaze over the legal systems; the risk it entails, highlighted by all its critics, is occasionalism, that is the proposal of a “situated Law,” which is contingent because is radically permeated by history and politics. Since the 1980s Schmitt is one of the most studied, quoted, and translated authors all over the world as a constitutional jurist and theoretician of politics and international relations. Moreover, many philosophers have dedicated attention to his theory of Law, of Politics, and of History: among others, Walter Benjamin, Leo Strauss, Hans Blumenberg, Ernst Jünger, Erik Peterson, Jacob Taubes, Alexandre Kojève, Reinhart Koselleck, Jacques Derrida, Mario Tronti, Chantal Mouffe. Schmitt was a brilliant and controversial thinker; some scholars maintain that he should be banned because of his support for Nazism, as if this was the manifestation of the intrinsic irrationality of his thought. The majority rejects his anti-liberalism and anti-rationalism but acknowledge that his thought needs to be studied for its heuristic efficacy in detecting the inner aporias of modern age. Yet others accept his teaching and place him among the great thinkers of realism, both in internal politics – where Schmitt is taken to be able to grasp the fact that executives prevailed over Parliaments, and to highlight the turn toward securitarian policies – and in international relations, where he is able to interpret the crisis of universalism, and the pluralistic and conflictual structuring of the world political stage.

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References Bendersky JW (1983) Carl Schmitt. Theorist for the Reich. Princeton University Press, Princeton. https://doi.org/10.1515/9781400853250 Bueno R (2015) Carl Schmitt Hoje. Política, Direito e Teologia. Max Limonad, São Paulo Caldwell PC (1997) Popular sovereignty and the crisis of German constitutional law. The theory and practice of Weimar constitutionalism. Duke University Press, Durham. https://doi.org/10. 1215/9780822397656 Cristi R (1998) Carl Schmitt and authoritarian liberalism. Strong state, free economy. University of Wales Press, Cardiff Croce M, Salvatore A (2013) The legal theory of Carl Schmitt. Routledge, Abingdon. https://doi. org/10.4324/9780203096949 Dyzenhaus D (ed) (1998) Law as politics. Carl Schmitt’s critique of liberalism. Duke University Press, Durham Galli C (2015) Janus’s gaze. Essays on Carl Schmitt. Duke University Press, Durham. https://doi. org/10.1215/9780822374855 Galli C (2018) Genealogía de la política. Carl Schmitt y la crisis del pensamiento político moderno. UNIPE, Editorial Universitaria, Buenos Aires Hofmann H (2002) Legitimität gegen Legalität. Der Weg der politische Philosophie Carl Schmitts. Duncker & Humblot, Berlin Hooker W (2009) Carl Schmitt’s international thought: order and orientation. Cambridge University Press, Cambridge. https://doi.org/10.1017/CBO9780511691683 Kalyvas A (2008) Democracy and the politics of the extraordinary. Max Weber, Carl Schmitt, and Hannah Arendt. Cambridge University Press, Cambridge. https://doi.org/10.1017/ CBO9780511755842 Kaufmann M (1988) Recht ohne Regel? Die philosophischen Prinzipien in Carl Schmitt’s Staatsund Rechtslehre. Karl Alber, Freiburg Kennedy E (2004) Constitutional failure. Carl Schmitt in Weimar. Duke University Press, Durham. https://doi.org/10.1215/9780822385578 Kervégan J-F (2011) Que faire de Carl Schmitt? Gallimard, Paris Legg S (ed) (2011) Spatiality, Sovereignity and Carl Schmitt: geographies of the nomos. Routledge, New York McCormick JP (1997) Carl Schmitt’s critique of liberalism. Against politics as technology. Cambridge University Press, Cambridge. https://doi.org/10.1017/CBO9780511608988 Mehring R (1989) Pathetisches Denken. Carl Schmitts Denkweg am Leitfaden Hegels. Katholische Grundstellung und antimarxistische Hegelstrategie. Duncker & Humblot, Berlin. https://doi.org/ 10.3790/978-3-428-06731-2 Mehring R (ed) (2003) Carl Schmitt “Der Begriff des Politischen”. Ein kooperativer Kommentar. Akademie Verlag, Berlin Meierhenrich J, Simons O (eds) (2016) The Oxford handbook of Carl Schmitt. Oxford University Press, Oxford Minca C, Rowan C (2014) On Schmitt and space. Routledge, New York Mouffe C (ed) (1999) The challenge of Carl Schmitt. Verso, London Odysseos L, Petito F (eds) (2007) The international political thought of Carl Schmitt. Terror, liberal war and the crisis of global order. Routledge, Abingdon Quaritsch H (ed) (1988) Complexio oppositorum. Über Carl Schmitt. Duncker & Humblot, Berlin Scheuerman WE (1999) Carl Schmitt. The end of the law. Rowman & Littlefield, Lanham Schmitt C (1910) Über Schuld und Schuldarten. Eine terminologische Untersuchung. Schletter. Breslau Schmitt C (1912) Gesetz und Urteil. Eine Untersuchung zum Problem der Rechtspraxis (1995). Goldbach, Keip Schmitt C (1914) Der Wert des Staates und die Bedeutung des Einzelnen. Duncker & Humblot, Berlin, 2004

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Schmitt C (1919) Politische Romantik (1928). Duncker & Humblot, Berlin, 1998. English edition: Political romanticism (trans: Oakes G). MIT Press, Cambridge, MA, 1986 Schmitt C (1921) Die Diktatur. Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf (1928). Duncker & Humblot, Berlin, 1994. English edition: Dictatorship. From the origin of the modern concept of sovereignty to proletarian class struggle (trans: Hoelzl M, Ward G). Polity Press, Cambridge, 2014 Schmitt C (1922) Politische Theologie. Vier Kapitel zur Lehre von der Souveränität. Duncker & Humblot, Berlin, 1997. English edition: Political theology. four chapters on the concept of sovereignty (trans: Schwab G). MIT Press, Cambridge, MA, 1985 Schmitt C (1923a) Die geistesgeschichtliche Lage des heutigen Parlamentarismus (1925). Duncker & Humblot, Berlin, 1996. English edition: The crisis of parliamentary democracy (trans: Kennedy E). MIT Press, Cambridge, MA, 1985 Schmitt C (1923b) Römischer Katholizismus und politische Form (1925). Klett-Cotta, Stuttgart, 1984. English edition: Roman Catholizism and political form (trans: Ulmen GL). Greenwood Press, Westport, 1996 Schmitt C (1926) Die Kernfrage des Völkerbundes, in Schmitt (2004) Frieden oder Pazifismus? Arbeiten zum Völkerrecht und zur Internationalen Politik 1924–1978. Duncker & Humblot, Berlin. Schmitt C (1927) Volksentscheid und Volksbegehren. Ein Beitrag zur Auslegung der Weimarer Verfassung und zur Lehre von der unmittelbaren Demokratie, Goldbach, Keip, 1997 Schmitt C (1928) Verfassungslehre. Duncker & Humblot, Berlin, 2003. English edition: Constitutional theory (trans: Seitzer J). Duke University Press, Durham, 2008 Schmitt C (1929) Das Zeitalter der Neutralisierungen und Entpolitisierungen, Schmitt (1932b) Der Begriff des Politischen (1927). Duncker & Humblot, Berlin, 200213. English edition: The concept of the political (trans: Lomax JH). University of Chicago Press, 2007. Schmitt C (1931) Der Hüter der Verfassung. Duncker & Humblot, Berlin, 1996 Schmitt C (1932a) Legalität und Legitimität. Duncker & Humblot, Berlin, 1998. English edition: Legality and legitimacy (trans: Seitzer J). Duke University Press, Durham, 2004 Schmitt C (1932b) Der Begriff des Politischen (1927). Duncker & Humblot, Berlin, 2002. English edition: The concept of the political (trans: Lomax JH). University of Chicago Press, 2007 Schmitt C (1933) Staat, Bewegung, Volk. Die Dreigliederung der politischen Einheit. HanseatischeVerlagsanstalt, Hamburg Schmitt C (1934) Über die drei Arten des rechtswissenschaftlichen Denkens. Duncker & Humblot, Berlin, 1993. English edition: On the three types of juristic thought (trans: Bendersky JW). Praeger Publishers, Westport, 2004 Schmitt C (1938a) Der Leviathan in der Staatslehre des Thomas Hobbes. Sinn und Fehlschlag eines politischen Symbols. Klett-Cotta, Stuttgart, 1995. English edition: The leviathan in the state theory of Thomas Hobbes: meaning and failure of a political symbol (trans: Schwab G, Hilfstein E). University of Chicago Press, 2008 Schmitt C (1938b) Die Wendung zum diskriminierenden Kriegsbegriff, in Schmitt 2004. English edition in Schmitt (2011) Writings on war (trans: Nunan T). Polity Press, Cambridge Schmitt C (1939) Völkerrechtliche Grossraumordnung mit Interventionsverbot für raumfremde Mächte. Ein Beitrag zum Reichsbegriff im Völkerrecht. Duncker & Humblot, Berlin, 1991 (1942). English edition in Schmitt 2011 Schmitt C (1940) Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles, 1923–1939. Duncker & Humblot, Berlin, 1994 Schmitt C (1942) Land und Meer. Eine weltgeschichtliche Betrachtung. Klett-Cotta, Stuttgart, 2001. English edition: Land and sea. A world-historical meditation (trans: Zeitlin SG). Telos Press Publishing, Candor, 2015 Schmitt C (1944) Die Lage der europäischen Rechtswissenschaft, in Schmitt (1958) Verfassungsrechtliche Aufsätze aus dem Jahren 1924–1954. Materialien zu einer Verfassungslehre. Duncker & Humblot, Berlin, 2003.

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Schmitt C (1950) Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum. Duncker & Humblot, Berlin, 1997. English edition: The nomos of the earth in the international law of the Jus Publicum Europaeum (trans: Ulmen GL). Telos Press, New York, 2003 Schmitt C (1951) Die Einheit der Welt, in Schmitt (2004) Frieden oder Pazifismus? Arbeiten zum Völkerrecht und zur Internationalen Politik 1924–1978. Duncker & Humblot, Berlin. Schmitt C (1958) Verfassungsrechtliche Aufsätze aus dem Jahren 1924–1954. Materialien zu einer Verfassungslehre. Duncker & Humblot, Berlin, 2003 Schmitt C (1963) Theorie des Partisanen. Zwischenbemerkung zum Begriff des Politischen. Duncker & Humblot, Berlin, 2002; English edition: Theory of the Partisan: intermediate commentary on the concept of the political (trans: Ulmen GL). Telos Press, New York, 2007 Schmitt C (1965) Die vollendete Reformation: Bemerkungen und Hinweise zu neuen Leviathan-. Interpretationen. In: “Der Staat”, vol 1, pp 51–69 Schmitt C (1995) Staat, Grossraum, Nomos. Arbeiten aus den Jahren 1916–1969. Duncker & Humblot, Berlin Schmitt C (2004) Frieden oder Pazifismus? Arbeiten zum Völkerrecht und zur Internationalen Politik 1924–1978. Duncker & Humblot, Berlin Schmitt C (2011) Writings on war (trans: Nunan T). Polity Press, Cambridge Schupmann R (2017) Carl Schmitt’s state and constitutional theory. A critical analysis. Oxford University Press, Oxford Seitzer J (2001) Comparative history and legal theory. Carl Schmitt in the first German democracy. Greenwood Press, Westport

Stammler, Rudolf Michel Coutu

Introduction The works of Rudolf Stammler (1856–1938), a professor of private law and philosophy of law in Berlin, are numerous, dense, and difficult to read. He produced a great deal in both fields; even when considering only his philosophical works, the task of understanding them accurately appears quite arduous. We cannot deal here with the whole of this scholarly production, which indisputably made Stammler the most influential legal philosopher of the early twentieth century. Stammler’s fame was then universal, his work being celebrated by many famous jurists, such as François Gény and Georges Saleilles in France and Roscoe Pound in the United States (Gény 1915: 127; Saleilles 1902: 92; Pound 1911: 153). Moreover, the emerging social sciences passionately discussed his conception of the relationship between law and economics: while the filiation with Stammler was openly claimed by some institutionalist economists, first and foremost by Karl Diehl and the German School of Social Law, his work remains highly controversial, being refuted by both Hans Kelsen, Hermann U. Kantorowicz, and Hugo Sinzheimer among jurists, and by Max Weber (1907) and Georg Simmel (1896) among sociologists (Coutu et al. 2001: 20ff).

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2020, https://doi.org/10.1007/978-94-0076730-0_798-1. M. Coutu (✉) School of Industrial Relations, Université de Montréal, Montreal, QC, Canada e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_35

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Stammler’s Basic Assumptions Following here H. Sinzheimer, who was initially quite influenced by Stammler, three distinct points must be studied in order to understand this author (Sinzheimer 1976: 219ff.). They are all connected to the central idea of Gesetzmässigkeit (see below): (a) what Stammler calls the “monism of social life,” meaning the inevitable reduction of all knowledge of social life to a single regularity of the order of a “law”; (b) the “social ideal” which posits a unity of the goals of social life, which Stammler describes as a “community of free-willing men” (Gemeinschaft frei wollenden Menschen); (c) the theory of the just law where the social ideal is transposed to the level of positive law, and Stammler’s critical theory also raises the issue of the justice of the existing law. Stammler is unsatisfied with the sole principle of legality as the criterion for evaluating the validity of juridical norms (Coutu 2013, 2018: 15ff.). (a) The question of the “nomological regularity” or “legality” (Gesetzmässigkeit) of social life underlies all of Stammler’s work. It is the task of science to discover this legality. In other words, Stammler wants to bring to light the fundamental law that regulates social life. To understand this idea, it is necessary to grasp the sources of social philosophy which Stammler defends. These include historical materialism, even though Stammler is not at all Marxist: but historical materialism illustrates in an exemplary fashion this search for a fundamental unity of social life. The determination in the final instance by economy is incorrect for Stammler, however, it is the approach, this search for Gesetzmässigkeit, which one must pursue and achieve. The second source is the neo-Kantianism of the Marburg School that of Hermann Cohen and Paul Natorp to whom Stammler, a close associate of the School (Binder 1937; Müller 1994:8ff.) would dedicate his first major work, Wirtschaft und Recht (first edition: 1896). Stammler would take up in the social sciences (in which Cohen and Natorp had little interest, contrary to the neo-Kantians of Baden) the effort of the masters of Marburg to arrive at an objective and universally valid knowledge of thought and action on the basis of “legality.” The third source is the doctrine of law which Stammler had before him, of the German Historical School and of formalist legal positivism (later to be characterized as Begriffsjurisprudenz), two conceptions against which he reacts vigorously (Stammler 1906: 306ff.). Stammler does not accept one of their central postulates: the complete discrediting of natural law. Based on those three theoretical sources, Stammler asks what social life is, refusing to follow the path of empiricism. As did Kant for “nature,” this means starting from the presupposition or concept of social life (Vorländer 1904). Life in society, continues Stammler, involves a plurality of individuals who live together. However, this “living together” is based on a presupposition of social cohesion: the fact that the activity of this multitude is oriented reciprocally, without which one could not speak of “society.” And social cohesion, Stammler assures us, is above all

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a regulated condition, meaning that it comes from regulation external to agents. Such an external rule can be conventional, although the conventional rule still depends on a consensus between the participants and remains unstable and fragile (Stammler 1906: 121ff.). Or it may be of a juridical nature. In fact, only law appears able to truly underpin social cohesion, given its coercive dimension. Its representation remains inseparable from the idea of social life itself; law has no existence beyond it. For Stammler, like the economy in the Marxist perspective, law cannot be considered a sphere of social life because it constitutes its form. Conversely, historical materialism errs when it grants an autonomous presence to the economy without any consideration for law: rather, the economy represents the content of social life and appears unthinkable without legal regulation (Ibid., 131–158). Social monism thus signifies that law cannot be opposed to society: the relationships between law and economy must be thought of as a unit, as both form and substance. Social monism also means that no primarily economic social phenomenon can be conceived of without presupposing the existence of a legal order: law is thus the element which conditions and frames social life. (b) Stammler proceeds to update this ideal based on a distinction between causality and teleology. Using that terminology, the material reproduction of society can be analyzed according to causal rules. However, causal rules are insufficient for understanding the dynamics of society, because social life depends on the meeting of a plurality of wills and is oriented toward purposes, toward a telos. The fundamental law governing social life can only be a voluntary rule, a teleological rule. From Stammler’s point of view, the law understood in this sense is not in any way external to the subject: it is in fact a formal way of ordering the content of consciousness, thus a form of thought. Once the idea of telos is put forward, the justice of social life and its ultimate goals is also raised. The critical formalism which describes Stammler’s epistemological posture here becomes ethical, although just as formal, encapsulated by the notion of the “community of men of free will” (Ibid., 600ff.). This, for Stammler, does not describe an ideal society or a vision in some hypothetical future: it represents only a method aimed at differentiating between the just and the unjust. (c) We are thus confronted with the decisive problem that of the “just law.” In Die Lehre vom dem richtigen Rechte (1902: 9ff.), Stammler contrasts two elementary ways of looking at the law: one, purely technical, which considers the law as an end in itself, the other, more encompassing, which apprehends it as a means at the service of an end that of justice. For those who take this second path, the concept of law must first be unraveled. According to Stammler, law is the expression of a uniting, selfdominating, and inviolable will (das unverletzbar, selbtsherrlich verbindende Wollen – Stammler 1923: 89, 1902: 1245 ff.). The law must therefore, in view of its inviolability, which is also imposed on the rulers, be carefully distinguished from the arbitrary will. For Stammler, the inviolability of law is based on some aspiration to universal validity. Stammler thus replaces at the center of legal thought the issue of rightness, which historicism and positivism, in their struggle against the idea of

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natural law, pushed out of the domain of legal science. However, Stammler challenges the two essential postulates of natural law, which he judges untenable: that of the primacy of natural law over positive law and that of the absolute validity of the axioms and basic principles of natural law. The just law constitutes in this sense only a natural law with variable content, which has no predetermined substance (Stammler 1906: 181). It is only a norm that, despite the contingencies resulting from given socio-historical conditions, and without being isolated from positive law, leans toward the idea of just law, the reflection of the social ideal. Two essential principles can be deduced from the concept of a just right, one of consideration (freedom and self-determination of the individual) and another of cooperation (participation of all, without exclusion, in the common effort – see Stammler 1902: 208ff.). However, Stammler leaves the terrain of formalist philosophy uneasily: he carefully avoids raising the question de lege ferenda and directly addressing the legislator. His argument is directed at the judge who must occasionally fill the gaps of existing law. This must be done, Stammler argues, in compliance with the principles of just law (supra), formulae that, for numerous authors, remain vague and unclear.

Critiques of Stammler The positions defended by Stammler have been the source of passionate, sometimes virulent debates. We can highlight three main elements toward which criticism of his philosophy of law converges: (a) the epistemology of the social sciences and law; (b) the distinction between causality and teleology; and (c) a purely formal conception of just law. (a) The sharpest criticism of Stammler’s theory of science came from Max Weber (1907). We may say that Weber considers that the distinction between form and substance is a precondition of knowledge when dealing with human interactions, like Stammler does. Contrary to Stammler, however, he refuses to base this distinction on what constitutes the external regulation of social life (conventional or legal rules) versus what is regulated thereby (the common purpose of satisfying human needs, i.e., “economy” in a very large sense: Sabine 1933: 327). Weber’s own methodological distinction between form and substance is much more abstract: it is the opposition between concept and reality. Weber rejects all theories that naively assume that the concepts they use directly reflect the reality being studied, underlining instead the hiatus irrationalis between the empirical world and the concepts elaborated to understand it. In this, he is strongly influenced by Heinrich Rickert. Weber admits the idea of the formal unavoidability of a unilateral perspective on social life defended by Stammler but only to a limited extent. While for Stammler such unilaterality presupposes social monism and the search for

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nomological regularities, for Weber it implies the opposite. Unilateral viewpoints are the products of a value relationship (Wertbeziehung) depending upon specific scientific interests and directed mainly at “historical individuals,” such as modern capitalism, Roman law, the medieval city, etc. In other words, the unilaterality of scientific research in the social sciences is not set down once and for all (as was the case with Stammler’s social monism) but is relative to the cultural context, the disciplinary field, and the value relationship underlying the historical, sociological, and anthropological research based on specific interests. (b) The sharp distinction between causality and teleology that Stammler makes, opposing past and future human action, is only possible insofar as causality is to be understood as akin to necessity, therefore in a univocal and determinist way, as in mechanical physics for example. Weber strongly refutes such a view in his methodological writings. At the time, most social sciences including economics, psychology, and even history were establishing equivalence between causality and necessity based on the deterministic model of the natural sciences. But for Weber, to require a univocal relationship between two successive events before speaking of a “cause” is a gross misunderstanding of the nature of social sciences. These are interpretive (verstehende) sciences oriented toward the understanding of the subjective meaning of human action, which of course is absent from natural processes. Such interpretation opens the way for causal imputation in a probabilistic manner: it would be impossible to consider social sciences as being empirical sciences, if unable to successfully establish causal links. Furthermore, according to Kelsen, any determination of a goal implies at the same time the representation of causal links (Kelsen 1923: 60). (c) Philosophers and legal theorists have frequently emphatically praised Stammler’s sustained effort to achieve a renewal of natural law thinking. In particular, Stammler sought to overcome the aporias of the deductive approach of the modern School of Natural Law, while challenging at the same time the axiological neutrality claims of the Historical School (Stammler 1922: 28ff). Among some defenders of jusnaturalism such as F. Gény, Stammler’s concepts, particularly the idea of a natural law with variable content, made a strong impression. However, the formalism defended by Stammler made it difficult to apply his theories, as long as practical questions of interpretation of the law were raised. For Gény indeed, “if we attempt to adapt [the abstract formulas] of Stammler to the tangible circumstances of life they refuse to be of service . . .They demand a realization of the facts which is impossible to attain” (Gény 1915: 186; See also Husik 1924: 383; Ginsberg 1932: 569). H. U. Kantorowicz, one of the leading proponents of the Free Law school, delivered one of the most acerb critique of Stammler’s views on the theory of justice (Kantorowicz 1909). Despite having praised at first Stammler as a precursor of the free law movement, Kantorowicz went on to deconstruct as being devoid of any meaningful content all of Stammler’s basic concepts, such as the social ideal, the community of free-willing men, or the concept of “law” itself. Influenced at the time

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by Max Weber, Kantorowicz was then strongly defending value relativism, as was the case for Gustav Radbruch. But the latter, also an important figure of the Free Law movement, was to substantially change his mind after World War 2, as a result of the terrible evils of totalitarianism (Radbruch 1946).

Overall Appraisal Stammler, as we have pointed out, is to be credited with giving new life to critical legal thinking in the face of historicism and formalistic positivism then dominating German legal thought. We can see there, notably from the horizon of a “community of men of free will,” a first formulation of a procedural theory of law and justice, anticipating by certain aspects the one defended today by Jürgen Habermas (1994). Moreover, beyond its conceptual imprecision when considered empirically, Stammler’s conception did a service to the nascent sociology, if only by obliging some of its most eminent representatives, such as M. Weber and G. Simmel, to clarify their thinking in order to mark the specificity of this new science. Certainly, from the point of view of an empirical sociology, especially as regards the relationship between law and the economy, the radical opposition between causality and teleology defended by Stammler cannot be retained, just as its lack of distinction between law as a norm and law as a social fact. That said, if we remain within the realm of legal philosophy, the idea of a natural law with variable content and the horizon of a human community of free wills certainly provide valid points of reference when considering the indispensable role of fundamental values in contemporary law. We may only refer here to the eminent development, in an ever-evolving form, of human rights and freedoms at the international, regional, and national levels. From this point of view, the contribution of Rudolf Stammler always deserves to be highlighted, particularly in that he expresses, nolens volens, the unbridgeable tension between formal and substantive approaches to fundamental human rights and freedoms, when understood as being supralegislative norms.

References Binder J (1937) Dem Andenken Rudolf Stammlers. Archiv für Rechts-und Sozialphilosophie 31: 433–440 Coutu M (2013) Weber reading Stammler: what horizons for the sociology of law? J Law Soc 40(3):356–374. https://doi.org/10.1111/j.1467-6478.2013.00630.x Coutu M (2018) Max Weber’s interpretive sociology of law. Routledge, London, 15ff. https://doi. org/10.4324/9781315627571 Coutu M, Leydet D, Rocher G, Winter E (2001) Introduction. In: Weber M (ed) Rudolf Stammler et le matérialisme historique. Presses de l’Université Laval/Éditions du Cerf, Québec/Paris, pp 1–99

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Gény F (1915) Science et technique en droit privé positif. Nouvelle contribution à la critique de la méthode juridique. Sirey, Paris, pp 127–190 (Le système critique idéaliste et formel de R. Stammler) Ginsberg M (1932) La philosophie du droit de Rudolf Stammler. Archives de Philosophie du Droit 2:564–574 Habermas J (1994) Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Suhrkamp, Frankfurt Husik I (1924) The legal philosophy of Rudolf Stammler. Colum L Rev 24:373–389. https://doi. org/10.2307/1114196 Kantorowicz HU (1909) Zur Lehre vom richtigen Recht. Rothschild, Berlin Kelsen H (1923) Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze. J.C.B. Mohr, Tübingen, p 57ff Müller C (1994) Die Rechtsphilopophie des Marburger Neukantianismus. Naturrecht und Rechtspositivismus in der Auseinandersetzung zwischen Hermann Cohen, Rudolf Stammler und Paul Natorp. J.C.B. Mohr (Paul Siebeck), Tübingen Pound R (1911–1912) The scope and purpose of sociological jurisprudence. Harv Law Rev 25: 140–168 Radbruch G (1946) Gesetzliches Unrecht und übergesetzliches Recht. Süddeutsche JuristenZeitung 1(5):105–108 Sabine GH (1933) Rudolf Stammler’s critical philosophy of law. Cornell Law Rev 18:321–350 Saleilles R (1902) École historique et droit naturel. Revue trimestrielle de droit civil 1:80–99 Simmel G (1896) Zur Methodik der Sozialwissenschaften. Jahrbuch für Gezetsgebung, Vervaltung und Volkswirtschaft XX:575–585 Sinzheimer H (1976) Formalismus in der Rechtsphilosophie. In: Sinzheimer H, Kahn-Freund O, Ramm T (eds) Arbeitsrecht und Rechtssoziologie. Gesammelte Aufsätze und Reden, vol 2. Europaïsche Verlagsanstalt, Frankfurt, pp 219–244 Stammler R (1902) Die Lehre von dem richtigen Recht. J. Guttentag, Berlin [Stammler R, The theory of justice (trans: Husik I), Modern legal philosophy series, The Macmillan Company, New York, 1925] Stammler R (1906) Wirtschaft und Recht nach der materialistischen Geschichtsauffassung. Eine sozialphilosophische Untersuchung, 2nd edn. Verlag von Veit & Comp, Leipzig Stammler R (1922) Lehrbuch der Rechtsphilosophie. W. de Gruyter, Berlin Stammler R (1923) Theorie des Rechtswissenschaft, 2nd edn. Buchhandlung des Waisenhauses, Halle Vorländer K (1904) Rudolf Stammlers Lehre vom richtigen Recht. Kant-Studien 8(1–4):329–335 Weber M (1907) “R. Stammlers ‘Überwindung’ der materialistischen Geschichtsauffassung” and “Nachtrag zu dem Aufsatz über R. Stammlers ‘Überwindung’ der materialistischen Geschichtsauffassung”. In: Weber W (ed) Gesammelte Aufsätze zur Wissenschaftslehre, 3rd edn. J.C.B. Mohr (Paul Siebeck), Tübingen, 1968, pp 291–383. English translation: “Rudolf Stammler’s ‘Overcoming’ of the Materialist Conception of History”, and ‘Addendum to the Essay on R. Stammler’ (by Hans Henrik Bruun). In: Max Weber Collected methodological writings, Brunn HH, Whimster S (eds). Routledge, London, pp 185–241, 2012

Weber, Max Andreas Anter

Introduction Max Weber is one of the undisputed classics of humanities, legal and social sciences. His works on religion and law, economy and politics, state and domination shaped the debates in various disciplines sustainably and left a clear mark on later discussion. A lawyer by profession and specialized in legal history, Weber was appointed professor of economics and finance, before, at the end of his life, being finally appointed professor of social science. Thus, the most diverse disciplines call him one of their own – among them jurisprudence, sociology, political economy, history, and political science. Some of his writings, such as Economy and Society, The Protestant Ethic and the Spirit of Capitalism or Politics as a Profession, became canonical texts of philosophy and social sciences.

Biography Weber was born on April 21, 1864, in Erfurt, as the first of eight children of Max Weber sr. and Helene Weber. He grew up in an upper middle-class family, who moved to Berlin in 1869 (for biographical aspects see Radkau 2009). In his parental home, he came into close contact with prominent legal scholars and politicians; his

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2020, https://doi.org/10.1007/978-94-0076730-0_802-1. A. Anter (✉) Staatswissenschaftliche Fakultät, University of Erfurt, Erfurt, Germany © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_36

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father was a National Liberal member of the German Reichstag as well as of the Prussian Chamber of Deputies. Although the young Max Weber only partially shared his father’s political preferences, his parental home was of decisive influence for his intellectual development. He studied law, history, economics, and philosophy in Heidelberg and Berlin, obtained his law doctoral degree in 1889, with a dissertation on medieval commercial law, before he started with the preparation of his habilitation thesis. Among his academic teachers were the luminaries of contemporary jurisprudence, Rudolf von Gneist, Otto von Gierke, and Rudolph Sohm. Already as a doctoral student, Max Weber joined a circle of younger economists and social politicians, who demanded an increased activity of the state in social policy. Weber was involved in the Evangelisch-sozialer Kongreß (Evangelical Social Congress), he joined the Verein für Socialpolitik (Association for Social Policy), and he was commissioned with the evaluation of the association’s survey on the situation of rural workers in eastern Germany. After his habilitation with an economic and legal history study on the Roman agricultural history in its impact for public and private law (1892), he received his first reputation in 1893, quite unexpectedly, to a chair of economics and finance in Freiburg. In the very same year, he married Marianne Schnitger (1870–1954), who later became one of the important German suffragettes of her time. In 1895, Weber gave his Freiburg inaugural address The National State and Economic Policy, a much-noticed patriotic plea for a strong German “Weltpolitik” (Weber 1895). In his inaugural speech, Weber self-confidently called himself a “member of the bourgeois classes” (Weber 1895, 23). Some years before, in the 1890 Reichstag elections, he had still voted for the Conservatives, and in 1893 he had joined the Alldeutscher Verband (Pan-German League), which he left a few years later. Now he approached the left-wing liberals, with whom he shared democratic ideals, while missing the national point of view. He shared the national ideals with the National Liberals, but he missed the socio-political stance. In 1897, Weber moved to Heidelberg, accepting a chair of economics and public finance. In the next year, the beginning of a nervous disease led to a complete collapse and, finally, forced him to resign from his professorship in 1903. The following years consisted of sanatorium stays and recreational trips, which were at the same time rehabs from the strong drugs on which he had become dependent. In these years, however, Weber started with extensive studies in methodology, sociology, and cultural history, first and foremost his study on The Protestant Ethic and the Spirit of Capitalism (1904/05). Released from teaching, he unfolded a monumental scientific work. Furthermore, in 1909 he was assigned the editorship of the Grundriß der Sozialökonomik, one of the most ambitious scientific projects of that time, from which his latter opus magnum Economy and Society emerged. Although he was still in poor health, the scope of his own contributions to the Grundriß der Sozialökonomik continued to grow. Until the outbreak of World War I in 1914, they mounted up to thousands of manuscript pages, a compilation containing the foundations of his sociology of domination, his sociology of law, and his sociology of religion, which established Weber’s latter worldwide fame.

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After the outbreak of the World War, Weber’s scientific work initially came to a standstill. He volunteered for war, but since he was not front-suitable, he was commissioned leading the Heidelberg Reserve Hospital Commission. Just like the overwhelming majority of the contemporary intellectuals, he was gripped by enthusiasm for war. Only after the first ones of his relatives died on the battlefield, the initially enthusiasm was replaced by more dark mood. Finally, since 1916, he turned to a sharp opponent of the Reich Government’s warfare, particularly against the unrestricted submarine war. He became one of the most committed German political journalists, discussing current war policy topics and constitutional issues of the future German state, particularly in his series of articles in the Frankfurter Zeitung. In the first postwar years, he engaged himself in politics, not only participating in the deliberations on the draft Weimar Constitution, but also in the election campaign for the liberal German Democratic Party, in which he had joined in 1918. Weber was a spirited political speaker, but as a party politician he remained without fortune. His candidacy for the Reichstag failed. In the meantime, in 1918, he had returned to University. After a long abstinence, he accepted a visiting professorship in Vienna, and the following year he took over a chair of social science in Munich, where he died unexpectedly on June 14, 1920, of pneumonia.

Values and Politics Weber’s early works are dominated by his studies in social policy and agricultural policy. However, his analysis on the survey of the Verein für Socialpolitik on the East Elbian rural workers (Weber 1892) already reveals the basic features of his political thought, which was directed to the nation and the reason of state. He emphasized that he considered the situation of the rural workers only from the point of view of the national interest. Even in his late political writings, he stressed that he valued political issues especially from the national point of view (Weber 1916, 161). Throughout his work, this national value system is inextricably linked to a liberal-democratic conviction. Weber was a committed advocate for the parliamentary constitutional state, and he counted democracy as one of his central political values, but if he engaged himself for democratic goals, there were always national motives involved (Anter 2014, 111ff). The early studies on agrarian policy lead him from law to economics and raised particular questions that he dealt with in more detail in his Freiburg Inaugural Address in 1895, where he placed the results of his survey in the context of an analysis of the current German state. The inaugural lecture is “the most significant documentation” of the young Weber’s political thought (Mommsen 1990, 36). Furthermore, it is Weber’s first confrontation with the problem of value judgments, in this case, the “ultimate values” of the nation and the reason of state. The Freiburg Address has always been read as a patriotic document, which is not without reason, but at the same time, it was the reflection of his own thinking about the way in which particularly his political writing was bound up with values (Hennis 2000a, b).

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As a value-minded thinker, Weber interfered from the beginning in the contemporary debates. Hence, unlike often said, Weber does not represent a simple “theory of value freedom” which seeks to abolish value judgments from the legal and social sciences. However, he stated that every science is inevitably bound up with values and thus founded upon “standards of value” which necessarily influences any “scientific argument” (Weber 1904a, 362). This conviction leads him to an ethicoscientific maxim that it is essential to reveal the standard of value “from which a value-judgment is derived” (Weber 1904a, 366). Weber himself had to complain that his theory of value judgment was exposed to “endless misunderstanding” (Weber 1917, 311), and in fact, his theory was often grotesquely distorted and even turned into its opposite. Admittedly, the misunderstanding derives partly from Weber’s unfortunate choice of essay titles, since the single words “objectivity” and “value freedom” in the titles of his essays on The “Objectivity” of Knowledge in Social Science and Social Policy (Weber 1904a) and The Meaning of “Value Freedom” (Weber 1917) acted like stimulus words, involuntarily associated with “positivism.” However, it would be untenable to divide Weber’s “value-free scientific” positions strictly from his “evaluative political” ones, since both are indissoluble linked.

Ethics and Violence Weber always followed the maxim of revealing his “standards of value,” as in his lecture on Politics as a Profession, which he delivered to a student audience in Munich, on January 28, 1919. In this lecture, he dealt with basic questions of political theory and political ethics: How can one define politics? What is the task of political parties? Do states inevitably have to act violently? Are ethics and politics compatible at all? Weber gave his lecture in the revolutionary turmoil after the World War I, in a civil war situation where violence was ubiquitous. Against the pacifist longing of his student audience, he insisted that politics is primarily a “striving for a share of power or for influence on the distribution of power” (Weber 1919, 311). Anyone who wants to take responsibility in politics must, if necessary, be prepared to act violently. Weber did not believe that politics could ever be completely nonviolent. Since the state is characterized by the monopoly of legitimate physical force, which guarantees protection and security, the present state must be able to prevent any kind of nonstate violence. But that does not work without the effective threat or use of force. However, this creates a problem, at least for those who make ethical demands on politics. For it is the use of force in the hands of human associations, “what gives all the ethical problems of politics their particular character” (Weber 1919, 364). To resolve the tension between ethics and politics, Weber resorted to a skillful move, setting the distinction between “ethic of conviction” and “ethic of responsibility” (Weber 1919, 357ff.). The first one is an absolute and nonconcessional ethic, based only on abstract principles like nonviolence, the latter is a pragmatic ethic that focuses on the success of action. The conviction ethicist is only interested in the

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purity of his convictions, even if his actions benefit only the opponent. In formulating this pair of terms, however, Weber’s own preference was only too obvious. For him, conviction ethicists were not suitable for responsible political leadership, since a radical rejection of violence would be ultimately a denial of the state.

State and Domination This is also reflected in his definition of the state as a “political institution” that claims successfully on the “monopoly of legitimate physical force” (Weber 1921, 356). With this definition, Weber tried to solve a central problem of state theory, reducing the abstract institution “state” as well as the varieties of state experience to a single concept. He described the notion of the state as “the most complex and interesting case” of the problem of concept formation (Weber 1904a, 394). Weber concluded from his historical studies that the monopoly of force is the decisive criterion that distinguishes the modern occidental state from other historical forms of domination. The monopoly is the only criterion common to all state formations. Since this monopoly was only enforced in modern times, the “state” for Weber was a precise historical concept. The history of the modern state was for him the history of a comprehensive monopolization, which occurs not only in the exercise of force but also in administration, jurisdiction, legislation and other spheres (Anter 2019). Weber saw this as the result of a long-term and violent process in which the local rulers were gradually expropriated by a central authority. In Weber’s sociology of domination as well as in other works, the state appears primarily as an institution of domination. Like the majority of the contemporary legal theorists, Weber thought rule to be an essential criterion of the state (Anter 2014, 46ff.; Breuer 2011). But unlike other theorists, he tied the existence of rule to the existence of legitimacy. The category of legitimacy is the Archimedean point of his sociology of domination, since domination cannot last if it is not considered legitimate. The question of the origins and effects of domination is one of the fundamental questions of legal and social theory. This is also true to Weber, who occupied himself throughout his life with this question, most intensively in his sociology of domination, which he developed during the last decade of his life in several attempts (Weber 2005; Weber 2013, 453ff.). In the beginning, the aspect of the functioning of domination was in his focus, while later the question of its legitimacy became more and more clear, that is, the question of when, how, and why domination is recognized and obeyed by those who are ruled. It was Weber who made legitimacy a key concept of legal and social science. The type of obedience as well as the character of rule differs according to the nature of legitimacy. In this regard, Weber distinguished his three famous types: the rationallegal rule, which is based on the belief in the legality of order; the traditional rule based on the belief in the validity of the tradition of order; and the charismatic rule based on the belief in the heroic power of a charismatic leader (Weber 2005, 717ff.;

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Weber 2012, 449ff.). Weber was not concerned with squeezing the heterogeneous forms of rule into a schema. Rather, he understood them as ideal types that never appear in pure form, but always in mixed forms. The charismatic rule was for him a product of extraordinary situations and arises from an “aggravation.” However, when it flows back into the “pathways of everyday life,” it is regularly “broken” and “transposed” (Weber 2005, 489). In this respect, it remains extremely unstable, as it is always exposed to the risk of traditionalization or legalization, through which it would fall back on one of the other two types (Weber 2005, 416). Thus, the charismatic leader is replaced again by an impersonal-legal rule. But even this won’t be the “end of history” for Weber, since legal rule is constantly exposed to crises that could lead to charismatic revolutions. This diagnosis has often been confirmed in the history of the twentieth century. Weber’s theory of domination has occupied generations of social scientists and it laid the foundations for today’s understanding of legitimacy. His typology remains one of the most important models for the analysis of the practice of rule in different eras and cultures.

Conclusion Weber did not create a systematic political or social theory. He was no kind of systematic thinker anyway, and, moreover, he left behind a conceivably fragmentary work. Hence, it remains a challenge to discover a thread in his monumental work. After decades of focusing on the “occidental process of rationalization” (Roth 1987, Schluchter 1985), the focus shifted to Weber’s anthropological question and his theme of the relationship between “personality” and “life orders” (Hennis 2000a, b). In addition, it becomes increasingly clear how much the state was at the center of his political thought (Anter 2014). However, his social and political thought reveals a characteristic ambivalence. Weber argued for freedom and individualism, and at the same time, he argued for the viewpoint of the reason of state; he was committed to the welfare state and the parliamentary democracy, but only because he considered it the most effective form of government. His thinking was marked by a series of antinomic tensions – between freedom and authority, personality and life orders, individualism and reason of state. Since such antinomies shape the political sphere until now, Weber is all the more a representative thinker of modernity.

References Anter A (2014) Max Weber’s theory of the modern state: origins, structure and significance (trans: Tribe K). Palgrave Macmillan, Basingstoke Anter A (2019) The modern state and its monopoly on violence. In: Hanke E et al (eds) The Oxford handbook of Max Weber. Oxford University Press, Oxford, pp 227–236 Breuer S (2011) “Herrschaft” in der Soziologie Max Webers. Harrassowitz, Wiesbaden

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Hennis W (2000a) Max Weber’s central question (trans: Tribe K). 2nd edn. Threshold Press, Newbury Hennis W (2000b) Max Weber’s science of man: new studies for a biography of the work (trans: Tribe K). Threshold Press, Newbury Mommsen WJ (1990) Max Weber and German politics 1890–1920 (trans: Steinberg MS). University of Chicago Press, Chicago Radkau J (2009) Max Weber: a biography (trans: Camiller P). Polity, Cambridge Roth G (1987) Rationalization in Max Weber’s developmental history. In: Lash S, Whimster S (eds) Max Weber, rationality and modernity. Routledge, London, pp 75–91 Schluchter W (1985) The rise of Western rationalism: Max Weber’s developmental history (trans: Roth G). University of California Press, Berkeley Weber M (1892) Die Lage der Landarbeiter im ostelbischen Deutschland (ed: Riesebrodt M) 1984. Mohr Siebeck, Tübingen Weber M (1895) The national state and economic policy. In: Lassman P, Speirs R (eds) Id. Political writings, 2008, 6th edn. Cambridge University Press, Cambridge, pp 1–28 Weber M (1904a) The ‘Objectivity’ of knowledge in social science and social policy. In: Whimster S (ed) The Essential Weber, 2004. Routledge, London, pp 359–404 Weber M (1904b) The Protestant ethic and the spirit of capitalism, (ed: Kalberg S) 2010. Oxford University Press, Oxford Weber M (1916) Deutschland unter den europäischen Weltmächten. In: Mommsen WJ, Hübinger G (eds) Id. Zur Politik im Weltkrieg, 1984. Mohr Siebeck, Tübingen, pp 161–194 Weber M (1917) The meaning of ‘Value Freedom’ in the sociological and economic sciences. In: Bruun HH, Whimster S (eds) Id. Collected methodological writings, 2012. Routledge, London, pp 304–334 Weber M (1919) The profession and vocation of politics. In: Lassman P, Speirs R (eds) Id. Political writings, 2008, 6th edn. Cambridge University Press, Cambridge, pp 309–369 Weber M (1921) Basic sociological concepts. In: Whimster S (ed) Id. The essential Weber, 2004. Routledge, London, pp 311–358 Weber M (2005) Herrschaft (eds: Hanke E, Kroll T). Mohr Siebeck, Tübingen Weber M (2009) Allgemeine Staatslehre und Politik (Staatssoziologie) (eds: Hübinger G, Terwey A). Mohr Siebeck, Tübingen Weber M (2010) Recht (eds: Gephart W, Hermes S). Mohr Siebeck, Tübingen Weber M (2013) Soziologie. Unvollendet 1919–1920 (eds: Borchardt K et al). Mohr Siebeck, Tübingen

Wittgenstein, Ludwig Dennis Patterson

Introduction Many professional philosophers believe Ludwig Wittgenstein to be one of the most important philosophers of the twentieth century. Wittgenstein wrote mainly about language (e.g., issues involving linguistic meaning and the relationship of language to the world) but he also wrote about the philosophy of mathematics, certainty, rulefollowing, and psychology, just to name a few topics. The trajectory of Wittgenstein’s thought and career is bounded by his Tractatus Logico Philosophicus, which he completed in an Italian prisoner of war camp at the end of World War I and his Philosophical Investigations, which was published after his death in 1951. Wittgenstein wrote almost nothing about the law (sources are collected in Langille 1992). Nevertheless, his ideas have played an important role in academic legal scholarship.

Originally published in Mortimer Sellers and Stephan Kirste, Encyclopedia of the Philosophy of Law and Social Philosophy, © Springer Nature B.V. 2021, https://doi.org/10.1007/978-94-0076730-0_656-1. D. Patterson (✉) Rutgers University, Camden, NJ, USA Surrey Law School, Guildford, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 G. Zanetti et al. (eds.), Handbook of the History of the Philosophy of Law and Social Philosophy, Studies in the History of Law and Justice 24, https://doi.org/10.1007/978-3-031-19550-1_37

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Wittgenstein and Legal Theory Wittgenstein’s thought has been put in the service of a number of diverse projects in legal theory (For a collection of papers see Patterson 2004). As we know, there is a skeptical reading of Wittgenstein’s remarks on rule-following, made infamous by Saul Kripke (1982). Mark Tushnet used the skeptical reading of Wittgenstein to critique leading theories of constitutional law, all in an effort to advance the so-called indeterminacy thesis (Tushnet 1983). Gone are the heady days when Critical Legal Studies scholars declared the law to be fundamentally indeterminate, meaning that “a competent adjudicator can square a decision in favor of either side in any given lawsuit with the existing body of legal rules” (Solum 1987: 462). At present, Kripke’s reading of Wittgenstein still attracts wide attention. The same cannot be said for the legal indeterminacy thesis. The field of constitutional law provides an example of a scholar whose work shows distinct Wittgensteinian influence. Philip Bobbitt studied Wittgenstein with Richard Rorty while Bobbitt was an undergraduate at Princeton. Additionally, Bobbitt attended lectures by Elizabeth Anscombe at the University of Pennsylvania. These experiences seem to have shaped his approach to philosophy and constitutional theory. I shall briefly describe his seminal contributions to legal philosophy and constitutional law. Bobbitt’s first book on constitutional law was Constitutional Fate (Bobbitt 1982) In that book, Bobbitt advanced the argument that the debate over the legitimacy of judicial review was grounded in a false premise. All theories of judicial review judged its legitimacy from a vantage point outside the bounds of constitutional practice. Bobbitt argued that nothing legitimizes judicial review other than employment of the forms of argument (Bobbitt refers to them as “modalities”) for constitutional law. These modalities (textual, structural, prudential, doctrinal, historical and ethical) are the forms of constitutional argument: they are the ways in which propositions of constitutional law are shown to be true or false. The modalities are neither true nor false: they are the ways in which propositions of law are true or false. Bobbitt’s approach to constitutional law was not well-understood when he first made his case in Constitutional Fate. An especially harsh review of the book appeared in the pages of the Harvard Law Review (Gudridge 1983). The reviewer dismissed the book as a defense of tradition. His conclusion was that “Constitutional Fate” excludes precisely the aspects of contemporary constitutional law that explain its notably fragmentary and conflicting quality – its status not simply as an environment for controversy, but an environment in controversy (Gudridge 1983). Unhappily, the reviewer failed to notice any of the underlying philosophical motivations for Bobbitt’s position. Of course, the central idea is the idea of a practice, so familiar to readers of Wittgenstein’s Philosophical Investigations. In his next book on constitutional law, Bobbitt was much more explicit about the philosophical inspiration for his position. In the Preface to Constitutional Interpretation (Bobbitt 1991), Bobbitt succinctly summarizes the argument of Constitutional Fate. With allusions to Cartesian geometry and gödel numbering, Bobbitt states

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explicitly that the forms of constitutional argument are “the way in which a proposition is true rather than the reason it is true . . .” (Bobbitt 1991: xiv). It is the operation of the forms of argument that maintains legitimacy. With citations to the literature on Realism and Anti-Realism, references to Rorty, Dummett, Wittgenstein, and others, Bobbitt sharpens his position and leaves no doubt about the philosophical inspiration for his work. This paragraph sums it up nicely: Law is something we do, not something we have as a consequence of something we do. Sometimes our activities in law – deciding, proposing, persuading – may link up with specific ideas we have at those moments; but often they do not, and it is never the case that this link must be made for the activities that are law to be law. Therefore the causal accounts of how these inner states come into being, accounts that lose their persuasiveness in contact with the abundance of the world, are really beside the point. If we want to understand the ideological and political commitments in law, we have to study the grammar of law, that system of logical constraints that the practices of legal activities have developed in our particular culture. (Bobbitt 1991: 24)

I once heard an American professor of constitutional law describe Bobbitt’s position as “idiosyncratic.” At the time (2002), that view was widely-shared. But time has shown that Bobbitt was on to something right from the start: eventually, his big idea caught on. The modalities identified by Bobbitt are now a staple of the leading casebooks on constitutional law. Every American law student learns them as the basic tools of constitutional discourse. The second example of the influence of Wittgenstein’s thought in legal theory is Law and Truth (Patterson 1996). That work took up a single question: “What does it mean to say that a proposition of law is true?” The book surveyed the answers on offer from the principal legal theories at the time and identified shortcomings in each. The book went on to make the claim that propositions of law are shown to be true by the argumentative standards of the practice of law. Integrating Wittgenstein’s analysis of truth, practices, rule-following, and the nature of understanding, a fully practiced-based account of law was advanced. Debates over the propositional character of law are often focused on the “truthmaker”: what makes a proposition of law true (Dworkin 1986 uses the phrase “the grounds of law” for the truthmaker). Positivists ground the truth of legal propositions in social facts while philosophical realists (e.g., Dworkin) ground the truth of legal propositions in moral facts. Patterson argued that the truth of propositions of law is a matter of employing forms of legal argument for it is in virtue of these forms of argument (See Bobbitt 1991) that propositions of law are true and false. Patterson bolstered his account of truth in law with an adaption of Stephen Toulmin’s framework for argumentative assessment (Toulmin 1958). Patterson employed that framework to show both how the forms of argument are used to show the truth of legal propositions and to depict legal argument about the forms of argument themselves. One common form of dispute in law is debate over conflicting forms of argument. Law and Truth provides a solution to this problem, one grounded in Quinean holism (Ullian and Quine 1970).

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Wittgenstein and Law: A Skeptical View A different form of skepticism concerns the very idea that Wittgenstein’s thought could illuminate problems in legal theory. Scott Hershowitz and Brian Bix have both argued that Wittgenstein has little to offer legal philosophers. Hershowitz claims that “[n]othing much can be learned about legal rules or legal interpretation by attending to Wittgenstein’s remarks, because they were aimed at wholly different phenomena” (Hershowitz 2002: 619). Similarly, Bix argues that Wittgenstein’s focus in the rulefollowing discussion was explanation of “the phenomenon of general agreement in practices regarding the simplest terms and mathematical concepts” (Bix 2005: 220). Bix even goes so far as to say that “[t]he first thing worth noting is the strangeness of applying Wittgenstein’s rule-following considerations to law at all” (Bix 1993: 51). Hershowitz and Bix share the view that because Wittgenstein directed his attention to mathematics and “simple rules,” nothing relevant to law could be gleaned from Wittgenstein’s thoughts about rule-following. Of course, if such a claim were true, it would be true of many other areas of academic endeavor (I am not aware of any commentator on Wittgenstein’s work who makes the claim made by Hershowitz and Bix, that is, that Wittgenstein’s remarks on rule-following are or should be limited to the specific examples he gave). As we shall see, this is not the case. Not only are there clear examples of the relevance of Wittgenstein’s comments on rulefollowing and interpretation to matters beyond those he addressed, his insights into the nature of normativity, rule-following, and interpretation are quite profound and in no way limited to the contexts in which he made his case. Before turning to one example of the use of Wittgenstein’s insights to an unrelated field of endeavor, let me remind the reader of the object of Wittgenstein’s attention. Wittgenstein was keen to undermine the idea that understanding (of meaning) is a matter of (an act of) interpretation. That is, when we come to understand how to carry on a series of numbers, for example, we get to the correct answer through a process of interpretation. He stated it as a paradox: This was our paradox: no course of action could be determined by a rule, because every course of action can be made out to accord with the rule. The answer was: if everything can be made out to accord with the rule, then it can also be made out to conflict with it. And so there would be neither accord nor conflict here. It can be seen that there is a misunderstanding here from the mere fact that in the course of our argument we give one interpretation after another; as if each one contented us at least for a moment, until we thought of yet another standing behind it. What this shews is that there is a way of grasping a rule which is not an interpretation, but which is exhibited in what we call “obeying the rule” and “going against it” in actual cases. Hence there is an inclination to say: every action according to the rule is an interpretation. But we ought to restrict the term “interpretation” to the substitution of one expression of the rule for another. (Wittgenstein 2010 at Sec. 201)

Wittgenstein is puzzled by the fact that a rule doesn’t seem to indicate what it would take to conform to its requirements. But if the rule does not tell us this, what does? One idea – a notion pervasive in many areas of thought – is that understanding is the

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product of interpretation. The idea is that in the move from signs (e.g., a rule, a number series, a law) to meaning (i.e., what it means to follow), interpretation does the work of understanding. That is, we come to understand when we interpret properly. But, Wittgenstein contends, interpretation is a non-starter. The answer must lie elsewhere. “Suppose we are interested in the meaning of ‘intentional’ in the phrase ‘an intentional act’.” How do we go about discerning its meaning? Wittgenstein would recommend surveying the various ways in which the law uses the word “intentional” to see its meaning across a variety of contexts. What we would be surveying are – literally – the uses to which the word is put. Those who take the view that we need first to interpret the word in order to understand it would require a theory of intentionality, one that could be brought to bear on how the word is employed in legal contexts. Wittgenstein cautions against such an approach, arguing that understanding is grounded in use and not in theory. Wittgenstein’s philosophical methodology is one that seeks a perspicuous survey of the uses (and, thus, meanings) of our words. A theory, he argues, will only serve to distort our understanding. Wittgenstein develops his account of understanding in practices as a solution to the paradox of rule-following. Hershowitz and Bix deny that Wittgenstein’s account of understanding in practices can be extrapolated beyond the narrow contexts he used to make his points. This is manifestly untrue. In an important and provocative essay, James Tully (2003) demonstrated how Wittgenstein’s remarks on rule-following undermined the rationality claims of Jurgen Habermas as well as Charles Taylor’s hermeneutical argument that all understanding requires interpretation. In fact, Tully’s essay was so persuasive, Taylor came to agree (Tully 2003: 228, n.70). More importantly, Tully made his case from the very texts that Hershowitz and Bix claim preclude such extrapolation. Tully uses Wittgenstein’s remarks on rule-following and practices to make the point that “understanding is prior to and distinct from interpretation” (Tully 2003:36). Through careful explication of Wittgenstein’s texts, Tully shows how the idea of all understanding as interpretation is a non-starter. This idea – which is pervasive in the human sciences and is the basis of Taylor’s hermeneutics – is unsustainable. He writes: The attempt to construe conventional understanding as implicit interpretation misses the revolutionary point Wittgenstein is concerned to make. An interpretation is a reflection on a sign; an opinion or belief about how it should be taken. To interpret a sign is to take it as one expression rather than another. In contrast, to understand a sign is not to possess a sedimented opinion about it or to take it as something, but to be able to grasp it; that is, to act with it, using it in agreement with customary ways (section 241). If conventional understandings were implicit interpretations or beliefs about practice, rather than the actual abilities manifested in practice, they would not be conventional understandings, for all the reasons given above: “It is our acting, which lies at the bottom of the language-game.” Conventional understanding does not involve implicit interpretations (or representations) to bridge the gap between thought and action, language and reality, because no such gap exists. (Tully 2003:40)

Having shown how Wittgenstein’s rule-following considerations undercut both Habermas’ claims for the validity conditions of rational discourse and Taylor’s

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hermeneutical claims for the centrality of interpretation in understanding, Tully then makes the point that “Wittgenstein’s methods can be extended and deepened by adding historical applications to them, such as the work of Foucault and the historical approaches of Quentin Skinner and Charles Taylor . . .” (Tully 2003: 227, n. 68). Tully is not the only scholar who has successfully taken Wittgenstein’s insights and utilized them beyond their original contexts (See Pitkin 1993). His work is a convincing demonstration – if one is needed – of the importance of Wittgenstein’s thought beyond the four corners of a group of texts.

Conclusion This short entry can mention only a few of the many examples of the influence of Wittgenstein’s thought in legal scholarship. Topics as diverse as metaphilosophy, methodology, the nature of truth, and epistemology are all influenced by Wittgenstein’s approach to philosophy. Ronald Dworkin once said that debate in legal philosophy is, “at bottom, a debate within the philosophy of language and metaphysics” (Dworkin 1977). He was right in this. Wittgenstein had much to say about language and metaphysics. It falls to legal philosophers to continue using his insights to address problems in legal theory.

References Bix B (1993) Law, language, and legal determinacy 51. OUP, Oxford Bix B (2005) Cautions and caveats for the application of Wittgenstein to legal theory. In: Campbell, O’Rourke, Shier (eds) Law and social justice. MIT Press, pp 217–229 Bobbitt P (1982) Constitutional fate. OUP Bobbitt P (1991) Constitutional interpretation. Blackwells, Oxford Dworkin R (1977) Introduction. In: Dworkin R (ed) The philosophy of law. OUP, Oxford Dworkin R (1986) Law’s empire. Harvard University Press, Cambridge, MA, USA Gudridge PO (1983) False peace and constitutional tradition. Harv Law Rev 96:1969 Hershowitz S (2002) Wittgenstein on rules: the phantom menace. Oxf J Leg Stud 22(4):619–640. https://doi.org/10.1093/ojls/22.4.619 Kripke S (1982) Wittgenstein on rules and private language. Harvard UP, Cambridge, MA Langille B (1992) Political world. In: Patterson D (ed) Wittgenstein and legal theory. Westview, Boulder, pp 233–247 Patterson D (1996) Law and truth. OUP, New York Patterson D (2004) Wittgenstein and law. Routledge, New York Pitkin H (1993) Wittgenstein and justice: on the significance of Ludwig Wittgenstein for social and political thought. University of California Press, Berkeley Solum LB (1987) On the indeterminacy crisis: critiquing critical dogma. Uni Chic Law Rev 54: 462–503 Toulmin S (1958) The uses of argument. Cambridge, UK

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Tully J (2003) Wittgenstein and political philosophy: understanding practices of critical reflection. In: Heyes CJ (ed) The grammar of politics: Wittgenstein and political philosophy. Cornell University Press, Ithaca Tushnet M (1983) Following the rules laid down. Harv Law Rev 96:781–827 Ullian JS, Quine WV (1970) The web of belief. McGraw Hill, New York Wittgenstein L (2010) Philosophical Investigations 2010, 4th edn (trans: Anscombe GEM, Hacker PMS, Schulte J). Wiley Oxford