Published Essays, 1929-1933 9780826264589, 0826264581

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t h e c o l l e c t e d wo r k s o f

ERIC VOEGELIN VOLUME 8

PUBLISHED ESSAYS 1929–1933

p ro j e c t e d vo l u m e s i n t h e c o l l e c t e d wo r k s 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

On the Form of the American Mind Race and State The History of the Race Idea: From Ray to Carus The Authoritarian State: An Essay on the Problem of the Austrian State Modernity without Restraint: The Political Religions; The New Science of Politics; and Science, Politics, and Gnosticism Anamnesis: On the Theory of History and Politics Published Essays, 1922–1928 Published Essays, 1929–1933 Published Essays, 1934–1939 Published Essays, 1940–1952 Published Essays, 1953–1965 Published Essays, 1966–1985 Selected Book Reviews Order and History, Volume I, Israel and Revelation Order and History, Volume II, The World of the Polis Order and History, Volume III, Plato and Aristotle Order and History, Volume IV, The Ecumenic Age Order and History, Volume V, In Search of Order History of Political Ideas, Volume I, Hellenism, Rome, and Early Christianity History of Political Ideas, Volume II, The Middle Ages to Aquinas History of Political Ideas, Volume III, The Later Middle Ages History of Political Ideas, Volume IV, Renaissance and Reformation History of Political Ideas, Volume V, Religion and the Rise of Modernity History of Political Ideas, Volume VI, Revolution and the New Science

25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

History of Political Ideas, Volume VII, The New Order and Last Orientation History of Political Ideas, Volume VIII, Crisis and the Apocalypse of Man The Nature of the Law, and Related Legal Writings What Is History? And Other Late Unpublished Writings Selected Correspondence Selected Correspondence Hitler and the Germans The Theory of Governance and Other Miscellaneous Papers, 1921–1938 The Drama of Humanity and Other Miscellaneous Papers, 1939–1985 Autobiographical Reflections and Index

e d i t o r i a l b oa r d

Paul Caringella Jürgen Gebhardt Thomas A. Hollweck Ellis Sandoz

The Editorial Board offers grateful acknowledgment to the Earhart Foundation and Robert J. Cihak, M.D., for support provided at various stages in the preparation of this book for publication. A special thanks for support goes to the Charlotte and Walter Kohler Charitable Trust. The University of Missouri Press offers its grateful acknowledgment for a generous contribution from the Eric Voegelin Institute in support of the publication of this volume.

THE COLLECTED WORKS OF

ERIC VOEGELIN VOLUME 8

PUBLISHED ESSAYS 1929–1933 t r a n s l at e d f r o m t h e g e r m a n b y

M. J. HANAK and

JODI COCKERILL e d i t e d w i t h a n i n t ro d u c t i o n b y

THOMAS W. HEILKE and

JOHN VON HEYKING

university of missouri press columbia and london

Copyright © 2003 by The Curators of the University of Missouri University of Missouri Press, Columbia, Missouri 65201 Printed and bound in the United States of America All rights reserved 5 4 3 2 1 07 06 05 04 03 Library of Congress Cataloging-in-Publication Data Voegelin, Eric, 1901– [Works. 1989] The collected works of Eric Voegelin / edited with an introduction by Ellis Sandoz. p. cm. Vols. < > published by University of Missouri Press, Columbia. Vol. 33 published in 1989. Includes bibliographical references and indexes. Contents: v. 1. On the form of the American mind — v. 2. Race and state — v. 3. The history of the race idea — [etc.] isbn 0–8071-1826–5 (v. 1 : alk. paper) — isbn 0–8071-1673–4 (v. 2 : alk. paper) — isbn 0–8071-1843–5 (v. 3 : alk. paper) — [etc.] 1. Philosophy. 2. History—Philosophy. 3. Political science—Philosophy. I. Sandoz, Ellis, 1931- . II. Weiss, Gilbert. III. Title. b3354.v88 1989 193—dc20 90–032092 isbn 0–8262-1482–7 ⬁ ™ This paper meets the requirements of the American National Standard 䡬 for Permanence of Paper for Printed Library Materials, Z39.48, 1984.

Designer: Albert Crochet Typesetter: Bookcomp, Inc. Printer and binder: Thomson-Shore, Inc. Typeface: Trump Mediaeval

Contents Editors’ Introduction 1. 2. 3. 4. 5. 6. 7. 8. 9.

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Dickinson’s Theory of Sovereignty and the Pure Theory of Law The Transaction The American Theory of Property The American Theory of Due Process of Law and Freedom The Unity of the Law and the Social Structure of Meaning Called State Max Weber The Austrian Constitutional Reform of 1929 Ought in Kant’s System Postscript to The Art of Thinking

89 130 148 180 228

Index

239

27 53 63 72

PUBLISHED ESSAYS, 1929–1933

Editors’ Introduction

In the 1930s and 1940s, the American academy was invaded by a wave of European emigrés fleeing the Nazi tyranny in Central and Western Europe. Eric Voegelin was among those intellectuals and scholars who made their way to the shores of the New World. His flight from the Gestapo in 1938, by which time the last of his five books to be published in pre-war Europe had appeared (Die Politische Religionen), might reasonably serve as the biographical marker for a break in his intellectual journey.1 Through the course of Voegelin’s scholarly career in Vienna, however, the careful reader can trace several intellectual breaks alongside developments and continuities, just as similar patterns are visible during the twenty years he spent in the United States, then in Munich, and finally at the Hoover Institution at Stanford University in the 1970s and 1980s. Tracing these changes and continuities in Voegelin’s intellectual formation over time is not merely an antiquarian, philologi1. Eric Voegelin, The Political Religions, in Modernity without Restraint: The Political Religions; The New Science of Politics; and Science, Politics, and Gnosticism, ed. Manfred Henningsen (Columbia: University of Missouri Press, 2000), 19–73, vol. 5 of The Collected Works of Eric Voegelin (hereinafter cited as CW); cf. Sandro Chignola, “ ‘Fetishism with the Norm’: Eric Voegelin between Sociology and ‘Rechtswissenschaft’ (1924–1938),” Occasional Papers 10 (Munich: Eric-VoegelinArchiv, Ludwig-Maxmilians-Universität, 1999). Chignola sees Politische Religionen as the endpoint of the complex considerations in Voegelin’s political analyses up to 1938, forming a “knot” of problems that remain at the core of his later work (66– 71). Other English-language treatments of Voegelin’s thinking during this period that treat the essays in the present volume include: Sandro Chignola, “The Experience of Limitation: Political Form and Science of Law in the Early Writings of Eric Voegelin,” in Politics, Order, and History: Essays in the Work of Eric Voegelin (Sheffield: Sheffield Academic Press, 2001), 61–84; Barry Cooper, Eric Voegelin and the Foundations of Modern Political Science (Columbia: University of Missouri Press, 1999), chap. 8, and “Constituent Elements in the Genesis of Voegelin’s Political Science,” Zeitschrift für Politik 48, no. 3 (2001): 243–56.

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cal exercise; rather, it is an important aspect of accurately interpreting the essays contained in this and other volumes of Voegelin’s collected works. Indeed, an awareness of such development reflects to some extent a characteristic at the core of Voegelin’s later political philosophy, since the truth of existence is to be found for Voegelin not in a final dogma, but in the traces that others have left behind of their exploratory and meditative analyses of reality and in our own investigations of the same. As Barry Cooper has argued in a study of Voegelin’s early work, much of what is presented here and in the other volumes of the Collected Works that contain the first twenty years or so of Voegelin’s philosophical and scientific efforts is presupposed in his later studies.2 The essays contained in the present volume belong to the five years following Voegelin’s trip to the United States of America out of which he produced his book On the Form of the American Mind3 and during which he made the decisive break with the neo-Kantian European positivism of the “pure theory of law” as propounded by Hans Kelsen, one of his doctoral advisers and the preeminent legal theorist of the European continent. During this time, Voegelin was a junior scholar whose appointment as Privatdozent at the University of Vienna had failed to assure much financial security. These essays reflect the ways in which Voegelin refined his movement away from political science (Staatslehre) conceived as legal science, toward one based on philosophical anthropology that attends to the “existential experiences” (Existentialerlebnisse)4 that generate political community. This deepening reformulation of political science would receive its first comprehensive expression in his two books on race and then in a lengthy examination of the Austrian constitution.5 We therefore see in several essays of this volume 2. Cooper, “Constituent Elements.” 3. Eric Voegelin, On the Form of the American Mind, trans. Ruth Hein, ed. with an introduction by Jürgen Gebhardt and Barry Cooper (Columbia: University of Missouri Press, 1995), vol. 1, CW. 4. Eric Voegelin, Rasse und Staat (Tübingen: J.C.B. Mohr [Paul Siebeck], 1933), 3; English: Race and State, trans. Ruth Hein, ed. with an introduction by Klaus Vondung (Columbia: University of Missouri Press, 1997), 4, vol. 2, CW. 5. Voegelin, Race and State; The History of the Race Idea: From Ray to Carus, trans. Ruth Hein, ed. with an introduction by Klaus Vondung (Columbia: University of Missouri Press, 1998), vol. 3, CW; The Authoritarian State: An Essay on the Problem of the Austrian State, trans. Ruth Hein, ed. with an introduction by Gilbert Weiss (Columbia: University of Missouri Press, 1999), vol. 4, CW. The intellectual and historical background of this period of Voegelin’s work can be found in the editors’ introductions of these volumes, as well as in Eric Voegelin, Published Essays,

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editors’ introduction

Voegelin’s efforts to work himself free of what he had come to consider “something of a dead end.”6 Hovering in the background as well is his pointed claim in Race and State that the present human knowledge of human things had come to grief, as evidenced by the predominance of race thinking at the time. The nine essays contained in this present volume are in continuation with the essays of volume 7 of the Collected Works, tracing Voegelin’s intellectual development through the end of the third and into the fourth decade of the twentieth century. By the time we reach the final essays of this volume, we are beginning to recognize the Voegelin who is familiar to English-speaking readers in the New World of the 1950s and beyond. These essays not only show how Voegelin’s reformulation of political science proceeded, they also reflect important theoretical breakthroughs that were not previously evident to him. Like some of the essays in volume 7 of the Collected Works, the essays in this volume reflect the theoretical and practical concerns that Voegelin examined in the United States while reflecting his increasing engagement with European scholars of state as well as the influence of solidarism among French and German scholars. The topics of the essays range from pragmatic questions, including American theories of property, economic transactions, due process of law, and Austrian constitutional reforms, to speculative questions, including theories of sovereignty and law, Max Weber’s science and the spiritual form of Europe, Kant’s understanding of moral duty, and the idea of solidarity as the substance of democratic society. The fundamental difficulty Voegelin faced during this time was that political science (Staatslehre) was little more than legal theory, most concisely articulated by Hans Kelsen. Voegelin was well aware of the limitations of political science understood this way. He recognized that political community could only be understood as a “meaningful unit” (Sinneinheit) when the legal order was understood within the context of the moral reasons that generate political order. The essays of this volume indicate the manner in 1922–1928, trans. M. J. Hanak, ed. with and introduction by Thomas Heilke and John von Heyking (Columbia: University of Missouri Press, 2003), vol. 7, CW. 6. Eric Voegelin, Review of Verfassungsrecht und soziale Struktur by Dietrich Schindler (Zurich: Schulthess und Co., 1932), in Zeitschrift fur ¨ Öffentliches Recht 14 (1934): 256–57, reprinted in translation in Eric Voegelin, Selected Book Reviews, trans. and ed. Jodi Cockerill and Barry Cooper with an introduction by Barry Cooper (Columbia: University of Missouri Press, 2001), 84, vol. 13, CW.

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which Voegelin discovered how the legal order properly relates to those “existential experiences.” Voegelin recollected that, during this period, he was developing a system of Staatslehre that included the theory of law and of power. His initial attempt at understanding Staatslehre examined the problem of state-form, for which, he argued, legal theory could not account.7 He recalled that he had to give up the project of Staatslehre because, having moved beyond legal theory, he discovered that he “knew nothing whatsoever about political ideas,” so that he “began to concentrate on acquiring knowledge of specific ideas for the purpose of analyzing the problem of the so-called ideas with concrete materials in hand.”8 He would later deal extensively with political ideas in his race books and, of course, in his History of Political Ideas. However, we already see in the essays in the present volume how he drew from the phenomenon of political ideas to structure his political and legal inquiries in such a way that political ideas inform and thus unify the legal and moral orders of the state. Moreover, he explicitly stated in the introductory paragraphs to Rasse und Staat that he saw a number of these essays as contributions to a single enterprise, namely, the development of a comprehensive Staatslehre.9 Similarly, a footnote to one of the essays that he cites in the introduction of that book and which is included herein, “The Unity of the Law and the Social Structure of Meaning Called State,” indicates that the essay was intended as part of a larger work on a “theory of the principles of the state.”10 The idea of solidarism, the key theme of this volume’s final essay, “Postscript to The Art of Thinking,” unifies political science for Voegelin, because it constitutes the “existential experience” that unifies the moral order with the legal order. Voegelin refers mostly to French efforts to derive solidarism from the Pauline symbol, homonoia, to signify it as the substance of democratic political order. He also refers to German solidarity ideas, most notably those of Max Scheler, whose Die Stellung des Menschen im Kosmos he read in 1928, the year it was published, and whose philosophical 7. Voegelin, “On the Theory of the State Form,” in Published Essays, 1922–1928, 206–54; Eric Voegelin, Autobiographical Reflections, ed. with an introduction by Ellis Sandoz (Baton Rouge: Louisiana State University Press, 1989), 38; Voegelin, Race and State, 5. 8. Voegelin, Autobiographical Reflections, 38. 9. Voegelin, Race and State, 1–7. 10. 89 n 1, below.

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editors’ introduction

anthropology enabled the scientific breakthrough toward which he was working.11 Homonoia is reflected in various symbols in different Western societies, including most luminously in John Dewey’s characterization of democratic community as “like-mindedness.” If it is not too unscientific to read a theme from a 1932 publication into essays that were published as early as 1929, one can also say that those earlier essays implicitly, and in some cases explicitly, point toward the idea of solidarism as the means of transcending the limitations of legal positivism and of advancing the task of a rigorous political science of unifying the moral and legal orders to obtain a clear understanding of political phenomena. Voegelin provides an overview of the problem of Staatslehre in his introduction to Race and State, which illuminates the problem with which he deals in the essays in this volume: An essential problem, as yet posed only inadequately in Staatslehre, is the justification of the phenomenon of law [Rechtserscheinung]. The phenomenon of law is to be traced to its origins, one of which is to be found in the moral experience of the individual, while the other resides in the experience of the community. From the moral experience of the individual future real states of affairs (actions and their consequences in the environment) receive the index of “what is to be done”; from communal experience, it seems to me, emerges that universality of the norm that renders it obligatory for a majority of persons.12

Voegelin argues that moral experience provides the context in which to understand the phenomenon of law, which is expressed by what legal scholars call the “norm.” Yet, the “norm” is general and only becomes particularized when it is filtered through the “fundamental human experiences” that give rise to law and community. These experiences, which include property, obligation, and family, provide the context that informs the norm, and they also “serve 11. “Postscript to The Art of Thinking,” 234 below; “Ought in Kant’s System,” 181 n 1 below. Max Scheler, Die Stellung des Menschen im Kosmos (Darmstadt: Reichl, 1928). English edition: Man’s Place in Nature, trans. Hans Meyerhoff (New York: Noonday Press, 1961). On Scheler’s influence on Voegelin, see Cooper, Eric Voegelin, 167–75; William Petropulos, “The Person as Imago Dei: Augustine and Max Scheler in Eric Voegelin’s Herrschaftslehre and Political Religions,” in the Politics of the Soul: Eric Voegelin on Religious Experience, ed. Glenn Hughes (Lanham, Md.: Rowman and Littlefield, 1999), 87–114; and David Levy, Political Order: Philosophical Anthropology, Modernity, and the Challenge of Ideology (Baton Rouge: Louisiana State University Press, 1987), 80–82, 93. 12. Voegelin, Race and State, 2–3, citing his essay, “Ought in Kant’s System,” published herein.

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to delimit the specific action by which the community constitutes itself as having political existence.” Put colloquially, the “fundamental human experiences” provide the moral reason for the norm, and they also provide the “meat” or historical content of the norm. We shall see below how Voegelin handles this problem, especially in the essays on law: “Dickinson’s Theory of Sovereignty and the Pure Theory of Law” (essay 1) and “The Unity of the Law and the Social Structure of Meaning Called State” (essay 5). Voegelin concludes these considerations in the introduction of Race and State by identifying two areas of political community that Staatslehre has hitherto treated inadequately and that it is the task of political science to understand: (1) regulating the actions of the community’s members with one another, and (2) regulating the actions of the community as a political entity. Property is the most important example of the first area, to which he attends in essays 2, 3, and 4 of this volume. Noting that property has been the central theme of classical natural right doctrines (i.e., English, French, and German theories dating back to John Locke), he observes that their dogmatic manner in handling property requires “a transformation . . . into an analysis of existential experiences that make regulation of certain institutions (property, obligation, family) the inevitable part of any legal order.”13 The second area requires the reformulation of political science to move beyond legal science and to incorporate the hitherto mentioned “fundamental human experiences” that include ideas of personhood and community. Voegelin continues in Race and State with a brief critique of Hans Kelsen’s legal theory, which “purified” the law of social, moral, ethical, and anthropological considerations. His examination echoes ideas that appear in previous writings and anticipates much of his major critique in The Authoritarian State.14 Two points that bear on the present collection of essays need emphasis. First, Kelsen’s purification of the law “conjured . . . out of existence” the first area of political community by treating the private legal sphere as a “sham problem” that is never traced back to its roots in human nature (i.e., back to property, obligation, and family). Second, the simple fact of purifying the law of nonlegal considerations inadvertently clarified those considerations. Whereas earlier they were 13. Voegelin, Race and State, 4. 14. Voegelin, Authoritarian State, 163–212.

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editors’ introduction

“grouped in an inadmissible way with the problems of the person and the community,” Kelsen’s purification enables the political scientist to find a way of regrouping them in an admissible way.15 We now turn to the ways that Voegelin followed these purifying efforts to reformulate empirical political science so as to account for those “fundamental human experiences.” The essays of this collection can be divided into five groups. Essays 1, 5, and 7 represent efforts at a transition from legal positivism to political science; essays 2, 3, and 4 deal with property; essay 6, on Max Weber, hints at the limits of positivism in general; essay 8, on Kant’s notion of duty, constitutes a philosophical nexus that demonstrates the scientific necessity of wedding the legal and moral orders; and essay 9 serves in part as an end point toward which all of the essays are directed. The success of “purified” legal positivism depends on its ability to provide an account of law that views it as separate from nonlegal considerations and that can account for a unified sovereign (e.g., monarchy or constitution) that is self-sustaining and whose “validity” does not depend on those nonlegal considerations. This is the theme of essays 1 and 5; essay 7 shows how the theory fails in practice in the case of the Austrian constitution. Essays 1 and 5 differ in scope from Voegelin’s critiques of Kelsen, however, because both discuss authors who attempt to articulate a positivist theory that accounts for democratic state forms, which Kelsen avoided altogether. Both authors also fall short of their objective of basing political community upon law alone, and thus their efforts point toward the need of political science to articulate the moral context in which law operates. Of the three essays on law, essay 1 illuminates the most clearly the theoretical problem of connecting the legal and moral orders. It deals with the institutionalist theory of the American scholar John Dickinson, for whom “sovereignty is the unity principle of the order of positive law or the state. Thus unified, the system has been clearly distinguished from the causal sphere of existence as well as from norm systems of a different kind.”16 Being an institutional15. Voegelin, Race and State, 7. 16. “Dickinson’s Theory of Sovereignty and the Pure Theory of Law,” 37 below. John Dickinson (1894–1952) taught at Princeton University for many years and published numerous books and articles on law, administration, political authority, and democratic order, mostly on the United States, but also on Rome and on the

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ist, Dickinson assumes a “pragmatic” or lawyerly attitude toward questions of law, where “formal problems of law become apparent to him only as features of a concrete process of establishing the law; indeed, they cannot be separated from this process.”17 Put in terms related above, the general “norm” only becomes “real” for the institutionalist when it becomes particularized, which is an idea that Voegelin treats in his examination of Ernst Bierling’s “purified” theory in essay 5. Dickinson’s institutionalism leads him to regard the United States Supreme Court as the location of sovereignty in the American political system, because it is the supreme organ that tests the validity of legislation. That is, the sovereignty of the people, as obtained by the Constitution, is made particular and “real” by the court. Yet, as contemporary debates over “judicial activism” show, regarding the Supreme Court in this way appears to transfer sovereignty from the Constitution over to its main interpreter, and Dickinson realized that the court still requires an “interpretive schema” to serve as the norm that is the location of sovereignty. If that norm is not the uninterpreted Constitution, however, it is certainly not a higher norm such as international law. Thus, Voegelin observes, “In the institutionalist style, the binding character of norms disappears with the cessation of organizational structuring. Above the state remain only institutional stumps, first attempts at the formation of law.”18 The very incompleteness of Dickinson’s formulations, however, points to the means of moving beyond legal positivism toward political science because, despite his institutionalism, Dickinson is quite willing to refer to the moral order as the means of providing a unity of meaning while keeping the legal order “open”: The legal system remains open toward the top, even if the appearance of legal procedure is preserved by the appointment of a tribunal as an organ of final decision. And the final thing upon which the legal medieval period. Works include Administrative Justice and the Supremacy of Law in the United States (Cambridge: Harvard University Press, 1927), The Aims and Methods of Legal Education, (St. Paul, Minn.: West Publishing Company, 1931), and Death of a Republic: Politics and Political Thought at Rome, 59–44 b.c., ed. George Lee Haskins (New York: MacMillan, 1963). Voegelin’s essay focuses on a pair of articles: “A Working Theory of Sovereignty, I,” Political Science Quarterly 42, no. 4 (December 1927): 524–58, and “A Working Theory of Sovereignty, II,” Political Science Quarterly 43, no. 1 (March 1928): 32–63. 17. “Dickinson’s Theory of Sovereignty and the Pure Theory of Law,” 38 below. 18. Ibid., 46–47.

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editors’ introduction system supports itself is not a legal maxim but of the “spirit in which the highest organs fulfill their functions.” “It [‘a government of laws’] can only mean a government where the sovereign is imbued with what we may describe as habits of constitutional morality and of selfimposed respect for self-imposed rules. . . . [I]ts effective functioning will always depend not merely on machinery but on the existence within the organs of government as well as within the community at large of certain habits and states of mind which will make for restraint on the part of the one, and for obedience on the part of the other.”19

Dickinson’s pragmatic attitude opens up legal theory to a consideration of the “fundamental human experiences” that serves as both the spirit of the laws and their particular expression: “This path is cleared, finally, by the insight that ultimate control of a legal order is a meta-legal affair, a question of the personal, statesmanlike qualities of the highest organs.”20 The main shortcoming of Dickinson’s approach, however, is that it fails to consider the identity of those statesmanlike qualities. In other words, his theory remains “open” but it lacks determinate content. Only a political science that can incorporate moral and legal orders can be fully empirical. Voegelin sees the same implicit reliance of the legal order upon the moral order in Ernest Bierling’s “purified” theory of law, the subject of essay 5. Even though Bierling’s “purification” is not as decisive as is Kelsen’s, Voegelin examines it because it illuminates the “problem of gradation theory,” which, analogous to Dickinson’s institutionalism, examines how the fundamental “norm” becomes particularized and made concrete as it is “acknowledged” by lower-order officials, administrators, and ultimately by those who live under those laws. Further, Bierling’s theory is important because, similar to Anglo-American legal theorists but unlike most Continental theorists, it attempts to prove that “acknowledgment by those subject to the law is to serve as the basis of the validity of norms.”21 In other words, Bierling departs from most Continental 19. Ibid., 51–52, citing Dickinson, “A Working Theory of Sovereignty, II,” 63. 20. “Dickinson’s Theory of Sovereignty and the Pure Theory of Law,” 52 below. 21. “The Unity of the Law and the Social Structure of Meaning Called State,” 91 below. This is the key element of Harold Laski’s pluralistic theory of sovereignty, where “individual conscience [is] the only true source of a law which claims obedience from its subjects.” Voegelin translated and published one of Laski’s articles during this period (“Das Recht und der Staat,” Zeitschrift für öffentliches Recht 10 [1930]: 1–17; English original: “Law and the State,” Economica no. 27 [November 1929]: 267–95). Quotation taken from p. 283 of the English original.

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legal theorists in attempting to treat the democratic stateform as something unique and not simply as a derivation of monarchy.22 Bierling, unlike Dickinson, attempts nevertheless to close off the legal sphere from nonlegal considerations, but in doing so, observes Voegelin, he inadvertently illuminates subjective psychological attributes on which, for Voegelin, the legal order rests. Bierling’s positivism relies heavily on psychology because of the role he gives “acknowledgment” in his attempt to make democracy unique. Acknowledgment here means respect or habitual recognition of the law and so encompasses explicit and implict consent to it. Voegelin summarizes the meaning of acknowledgment as “an awkward expression for the reality that a norm presenting itself as a legal norm can be applied to human conduct in social reality. A basic norm—a constitution—is acknowledged only when an identifiable group of people has patterned its conduct on a legal order that is derived from this basic norm.”23 Bierling intends for “acknowledgment” to serve as the links of the chain that tie together the various levels of the law, which receive validity by those who acknowledge the norm under which they live. His theory of gradation requires that the general norm is sufficiently general so as not to anticipate the contents of lower orders of law (e.g., the constitution does not anticipate the contents of criminal or commercial law); otherwise, there would be no need for lower orders of law or of officials to interpret them. Up to this point, “acknowledgement” fits within the parameters of Bierling’s positivism. His very desire to provide a central role for “acknowledgment” as an indispensable ingredient of his recognition of the democratic stateform as sui generis and not simply a derivation of monarchy, however, undermines his ability to “close” the legal system because it requires him to consider the act of founding a democracy, which leads the legal scholar into anything but the “purified” realm of political deliberations: Probing beyond the act of generating a constitution and inquiring as to the origin of its meaning, we stumble into a maze of wishes, programs, commands, acts of obedience, and theories of all persons who participate in the political life of the time and who interact 22. Voegelin, “On the Theory of the State Form,” 244 ff.; see also editors’ introduction in Published Essays, 1922–1928, 12–13. 23. “The Unity of the Law,” 95 below.

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editors’ introduction with each other, understand each other, misunderstand each other, intersect, and amalgamate. That we then select from this boundless diversity the conversations of several gentlemen and set apart their discussions, meetings, signatory acts, etc., as an act of generating a constitution can never be justified from the standpoint of the formal context of acts and schemata, but rather requires material meanings and normative interpretations.24

Unlike Dickinson, whose pragmatic institutionalism led him to find an approximate point of closure in the spirit of the laws, Bierling never clearly states where the legal order gets closed off. At most, it gets closed off only in a material sense in the supreme legislative and administrative organs: “At this material content of meaning, Bierling makes the cut-off that he perceives will delimit the meaningful unit of the state and its order. Although the formal context of acts and schemata may indeed reach behind this constitution to earlier legitimating constitutions, Bierling’s theory of acknowledgment rejects this path to legitimacy.”25 As a result, Voegelin finds that Bierling, like Dickinson, illuminates the road toward unifying the legal and moral orders, but other pieces of the puzzle remain for Voegelin to work out in order to embark in the right direction. We now turn to essays 2, 3, and 4, which deal with various economic matters, most notably property, one of the “fundamental human experiences” that Voegelin would later list in the introduction to Race and State and part of the “private” sphere ignored by the positivists. He observes that Anglo-American sources offer greater opportunities for reflection upon the unity of meaning even though those very sources treat property “dogmatically.” The three essays revolve around the American understanding of freedom and property, as seen in Supreme Court decisions, economic transactions, and their theoretical background in John Locke. Following his criticisms of positivism, Voegelin treats the juridical and economic questions within the context of the Lockean notion of the natural right to property and freedom, to show that the “fundamental experience” of property must be understood in terms of political theory, in addition to utilizing economic and juridical categories. For example, an economic understanding of a property transaction 24. Ibid., 113. 25. Ibid., 115.

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that focuses on market value, buyer, and seller ignores the role that the state plays in setting up laws and a coercive order that ensures the fulfillment of contracts. Similarly, a juristic understanding of the transaction overlooks the market pressures that participants experience.26 Voegelin provides the example of the Supreme Court decision regarding the establishment of a monopoly of New Orleans slaughterhouses, which put independent butchers out of business.27 The Supreme Court dismissed the butchers’ complaints about the monopoly on the grounds that it did not threaten their property. In juridical terms, the monopoly did not undermine the capability of the butchers to enter into or to fulfill contracts; in economic terms, the butchers remained capable of using or disposing of their property, understood as their tools, their butchershops, etc. Only the minority decision, Voegelin observes, pushed beyond economic and juridical categories by defining property, not as “a physical object in use by a single person” as the majority had defined it, but more expansively to include the function of those tools within the definition of property: “Not the concrete thing, but the individual’s entire sphere of action, a sphere ensuring him of a certain quality of life in a particular social situation, had to be the property. Thus does the concept of property absorb a person’s profession, occupation, trade, his labor, and the right to put it to use.” John Locke’s “dogmatic” natural right teaching provides the philosophically prior context for the Supreme Court majority’s inadequate handling of property.28 The Supreme Court had a Lockean understanding of property and freedom because, like Locke, it conceived of property as the materials and labor that a person uses. Like Locke, the court focused on the solitary individual, alone with his property, and did not consider whether changes in the social and economic system could undermine the very conditions in which he can use his property. Locke’s model of property takes as its content the solitary farmer on the American frontier, who responds to the challenges of nature and who, because of his isolation from the 26. “The Transaction,” 53–54 below. 27. “The American Theory of Property,” 64–66 below; “The American Theory of Due Process of Law and Freedom,” 73 below; In Re Slaughter-House Cases, 83 U.S. 36 (1872). 28. “The Transaction,” 55–57 below; “The American Theory of Property,” 70–71 below.

12

editors’ introduction

social system, is not exposed to social arbitrariness. Locke had the open frontier of America in mind for his theory of property and state of nature, which is captured in his phrase “in the beginning all the World was America.”29 Voegelin’s concern with Locke runs deeper than simply complaining that Locke’s historical horizon was limited. The principles of natural right in Locke’s theory are themselves inadequate precisely because their indeterminacy requires that they only receive content with reference to historical practice.30 Locke provides the context for the juridical and economic treatments of property by showing how avoiding death is the “fundamental experience” that produces property: “That means that the activity of his body must allow itself to bind with objects of nature in order to produce the new unities that serve to preserve life and procure food and shelter.”31 The regulation of property comes down to how much a person can use to satisfy his needs, which means that a political order that regulates property along these lines is one that is oriented primarily to the body. Such a basis for regulating the use of property can only provide vague guidelines: “This determination is very vague, for nothing has yet been said about the content of the capacity to use [Genußfähigkeit]—or, stated less psychologically, about the system of goals of action [Handels]. Only when Locke has reduced the capacity to use to the corporeal meaning of the term does the term acquire a specific content.”32 To put it in the terms of the classical-medieval understanding of property, Locke lacks a theory of proper use (usufruct) because he has removed the consideration of the purpose of property and left the regulation of its use to the indeterminate uses of the body. The lowering of the standards of politics to the concerns of the body would be a topic to which Voegelin would return in his philosophical anthropology, 29. John Locke, “The Second Treatise of Government: An Essay Concerning the True Original, Extent, and End of Civil Government,” in John Locke, Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), chap. 5, para. 49. 30. Michael Oakeshott makes a similar observation when he remarks that Locke’s Second Treatise of Government is a distillation of English political practice and not a statement of abstract principles (Rationalism in Politics and Other Essays [Indianapolis: Liberty Fund, 1991], 53). However, he and Voegelin draw different conclusions about this observation. 31. “The Transaction,” 55 below. 32. Ibid., 56 below.

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published essays, 1929–1933

although he does not explicitly consider the problem in this essay. Instead, he observes that the indeterminacy of the needs of the body leads Locke, and the Supreme Court, to look to history to provide content to the regulation of property. For Locke, history replaces usufruct, and, as one should expect, historical conditions change and one’s theory must account for such changes. The majority decisions of the Supreme Court reflect this inadequate and historically dated view of property. The minority decisions, however, reflect reconceptualizations of that view that are more in tune with the ways that individuals in large industrial societies find themselves in interconnected webs where a change in the social system can be catastrophic for individual members, as was the case for the New Orleans butchers. By showing more sympathy toward the rights and protection of workers, for example, the court showed signs of viewing individual members of society as ends in themselves. By doing so, their understanding of political community was moving beyond the Lockean notion of personhood to something resembling the ideas of solidarism or John Dewey’s “like-mindedness” where members of a community “can advance equally to the essence of their person and whom the individual who has reached this goal through the advantage of circumstances is obliged to provide help.”33 The resulting form is characterized by a tension between the Lockean notion of property and freedom and the solidarist one: “The court does not press toward full clarity of thought on the matter. It contents itself instead with making decisions from case to case, and because the general principles themselves do not admit of any clear conclusions, the court’s attitude changes with its composition and with the nature of the particular case.”34 Aware that a purely juridical or economic definition of property produces ill effects, the court practices the kinds of statesmanlike virtues of which Dickinson speaks and which, if one may put it this way, “close” the “open” legal system by means of political theory. In this way does the normative moral order unify the positive legal sphere. Voegelin demonstrates the necessary logic of how the moral order unifies the legal sphere 33. “Postscript to The Art of Thinking,” 233 below. Voegelin notes how this idea “actually existed in America in the pioneer period. It has also had further influence as an idea in industrial society in the form of an influence on socialpolitical legislation and administration of justice.” 34. “The American Theory of Due Process of Law and Freedom,” 87 below.

14

editors’ introduction

when he directs his attention to Kant’s understanding of duty or obligation (“ought”)35 as the means of unifying the normative with the empirical spheres. Obligation is, of course, at the heart of political theory. The question concerning what obligates obedience to a political regime animated the political theory of Plato and Socrates,36 and it must be answered by any political theory that makes a pretense to present a complete picture of political reality. Indeed, the misbegotten efforts of a positive theory of law to answer this question were a key problem that motivated Voegelin to look elsewhere for a more comprehensive theory of politics. The essay on Kant’s theory of obligation is one of the first expressions of Voegelin’s deepening conviction that a theory of politics must ultimately be rooted in an adequate philosophical anthropology. The legal theorist who understands “legal theory as a theory of the science of positive law,” begins Voegelin, need not “know nor ask” what “the peculiarly imperative aspect of legal statements” is.37 The moment, however, at which we want to develop a political science, which requires that we “understand the phenomenon of law in the context of the totality of our experience of the state,” we “have to examine further the types and origins of compulsion with which those universal and individual schemata of human action that we define as legal statements are endowed.”38 For a positive, pure theory of law, on the other hand (and here Voegelin cites directly from Kelsen), “the obligatory quality [das Sollen] of positive law can always be only hypothetical. . . . On the assumption that one should conduct oneself in accordance with the resolutions of a particular popular assembly, a particular parliament, that which this monarch commands, which this people’s assembly or parliament resolves is lawful, norms that have come into being in this way are ‘valid,’ that which these acts entail ‘should’ occur.”39 Seen from a positivist perspective, therefore, law “is and must be a coercive order,” and this coercion has the appearance of arbitrariness, because a positivist pure theory of law, 35. The various nuances of sollen, das Sollen, and das Gesollte lead us to translate these terms as “obligation,” “ought,” or “the ought” as the context and English idiom demands. 36. See Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Boston: Little, Brown, 1960), 51–55. 37. “Ought in Kant’s System,” 180 below. 38. Ibid. 39. “The Unity of the Law and the Social Structure of Meaning Called State,” 116 below.

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published essays, 1929–1933

by virtue of the procedural and epistemological restrictions it has declared for itself, cannot account for the external necessity of any particular law. For the nonpositivist political scientist, however, the origins of the phenomenon of law lie in individual and community experiences of moral reckoning and solidarity that first give rise to the problem of obligation. Supposedly inspired by Kant, the legal positivists try to divide the empirical from the normative so that they do not have to worry about the ought. In contrast, Voegelin demonstrates how the ought is at the very core of the Kantian construction of empirical and noumenal, and how Kant’s entire effort of distinguishing the two realms is precisely to combine them. One popular interpretation of Kant is largely epistemological. Kant develops a minimalist ontology that is driven by epistemological concerns something like this: A [Cartesian] skepticism about whether our senses give us access to reality is the background of the major philosophical thinking ever since. In the thought of Kant, . . . the real or noumenal world must remain forever impenetrable by our senses. We can only know what appears to our senses, the phenomenal world. And the orderly structure which enables us to grasp and deal with this phenomenal world is not inherent in it; it is provided by our minds which, for the necessities of our own reason, provide the rational structure by which we can make sense of the phenomena. The rational structure of the . . . world . . . is furnished by the necessities of human thought.40

While Voegelin would not dispute such a basic interpretation on its face, he finds something more than this going on in Kant’s thought. Behind the “sublime, pale, northerly, Königsbergian” idea of a real world41 is a “deeply stirring awareness of the spontaneity of action and of moral necessity.”42 Accordingly, even while the “main project” of the Critique of Pure Reason is “the critique of knowledge,” it has a deeper thrust, which is “to provide a foundation for practical freedom.”43 Voegelin finds support for this claim in an examination of the Third Antinomy,44 in which we find a 40. Lesslie Newbigin, The Gospel in a Pluralist Society (Grand Rapids: Eerdmans Publishing, 1989), 18. 41. Friedrich Nietzsche, Twilight of the Idols, trans. with an introduction and commentary by R. J. Hollingdale (London: Penguin Books, 1968), 40. 42. “Ought in Kant’s System,” 204 below. 43. Ibid., 210 below. 44. Immanuel Kant, Critique of Pure Reason, trans. Norman Kemp Smith (New York: St. Martin’s Press, 1929), 409–15 (A444–A452; B472–B480).

16

editors’ introduction

complex examination of epistemological problems that appears unrelated to any problem in ethics, but in which Voegelin uncovers an “ethical goal” that eventually supersedes the epistemological concerns that seemed originally to drive Kant’s investigations. Indeed, Voegelin argues that Kant’s concerns with the phenomenal world extend only to that point at which he can “gain a foundation for the doctrines of the freedom of the human as a rational being and of the experience of ought.”45 In Voegelin’s reading, Kant displays an “obsession with the this-worldly spontaneity of human action and its obligatory law,” and this obsession shows, not that Kant’s epistemological problems and their solutions are at the core of his philosophical investigation, but rather that a moral problem, embedded in a philosophical anthropology, is.46 While his theory of noumenal objects clearly has weighty epistemological implications, the primary objective of Kant’s philosophical enterprise is to make sense of the “rational [human] personality that is revealed by the experience of spontaneity . . . that illuminates existence.”47 In short, Kant’s investigation shifts fundamentally from the problem of “understanding how objects are present to a perceiving consciousness,” to the question of “how human existence is structured and how its structures are revealed to us.”48 The ironic subtext of Voegelin’s investigation is that it was a social science based on neo-Kantian epistemological principles— ultimately exemplified in Weberian sociology and Kelsenian legal theory—that had tried to eliminate or ignore such considerations, thereby rendering impossible a theory of the state that paid any attention to the ultimate basis of the state: human beings in the fullness of their moral, intellectual, spiritual, and physical existence. For Kant, in contrast, the moral experience of ought “is not a random philosophical topic beside others, but the one phenomenon of our existence that aroused him so profoundly that his entire philosophizing welled up from the ground of this arousal.” Indeed, “the identification of the rational personality and its freedom with the thing in itself is not to be understood as an incidental diversion from the main lines of the investigation or as the derailment of an epistemologist; rather, the application of basic epistemological 45. 46. 47. 48.

“Ought in Kant’s System,” 212 below. Ibid. Ibid., 215 below. Ibid.

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published essays, 1929–1933

concepts to the problems of ethics is the essential goal to which the theory of ideas in the Critique of Pure Reason is consciously directed.”49 The investigation leads Kant to posit explicitly an ideal state in counterpoint to and as a completion of Plato’s ideal state. Voegelin’s critique of Kant’s seeming formality—a formality that veils a conscious philosophical anthropology that in turn is the basis for an idea of the state—parallels his critique of the formality of the pure theory of law, which cannot either engender or sustain a theory of the state. As we see in Voegelin’s examination of Dickinson, so here, too, there is a “remainder” beyond positive law and institutionalism, and out of this remainder—the “personal, statesmanlike qualities of the highest organs” in one case,50 the “validity of a fundamental norm”51 in another, and the spontaneity of human action in a third—arises a motivation to a philosophical anthropology in which a theory of the state must ultimately be rooted. In 1925 and again in 1930, Voegelin published essays on Max Weber. The figure of Weber, moreover, looms prominently over Voegelin’s efforts during these years, and the twenty-six-page introductory chapter to The New Science of Politics in 1952 is, significantly, a critique of Weber’s enterprise upon which Voegelin proposes to build further. Voegelin engaged directly with Weber’s life and work for a fourth and final time in the final extant lecture of Hitler and the Germans.52 Neither of the earlier two essays nor the fourth undertakes an effort either to summarize Weber’s enterprise or to critique it in any systematic way. These first two and the fourth essay focus more on Weber as representative of his times, indeed, as a representative sufferer for the modern era.53 A summary comment concerning Weber’s “encyclopedic and frag49. Ibid., 217 below. 50. “Dickinson’s Theory of Sovereignty,” 52 below. 51. “The Unity of the Law,” 116 below. 52. Eric Voegelin, Hitler and the Germans, trans., ed., and with an introduction by Detlev Clemens and Brendan Purcell (Columbia: University of Missouri Press, 1999), 257, vol. 31, CW. This specific lecture, which is the eighth chapter of the book and entitled “The Greatness of Max Weber,” was also published separately as “Die Größe Max Webers,” in Ordnung, Bewußtsein, Geschichte, by Eric Voegelin, ed. Peter Opitz (Stuttgart: Klett-Cotta, 1988), 78–98. 53. The theme of representative sufferer would become central in the first four volumes of Voegelin’s Order and History. For example, see Israel and Revelation, vol. I of Order and History (1956; available Columbia: University of Missouri Press, 1999), 549–70, vol. 14, CW.

18

editors’ introduction

mentary” work54 that opens Voegelin’s review of Alfred Schütz’s Der sinhaffte Aufbau der sozialen Welt explains why: Because of the personality of its creator, the work of Max Weber is at once enormous in its thematic and intellectual extent and almost without a systematic center. This means that a linear account of the development of its basic ideas is scarcely possible. The points of entry are so numerous and relatively so unconnected with one another that the spiritual succession of the man and the work probably can only take the form of a prolongation of already focused investigations of the materials (sociology of religion, sociology of power, etc.) or of specific ideas in the theory of science. . . . Monographic treatments are necessary to grasp a thematic and theoretical significance that cannot easily be found in Max Weber’s summary account, which is as provocative as it is powerful.55

As representative thinker and sufferer, Weber reproduces the German national form in his own person and in his fragmentary and incomplete writings. In particular, we see in Weber an internal dialectic between “freedom and necessity” whose specific character is the result of a pervasive skepticism in German society that renders all valuations and claims concerning their finality or “rectitude” suspect. The breakdown of “causation” brought on by a disenchantment of the world (a world of no final causes that contains irreconcilable choices)56 can lead to an ethics of responsibility in which the individual cannot justify “his conviction according to which he was compelled to act thus and not otherwise,” but can only be led “by the daimon that steers his life’s fate.”57 The same “glare of disillusion and disenchantment,” however, can also lead to Nietzsche’s choice of irresponsibility, at least in the activity of contemplation. Weber could distinguish between a Nietzschean ethics of intention (Gesinnungsethik) and his own ethics of responsibility (Verantwortungsethik), but this distinction between the “daimonism of action” and “the deliberation of reason” is not sufficient to establish a new meaning of community.58 This “paradox of the act” was 54. “Max Weber,” 134 below. 55. Eric Voegelin, Review of Der Sinnhafte Aufbau der sozialen Welt by Alfred Schütz (Vienna: Springer Verlag, 1932), in Zeitschrift fur ¨ öffentliches Recht 14 (1934): 668–72, reprinted in translation in Eric Voegelin, Selected Book Reviews, 87–88. 56. “Max Weber,” 136–37 below. 57. Ibid., 137 below. 58. Ibid., 139 below.

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published essays, 1929–1933

reflected in German political experience: The political absorption of the German territories into a Prussian bureaucratic state form did not allow for the socially constructive communion of “great” individuals, nor did it allow friendship networks of such individuals (the Stephan Georg circle in which Voegelin participated, for example) to be similarly constructive, nor could even the vibrant culture of Weimar Germany or one of its aspects be translated into some representational form at the national level. In sharp contrast to Germany, the United States, France, and Britain had “achieved definitive national unity”; these “national communities . . . live within traditions of ideas that have been forming their political society and their people since the seventeenth century.”59 Voegelin’s comparison of Germany to the other European nations and to the United States of America is not unambiguous, however. On the one hand, the harsh glare of scientific reason had not yet disenchanted entirely the community forms of England, France, or America, and it had not yet left the individual entirely on his own to “create the world for himself anew” in each instance of decision. In the Lockean spiritual form of England, for example, reason could serve “as an instrument in the realization of values,” and it would “never [become] independent.” “Thus,” Voegelin reflects, “it never penetrates to the core of human and state activity in a reflective, paralyzing way.”60 This remarkable statement may help to explain Voegelin’s general disdain for English-speaking philosophy even while he admires the luminosity for the divine and the partial openness to classical ratio that persists in English and American society. On the other hand, the ironic use of the adjective paralyzing does not ultimately give German political and social thought-forms absolute respect either,61 which we see, for example, in Voegelin’s consistent half-praises for the pure theory of law in this volume. His view of both English-speaking and German political thought is on display here: The shortcomings of the former do not have the acidic effect on the meaningful unit that is a political entity that the scientific thoroughness of the latter does. England and France have a national spiritual form that their political thought59. Ibid., 131 below. 60. Ibid., 132 below. 61. Cf. Eric Voegelin, “Freedom and Responsibility in Economy and Democracy,” in Published Essays: 1953–1965, ed. with an introduction by Ellis Sandoz (Columbia: University of Missouri Press, 2000), 78–80, vol. 11, CW.

20

editors’ introduction

ways at least do not undermine; the “rough-hewn” political ideas in the United States help to incorporate the masses of immigrants that have landed on America’s shores into a homogenous mass, even if these political ideas create narrow horizons and historical ignorance.62 A unifying vision of a state is not some fetish of a post-positivist political science; it is a necessity for a political community if that entity is to be more than a collection of contending interests. Whatever its institutional arrangements may be, every state also requires core political principles around which it can cohere as a political entity. The “political life-form of the citizen” is the unifying principle around which the major Western democracies are organized. Other principles are also possible, but without some such organizing principle, as we have already seen, it is not possible to establish a political community. Before the Anschluß in 1938, a possibility to which Voegelin alludes in the final sentences of essay 7, Austria had no such unifying principle. Moreover, the machinations of partisan interests in the constitutional reforms completed in 1929 had eliminated or weakened not only the few resources for developing an “incipient consciousness of statehood,” and a “citizen ideal,”63 but also the institutional and legal arrangements needed for national cohesion. Thus, the Austrians were “not a nation,” and the Austrian republic was “not a national state.” Voegelin’s claim in 1930 that American scholars have the task, not of engaging in critical analysis, but of sustaining the regime is set in contrast with his own resolute political analysis of the fragmented Austrian constitutional and political situation in essay 7.64 The occasional comments mingled with his scientific analysis may sound more like social criticism than political science even to some contemporary ears, but this essay reminds us of the need for close, nonpartisan empirical work alongside careful theoretical analysis that together constitute the best political science. In this and in the final essay—the “postscript” to Dimnet’s Art of Thinking, we see respectively a negative and positive example of solidarity. Where the Austrians lacked national solidarity at any level—cultural, legal, spiritual, or institutional—and where the Germans similarly lacked a principle of national unity, at least at 62. “Max Weber, 132–33 below. 63. “The Austrian Constitutional Reform of 1929,” 167 below. 64. “Max Weber,” 132–33 below.

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published essays, 1929–1933

a cultural and spiritual level that could incorporate all members of the nation, the French in this particular instance had found and sustained a new principle of solidarity, which Voegelin experienced firsthand while on a study trip there during this period and which is a theme absent in his treatment of French politics in earlier essays.65 While the German difficulties with finding a principle of solidarity were not absent from the public life of other Western democracies, aristocratic, elitist, partisan, and scientific but politically corrosive ideas were overlaid in these nations with an “idea of the nation in which everyone has a rank identical to all others as a citizen and a person.”66 This idea enabled Abbé Dimnet to write a book on “the art of thinking” that was aimed at everyman without being a work either of aristocratic snobbery or of technical difficulty that would discourage the lay reader. Neither was it a “shallow, psychological introduction to philosophical questions” that one appears to have found in abundance on American bookshelves already in 1932.67 Rather, Dimnet’s belief, born out in personal experience, that “each individual citizen” could be educated and included “as a full person in the community” and his style of writing simply but accurately and penetratingly lead to a spiritually and intellectually insightful manual that guides the reader into a deeper appreciation for thinking and directs him to practical means for doing so. That a French writer could succeed as an author of such a book in the United States leads Voegelin to reflect on the “basic features of the spiritual situation of Western Europe and America and, by contrast to these, those of his own” in German-speaking Europe as a way of making the thought and the commercial success of the abbé’s book in America, England, and France comprehensible: For him, there is no spiritual elite and no masses lost to the spirit, but only members of a community who can advance equally to the essence of their person and whom the individual who has reached this goal through the advantage of circumstances is obliged to provide help. Author and reader of this book are connected, not as an outstanding spirit or specialist speaking to the lowly or unschooled, but as a human being speaking to a human being out of his conviction of solidarity.68 65. Autobiographical Reflections, 31, 34–36; “The Meaning of the 1789 Declaration of Rights of Man and Citizen,” in Published Essays, 1922–28. 66. “The Art of Thinking,” 231 below. 67. Ibid., 228 below. 68. Ibid., 233 below.

22

editors’ introduction

Voegelin’s own modest socio-economic background, his work at the Ottakring Volkshochschule in the 1930s, and his occasional activity as a public intellectual during that decade seem to indicate that he, too, took seriously this possibility of educating intellectually able non-elites.69 The details of this idea of solidarity, including its complex historical origins and its motivational substance, we leave to the delight of the reader. The influence of Alois Dempf, whose Sacrum Imperium70 Voegelin had read by 1932, will be apparent, and we leave it to the reader to observe the signs of this influence here and its traces into the History of Political Ideas of the 1940s. Voegelin’s strong recommendation of Dimnet’s book itself, incidentally, is deserved. The ideas and intellectual patterns characteristic of Voegelin’s later, better-known works had been established in their broad outlines. He had moved beyond the limitations of the Staatslehre of his early scholarly training and now had an idea of the road that he had to take to reorient political science so it would also be a science of man. The reader is invited to explore the first decisive steps of that road in the essays of the present volume. As in the previous volume of collected essays, we have updated in accordance with current standards Voegelin’s outdated method of citing (or not citing) sources. We are grateful to both translators for their efforts to make Voegelin’s scholarly prose accessible and accurate in idiomatic English, and we have attempted to ensure that this effort remains faithful to Voegelin’s meaning. Professor Heilke would like to thank the University of Kansas for its sabbatical leave policy, which made possible a concentrated attention to this volume, and to the Hall Center for the Humanities at the University of Kansas, whose generosity in several regards helped it to completion. Professor von Heyking would like to thank Professor Doctor Dietmar Herz of the Universität Erfurt for the opportunity to discuss the ideas contained herein and in volume 7 with his political theory group, and to the University of Lethbridge for affording him the opportunity to study Voegelin’s work. 69. See the editor’s introduction and the essays in Eric Voegelin, Published Essays: 1931–1939, trans. M. J. Hanak, ed. with an introduction by Thomas Heilke (Columbia: University of Missouri Press, 2001), vol. 9, CW. 70. Alois Dempf, Sacrum Imperium: Geschichts- und Staatsphilosophie des Mittelalters und der politischen Renaissance (Darmstadt: Wissenschaftliche Buchgemeinschaft, 1929).

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published essays, 1929–1933

We would also like to thank Julie Schorfheide for her fine copyediting, and Jane Lago and Beverly Jarrett, managing editor and director of the University of Missouri Press, respectively, for their ongoing support of the publication of the Collected Works of Eric Voegelin and of other important academic works concerned with Voegelin’s thought. It has been an honor to be associated with them and with the series editor, Ellis Sandoz, in the work on this and other volumes and in their larger project of making Voegelin’s widely scattered and multilingual work accessible in one language and one coherent collection. John von Heyking Thomas Heilke

24

PUBLISHED ESSAYS, 1929–1933

1 Dickinson’s Theory of Sovereignty and the Pure Theory of Law

In the two essays of “A Working Theory of Sovereignty,” Professor Dickinson of Princeton University develops a theory of sovereignty that is unquestionably defined by the Anglo-American tradition. Within that tradition, however, Dickinson’s work brings a development spanning centuries to a climax and clarity of conceptual formation that makes it seem an innovation compared to prior attempts.1 Beginning with Hobbes, we find in English political science a series of efforts—interrupted by long gaps—to gain a nonpolitical, purely juristic formulation of the problem of sovereignty. Locke had already come so far as to distinguish the nonpolitical sovereign (the people) and the nominal sovereign (the king) from the juristic sovereign (the highest legislative body). Bentham and Austin moved further in this direction, but the influence of the historical school drove their attempts back and it was Holland who first renewed Austin’s ideas. Since that time, they have never been broken off entirely. In 1891, Ritchie wrote his treatise “On the Conception of Sovereignty,”2 a work in which he summarized the development up to his time and formulated the problem essentially as Dickinson would develop it further. Following Ritchie some relatively insignificant contributions addressing the details of the problem were written; these are evident in the bibliographic data of Dickinson’s article. Since 1917, the juristic doctrine of sovereignty This essay orginally appeared as “Die Souveränitätstheorie Dickinsons und die Reine Rechtslehre” Zeitschrift für öffentliches Recht 8 (Vienna and Berlin: Verlag Julius Springer, 1929), 413–34. 1. Political Science Quarterly 42, no. 4 (December 1927): 524–48, and 43, no. 1 (March 1928): 32–63, hereinafter cited as I and II. 2. [David G. Ritchie, “On the Conception of Sovereignty,” Annals of the American Academy of Political and Social Science 1 (January 1891): 385–411.—Eds.]

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published essays, 1929–1933

was fully displaced in public discussion by Laski’s monographs3 on pluralistic political sovereignty, until Professor McIlwain placed it once again at the center of investigation with his essay in Economica (November 1926).4 Building further on McIlwain’s formulations, Dickinson has developed an institutionalist theory that distinguishes itself by its purposive effort to erect a juristic concept of sovereignty that is free of every misinterpretation, whether political, psychologistic, or from natural law. He sets up a program—and this is the novelty— that evinces in its clarity a close kinship with German attempts to purify both the legal sphere and legal concepts of nonlegal elements. Despite this program, Dickinson never speaks of a principle of purity of methods that would have prompted him to his undertakings, and in all probability his education did not include instruction in German methodology. Neither are his concepts logistic. Rather, his style of thought corresponds much more to the American institutionalism that also reigns in the discipline of national economy. All the more remarkable, then, is the far-reaching agreement of his results with those of the pure theory of law. Here, we confront the noteworthy fact—provided, of course, that the jurist in question does not let himself be influenced by political and metaphysical intentions—that a jurist’s efforts to gain knowledge of the essential characteristic of his problems lead him to understandings of both positive law and the basic concepts of legal theory that are scarcely distinguishable from those of the pure theory of law. The shared results are reached—to a large extent, though not entirely—independently of the style of thought reigning in each case; and these results retain their scientific validity even if one rejects the claim of both theoretical styles to be the only possible one for the entire area of the general theory of state. The materials given to both for theoretical formation determine the agreements and differences of the two theories. Kelsen has described these shared materials in the following way: “The sequence of levels in the generation of law—from the basic norm through the 3. Harold J. Laski, Studies in the Problem of Sovereignty (New Haven: Yale University Press, 1917) [1968 edition: New York: H. Fertig. Voegelin incorrectly cites the title of the 1917 edition of this work.—Eds.]; Authority in the Modern State (New Haven: Yale University Press, 1919); The Foundations of Sovereignty and Other Essays (New York: Harcourt, Brace, 1921). 4. C. H. McIlwain, “Sovereignty Again,” Economica 6, no. 18 (November 1926): 253–68.

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constitution in the sense of positive law, i.e., the laws, ordinances, and individual legal acts—is characterized by a peculiar parallelism of existential set of facts and norm. The norm of each higher level describes, as a component of its content, a set of facts that is valid as generating the law of the lower level.”5 The system of law is not a mere system of norms. Rather, each of these norms appears as embedded in a set of existential facts that is essentially legal—in the act of the organ. Now depending on where the theory places the emphasis, on the existential facts or on the norm, it appears styled as one or the other theory—as institutionalist or norm-logical. Just how deeply this tendency works on the material from the outset is evident in the remark that Kelsen adds to the description of the materials just cited: “Taking into consideration the important difference between an act that sets the norm and the norm that is set by this act, one can state the following: that which is the set of facts regarded from the higher level appears as norm regarded from the lower level.” Although Kelsen’s formulation still registers an important difference, it tends already to blur it by suggesting that the very same something can appear as a set of facts looking upward and a norm looking downward. Yet only the act element [Aktelement] can appear as a set of facts (and this looking downward just as much as looking upward), whereas the element of the embedded norm, even looking upward, is never a set of facts. In the following explanation of Dickinson’s theory we will introduce the parallels of its solutions to those of the pure theory of law, in order that the systemic questions of positive law as such can be recognized independently of their various stylizations, and the stylistic elements will emerge more clearly as well. This parallel guidance through and separation of the object from the elements of style will communicate new insights into the nature of the formation of theories in political science.

I. Dickinson summarizes the essentials of his theory in the following statements: Sovereignty in the legal sense is after all nothing more nor less than a logical postulate or presupposition of any system of order accord5. [Hans Kelsen, Allgemeine Staatslehre, vol. 23 of Enzyklopaedie der Rechtsund Staatswissenschaft (Berlin, 1925), 249.—Eds.]

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published essays, 1929–1933 ing to law. A system of law purports to be a body of general rules which produce like decisions in like cases, and are capable of being known with some degree of accuracy in advance. But if there is to be this uniformity in the rules applied throughout a whole community, then there must be a single final source of law which all inferior tribunals and officials within that community are content to recognize as speaking with ultimate authority, and to whose pronouncements they will therefore voluntarily conform, so far as they know how, their own separate acts and decrees. (I, 525)6

A different line of thought appears in each of the three statements of this passage. One has only to trace back one of them to plunge to the roots of Dickinson’s theory. The first statement refers to sovereignty as a logical postulate or assumption and moves within the sphere of legal logic. The second statement postulates the unity of the legal system. This unity in turn can exist (third thesis) only under the assumption of a single source of law from which all other norms of the system derive their validity. Other statements supplement the norm-logical content of this introductory passage and extend it further. The supreme source of law must exercise its function of unity in a dual way. First, it must decide among the various norms that lay claim to being valid norms of the system and provide the criterion of validity. Further, it must describe the jurisdictions of all organs—which themselves derive their authority to issue valid norms from this source—and define them against one another (I, 527). The hallmark of validity is the proof of origin through delegation by the supreme source of law, and the source of law, in turn, can itself be defined only by its function to unify the legal system. “Only that which passes through it has the force of law, and only after having passed through it and received its stamp of validity” (I, 534). Yet recognizing whether a norm belongs to the system is possible only by return to the enacting organ. For this reason, the distribution and delimitation of competency—that is, establishment of the procedure of norm-creation—is the second essential function of the supreme source of law. The systemic function of this source is summed up in the statement that by juristic sovereignty is to be understood “the existence of a definite organ for drawing the line between what is and what is not law” (I, 533). 6. [Voegelin supplied only German translations for his excerpts from Dickinson’s essays. We have reinserted the original English texts. All italics, brackets, dashes, or other markings, unless otherwise noted, are in the original.—Eds.]

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Dickinson’s statements are so revealing in their formulation that they hardly require any interpretation to illustrate their affinity with the findings of the pure theory of law. For this reason, we refer only briefly to such statements in the corresponding passages of Kelsen’s Allgemeine Rechtslehre as the following: “If one understands the state’s legal order to be sovereign, that is, if one assumes it to be a completely independent system because it is selfsufficient and cannot be traced back to any further source, then one declares together with the unity of the standpoint of observation and of the system, the uniqueness of the system, the exclusion of every other system—be this only the system of nature or another system of norms. Thus does sovereignty become an expression of the unity of the legal system and of the purity of the knowledge of law” (205 ff.). For all that the theses of Kelsen and Dickinson intend the same thing, a difference nevertheless reveals itself in the expression. This difference should be traced back to a variation in the style of thought, not to a variation in intent. For Kelsen, sovereignty is the expression of the unity of the legal system and (emphasized by italics!) of the knowledge of law. Kelsen sees the unity of the legal system to be essentially the unity of a context of knowledge. He therefore finds it necessary to assume a fundamental or original norm. This fundamental norm “must be introduced as a hypothesis of the knowledge of law. This is in order to begin to comprehend the material that is to be grasped as law—the facts of the matter that are to be interpreted as legal acts—as elements of one and the same system, ‘law’ ” (104). The assumption of such a basic norm becomes unavoidable if one wants to approach the problem of the unity of the legal system in a principled way. This would require an approach from the standpoint, not of the unity of law independent of knowledge, but of the constitution of the unity by the knowing subject who transcends the law. Now, the unity of the knowledge of law is undoubtedly a fundamental problem in legal theory, and Kelsen’s solution in the hypothesis of a basic norm may well be unimprovable. Yet in characterizing this solution as one possible approach to the problem of the unity of the legal order— one Kelsen nevertheless claims to be the only possible approach— we raise ourselves above the sphere of norm-logical problems into that of the style of thought. In approaching the problems of unity from the side of knowledge and in making the claim to exclusivity, 31

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a basic theoretical attitude reveals itself. This attitude is incompatible with a basic attitude such as Dickinson’s, even though the shared object of investigation offers a broad range of related formulations. The assumption of a fundamental norm is thus as typical of Kelsen as complete innocence in face of this problem is typical of Dickinson. Certainly, Dickinson is also aware of a problem of knowledge, but the fundamental variation in style becomes even clearer when his treatment of the problem is juxtaposed with that of Kelsen. To this point, we have spoken only of the norm-logical area of problems that was treated by the first statement of the passage on sovereignty cited above. The second statement defines the legal system as an epitome of general norms that must bring about the same decisions in the same cases, so that the decision can be predicted with some degree of accuracy. Here, the legal system is understood as a system of general norms that are to serve as media of predictive knowledge for the future conduct of organs on lower levels of the legal order. This is the standpoint of a practical jurist—say, of an attorney who weighs the chances for his client. It is a pragmatic, businesslike kind of knowledge. Although it is not discussed by Dickinson, it already gains full expression in “The Path of the Law” (1897), a treatise by Oliver Wendell Holmes.7 Here Holmes states: “People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts” (167). The state is represented as an organization that applies general norms with coercive force to individual cases. For everyone subject to these norms, it is thus of greatest interest to know under what circumstances one’s conduct might bring one into conflict with this machine of norm-application. The problem of knowledge is thereby immediately related to the interested party that is subject to the norm, rather than understood as a problem of objective scientific knowledge. In this sense, Holmes is justified in calling the legal order “a body of dogma or systematized prediction” (169). This “prediction theory” set forth by Holmes has now 7. Now newly edited by [Harold] Laski in the volume Collected Legal Papers (New York: Harcourt, Brace, 1920). The pagination follows this edition.

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become the “reigning doctrine” of the so-called Hohfeld school, a school oriented toward problems of civil law. Corbin, its prominent representative, formulates the problem of knowledge with utmost clarity for jurists: “What will the community of citizens cause their agents to do?” And just as clearly: “The fact that is essential is the existence of societal force; and the question that is of supreme interest is as to when and how that force will be applied.”8 Pursuing precisely the same line of thought further, Dickinson also sees the problem of knowledge as resting in the possibility of predicting the norms of a lower level from the general norms. The contrast between this conception and that of Kelsen can best be grasped at the relation between the levels of general and individual norms. In the Merkl-Kelsen theory of levels, all the levels appear arranged in the unity of a legal system that confronts the knowing subject as a totality. To the knowing subject, the norms and acts of law, which should be understood as belonging to a system, are already available as raw material for his act of cognition. In Kelsen’s theory the cognition aims essentially at norms that are already legislated—at the norm in the preterit tense. In the theory of prediction there is no cognition in the strict sense of cognition of an object but only in the sense of a judgment as to the probability of a future act and its content. The prediction relates to norms in the future tense. As for the tension between the level of general norms as an instrument of prediction and the predicted individual norms, especially the courts’ judgments: This temporal tension into which the element of chance inserts itself becomes so strong that the unity of all levels in the legal system is lost through it. By legal norms, Dickinson expressly understands the epitome of general norms, so that the lower levels would have to drop from the purview of the legal order. That this level actually has the character of law for Dickinson, too, is already evident in the fact that the instrumental norms are often grounded in the lower level—namely, in the precedent cases—according to American law. And the instrumental norms derived from these decisions arise as general norms. The contrast, therefore, is not due to the fact that the level of judgments is not acknowledged as a level of law in American theory. Instead, it arises in accordance with the American style of thought 8. [Arthur L. Corbin, “Jural Relations and Their Classification,” Yale Law Journal 30 (1920), 226–38, at 227–28. Voegelin’s German translations are somewhat free and his citation faulty.—Eds.]

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and the pragmatic prediction-theory just mentioned, because the problem of systemic uniformity does not appear at each and every level. Expansion of the legal system downward to the level of verdicts and culmination of it upward in the basic norm are possible only where the question of the unity of cognition overwhelmingly determines the attitude toward the problems of legal philosophy and becomes formative of style. Dickinson indeed recognizes the unity problem and the sphere of normative logic, but he pursues this line of thought only so far as his style of thinking, his cognitive attitude of prediction, permits it. The attitude of prediction has a stylistically formative effect on the concepts here, insofar as the legal order is restricted to the general norms. The third statement of the passage cited at the beginning indicates how the legal system is closed in the upward direction. All levels of law, including those of the general norm, gain their character as legal levels through their origin in a supreme source of law. This source is to be understood as a supreme norm-setting and competency-delegating organ, as is evident in the statement where sovereignty is defined as “the existence of a definite organ” that draws a dividing line between law and nonlaw (I, 533). If we compare this culminating point once again to that of Kelsen, we see that Kelsen goes even further beyond the supreme norm-setting organ to pose the question as to why a norm’s origin, for example, from a parliament, lends legal character to this norm. He then answers this question with the hypothesis of a basic norm that delegates this supreme organ as well. Thus does the legal order culminate, not in an order of enactments, but in a system of concepts: in a system of knowledge based in the supreme norm, which stands above even the supreme organ and makes this organ intelligible. Following what was said at the beginning about the shared predetermined materials of the theory, it is probably clear that the supreme organ and the basic norm are equally valid solutions to the problem of closing off the system. It might also be clear that one cannot prefer one over the other on scientific grounds but can endorse one or the other only for irrational reasons. The epistemological, normative-logical attitude sets the norm-logical elements of the problems of legal philosophy as absolute and shoves to one side the problems of establishing the organs (which are also themselves problems of law, not only of its knowledge). In Dickinson’s institutionalist attitude, the norm-logical problems become visible 34

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only as embedded in the system of legal enactments. The concepts of this theory are essentially institutionalist concepts, even where they strive to comprehend the logical problems of the unity of law. Yet from this institutionalist attitude result barriers to a thorough formation of the logical problematic. We will speak about this in greater detail later. First, we must pursue those observations of Dickinson in which he shields his juristic concept of sovereignty from misinterpretations and sets it apart from other concepts of sovereignty.

II. By juristic sovereignty is understood the unity of a system of norms and competencies of organs. This unity, in turn, is understood as having been brought about through the derivation of all elements of the system from a supreme sovereign organ. This sovereign context of enactments must be understood in its specifically legal character. As Dickinson expressly emphasizes, it does not admit of psychologizing misinterpretation. Indeed, it would lead only to error to view sovereignty through the lens of a supreme “power” and identify the context of the enactments with a context of motivating and motivated “wills.” For these reasons, every concept of sovereignty that locates sovereignty in a concrete political factor—as, for example, in the people instead of an organ of the legal order—is inadmissible within the sphere of law. If one involves power relations as the criteria of sovereignty, the unity of the legal order dissolves into a multiplicity of lines of causation. The members of a supreme organ could be influenced in their decisions by friendship, bribery, or an idea, and if one were to seek to base the unity on the factual context of influences, then the friend, bribe-giver, or idea would be the sovereign. Or if, in a group of five men, two were to vote for and two against a proposal, the tie-breaking fifth would have to be regarded as the sovereign. “It would be absurd to call a psychological motive sovereign; yet we should have to commit that or other equal absurdities, if we were to use the word sovereign to designate a first cause in a chain of factual causation, rather than the articulate mouthpiece of the rules which we call laws” (I, 533). As an example of the relationship of causation and juristic sovereignty, Dickinson offers the case of general dissatisfaction with a law that has been passed by a parliament. As strong as the public displeasure might 35

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be, it cannot rescind the law but must instead take effect via the channels afforded by the legal order—such channels, for instance, as new elections to the parliament. The law itself can be rescinded only by a decision of the old or of the newly elected parliament. Although causal relations might be of greatest significance for shaping the content of law, they are to be held strictly separate from the formal-juristic problem of validity. The purity of the legal sphere is threatened in principle from two quarters: from that of psychologism (or more generally, the breaking-in of causal existence) and from that of logical misconstructions, the hypostases. Dickinson’s remarks on the question of state sovereignty deflect the second threat. This word hypostasis may be used if one is exactly sure of its meaning, but if one knows its meaning then it hardly contributes something new. “For if the state is the community politically organized—i.e., organized for the purpose of coordination between individuals and between other types of organization, and if it undertakes to perform this task by means of laws, then the state is that particular organization of the community whose function requires that it must ultimately be in a position to say what is, or what shall be treated as law. If sovereignty is then defined as the function of drawing the line between what is and what is not law, obviously sovereignty is by definition a function of the state organization” (I, 537). Through precisely this sovereignty function, the state organization distinguishes itself from organizations of a different type—for example, from merely economic or religious organizations. Or it does so, at least, as long as the function of sovereignty is not passed on to one of these other organizations. If this were the case, then the organization in question would simply become a “state” under a different name. The “state” is thus identical to the legal system, and its function remains the same even if the law-generating system has concurrent social functions as well—if, for instance, it is a church. For “juristically it makes no difference” which organization possesses the highest legislative authority, so long as only one organization performs this function in the community (I, 535). A norm is a legal norm if it issues from this “single supreme system of organization.”9 For its part, the term sovereign is supposed to designate the source of law as opposed to the sources of nonlegal 9. [I, 536.—Eds.]

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norms. The state is recognized as a supreme order that establishes norms for the external coordination of people within a community. The (juristically) correct conception of the identity of state and legal order is endangered by tendencies to hypostatize the term state. According to Dickinson, this occurs through a misunderstanding of the terminology of international law. From the standpoint of international law, states are juristic persons with rights, obligations, and a legal capacity to act and assert their wills. It is therefore very tempting to hypostatize “state” into an independent entity that is equipped with a will and distinct from the legally organized community. The verbal personification of international law is reinterpreted on the inner-state level to signify an opposition between state and legal subjects. Thus does the state, which is no more than the legal order in the process of its self-realization, become a bogey, a “metaphysical juggernaut” having no purpose beyond its own abstract existence.10 Serving only its self-preservation and selfglorification, the state, by definition, is subject to no limitation and control. These mischievous logologies have nothing whatever to do with the essential doctrine of sovereignty. They result from assuming that what is a legal postulate for some purposes,—e.g., the possession by the state of legal capacity or “will”—must be a physical fact for all purposes. They involve a complete neglect of the concrete realities which make it plain that the state is not a self-existent entity, but only an organization or system of organs enabling the community to perform certain functions, and that sovereignty is only the function of making a distinction between two different kinds of rules, those which are to operate in such a way that we call them laws, and those which do not. This function cannot be performed by an abstract “state,” but only by a concrete organ or organs of government. (I, 539)

According to Dickinson’s conception, then, sovereignty is the unity principle of the order of positive law or the state. Thus unified, the system has been clearly distinguished from the causal sphere of existence as well as from norm systems of a different kind. Finally, the system has been secured against logologies— speculations rooted in the hypostasis of “state” as a concept of the unity of legal order. With that, the theoretical problems of sovereignty would be settled for a theory holding to a norm-logical style of thought. But Dickinson’s style is institutionalist and the 10. [Ibid., 538.—Eds.]

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formal problems of law become apparent to him only as features of a concrete process of establishing the law; indeed, they cannot be separated from this process. Where knowledge of the formal content of sovereignty does not suffice, a further investigation concerning the location of sovereignty is required. The state order as sovereign is “supreme,” but this “supremacy” finds expression, not in a supreme fundamental norm, but in a sovereign organ. And the investigation surrounding the supreme, sovereign organ in which sovereignty resides corresponds to the hypothesis of a basic norm in a norm-logical style of theory. We must now turn to this investigation.

III. In a theory of positive law, the question as to the location of sovereignty must be answered juristically. This means that the legal organ generating the highest level of norms in the legal order— the laws—must be described. Dickinson answers the question in this sense and arrives at results within the theory of state forms that are essentially the same as those of the pure theory of law. He concludes, namely, that all problems of a political or sociological nature that cannot be understood from the legal standpoint must be eliminated from juristic discussion of the state form. If, for example, one claims that the monarch is the “legislator” in a constitutional monarchy because he has the right of sanction, this claim might be meaningful as an assessment of the actual political situation. For in the state in question, the parliament might be so weak and the monarch so strong that whatever the monarch wished would be done. But even if one were to assume that the monarch’s sanction is merely a formality and actually never withheld, the statement might still make sense if it were understood sociologically—as an assessment of the monarch’s symbolic function. In this case, the monarch would be recognized as the highest symbol of the society and his legislative power would be understood as symbolic. From the standpoint of law, however, the parliamentary decision and the monarch’s sanction are two distinct acts. Both are equally necessary for the law to be valid, so that legal parity between the two organs exists. Only the two together form the complete legislative organ. 38

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The supreme organ in the juristic sense can have a very complicated structure without losing its unity as a legislative organ as a result. Dickinson explains the nature of this organ in a series of cases that become gradually more complicated. The simplest case is legislation produced by an absolute monarch, where the juristic person of the legislator is based on a human person. Thence follows a supreme body as a simple putting together of persons. The next case is that of constitutional monarchy. The series of examples leads finally to an explanation of the very complicated sovereign organ of a union. And here again the analysis of the sovereign in a federal state evinces a most precise agreement with the pure theory of law. One could base Dickinson’s presentations on Kelsen’s definition of the federal state as an organization “in which legislation, like execution, is divided among a central and many local authorities and in which the local (member) authorities participate in the central legislation.”11 Likewise, Dickinson views the nature of the federal state as a distribution of legislative competencies to a series of organs having various territorial areas of jurisdiction. Like Kelsen, he is keenly aware that the legislative organs of the central and constituent legal orders stand on the same legal level, that they are coordinated with one another, and that no relation of superand subordination exists among them. Thus, if one seeks to locate sovereignty in a legislative organ, this organ must incorporate the totality of instances that influence the legislative level. In a federal state, therefore, the sovereign is constituted by the central and member parliaments as well as by those executive organs whose assent is necessary for an act to become law. In the United States, it is constituted by the Congress, the legislative corporate bodies of the states, the president, and the governors (I, 540). But this series of steps is not yet complete, because even after the legislative process has run its course, a law’s validity can be questioned with respect to its material and form. Here a system of tribunals with its pinnacle in the Supreme Court is called upon to interpret and test this validity. And this system is authorized to declare the law unconstitutional and invalid. The tribunals endowed with the power of judicial review are also parts of the sovereign organ and it is these that have the very important function, not only of testing a 11. [Hans Kelsen, Georg Froehlich, and Adolf Merkl, eds., Die Bundesverfassung vom 1. Oktober, 1920; mit Anhängen (Vienna: Deuticke, 1922), 66.—Eds.]

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law’s material validity, but also of eliminating conflict among the participating legislatures of this composite organ. The sovereign organ culminates in the Supreme Court, which is charged to protect the unity of the legal system—one that is greatly endangered by the complicated distribution of competencies on the legislative level—by its decisions on validity and jurisdiction (I, 540, 541). The Supreme Court enjoys a certain privileged position. Although it is a part of the sovereign organ and is endowed with the same rights as the others, it cannot legislate without them. Within the organ itself, however, problems of unifying the system arise and the decision of last instance as to the internal relations of the supreme organ lies with the Supreme Court.

IV. In the institutionalist style of thought, norm-logical structures come into view only when the normative levels are based upon the special organs of that level. In terms of logical content, the problem of sovereignty can be understood only as a problem of the supreme organ of a legal system. For this reason, the extensive agreement between the pure theory of law and the American theory necessarily ends at the point where the constructive postulates of norm-logic can no longer be attributed to a clear correlate in the realm of institutions. This point is reached at the level of international law. In their treatments of the question as to how this level should be incorporated into the system, the two styles of thought produce material results that clearly differ. Norm-logic recognizes international law as the highest level of the legal system, whereas the institutionalist theory, while recognizing the legal character of international law, rejects its systematic incorporation as a level higher than the state constitution. The point of departure common to both types of theory is the fact of a multiplicity of legal orders in a state. If one regards these legal orders as institutions, then a number of sociological questions concerning the mutual relations of the independent organizations will indeed arise. Yet these questions will always essentially assume that the individual state is the unit to be considered, and they will investigate the relation of one unit to another that is equally given as brute fact. The norm-logical style of thought, by contrast, makes logical [logisiert] the fact of multiplicity from the very beginning. 40

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Rather than assuming multiplicity as a given, it reinterprets it as a problem that must be understood normatively. The “side by side” of the states, which cannot be further reduced from one another and are mutually incapable of understanding each other normatively, is regarded as “coordination”—as a side-by-side order that presupposes the one ordering norm. We have already seen that the one theory accepts the sovereign organ as the supreme assumption while the other seizes on the hypothesis of a fundamental norm in dealing with sovereignty as a unifying function of legal order. Likewise, in the question of multiplicity, the internationalist stops short at the fact of the diversity of states, while the requirements of the norm-logical style are satisfied only when this fact is also understood normatively. In the following statement of Kelsen one can trace how the initial fact is gradually logically stylized: That the state . . . directed outward . . . is an “independent” power because its rank is equal to that of the states standing outside its sphere: this idea is possible only under the assumption that the state is of a rank equal to those of other states, that it stands with other states in the same order, the order determining the mutual relationship of all states and assigning to all states their place in the same system. The idea thus arises under the assumption that a legal order stands above all states and coordinates them, a legal order opposite which the individual states are regarded as delegated partial orders.12

First, the term independent is used as an attribute of the state and the quotation marks indicate that the word is supposed to have a meaning other than the vague one of everyday speech. In its place emerge the words “of a rank equal,” whose meaning is also as yet undetermined but immediately becomes somewhat fixed by the linguistic interpretation, “stands . . . in the same order.” The “stands . . . in the order” (passive) is transformed into the active form, so that the “order . . . assigning . . . the place” hence stands independently opposite the elements. And finally, this activation is transposed into the linguistically rigid and conceptually unequivocal formula of the “legal order stands above all states.”13 This legal order above the states, the order of international law, is therefore 12. Kelsen, Staatslehre, 106. 13. I have analyzed this sentence rather closely because it is a rare, clear example—indeed, almost a model—of the technique of concept formation in the human sciences in general. Beginning with an initial datum (here, the word independent), verbal levels are arranged according to a tendency of stylization until the desired concept is produced. Of course, one could just as well arrive at totally

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the supreme order upon which depend the legal orders of the states in their totality. And if one wishes to call a level of law “sovereign” only when it is supreme, then the attribute of sovereign certainly does not fall to the state. It has instead been pushed one level further, into the superior layer of international law. Dickinson has to stylize the fact of the multiplicity of state organizations in another direction. If Kelsen reinterprets the “side by side” of the states as normative coordination under a supreme legal order, then Dickinson must do the reverse and trivialize the suprastate normative elements that actually exist in order to preserve the institutionalist concept of sovereignty. As he sets to work on this task, he, too, is fully aware of the norm-logical breadth of the problem. Positive law essentially imposes “upon human individuals and other legal persons binding legal obligations irrespective of whether or not these obligations are accepted by the persons on whom they are so imposed.”14 Now, if international law were to try to impose on the states obligations that spring from a source outside them, “it would no longer be possible to define sovereignty as the function of ultimately declaring what the law is.”15 International law could oblige the state to do things that contradict its laws. It could, for example, forbid the state to pass laws against immigration. In this case, the norms of state and international law would contradict each other. “We should then either have to say that sovereignty belonged to the source of the international law rule as contrasted with the source of the municipal rule, or else admit that we were faced with a conflict between two opposing rules both claiming validity, i.e. with precisely such an absence of sovereignty as existed in the Middle Ages” (I, 542 ff.). We are faced different final forms if one were to start from the same point and progress through a series that were otherwise stylized. [Editors’ note: The original German text reads as follows: Daß der Staat . . . nach außen hin . . . “unabhängig,” weil den außerhalb seiner Sphäre stehenden anderen Staaten gleichgeordnete Gewalt sei, diese Vorstellung ist nur unter der Voraussetzung möglich, daß der Staat anderen Staaten gleichgeordnet sei, mit anderen Staaten in der gleichen Ordnung stehe, die alle Staate in ihrem gegenseitigen Verhältnis bestimmt, die allen Staaten ihren Platz im gleichen System anweist. Unter der Voraussetzung, also, daß über allen Staaten eine sie koordinierende Rechtsordnung steht, der gegenüber die Einzelstaaten als delegierte Teilordnung zu gelten haben.] 14. [I, 541.—Eds.] 15. [Ibid.—Eds.]

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with the choice of acknowledging a supra-state central instance as sovereign, or—if this instance cannot assert itself in fact—of admitting a conflict of sovereignties. At the present, in Dickinson’s view, we do not have to decide this question, for a “positive” international law equivalent to a “positive” state law does not yet exist; the independent, law-generating organizations have not yet coalesced into a system culminating in an “organ of supreme authoritative formulation.” At present, international law viewed from the institutionalist perspective still finds itself in much more of an intermediate position between an ethical norm and a norm of positive law. For, as with the ethical norm, the norm of international law is “not the pronouncement of any definite law-giving organ whose stamp is essential to guarantee its validity” (I, 544). In contrast to the ethical norm, the authority of a norm of international law is not rooted in private experiences and value judgments. Rather, it is based “mainly upon its conformity with a mass of precedents, adjudications, and other rules resting upon a similar basis. It is thus likely to be far more precise, certain, and juridical in its content than a mere ‘moral’ rule. . . . It lacks only this stamp of authoritative approval to single it out from its competing variants and make it law in the positive sense” (I, 544 ff.). Thus, the norms of international law do have certain empirical characteristics in common with “positive” legal norms; and this commonality becomes even greater if one compares them, not with contemporary, systematically elaborated legal systems, but with something more like primitive systems in which the law appears essentially in the form of custom, precedent, and occasional adjudications. As an institution, contemporary international law demonstrates a close kinship to primitive state law (I, 546).16 Thus Dickinson, too, does not doubt the character of international law as norm and even as law. Yet his style of thought tends to neglect its importance and to avoid pursuing any further its norm-logical significance for the unity of the legal system. As much as sovereignty is a postulate or 16. I allude to this problem here only to the extent that Dickinson himself does so. For a full understanding of the problem, however, knowledge of its history is required. The problem has received classical formulation in the struggle of the historical school against Austin’s theory of sovereignty. Compare especially Sir Henry S. Maine, Lectures on the Early History of Institutions (London: J. Murray, 1875), 12th lecture, “On Sovereignty.” In addition, see the portrayal in Ritchie’s essay mentioned at the beginning: “On the Conception of Sovereignty,” 386.

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systemic assumption for him, it still remains bound to and embedded in the norm-setting organ, in the institution; and since the level of international law undoubtedly differs in institutional character from the level of the state, the norm-logical element cannot have an independent, system-forming influence. It is here, where the two theories part ways, that they draw the final consequences from their respective attitudes and reveal in their contrast an unexpected, deep insight into the nature of law in general. Dickinson formulates the problem more precisely than it has been stated in the pure theory of law. Just as much as the latter, he perceives the significance of a supra-state legal level, above all in the continuity of the legal order during a revolution. A revolution would permit two sovereign legal orders—between which no normative connection would exist if it were not established by international law—to follow in succession. “This transfer of sovereignty to another and different organization requires the substitution of another and independent system of law having a different source. This change cannot take place legally,—i.e., in accordance with law,—unless we suppose the existence of some third and higher system of law emanating from a still higher sovereignty” (I, 547– 48). Such a “higher sovereignty” would be a law-generating organ that is superior to the state, something that does not exist at present, but is nevertheless thinkable. But Dickinson goes still further, and it is precisely through his institutionalist attitude that he is capable of recognizing the problematic of this new level. He speculates beyond such a supra-state organ and searches for the unity that would have to exist between two such successive organs separated by revolution. He recognizes the limit of the problem of the legal unity in this question, appending “and so on, ad infinitum” to the passage just cited. By this he means that this new revolution on the supra-state level would have to be bridged by an even higher organ, and a gradation of organs in infinite regress would result. The postulate of the unity of the legal system thus manifests itself as a demand, which, in principle, cannot be fulfilled, that a fact of social reality—that of a multiplicity of lawgenerating organizations—be transformed into a problem of the intellect through transposition into a realm of concepts, there to be solved harmoniously. In the pure theory of law, the problem of infinite regress as counterpart to the fact of multiple organizations is dispensed with in 44

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a characteristic way. According to the presentation of Verdross,17 the constitution of international law culminates in a purely formal norm, the fundamental norm pacta sunt servanda.18 At the same time, the hypothetical fundamental norm of a state constitution refers to those organs that are to generate law in the supreme instance. If the fundamental norm of a state were to read “general and individual norms are to be obeyed,” there would be no problem of legal logic concerning revolution and the continuity of the legal order. For somebody would always promulgate norms of some kind, and changes in the supreme norm-setting organ would not be systemic changes in terms of the fundamental norm. Through such directives as “the laws of the monarch of this dynasty are to be obeyed” or “the laws of a legislative body elected in a certain way are to be obeyed,” the state’s fundamental norm is closely associated with the problem of organs. The norm pacta sunt servanda, on the other hand, is selected in such a way that it can never come into conflict with the problem of organs. The problem of infinite regress is thereby pushed aside by emptying the fundamental norm of the material institutional content that would refer to specific organs. The problem, therefore, is not solved but eliminated: One simply no longer speaks of it and replaces it with another problem. Earlier, the peculiar problem of the state’s fundamental norm and the discontinuity of the state’s legal order consisted in binding the norm to a specially qualified establishing act. In assuming the fundamental norm, pacta sunt servanda, one now forgoes this essential context, thereby extracting the question of normative significance as such from the total complex of the problems of organ act and establishment. Through such “purification,” one achieves the illusion of a solution via the final absolutization of the norm element—a violent stylizing of the problem of law at the highest level. Dickinson’s remarks tend in the reverse direction, that is, to eliminate the problems of legal logic and ultimately to commit an absolutization in the institutionalist sense. For this reason, the opposite of pacta sunt servanda—the rebus sic stantibus clause19— 17. Alfred Verdross, Die Einheit des rechtlichen Weltbildes auf Grundlage der Volkerrechtsverfassung ¨ (Tübingen: J.C.B. Mohr, 1923); Die Verfassung der Völkerrechtsgemeinschaft (Berlin and Vienna: J. Springer, 1926). 18. [“agreements must be honored”—Eds.] 19. [“while things remain as they now stand” or “if the circumstances stay like this.” Rebus sic stantibus represents the legal doctrine, which occurs in both international law and in many national legal codes and common law traditions, that

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plays the leading role in his presentation. For him, the content of international law is ultimately determined by the sovereign states. He finds proof of this in such facts as the one that no one can prevent a state from establishing its own rules in the law of contraband or another material, or in the fact of “the practical power of every sovereign to legally denounce its treaties under the implied rebus sic stantibus clause” (I, 543). International law based on custom binds a state only if the state agrees to it too. The unbinding of the norm is the important question here, just as the binding was essential for the pure theory of law. The reasons for this contrast are evident from Dickinson’s examples. Here, the norm is viewed as law and judgment—that is, as embedded in the act of an organ. We now see the legal configuration on the supra-state level. The party obliged by a norm is at once the organ that determines the forms under which it assumes any obligation, the organ that sets the conditions of dissolution of a contract, and, besides that, the organ that decides even whether the conditions apply. In a different sphere, one would say that the creator of the norm of civil law, the party concluding the contract, and the judge are the same person. For a legal theory regarding it as essential to law that a society be structured into norm-setting organ and subjects of the norm, such a legal configuration must indeed seem a dissolution of the law. And the implication of the rebus sic stantibus clause does in fact reduce the problem of law on the supra-state level to the prevailing state of affairs. States come to agreements, they hold to them when it pleases them, and when it does not please them, they do not. But no matter what they do, it is legal. For Dickinson, the absence of organizational structuring on the supra-state level destroys the legal norm’s binding quality and the law itself along with it, even though Dickinson is very well aware (as was explained earlier) of certain features of the norms of international law that indicate their legal character. In the norm-logical style, the problem of the legal system is closed toward the top by eliminating institutionalist elements and by absolutizing the idea of the binding character of norms. In the institutionalist style, the binding character of norms disappears with the cessation of organizational structuring. Above the state agreements between parties hold only as long as the basic conditions and expectations that existed at the time of their creation hold. This principle is generally understood to stand in contrast to the legal principle of pacta sunt servanda.—Eds.]

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remain only institutional stumps, first attempts at the formation of law.

V. Dickinson’s essays bear the title A Working Theory of Sovereignty. With this title, the author seeks to indicate that the construction of a juristic concept of sovereignty is not the final goal of his work but merely a means to another end—the “working.” This term is not easy to render into German. As the pragmatic fundamental attribute of every object, it means that one can “do something” with the object thus designated, whether it be an instrument or a theory. The theory is supposed to be “useful” to a purpose of some kind, and we will have more to say about this purpose of Dickinson later. The entire second essay is devoted to it, but it will suffice here to set out the principal ideas. The institutionalist theory of sovereignty sets in place a particular organizational system culminating in a legislative organ as the legal system, so that the content of law is connected with the content of such a system. For this reason, Dickinson speaks, not simply of a legal order when he seeks to describe this system, but of a régime of law instead. This régime of law is the typical organization of a modern national state and its purpose is to stabilize and unify the administration of justice. The possibilities of individual action are delimited in a very specific way so as to make the safety and predictability of the administration of justice possible. In order to attain this goal of security, other desirable goals must necessarily be sacrificed on a greater or smaller scale. The less flexible and stricter the legal formulas are, the more pronounced becomes the gap between justice and law. This gap may become so wide that if no juristic means of further development and change are provided, those who are subject to the norms will overturn their legal system through a revolution. According to Dickinson, the ideal legal order should therefore be as reactive as possible to the wishes of the people or public opinion. The issue of improvement of the state organization may be formulated as the following demand: “so altering its machinery as to increase its responsiveness to the needs of the community without impairing its value as an instrument of certainty and order.”20 20. [II, 33.—Eds.]

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In order to view the breadth of this question and this demand in their entirety, it is necessary to define the nature of sovereignty as the unity and origin of the legal system in contrast to justice, which is a source of extra-legal demands. Two systems of norms face each other here, one of which excludes the other from simultaneous effect within the same territory, in the same matter, and for the same people. If one were to seek to prefer justice to law, this would be tantamount to a destruction of the legal order. “Shall we admit that because of the limitations and dangers of positive law, freedom to break through it at the will of the individual who thinks himself right must be erected into a normal working-part of the system of government . . . ? . . . The basic question at stake in the controversy over sovereignty is therefore what our attitude shall be toward the breaches of positive law, and so how we shall approach the age-old question of obedience—the question of the Antigone and the Crito” (II, 35). The way one wishes to approach this question is a matter of worldview for Dickinson, but he seeks in any case to clarify what both attitudes mean. He does not want to admit that someone in a struggle with the legal order should invoke justice without also being aware that his demand includes within it the principled destruction of the legal system and the cultural community. He wants to prevent the unconditional absolutization of a “meta-legal” ethic from draping itself, in all its irresponsibility, in the mantle of impeccable ethical conduct as well. He wants the principled peculiarity of law, its contrast to the ideal of justice, its compromises with this ideal, and the necessity of a basically unjust legal order to be recognized as the lot of the cultural community as such. He hopes thereby to avoid vague, idealistic prattle in this matter and at the same time to show how ideals of justice can influence the legal order without endangering its security. The demands of justice are beyond the purview of the enactmentcontext of the legal order. The system of organs with its pinnacle in the sovereign is a self-enclosed one, and the claims for justice penetrate it only in the form of demands of private individuals who hope to bring about changes in the legal order according to their demands. If the organs are not under the control of a single powerful group, a balance among the demands penetrating from all sides will generally result. Thus, the results, which emerge as legal maxims, are a compromise among various interests; for each sees a more 48

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or less appropriate portion of his wishes fulfilled.21 “Government, if it performs its function, is simply a great central coordinating agency from which these adjustments ultimately emerge” (II, 41).22 The legal order has the social function of shaping a compromise of conflicting interests into a form which, though not corresponding to an ideal of justice, nevertheless combines a bearable existence for every individual with legal security for the collectivity. The legal order (or the state) is thereby stripped of every menacing aura and recognized as a means to achieve a social compromise. For this reason alone Dickinson deems it counter to his purpose to speak at all of legal demands, commands, or norms. For in this case, the law would find itself pressed up too closely against ethics and the fundamental contradiction between law and justice would become blurred. Just as it is not necessary to say that sovereignty is founded on force, neither is it necessary to insist that laws must be regarded as primarily the sovereign’s commands.23 It is sufficient to regard them as his pronouncements, or as dependent for their legal character upon his determinations. . . . The function of the sovereign is not to create laws arbitrarily ex nihilo, but to be the source or mouthpiece of final and authoritative pronouncements of the rules of conduct which are to be called laws. . . . That they [the pronouncements] should always exactly coincide with the dictates of abstract right is too much either to expect or demand, for the very reason which makes sovereignty indispensible to a régime of legal order: namely that questions of right and wrong are not matters of absolute mathematical demonstration, but lie so frequently within the twilight zone of rational differences of opinion, and that there is therefore no need for the exercise by some recognized organ of what Mr. Justice Holmes has aptly termed the “sovereign prerogative of choice.” It is precisely the making of this choice which is the characteristic act of sovereignty. (II, 45–6)24 21. For the same understanding in the pure theory of law, see also my essay, “Kelsen’s Pure Theory of Law,” Political Science Quarterly 42, no. 2 (1927): 268–76. [This article is now republished in Published Essays, 1922–1928, trans. Miroslav Hanak, ed. and with an introduction by Thomas Heilke and John von Heyking (Columbia: University of Missouri Press, 2002), 182–91, vol. 7, CW.—Eds.] 22. [Voegelin translates Dickinson’s government with Staat, which, generally speaking, is not an accurate rendering. Apart from the English quotations from Dickinson, we have continued to translate Voegelin’s Staat as state, but Voegelin’s idiosyncratic rendering here should be kept in mind.—Eds.] 23. [Dickinson refers here to Harold Laski, A Grammar of Politics (New Haven: Yale University Press, 1925), 51.—Eds.] 24. Oliver Wendell Holmes, Collected Legal Papers (New York: Harcourt, Brace, and Howe, 1920), 239. This quotation from Holmes is taken from the essay “Law in Science and Science in Law” (1899). I reproduce a longer passage from the same

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The sovereign makes the laws, not as an act of fantastic arbitrariness, but as a formation of the wishes, interests, and ideas that are already at hand. This is why the motive for the sovereign’s actions makes no difference. Whether he makes the laws under the pressure of circumstances, in his private interest, or in the interest of some group or another, the only important thing is that his enactment imposes a specific form of law on the formless demands of single individuals. Where this form can be granted to any one of the conflicting demands, “the sovereign is thus not so much a creative influence as an organ of final choice” (II, 47). The quality of his choice must then prove itself in the fact that his laws are obeyed. The harmonization of law and justice, of legal order and metalegal demands, would therefore be left to the highest, sovereign organ. This solution might not be very satisfying, and one could set up a demand for legal restriction and control of the sovereign. In closing, Dickinson also entertains this question of supervision of the sovereign, but he comes here to entirely negative conclusions. The idea of such control invites the illusion of being able to create a level of law above the supreme organ, a level that would not suffer from the human frailties of the law-generating organs. In fact, the creation of this kind of controlling organ would either transfer sovereignty to this organ, or, as in the American system, the controlling organ (the Supreme Court) would merge with the legislative organ to form a single composite organ. The sovereign cannot be controlled by law in abstracto. Instead, the situation is very similar to that of the supra-state level of law. In both cases, a normative aggregate of customs and precedents emerges with page here in order to make clear the extent to which Dickinson’s general view is rooted in the tradition: Indeed precisely because I believe that the world would be just as well off if it lived under laws that differed from ours in many ways, and because I believe that the claim of our especial code to respect is simply that it exists, that it is the one to which we have become accustomed, and not that it represents an eternal principle, I am slow to consent to overruling a precedent, and think that our important duty is to see that the judicial duel shall be fought out in the accustomed way. But I think it most important to remember whenever a doubtful case arises, with certain analogies on one side and other analogies on the other, that what really is before us is a conflict between two social desires, each of which seeks to extend its dominion over the case, and which cannot both have their way. The social question is which desire is stronger at the point of conflict. The judicial one may be narrower . . . (but) . . . where there is doubt, the simple tool of logic does not suffice, and [even] if it is disguised and unconscious, the judges are called on to exercise the sovereign prerogative of choice.

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the claim to legal validity, but the organ charged with applying these norms is, as in the case of the Supreme Court, the very same that is supposed to be subordinate to them. “Such control is not control in the usual sense of the term; all that can validly be said is that the sovereign in deciding upon its course of action where a constitutional issue is involved does or ought to take into account a body of juristic materials from which one or another constitutional rule can be deduced by processes of so-called legal reasoning” (II, 61).25 With its organ of the Supreme Court, the American legal order appears to Dickinson to be particularly well equipped for this purpose. But this should not blind us to the fact that constitutional law applied by a court of law does not spring from a supra-sovereign source. Instead, it is itself generated with vigorous participation by the Supreme Court. The acts of the Court are controlled by law, but only by law as the Court declares it. . . . [T]he law which binds the Court is what the Court itself makes it—under its potent alchemy the same constitutional provision has at different times been made to yield exactly contrary results, and frequently to yield results at variance with what constitutional experts have deemed right; and should the practice of rendering decisions without opinions ever come into vogue, it might become difficult to tell how or to what extent legal considerations could be made responsible in any given case for the Court’s decision. (II, 62)

The legal system remains open toward the top, even if the appearance of legal procedure is preserved by the appointment of a tribunal as an organ of final decision. And the final thing upon which the legal system supports itself is not a legal maxim but the “spirit in which the highest organs fulfill their functions.”26 “It [a government of laws] can only mean a government where the sovereign is imbued with what we may describe as habits of constitutional 25. For the attempt to preserve the appearance of bindingness for the highest, unbound organs, compare the difference between legal and constitutional in English law. “Though the King can dissolve Parliament when he likes, his conduct, though legal, would be unconstitutional if he did so without the consent of his Ministers.” Or: “The King has not refused his assent to a bill of the Imperial Parliament since the reign of Queen Anne, and the exercise of this prerogative to-day would be unconstitutional” (Dalzell Chalmers and Sir Cyril Asquith, Outlines of Constitutional Law with Notes on Legal History, 3rd ed. (London: Sweet & Maxwell, 1923 [1925]), 260 ff.). Here, constitutional means obligation through custom and precedent, even though disregarding it would not be “illegal” but, on the contrary, “legal.” 26. [This precise wording is not to be found in Dickinson, but the general implications are indicated at II, 60–63.—Eds.]

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morality and of self-imposed respect for self-imposed rules. . . . [I]ts effective functioning will always depend not merely on machinery but on the existence within the organs of government as well as within the community at large of certain habits and states of mind which will make for restraint on the part of the one, and for obedience on the part of the other” (II, 63). Dickinson’s reflections conclude with these observations. And we now see that the title’s term working was not understood to mean that the theory should be useful for a specific political purpose. On the contrary, sovereignty ought to be known in its essentiality so that the possibilities and starting points for “improvement” of the state might become visible, whereas the concrete content of the improvement program remains a matter of indifference. In Dickinson’s opinion, the path to reform is cleared by a realistic recognition of the limits of legal order, of its contrast to the ideal of justice, and of its character of compromise. This path is cleared, finally, by the insight that ultimate control of a legal order is a meta-legal affair, a question of the personal, statesmanlike qualities of the highest organs.

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2 The Transaction

Social sciences in the broader sense pick up certain phenomena that stand out by virtue of their organizational mass in order to investigate their governing principles. As independent sciences, both law and economics attempt to analyze the nature of legal norms, legal relation, economic value, and economic relations. Both theories begin with highly complicated social phenomena and treat them as though they could not be traced back to simpler phenomena or were not essentially connected with others. One might readily suspect, therefore, that these theories would develop only highly complex concepts. This would not be a disaster in itself, for further investigation might break the complex concepts down into their basic elements. But the entire structure of these sciences—sciences that seek to find irreducible, species-specific a priori in composite phenomena—blocks the path of this undertaking. If it is to penetrate to the core of social relationships, an investigation must take as its object phenomena that lie at the root of the special divisions of law and economy. These relationships are elementary, touching on both legal and economic systems yet belonging specifically to neither. The movement within American social science known as institutionalism has now formed concepts that meet the requirements of these elementary relationships. The following essay will explain the construction and meaning of a basic concept of this kind: the transaction. This concept was presented by Commons in his Legal Foundations of Capitalism of 1924.1 A transaction is a system of relationships that develop between the members of a group of five persons. This essay originally appeared as “Die Transaktion,” Archiv für angewandte Soziologie (1929): 14–21. 1. [John R. Commons, Legal Foundations of Capitalism (1924; reprint Madison, Wis.: University of Wisconsin Press, 1959).—Eds.]

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Let us assume that two persons, A and B, meet in the market and conclude a purchase. In this event, the juristic viewpoint will recognize only the moment at which the two persons make the contract of purchase. A is the seller who obliges himself to deliver some wares and B is the buyer who declares himself prepared to hand over a sum of money in return. The mutual declaration of intent is a contract in the sense of civil law. This is so because legislation has provided for this form of law and has appointed a state organ—the judge, behind whose decisions lies the state’s power of coercion— to resolve disputes over the obligations assumed. The standpoint of economic theory will understand the same event as an exchange between the persons A and B; it will work with the categories of good, value, and price, and attempt to explain why this particular buyer-seller group achieved an exchange. The seller A had a choice between the buyer B and another buyer D, who was prepared to pay a little less than B. Under these circumstances, he gave his goods to B because they earned a higher price. The buyer B had a choice between the seller A and another seller C, who demanded a somewhat higher price for the same wares so that B’s choice fell with seller A. Adjacent to the seller-buyer group A-B, therefore, is the group C-D of potential sellers and buyers. The group A-B is under pressure from the group C-D. As soon as A raises his price, B has an opportunity to purchase; as soon as the buyer D raises his offer, he receives an opportunity to purchase and might even be able to drive B from the market. Both standpoints—the juristic as well as the economic one—are imperfect. The juristic standpoint ignores the possibilities of choice and of pressure by the adjacent group, both of which are decisive if the act of exchange is to occur. And the economic standpoint neglects the judicial decision and threat of state sanction, which together endow the purchase with its binding form. A standpoint unifying all relationships would have to understand the group within which the relationships occur so broadly that the judge, as well as the adjacent pair C-D, become members: J A C

B D

This schema of a group of five is so broadly construed that relationships that appear only in indirect and complex form in the 54

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individual disciplines can be seen clearly in it. This group of five is the elementary unit whose quintessential relation is called the transaction.

I. In order to interpret this quintessential relation as extensively as possible, we must return to a doctrine for which the transaction concept is the final, mature result: John Locke’s theory of property. The historical relationship between the two doctrines is very close, for the concept of the transaction was formulated in America and Locke’s theory of property is developed on the pattern of the American problems of economy and settlement of his time. Locke seeks to explain the origin of property and to justify it with his explanation. To this end, he posits the indubitable possession of every human of his own person. In Locke’s view, no one can be denied the labor of his body and the work of his hands. The human confronts nature, which God has given to everyone for the satisfaction of his needs, equipped with his capacity to work. Nature is therefore the original possession of everyone, in the sense that everyone may take from it what is necessary to sustain his life. A piece of nature becomes an individual’s property at the moment he extracts it from its connection to nature through the work of his hands and incorporates it into the system that preserves his life. Property is thus defined by its belonging to a functional system. And the scope and unity of this system is described by the range of a person’s capacity to work. Thus formulated, the concept of property is neither specifically juristic nor specifically economic, but instead receives its meaning from the person and that person’s bodily conditioned effectiveness. Man must “labor.” That means that the activity of his body must allow itself to bind with objects of nature in order to produce the new unities that serve to preserve life and procure food and shelter. Thus, the ultimate causes of the origin of property are to be found in human corporeality: in the threat of death against which the human has no defense besides his work, his influence on nature. At the base of Locke’s theory of property lies recognition of the fact that the human is an existential center [Lebenszentrum] endangered by death. From this simple recognition proceeds the demand to preserve life. We emphasize these metaphysical foundations of Locke’s theory so strongly because the 55

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connections to the modern philosophy of life [Lebensphilosophie] are made clear by it; today, Bergson calls the innermost urge to live, the impulse behind a person’s actions, the élan vital.2 In its Bergsonian version, no one would suspect this basic metaphysical concept of natural-right intentions, yet the concept is the foundation of Locke’s doctrine as well. What is involved here is a sphere prior to all juristic and economic problems. Only if one is able to recognize this sphere in terms of the metaphysical principles that govern it and is able to strip it of all temporally conditioned accessories can one see the connection in the metaphysical development up to the concept of the transaction as an ontology of the species-specific social conduct that underlies both legal and economic theories of social phenomena. The basic metaphysical concepts of the person, the threat of death, and the creation of a sphere of effectiveness in service of the preservation of life are included in the speculations of natural right. These concepts in turn affect the fundamental relationships that are collectively represented by the transaction. In Locke’s theory,3 explanations of the concrete extent of the property right, as well as a casuistry that adopts its standards primarily from American economic conditions of the period, are heaped upon this innermost sphere of problems. The question arises as to how much a single individual may appropriate from the common treasury of nature for his own purposes, and Locke decides that he may appropriate as much as he can use [geniessen]. This determination is very vague, for nothing has yet been said about the content of the capacity to use [Genußfähigkeit]—or, stated less psychologically, about the system of goals of action [Handels]. Only when Locke has reduced the capacity to use to the corporeal meaning of the term does the term acquire a specific content. According to this conception, a human being is not permitted to take from nature’s treasures more than he himself can use. Storing fruits that he does not use, for example, would be unjust, and goods gathered in this way would 2. [This concept is developed especially in Henri Louis Bergson, Creative Evolution, trans. Arthur Mitchell (New York: H. Holt and Co., 1911). Our thanks to Ellis Sandoz for this reference.—Eds.] 3. [See especially John Locke, “The Second Treatise of Government: An Essay Concerning the True Original, Extent, and End of Civil Government,” in John Locke, Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), chap. 5.—Eds.]

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not be regarded as his property. If he acquires land, it cannot be more than he can cultivate with his hands. If he were to lay claim to more land than this, then the pieces of land that he is forced to let lie fallow belong to whoever is willing to cultivate them. If these rules are observed, a struggle between humans over their property cannot arise, in Locke’s opinion. The world is large enough to provide every person with the natural products and land that he can use by working for his own needs. Locke points to the vast interior plains of America as an area where anyone may take land for himself without harming anyone else. Now, the economic form of the early American settler was in fact the family farm. A farm’s size had to be kept within narrow limits, because foreign farm hands could not be found in an area where everyone could himself become independent and because adult children started families early and worked their own land, so that their capacity to work was withdrawn from the father’s operation just at the moment when it began to make a difference. It was not until the course of the nineteenth century that the last remnants of this natural condition in which property was originally created died out. The American economic form of the seventeenth century, as it historically existed, could provide the model for reflections on natural right at the time. Indeed, actual events meshed for Locke so completely with the hypothetical elements of his theory that his theory of property culminated in the exclamation that “in the beginning all the World was America.”4

II. Even today, a theory of natural right is generally regarded as a unity that one must either accept or reject as a whole. Politicizing sociologists and political scientists subscribe to a natural right doctrine when its requirements coincide with their own political views; representatives of a strictly scientific attitude reject the theory unreservedly, because scientific statements cannot be made about the absolute desirability of concrete legal contents. We have just now attempted to separate the metaphysical ontological concepts of the theory from those aspects that were conditioned by the historical situation in which it arose. This was done in order both to rescue the scientific validity of the concepts and to understand their 4. [Locke, “Second Treatise of Government,” chap. 5, para. 49.—Eds.]

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later involvement, which stems from their connection with the American economic form, in the concept of the transaction. The natural right theory of property is therefore not a unity; rather, the absolute metaphysical concepts in which the core of personal action is captured meet together with a content that arises from the history of the period. Both layers of the theory that we found in Locke’s work are exhibited and made independent in the theory of the transaction. That to which Locke merely alluded is now extensively implemented. Locke’s doctrine always spoke only of one individual person, of his personal threat of death and his personal task to oppose its destruction and place around himself a sphere of activity. But Locke is interested above all in the social consequences and the relations among the social spheres of activity; the reduction of this sphere to the immediate output of work and the equally immediate corporeal capacity to use, not to mention the reference to the American example, show this. For Locke, a thinker who faced the problems of the seventeenth century and the economic forms of the pioneer farmers, the nature of social relationships consisted in the task of assuring everyone of his natural share and of avoiding a clash within the sphere of neighbors. But Locke also saw that economic inequality in the personal spheres cannot be avoided in a money economy that is based upon the division of labor. Further, he saw that economic stratification is the consequence of mutual interpenetration of the spheres. Yet he was not able to deal with these facts in his theory of property. For him, the disharmonies of a money economy based on the division of labor stood beside the ideal state of an anarchic settlement of pioneer farmers who avoid all interpenetration of spheres, and the problems of the two forms could not be brought to a common resolution. The concept of the transaction, on the other hand, is formed with the modern social economy as its model—albeit the American economy, in which the ideals of the pioneer era live on. For Locke, the pioneer settlement with its segregated spheres of activity and the stratified European economy with its interpenetration were two historical economic forms that existed side by side and for which no common theory could be found. But for the transaction doctrine there is only one form: the present American one, viewed from the standpoint of the independent sphere of activity of the pioneer farmer. 58

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III. A society of persons who have mutual ties has shared spiritual values, that is, values that emerge with a claim of validity for all members of the society. As was actually the case in various regions of America, a society can exist for a long time without organized coercive power, yet this situation holds only if persons with their separate spheres of activity can coexist in such a way that everyone has so much latitude to develop his own sphere that he does not infringe upon the sphere of another. At some point, however, realization of these values brings the spheres into contact with one another, or it threatens to bring about a clash that might ultimately degenerate into a struggle that would destroy any realization of value in the society at all. The existence of a coercive power corresponds to this possibility of conflict. For the large number of possibilities of personal conduct that are fraught with the potential for conflict, this coercive power prescribes legal norms—forms standing under the protection of forced compliance. In a purely formal sense (and one that leaves aside the content of the legal norms), the threat of coercion divides the total sphere of human conduct into two halves. One of these halves includes all conduct whose performance or nonperformance can be coerced, while the other half is free of such coercive threats. With this division, the sphere of personal conduct is classified in such a way that every conduct of person A in relation to person B (1) must be performed, (2) may be performed, (3) must be tolerated, or (4) may be tolerated. If we tabulate these modes of conduct, the following picture results: A A A A

must may must tolerate may tolerate

B B B B

may tolerate must tolerate may must

Before proceeding with the analysis, we offer some examples: Person B is alleged to have loaned person A a sum of money that is payable at a certain date. A must make the payment on the agreed date, because in the case of nonpayment, the coercive power of the state may force payment. B’s conduct is passive: He may accept payment. For the second case, let us assume that persons A and B are businessmen in the same line of work and are in competition with one another. If, by lowering his prices and making the 59

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appropriate advertisements, A now attracts customers who used to go to B, then this is a kind of conduct that A may perform and B must tolerate. It is a kind of conduct that is unaffected by the state’s coercive threat. In the third and fourth cases, the persons involved have switched places, but they are in the same situation as the first and second cases in all other ways. From these possibilities of conduct, a number of situations for the persons A and B result. Commons arranges these situations in the following table:5 Situation A Certainty Threat Privilege Correspondence

Legal Action Expected Sanction Non-Sanction Non-Sanction Sanction

Situation B Correspondence Privilege Threat Certainty

The central column indicates whether or not state coercion is to be expected. Depending on the expectation, A’s situation is one of certainty (if B must pay) and corresponds to the norm with respect to B’s situation. Or, A is threatened and B may act without being threatened by state coercion, as in the case of competition. Here again, the third and fourth situations are the reverse of the first and second ones. If we analyze these fundamental situations further, it turns out that they are not as simple as they appear and can even be differentiated into several layers. Let us again take the personal sphere of action as our point of departure. Here, as a threat of death, both the surrounding environment and one’s own bodily nature confront the isolated person’s urge to live and his attempts at self-preservation. This menacing quality of nature is a constant with which the person must reckon: a constant element of “having to tolerate,” as it were, which does not disappear even if the action succeeds, because the need to perform a successful action in order to live is the suffering [Erleiden] of the person. If we disregard the suffering that lies in every action, then the conduct of the person within his sphere is only positively directed and always has an active character. With social contact and the mutual interpenetration of spheres, however, a new, different form of suffering is added. It is not an essential element of every conduct, but rather a “being touched” in one’s 5. [Commons does not produce such a table anywhere in Legal Foundations of Capitalism. Discussion from which such a table might be inferred may be found at 65–142, 261–73.—Eds.]

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own sphere by the conduct of another person (such as, for example, the loss of business due to competition from another person). The individual no longer opposes nature alone. Now, an intermingling of natural elements and social relationships forms the milieu with which he must contend in order to preserve his person. This new milieu is entirely determined by the society in which the individual inescapably lives. According to the American social ethic, that milieu ought to be constructed in such a way that all persons facing it are provided with the same chances of success, or, stated more precisely, one’s chances of success should not be susceptible to decrease or increase by the arbitrary whim of a neighbor. One example: To an entrepreneur who dismisses a worker from a large operation, his act means next to nothing. For the worker, however, this act could mean death by starvation if he does not soon find new employment. This produces the demand that the situation of the worker be secured—through protection against groundless dismissal, unemployment compensation, insurance, proof of employment, etc.—so that any serious threat to his person is eliminated. In the ideal case, the social event of dismissal ought to be no more significant for the worker than it is for the entrepreneur. The social environment is to be stabilized for all participants in such a way that a person’s fate depends on his own actions and abilities, not on an arbitrary act of destruction by another person. The securing of society for individual persons is established by the legal form. We now understand more exactly the schema of situations that result from the threat of coercion by the state. It is not a schema of pure legal concepts, but the social reflex of the legal order. In the case of debt repayment, all purely legal concepts were connected with legal procedure: thus, for example the filing of a suit, the collection of evidence, the judicial verdict. But the resulting situation—namely, that B must repay his debt to A if he does not wish to be physically coerced and A’s certainty that he will receive his money from B—is a social phenomenon that can no longer be grasped by purely legal concepts. With its threat of coercion, the legal order does not coincide with relationships in the transaction; rather, it lends them a specific structure (the situation schema) from outside. The meaning of this structure—in America, the creation of an environment in which a person and his actions are not exposed to social arbitrariness—is completely independent of the formal problems of the legal order. It is a species-specific 61

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problem of relation within the elementary group of the transaction. The securities and threats, privileges and correspondences are to be filled with content so that the mutual relations of persons correspond to an ideal of justice like the one developed by Locke on the pattern of the anarchic pioneer settlement of the seventeenth century. In essays to follow, we will investigate the realization of this ideal in modern society.

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3 The American Theory of Property

A previous essay on the “transaction”1 described the origin and content of the ideal of social justice as it now exists in the United States of America. The independent pioneer farmer, standing alone on his property in a struggle with nature, continues to be the secret ideal of modern economics and the philosophy of law. With economic and social development, however, the external image of this idealized individual has changed. No longer standing on his plot of land and facing nature alone, the individual is implicated in the net of social relationships in various ways. Moreover, his chances of survival are only partly determined by his personal ability; for the main part, these chances are determined by his fellow men and by their hostile, friendly, or merely indifferent attitudes toward him. The demand for social justice now seeks to guarantee the individual living in modern society the same personal independence and freedom of action that he had enjoyed in the economic form of the pioneer settlement. In order to attain this condition in the changed environment, an essential change in the content of such fundamental social concepts as property, freedom, value of possessions, will to act, etc., is required. In the following presentation, we will discuss the conceptual changes that are linked to the historical emergence of the concept of property in American society. In addition to this limited historical aspect, a triple relation of more general significance must be attributed to the changes in the property concept. First, even though the American ideal of social justice is not and perhaps never will become the fundamental formative principle in European society, it still evinces a parallel development of concepts This essay originally appeared as “Die amerikanische Theorie vom Eigentum,” Archiv für angewandte Soziologie 2 (1930): 165–72. 1. [“The Transaction,” essay 2 herein.—Eds.]

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in the narrower sphere of social law. Second, the American formation of concepts has been philosophically more carefully crafted, and thus renders the development of German social law intelligible in its principles. Finally, aside from its value as a historical parallel, the American case is valuable for its being an ideal type. With a high degree of purity, the American social ideal approaches the ideal type of a society of equals; quite apart from the more or less perfect historical realization of this type, it is important to understand the kind of relationships, the problems of leadership, and the formation of social concepts that are characteristic of this type. Ultimately, the ideal type of a community of equals is only one of many types of community, including, for example, one divided into estates or one led charismatically, so that through the particular forms of the community of equals, the general problems of relation within a community become manifest as well.

I. We begin with an analysis of the concept of property. In 1873, the Supreme Court of the United States had to rule on a complaint made by the New Orleans butchers against a Louisiana state law that granted a slaughterhouse monopoly for New Orleans to a single company.2 All slaughtering now had to be done in the company’s slaughterhouses, though regulation of the slaughtering prices was to ensure that the monopoly could not be abused through the excessive exploitation of the butchers doing the slaughtering. The establishment of this monopoly incurred heavy financial losses to the individual butchers: Not only were their own slaughtering facilities now worthless, but they were forced to slaughter their livestock for a fee in the company’s slaughterhouse. Although the butchers’ own slaughtering facilities had not been confiscated, they had been as good as expropriated through the prohibition of their use. The injured parties turned to the Supreme Court, which was asked to declare the law unconstitutional because it violated the freedom and property guarantees of the Thirteenth and Fourteenth Amendments. Yet the majority of the court’s justices dismissed the complaint on the grounds that, in the common-law tradition, 2. In Re Slaughter-House Cases, 83 US 36 (1872). [Voegelin alludes to 1873 because he has in mind the older citation method: Slaughterhouse Cases 16 Wall 36 (1873).—Eds.]

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the concept of property means physical objects that are put to the exclusive use of a single person. Where the butchers had not been deprived of the physical objects (the slaughtering facilities), they still retained possession of their property and thus had no grounds for complaint. In this decision, the court referred to a concept of “property” (a physical object in use by a single person) that corresponded to the notion of the coexistence of unbounded persons. This concept was animated by the ideal of a person who lives on his property apart from others and uses the objects he owns. Yet this idea of property breaks down in the face of a social reality in which the individual is dependent on other people. In this new reality, the possession of an object is worthless if the object’s use is prohibited in a particular social situation from which the owner cannot withdraw himself. For this reason, the minority opinion attempted as early as 1873 to construct a new concept of property that would better satisfy the demands of social justice. Just as much as the majority, the court minority was of the opinion that the state is permitted to expropriate the property of its citizens for public purposes without compensation (this opinion has changed in the meantime). Yet such expropriation is not permitted to affect only a portion of the citizenry and to work to the advantage of another portion. According to the minority opinion, the Louisiana law deprived the butchers of their freedom and their property and transferred these to the monopolistic company. The precondition of the minority opinion was thus a new concept of property. The grounds of the opinion was not expropriation of property in itself, but the disruption of the existing situation among citizens as regards property— by means of a forceful interference from the outside: What had been taken from the one party had been given to the other. Only in the context of this ideal of social justice does this new concept of property make sense, which then defines what had in fact been taken from the one and been given to the other. As long as property was regarded as a physical object, the butcher lost nothing, for he kept his slaughtering equipment, his rooms, axes, butcher blocks, etc., and these had clearly not been surrendered to the other. The concept of “object” had to be broadened to become a concept of function. Not the concrete thing, but the individual’s entire sphere of action, a sphere ensuring him of a certain quality of life in a particular social situation, had to be the property. Thus does the concept of property absorb a person’s profession, occupation, trade, 65

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his labor, and the right to put it to use. According to this view, the choice of an occupation is included among the individual freedoms that stand under state protection, and the undisturbed exercise of one’s occupation is a property right that cannot be withheld to the advantage of another. In conclusion, the new opinion about the nature of property offered the following recapitulation: “Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and as such merits protection.”3 The concept of property is reduced here to the most general formula it can assume within a society organized on a money economy: Property is everything for which one can receive money. This concept also covers the prior understanding of property as physical objects for personal use, yet it is so broad as to include the customer service [Kundentreue] of a business, patent rights and inventions, a person’s capacity to work, special qualifications for an occupation, acquired skills in practicing an occupation, and other “intangible” things.

II. In later years the minority opinion of 1873 became the majority opinion of the Supreme Court, and the new concept of property finally prevailed. We now offer a series of examples that will reveal the ideal of justice underlying this conceptual formation in its entire scope of reality and application. Even more clearly than the example described above, these examples indicate that an equality of prospects ought to exist among all citizens. In the Slaughterhouse Cases, it was perceived as unjust that the monopolizing company received the small butchers’ profits of operation without having had to compensate them. If the legislation had not interfered and the monopoly had emerged through free contracts, the company would have had to buy the slaughter operation of each individual butcher with the capitalized profit. But with the monopoly law, the transfer of ownership was undertaken without compensation. Now, the clarity of this case was marred by two facts: first, that the state itself had caused the injustice by its interference and, second, that the injustice of forcible transfer of ownership between citizens 3. [Ibid.—Eds.]

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is complicated by the unexplained question as to the justice of uncompensated expropriation in general. In another series of cases, the transfer of ownership between citizens has been caused by the actions of one of the citizens. Here the state emerges not as a participant but merely as a judge. In these cases, yet another element that earlier had been veiled by state intervention becomes even clearer: the element of coercion. Obviously, the state can coerce with its legislation and its organized executive. Less obvious, perhaps, is the presence of such inescapable coercion in the private relations among citizens. But precisely this little-noted coercion has been the main cause behind the changes in the concept of property of which we speak here. In the Slaughterhouse Cases, the butchers were injured even though they kept their equipment. This is because they and their businesses were tied to a specific social situation—to the city. They could not simply load their equipment onto a wagon and open their businesses in a different location. Through their connection to the social relationships of the economy, the butchers found themselves in a coerced situation. But coercive situations of this precise type—situations that do not fit into the ideal picture of the independent pioneer farmer—are to be eliminated by restructuring the laws regarding property. A typical case looks something like the following: A railroad company announces a rate schedule that includes the provision that firms receiving more than thirty thousand tons of coal per year at this company’s stations will get a 10 percent discount on the railroad’s freight rates. The reason given for providing this discount was that the handling would proceed more quickly if larger amounts of coal are received. When the case came before the Interstate Commerce Commission, it turned out that only one single coal dealer shipped more than thirty thousand tons of coal per year on the line in question. The setting of rates had therefore been tailored to the needs of this one dealer and was designed to ensure him a competitive advantage over the other dealers using the line. The equality of prospects among the competing dealers had been disrupted by the railroad’s rate policy, and the commission that had been summoned eliminated this disruptive interference by declaring this rate provision impermissible. We have indicated that the demand for justice underlying decisions of this sort has as its model the ideal image of the pioneer farmer: the man who, equipped with his personal abilities, faces 67

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nature with her contingencies. This idealized image does not entail the unconditional safety and peace of mind of the individual. The individual member of the group is not intended to be kept in a certain state of health at any price; he is merely to be protected from a fate that depends on factors other than his personal abilities and the unavoidable setbacks of nature. This ideal of justice, therefore, by no means aims at a schematic “equality” of citizens and their forms of life. On the contrary, all inequalities arising from differences of talent and accidents of the external situation are to be protected. A decision of the same commission expressly prevents an attempt to equalize the advantages and disadvantages of geographical location through adjustment of a railroad’s rate policy. This other case involved East Asian imports: Brought in via the Pacific Coast, these competed with imports brought in via the Suez Canal. The Santa Fe Railroad Company had set a rate for a line from the Pacific Coast to Utah that was higher than the rate for the considerably longer line servicing localities as far away as Missouri. If the railroad had raised its rates for Missouri localities, it might not have been able to compete with the transport route carrying goods to the American East and Midwest via the Suez Canal. Utah, on the other hand, lay so far west that the Suez Canal route could not compete. For this area, then, the railroad could implement higher rates without losing business. Yet the ICC ruled in this case that the freight rates were disproportionate; a rate higher than that for the longer line could not be demanded for the shorter one. Hence the judgment tended to preserve the advantage (and, conversely, the disadvantage) of the natural situation and did not permit these to be diminished by coercive interventions issuing from the social milieu.

III. Thus, both the inequality of the natural situation and the advantages and disadvantages resulting from it are to be preserved. Likewise, the difference in personal capabilities—that other source of inequality—is not to be restrained. In a case involving competition that closely resembles the first rate case taken up above, the National Biscuit Company had given discounts on the purchase of large quantity orders in a limited time. Only large enterprises with numerous franchises could take advantage of these discounts, but 68

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not independent dealers who did not purchase the required quantities of goods. Now, these chain stores do, indeed, belong juristically to a single enterprise, and this enterprise is the bulk purchaser of the quantities of wares that every individual store receives. From an economic standpoint, however, the managers of these stores are quite independent; they do their own purchasing and the salesmen must deal with them and deliver to them individually. The sales costs incurred by selling to a wholesaler are thus no smaller than the costs of selling to an independent retailer. For this reason, the owners of the individual stores claimed that the discounts for the chain stores constituted an unjustified damage to their ability to compete. The court of appeals ruled in this case that there is no provision in American law stating that one salesman must sell to two different buyers for the same price when the sales costs are the same. With its widely known business standards, the chain store enterprise offers a manufacturer the advantages of familiarity, uniformity, broadcasting, and the reputation of such an enterprise. Indeed, it might be in the manufacturer’s interest to let his wares be sold in precisely these stores. Provisions about unjustified discrimination must not be interpreted in such a way as to become an obstacle to business efficiency and the pace of economic development. The success of an enterprise may make competition difficult or even impossible for its rivals, but this situation does not constitute an illegal state of affairs.

IV. Thus are the content of property and the sphere of individual freedom defined step by step through a large number of cases. As can be seen from the last case discussed, the sphere of freedom is to be expanded as far as possible in order not to hinder the free development of personal abilities. But this sphere is restricted wherever personal conduct threatens the naturally advantageous circumstances of another individual (as in the Utah freight-rate case). It is also restricted when, in the interconnection of social relations, one person’s actions deliberately and unavoidably interfere in another’s sphere of freedom. This latter determinant, the unavoidability of interference, is essential. For in the case of the National Biscuit Company, the company’s actions also interfered in the sphere of the independent stores. Yet the court did not regard this interference as 69

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an essential damage or one that could not be resisted by the injured party (the independent storeowners could have carried other biscuit brands). The principle of protection against damages that cannot be resisted, as is the case with monopolistic dependence, was expressly formulated in the so-called Granger cases (in the 1870s). The grain warehouses and the railroads in the Midwest set rates that exploited the monopolistic character of their business in such a way that they endangered the subsistence of the farmers, and the profits of farming were transferred entirely into the pockets of the monopolistic companies. Dissatisfaction with this state of affairs led to the Granger movement, a populist movement of such sweeping proportions that individual states passed legislation regulating shipping rates. In deciding on the constitutionality of this legislation, the Supreme Court formulated the principle of protection against monopolist exploitation. “Property,” the Supreme Court ruled, “does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good.”4 A commentary on this decision explains its rationale in further detail: “If railroads and grain elevators have the constitutional right to demand whatever price they want, then they may as well have the right to destroy the property of others, as though they had a right to produce toxic fumes. So long as the actual power is on the one side and the actual dependence on the other, the fact that a legal monopoly is not involved is inessential to these cases.”

V. Through a series of examples, the content of the American concept of property was outlined: The individual person faces nature, and this basic position is not to be disrupted by society. The advantages granted to a citizen by his location cannot be taken from him by the interference of another. On principle, moreover, an individual’s personal abilities cannot be restricted in their effects, even if another has been injured by them (as in the case of competition). 4. Munn v State of Illinois, 94 US 113, 126 (1876).

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The abilities of others in the community are treated as a datum of nature; the individual who cannot match those abilities perishes as though a natural event had destroyed his existence. Society is like a forest in which one can lose one’s way and wander about exhausted and finally succumb with no hope of help. Protection is offered and restriction imposed on the other only when the relationship has assumed the form of an overwhelming accumulation of power on the one side and a helpless dependence on the other. These three fundamental situations, which are determinative for the conception of property, will hardly ever appear in the pure and unambiguous form of their ideal type. The concept, therefore, requires continual testing through its application to the cases. In light of such empirical haziness, the principle from which all decisions and further clarifications of the concept of property issue becomes all the more important. This principle is contained in the Fourteenth Amendment and the political doctrine it sets forth. Here it is determined that no state may rob its citizens of life, liberty, and property without the due process of law. Dating from 1868, this additional article was a result of the Civil War and arose in the course of the efforts to free the slaves. It did not intend to reform the concept of property. Viewed from the standpoint of the history of the property concept, therefore, it was a historical accident that this article has acquired such extraordinary significance. This significance lies in the fact that a large number of social relations, relations emerging in European law under different titles, are decided by invoking this one, single article. This has served to unify the positive philosophy of law under one central concept, so that in fact the entire sphere of social conduct—to the extent that such conduct concerns changes in the substance of property—can be understood in terms of this concept. The definition stating that property is everything that has exchange value is the broadest understanding of the concept of property to date and the one most suited to the modern economy. Construed so broadly, the property concept touches upon the concept of external freedom of conduct. The result has been a philosophy of political freedom and ideas about the organization of a state apparatus that merge with the theory of property into an ideal type. This type is no less than a self-enclosed theory, one of both the social relationships within a community of equals and the organization of such a community. Yet this topic must be the object of its own special investigation. 71

4 The American Theory of Due Process of Law and Freedom

I. In two previous essays, “The Transaction” and “The American Theory of Property,”1 we have presented the American ideal of social justice in both its general form and its specific formulation in the doctrine of property. The ideal begins with the pioneer farmer who is fundamentally free of social relationships, who cultivates his own land and lives on it self-sufficiently as a sovereign. Translated into the conditions of the modern economy, this ideal leads to the erection of a series of demands concerning the legal protection of property: 1) Social intervention may not take the advantages of personal talent, acquired abilities, and economic location from the individual; 2) Further, such intervention may not restrict the effects of an individual’s personal abilities, even if (as in the case of competition) these effects are detrimental to others; 3) Protection is granted only if, in the network of social relations, a person finds himself helplessly facing an accumulation of power that cannot be resisted (as for example an individual facing a monopolistic enterprise). In the minority opinion of the Supreme Court in the Slaughterhouse Cases, the property to be protected according to these principles was defined so broadly that it bordered on the concept of freedom. Contrary to the majority’s understanding of This essay originally appeared as “Die amerikanische Theorie vom ordentlichen Rechtsverfahren und von der Freiheit,” Archiv für angewandte Soziologie 3 (1930): 40–57. 1. [Essays 2 and 3 herein.—Eds.]

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property as a tangible, moveable object, the judges of the minority ruled that the right to choose an occupation is an essential part of the freedom protected by the state. Once chosen, the profession is personal property that must be protected. Property is everything that has exchange value, and the right to property consists in the owner’s free power to dispose of his property as he wishes. For this reason, work, too, is property, and as such it deserves protection so that it can be put to use. “The right to make it available is next in importance to the rights of life and liberty.”2 For its insight into the socially conditioned nature of the ideal of justice, the turn from the old to the new concept of property is a significant achievement. In terms of its content, this ideal must be formulated differently for a modern commercial economy than it had been for an essentially agricultural economy. Yet the new formulation appears to me not to have been probed deeply enough analytically, for the systematic relationship to the problem of freedom is not entirely clear. Property is mentioned together with freedom and it is certain that they come into external contact because they are internally linked. Yet because the thought of the American judges has advanced only to the juristically relevant formula of protection of “life, liberty, and property” in the Fifth and Fourteenth Amendments of the Constitution, it settles upon an unexplained remainder. In the law of the American judges, the profound analyses of problems surrounding freedom and property are indebted to the formula of natural law that was incorporated into positive constitutional law. At the same time, however, this formula is a limit beyond which the process of thought does not cross, and it has thereby hindered a complete penetration of the problem. Even after the thoroughly nonmaterial nature of property had been recognized, the concept of property (which always has material overtones) was placed parallel to the concept of property law. Since 1873, however, it has been clear that one must understand property as legally protected conduct. The butchers of New Orleans retained their slaughtering equipment but were not allowed to use it; they were deprived of their property because they could no longer engage in certain actions (the use of slaughtering tools). When a maximum rate was set for grain elevators, the owners were expropriated by the law because they were not allowed to set their rates 2. In Re Slaughter-House Cases, 83 US 36, 127 (1872).

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as high as would have been economically possible. Conversely, new property was generated for the farmers storing their grain, because the use of warehouses at an advantageous price had been assured to them; a portion of the social economic power inhering in the possession of warehouses was transferred from the entrepreneurs to the farmers. This concept of property encompasses every legally regulated conduct that creates economic exchange value, whether this be an act or omission, isolated conduct or conduct-complex together with others. Because they were legally barred from engaging in conduct of a certain type—namely, from setting prices above the maximum rate—the owners of the warehouses lost a portion of their property. The farmers gained property through prohibition of precisely the same conduct. The ownership of my pocket watch consists in my right to use it while all others are barred from any kind of action regarding this, “my” watch. If I sell this watch, it means that all other men (including myself) are barred from any action involving this watch from this point on; now, the new owner is the only person allowed to engage in actions involving this watch. Yet even the new owner is not allowed to engage in any action he wishes with regard to his watch: He is not allowed to throw it at somebody else’s head, for example, under the premise that he can do what he likes with his property. Thus does “property” structure itself in a series of legally regulated patterns of conduct. A sphere of property is drawn around the owner, within which the individual may engage in certain actions without interference from the state. Within this sphere are also certain actions in which he must engage if he wishes to avoid coercion by the state. Within it, he must also tolerate the interventions of others without being able to protect himself, and within it, finally, he can force others to engage in conduct of a certain type with the help of the state. If we analyze the concept of property in sufficient depth, it resolves into legally regulated patterns of conduct undertaken by various persons. Where these patterns then fit together to create a meaningful sphere of property, the relationship between property and liberty is revealed as an identity. A person’s sphere of freedom is none other than the space of social conduct constructed by acts and omissions, by the obligation to tolerate and the capacity to coerce; this same space was defined earlier as the sphere of property. The identification of the two spheres will perhaps seem strange at first because deeply ingrained habits of thought and imagina74

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tion challenge it. Yet a few considerations will soon dispel this sense of strangeness. Just as the formula referring to the protection of “life, liberty, and property” still makes a distinction between liberty and property, we too are accustomed to making it because we live in a conceptual world that is tailored to a social and political situation that has long since disappeared. We have progressed into the present in our social relationships and demands for justice, but in our thought and theory we still live in the past (unless we take special care to clarify the present situation to ourselves). Property and liberty are indeed distinct social phenomena as long as we live in an economy in which the individual himself produces objects for his personal use; in this case, a commodity’s entire existence spanning from production to consumption occurs in one and the same economy. Actions involving property are directed outward and do not take up such a large space beyond them in a predominantly agricultural community for which individual households provide most necessities for themselves. In such communities, transfers of property and property-connected offenses involve primarily tangible, physical things, so that the concept of property is patterned on the image of the object. Likewise, in a period of struggle for freedom rights, freedom is well distinguished from property. As is the case with modern democracies, however, once political freedom has been established, economic relationships manifest themselves as power relationships. The economically weak soon discover that political freedom has very little significance for their actual social situation if they are under economic pressure by another (for instance, by a monopolistic enterprise). In periods for which there is a predominantly agrarian economy and a lack of political freedom in one segment of the population, property and freedom are separate concepts. In a commercial economy and democracy, by contrast, property and freedom approach one another to the point where they become identical.

II. To this point, we have examined this process from the standpoint of property and have observed how this “thingly” concept of property breaks down further and further into the acts and omissions of people standing in social relation to one another. Before tracing 75

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this process from the standpoint of freedom, we will provide several examples that clarify the status of the present problem. The Illinois legislature had passed a law stipulating that the wages of miners should be determined by the weight of the coal extracted, not by the weight of coal cleaned and sifted. The law sought to protect miners from wage cuts that seemed unjust: Such cuts always resulted whenever a weight other than the weight extracted became the standard for the wage level. The court hearing the case ruled that terms of this law violated the right to freedom of contract; the worker must not be deprived of the right to conclude such contracts as it pleases him.3 Ten years later, a law that restricted the hours of work for women and children in the garment industry was passed. This law was also struck down by the court that heard the case according to the following rationale: “The legislature has no right to deprive one class of persons of privileges allowed to other persons under like conditions.”4 As their point of departure, the courts take the image of a man who is endowed with free will, who can do as he pleases and certainly himself knows best what is good for him. The image of free, rational humans that was created by the eighteenth-century Enlightenment lives on in the rulings of these judges; the judges do not want to admit that the freedom of action is not an absolute but rather gains its content from the social relationships that prevail at a given time. This same image is expressed even more forcefully in a case concerning a Kansas law that fixed the payment of wages in cash. The law sought to protect workers from exploitation by entrepreneurs who forced them, under threat of dismissal, to accept a portion of their wages in natural produce for which a worker might not have any use. The court struck down this law as well, offering the following rationale: “While it may be desirable and profitable to the employee of such corporation to receive a horse, or a cow, or a house and a lot, in payment for his wages, yet the legislation prohibits payment in that way, and places the laborer under guardianship; classifying him, in respect to freedom of contract, with the idiot, the lunatic, or the felon in the penitentiary.”5 Insanity, idiocy, criminality: The grounds that would justify a legal abridgement of the freedom of contract are explicitly enumerated here. The fact 3. David Jones v People of the State of Illinois, 110 Ill. 590 (1884). 4. Ritchie v People, 155 Ill. 99, 105 (1895). 5. State v Haun, 61 Kan. 146 (1899) (59 Pacific Reporter 340, 346).

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that freedom is actually not present at all if one of the contracting parties is under heavy economic pressure is not acknowledged. The idea that the economically weak must, in the interests of the whole, be prevented from ruining their health through a work contract still has no basis. Judicial maxims of this kind have actually been hindering the passage of modern social laws in America for a long time. This situation, in which judges simply do not enforce the laws and a reactionary class of judges can successfully oppose progressive legislation that has been passed by a legislature elected by the people, is foreign to our way of thinking and our belief in the supremacy of law. Before turning to an analysis of the material development of the idea of freedom, we must therefore elucidate through several examples how the system of a democratic republic like America guards and protects the freedom of its citizens.

III. The aforementioned verdict declaring laws for the protection of workers unconstitutional is based on the Fourteenth Amendment of 1868. This provision forbids the individual states to deprive their citizens of life, liberty, and property without the due process of law. The question now arises, What is the due process of law? As the examples have indicated, the courts evidently do not under all circumstances regard a formal law enacted for the protection of the workers as a due process in the constitutional sense. American law adopted the concept of due process of law from its English model. In monarchic England, the term has had the same meaning since its appearance in the thirteenth century as the phrase “law of the land” in the Magna Carta of 1215. Whatever the law of the land prescribed was prescribed in each case by an orderly process; for their part, administrative organs were obliged to uphold the laws of the land in their execution of the law. So long as the administration adhered to the law of the land, its process was a correct one. This situation must be understood in terms of the gradual transition from absolute monarchy to a monarchy controlled by Parliament. The king together with his administrative staff was the party capable of committing acts of injustice that had to be restrained. The means of control and restriction was the parliamentary legislation to which the king’s actions were bound. 77

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Now how did the change of meaning come about in America? We must investigate this question more precisely, because it is of great sociological significance for the separation of the characteristic legal forms of America from developments in Europe. In the Fourteenth Amendment, the phrase “due process of law” appeared in the same context as it had already in the Fifth Amendment of 1791. It was not until 1855, however, that a case invoking this provision came before the Supreme Court.6 In its justification of the decision, the court offered the same concise survey of the historical development of the phrase that we have just presented. Although one might well imagine that the decision would have adhered to this old interpretation, the court went further to explain that the Constitution nowhere expressly states which processes are due and which are not. Rather than concluding from this circumstance that legislation (the representation of the people) would have to decide the question of due process, the court simply declared the following: “It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be construed as to leave Congress free to make any process ‘due process of law,’ by its mere will.”7 To the question as to what “due process of law” then might be, the answer comes that one must investigate the English customs and procedures established prior to their emigration; whatever agrees with these must surely be due process of law. Because lawsuits invoking the Fourteenth Amendment were piling up, the Supreme Court was forced to scrutinize the matter more carefully in one of the earlier cases that invoked this provision. Judicial decisions had clarified almost all other guarantees of fundamental rights contained in the Constitution, but the court concedes that this phrase “remains to-day without that satisfactory precision of definition.”8 The court then makes another historical digression of the kind indicated above, explaining that the English barons undoubtedly were not seeking to protect themselves from the laws of a Parliament that they themselves controlled. Yet from this, continues the court, it does not follow that the states may pass any laws they wish, for if this were assumed, then the con6. Murray v Hoboken Land and Improvement Company, 18 Howard 272 (1855). 7. Ibid., 276. 8. Davidson v City of New Orleans, 96 US 97, 101 (1877).

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stitutional prohibition would have no meaning for the states and they could interfere unimpeded in citizens’ private rights with their legislation. Thus the legislative power of the states is restricted by the Fourteenth Amendment. In light of the quantity of cases based on this provision, the court might regard it as highly desirable to offer a precise definition. Yet it prefers not to do this: “Apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.”9 These statements offer an absolutely outstanding formulation of the way the Supreme Court generates law. Bound in general to follow precedent cases, it shies away from offering any precise definition that will become rigid through its clarity and precision. If offered at all, formulas are to be kept at a general level in order to avoid the potential problems of concrete situations and to allow the greatest freedom of interpretation. The fundaments of a legal concept should not be established; definition of the concept should instead take the form of an infinite process of establishing the relation of a general formula to a series of concrete situations. A definitional process has replaced the definition and this process adapts itself smoothly to changing social relations. The Supreme Court does not seek to issue decisions that are eternally valid and thereby perhaps to anticipate future decisions; it seeks merely to indicate a general guideline for the decision of the case— one leaving room for freedom of decision in the concrete. The court found a useful principle of this type in the idea that costs imposed on property for public use should be regarded as created by due process if the party affected in the individual case still has access to the regular courts. The entire set of problems was worked through to its core in a case from the year 1884.10 Although the grounds for the verdict are set out in the same way here as in the cases just discussed, the consequences of the questions are probed more deeply. Once again, the court first establishes the English origin and meaning of 9. Ibid., 104. 10. Hurtado v California, 110 US 516 (1884).

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the phrase. The concessions granted by the Magna Carta target the royal prerogative; beyond the public opinion of the land as manifested in the Commons, no protection of English freedom against legislation is required. In the written constitution of America, by contrast, the restrictions apply to all branches of state power— hence also to the legislative branch. The content of this restriction is now captured in a political formula that is both clearer and accompanied by a theory of the organization of political power: The restriction is now defined by the “comprehensive and general principles of freedom and justice.” These general principles are not to be understood as requiring a particular, immutable process of the generation of law, but rather [as] “the very substance of individual rights to life, liberty, and property.”11 Laws are generated by a due process if they move “within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”12 The appeal is made over and beyond the legislative power to certain material principles by which the legislative process itself gains the sanction of due process. The formal concept of due process turns into a material process; or perhaps one ought instead to say that the old, material significance of the parliamentary process has been emptied, formalized. As long as Parliament represented the people as a political opponent of the king, the content of its resolutions was materially determined by the interests of the strata of the people it represented; the decisive political battle occurred between Parliament as a whole and the king. Once Parliament became the sole political institution in existence, however, political oppositions began to occur within Parliament itself. No longer politically significant as the resolutions of a controlling instance, the resolutions of Parliament now enjoyed the same absolute character that those of an absolute monarch had previously enjoyed. Now, to be sure, the Hurtado decision states that it is the people’s right to legislate for itself via its own representatives that ensures restriction of the legislature by the principles of freedom and justice. But this eighteenth-century democratic formula is not wholly convincing anymore. The self-legislation of the people, the subordination of those subject to the law to laws of their own making, was an excellent slogan in the political struggle against a 11. Ibid., 532. 12. Ibid., 535.

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waning monarchy. To obey the law that one makes for oneself was a catchphrase by which a metaphysic of the autonomy of the will and of ethical freedom was pressed, with all its emotional force, into the service of a political demand. Yet one century of democratic practice has shown that misplaced metaphysical speculations cannot drive the problems of social organization and the opposition of ruler and ruled from the world. The American Supreme Court sees clearly the fact that it does not matter who is allowed to make laws with absolute authority. Whether tyrant or parliament, the danger lies in the unrestrained nature of the right to legislate. This is why the court applies the attributes “absolute” and “despotic” both to an absolute legislative authority and to a monarch. “It is not every act, legislative in form, that is law,” states the justification in the Hurtado case. “Law is something more than mere will exerted as an act of power. . . . Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.” Limitations on legislation are necessary despite the representative character of American institutions. “The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.”13 Definitively, the rationale used in the Hurtado case both establishes the control of courts over legislation and justifies it with a political theory. Where the ideals of freedom and justice are superior to legislation, a judiciary enjoying the trust of the people must act as a watchman to ensure that the laws respect these ideals.

IV. In the cases involving social legislation examined above, the courts had declared the laws unconstitutional because they restricted the right to freedom of contract and thereby caused economic damage to the contracting parties. We must now investigate how the Supreme Court admitted the possibility of social legislation in later 13. Ibid., 536.

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decisions. In particular, we will examine laws concerning the restriction of working hours and note what adjustments to the concept of freedom were required to justify these laws. The classical case displaying all essential features was Holden v Hardy.14 It was structured exactly like the cases above. A Utah law had determined that the workday of day-workers and metal smelters must not exceed eight hours, except in emergencies involving an immediate danger to life and property. Holden was accused of employing a worker for ten hours per day and was found guilty by a state court. In his defense, he invoked the due process clause of the Fourteenth Amendment: not so much because the law had injured his freedom and his property as because (as in the earlier cases) this law heavily affected the workers, for these were not allowed to work as long as they would have liked to. In justifying its verdict, the Supreme Court first developed the principles of its jurisdiction as it had in the due process cases. As a “science in progress,” it stated, the law must adopt new regulations for changing social relations either by altering old regulations or by rescinding them altogether. Although “the fundamental principles of justice” remain immutable, the methods of applying the law are subject to constant change. Constitutional provisions, which are in themselves rigid and difficult to change, should not be interpreted in such a way that the states are robbed of the right to adapt their legislation to the needs of their citizens and to changed social relations. This right of the states must not be misunderstood to mean an absolute freedom of legislation; its exercise must of course occur within the bounds of due process. As for what due process might be, the court does not intend to define it in this case any more than it has up to this point. Rather, the following determination suffices entirely: “There are certain immutable principles of justice, which inhere in the very idea of free government, which no member of the Union may disregard.”15 Following these general explanations, the court works its way carefully toward the central issue of the case in question. A person cannot be deprived of his property, and from this follows the maxim that the forms of acquiring property cannot be taken from him either. Although a general prohibition to conclude property 14. Holden v Hardy, 169 US 366 (1898). 15. Ibid., 389.

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contracts would be illegal, the state might very well restrict the right of contract by use of its police power. Every state has always had this power but has not always applied it to the same extent; not until recently have dangerous and health-threatening occupations arisen to the extent that intervention by the state for the protection of workers becomes necessary. Prior to the founding of the United States and for a long time thereafter, the economy still had a predominantly agricultural character and no occasion to place a certain class of citizens under special protection arose. In the course of time, trades like the lottery business or the sale of alcoholic beverages have been prohibited (or at least extremely restricted), and the state’s right to impose such restrictions has never been challenged. Today’s case involving the restriction of work hours in certain occupations is essentially the same. Initially, the coal and iron industries were so primitive that there was no reason to be concerned about the situation of those engaged in these industries. With technical development, laws concerning protective devices on machinery, construction of buildings, and methods of mining coal and earth became necessary—and the constitutionality of this group of laws has never been doubted. Likewise, the law requiring the restriction of work hours is thoroughly constitutional. General experience instructs us that persons in customary jobs can also work more than eight hours per day without damaging their health. Certain occupations, however, such as those of miner or metalworker, are so dangerous and strenuous that special legislation is justified for this group of workers. It is especially justified—and here, the same aspect that was decisive in the cases involving property is emphasized—because entrepreneurs and workers do not face each other as equals. It is only natural that entrepreneurs would try to achieve as much labor output as possible and that workers would be driven by their fear of unemployment to accept work contracts that, if they were free, they would reject as dangerous and damaging to their health. “The proprietors lay down the rules, and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may properly interpose its authority.”16 The argument that the worker is prevented from working as many hours as he would like (this was the argument the state courts 16. Ibid., 397.

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themselves used in the preceding cases) is now ironically rejected. That argument would be more compelling, states the court, if the workers had raised it. The following is then set down as a rule: If the contracting parties are not equally strong economically or if public interest in the health situation demands that one of the parties be protected against itself, the state has a right to intervene. “The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer.” This final sentence, which loses itself in the upper layers of social philosophy, is of particular theoretical significance. The number of the cases introduced is not very high, yet it is high enough to demonstrate that general principles set at a general enough level can justify two opposing statements. Invoking the principles of justice and freedom, the court can declare laws protecting the worker to be unconstitutional because they take from the worker his fundamental human right to enter freely into ruinous work contracts. Applying a somewhat different metaphysic of the will, the court can uphold the laws by referring to the same principles: for the worker is apparently not free when he enters into a bad contract. The proposition that the whole is not greater than its parts now produces conclusions that one would expect only from the proposition that the whole is greater than its parts. The organic theory sees a member of the whole in the part and claims that, because the part functions organically in the whole and cannot be affected without affecting the whole, every injury to a part is an injury to the whole. Yet this theory could not produce a more complete protection of the member than the opposite proposition just introduced, which states that the whole is the sum of its parts and nothing more. One general principle can produce opposite results; two opposing general principles can produce the same result. The formal principles of justice and freedom, of whole and part, have next to no cognitive value; all of the relevant argumentation takes place at the deeper level to which we have been alluding all along without grasping it systematically. This argumentation proceeds from the conception of property as object to the conception of property as achievement [Leistungsbegriff], from the a-social, abstract concept of freedom to a socially concrete one; it attaches itself to the economic forms of agriculture and commercial economy, to a conflict between pioneer ideal and an economic development leaving the pioneer ideal 84

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far behind, to the transitions from the political form of monarchy to the rule of equals, into phenomena like the formalization of a material control in the transition of parliamentarism, to the replacement of a dialectic ideal of self-rule in political association with an indestructible set of the social problems of rulers and ruled, etc. We move in a sphere of concrete political thought, so that, through constant application and through ever-new interpretation in individual cases, the dominant ideas of the Constitution are kept flexible. Certainly, this great flexibility also poses dangers. The HoldenHardy case is the paradigm for decisions in questions involving legislation for the protection of workers; finally, the majority opinion represented in it has won out. But there have been periods when, with changes in the composition of the court, decisions in individual cases have departed significantly from the paradigm. Lochner v New York challenged the validity of a law limiting working hours in the bakery trade.17 Once again, the court regards the case as a restriction of the freedom of contract. As in earlier cases, it concedes that certain social relations like the endangerment of health or the economic weakness of one of the partners justifies state intervention. But in this case, the court does not see an obviously healththreatening situation. The bakery trade is not especially unhealthy for those who practice it, nor is the quality of bread influenced by the number of hours worked. In the curt explanations of this decision, we once again find the old idea of freedom that was represented in the cases from Illinois cited at the beginning. According to the court, no one could claim “that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state.”18 The exercise of an occupation does not in general promote good health; a physician would not recommend to a sick man that he practice a trade in order to cure himself, but this fact does not warrant state intervention. “Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual.”19 The law was declared unconstitutional. 17. Lochner v People of State of New York, 198 US 45 (1905). 18. Ibid., 57. 19. Ibid., 61.

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This decision dealt a heavy blow to the further development of legislation for the protection of workers and even inhibited it for several years. Since about 1908, however, the Supreme Court has begun to give in to the pressure of public opinion and to adapt its judicial practice to generally held ideas of social justice. With its large number of important cases, the year 1917 can be regarded as the decisive year in which the right of states to pass legislation for the protection of workers was definitively recognized. On only one question did the Supreme Court maintain its conservative stance concerning legislation. Having extensively discussed the problems of freedom and property as well as the issue of “reciprocity,” we have found that the worker, even if he is not in especially severe straits, will still be economically the weaker party when facing a large enterprise. He will not be able to negotiate and enter into contracts on an equal footing. Besides the protection offered by legislation, amalgamation with others into a community serves above all to strengthen his position. And for this reason, several states have attempted to support unionization and to protect it from the intentions of entrepreneurs to hinder it. Thus a Kansas law stated that no business enterprise is permitted to require its employees, as a condition of employment, either not to join a union or to withdraw from one if they already belong. In 1915, the constitutionality of this law was tested before the Supreme Court.20 In justifying its decision, the court argued the following: Wherever private property exists, inequalities of fortune must also exist and parties are necessarily economically unequal. As long as the economic order is not a communist one, some people will always possess more property than others do. Because the Constitution protects property, laws are not permitted to take property by arbitrarily prohibiting its use unless such prohibition is enacted in the interest of public safety and health. No kind of valuable community goals can be found in the present case. The requirement that a worker not belong to a union during the time of his employment does not deprive him of any portion of the freedom guaranteed to him by the Constitution. The situation, the court believes, is adequately expressed by the statement that “he [the worker] is free to decline the employment on those terms, just as the employer may decline to offer employment on any other.”21 The court did not recognize 20. Coppage v State of Kansas, 236 US 1 (1915). 21. Ibid., 21.

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as socially relevant the fact that the worker is not “free” to refuse a position if the conditions are not to his liking. The Kansas law was declared unconstitutional.

V. This, in broad outline, is the current state of the doctrine of freedom and due process. Legislation makes repeated attempts to meet the demands of social justice and the Supreme Court carefully checks whether these attempts remain within the bounds of the old ideas of justice and freedom. The court does not press toward full clarity of thought on the matter. It contents itself instead with making decisions from case to case, and because the general principles themselves do not admit of any clear conclusions, the court’s attitude changes with its composition and with the nature of the particular case. The eighteenth-century theory of freedom, according to which an abstract will is assumed to be the will in a social relationship, stands in conflict with a concept of freedom that includes the concrete pressure of economic circumstances in its definition. In the property cases that were treated earlier, monopolistic pressure was regarded as sufficient grounds for state interference. A hint of the same motif was revealed in the Holden-Hardy case: The popular older argument that the worker is deprived of his constitutional right to work himself to death is politely yet decisively rejected. Approval of the laws is juristically justified by reference to public safety and health. Yet this was the attitude of only a narrow majority; changes in the composition of the court produced the verdict of Lochner, a case in which the court found that the occupation of baker is not sufficiently damaging to health to justify state intervention. The court is completely intransigent, finally, on the question of unions: Although it acknowledges that the worker is economically the weaker party, it obstructs him from increasing the value of his work by amalgamating into unions. Where inequalities are simply the result of the arrangement of private property, it is not the state’s task to eliminate the consequences of economic inequality. Indeed, the state is even expressly prohibited from doing so, for such intervention would touch on property itself. The Supreme Court decisions in these cases are issued for the sake of preserving due process, and the judiciary presents itself here as the necessary and effective control on legislation. As we 87

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have already explained, with the shift of the concept of due process from identity with the law of the land to control of that law, the problem of rule asserts itself against the idea of democracy. Where even a legislative assembly elected by the people is a ruler that requires supervision, the courts ought to do the supervising. Yet a survey of the judiciary seems instead to indicate that rule has merely been shifted here to a different level—to the courts. There may well be broad strata of the population that regard the Supreme Court’s decisions as those of a ruling class rather than those of an impartial judge. Here, too, the idea of control of the law by the judiciary makes visible the substrata of authority and power, and it seems almost a vain endeavor to seek to repress the one of these two essentially coexisting moments by use of the other.

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5 The Unity of the Law and the Social Structure of Meaning Called State1

I. The formulation of the problem by Bierling.—II. The formal context of acts and schemata and the layer of material content of meaning.—III. The normative layer of meaning.—IV. The three attempts at closure in the formal, material, and normative layers of meaning.—V. The illusory unity of the law and the equivocations regarding the concept of validity; the concept of order and of the ruling association; the mediatization of the ruling relationship; political theory and legitimacy.

I. In contemporary legal theory, the problem of the unity of the legal order or the juristic unity of the state is represented as a graduated legal structure. The lower legal layers are derived from the higher ones: Their validity, in other words, is based upon the higher levels up to the level deriving its validity from the constitution. The constitution is the supreme point of reference for legal phenomena of the lower levels and it is the foundation that renders all legal phenomena valid. In the constitution, the unity of the state is constituted. The investigations of Bierling offer the appropriate starting point in any analysis of the complex of problems known as the theory of gradation [Stufentheorie]. Bierling was not yet acquainted with the postulate of methodological purity, in the way that the pure theory This essay originally appeared as “Die Einheit des Rechtes und das soziale Sinngebilde Staat,” Internationale Zeitschrift für Theorie des Rechtes (1930–1931): 58–89. 1. The present investigations form a chapter of a work on the theory of the principles of the state [Prinzipienlehre des Staates].

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of law is through neo-Kantianism; his philosophical thought and his logical epistemological understanding are guided by Schopenhauer, Lotze, and Sigwart. But even in the absence of a readily available terminology that would have enabled him to stigmatize these phenomena as the products of methodological syncretism, Bierling still managed to cleanse the method of positive law from influences of natural law. He not only managed to achieve this on the practical level, but also discovered good formulas by which to express his demand for methodological purity. The object of his investigation, he stated, is not “to seek the right standard by which to evaluate positive law, but to ascertain the nature itself of positive law, of its effectiveness, its obligatory force.”2 Bierling had a clear sense of the internal autonomy and unique rules [Eigengesetzlichkeit] of the legal order. Moreover, he knew that the distinguishing conceptual features of “law in the juristic sense are not derived from some kind of moral law or ethical principle, but can be found solely through exhaustive analysis of those norms that are, or have once been, indubitably positive legal norms.”3 Bierling carefully cleansed the sphere of positive law of all influences by natural law and ethics. And though he did not introduce the term, he did work out the concept of that which later theory would call the “non-reducibility” [Nicht-weiter-Ableitbarkeit] and the internal autonomy [Eigengesetzlichkeit] of the legal order. On the other hand, Bierling’s theory retained a number of elements that were removed from the complex of problems only by later efforts at purification. Above all, it retained the problem of acknowledgment [Anerkennung]. Although his efforts to eliminate a psychological terminology that was completely inadequate were thoroughly justified, they were somewhat too radical. For by handling certain legitimate and very real problems with inappropriate formulas, Bierling caused these problems to disappear together with the illegitimate psychologism of the terms. Thus it becomes necessary to return to Bierling’s theory, for here the sphere of positive law has been at once cleansed and preserved. For all its theoretical inadequacies, this theory nonetheless grants some very useful insights into the content of the problem of gradation theory. 2. Ernst Rudolf Bierling, Zur Kritik der juristischen Grundbegriffe (Gotha: F.A. Perthes, 1877), 1:162. 3. Ibid.

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Furthermore, this very modest cleansing of the legal sphere has placed Bierling in a position very similar to the one in which Kelsen finds himself today as a result of his more radical operations. Seventeen years after the first volume of his critique was published, Bierling complains: “It is claimed that such ‘formalist theories’ are even worse than the old natural law, that they destroyed the image of the life of law—an image that is so rich in reality—and have led thereby to a ghastly devastation of legal science, etc.,” to which he must reply: “The juristic theory of principles ought never again to portray the life of the law in its totality, but solely the general conditions on which that life always and everywhere depends. These general conditions, accordingly, impress a particular and more or less identical stamp on all the phenomena of legal life.”4 Two motifs of thought flow together in Bierling’s theory of gradation. On the one hand, the order of the levels is to be expounded as a logically necessary and internally autonomous context. On the other hand, acknowledgment by those subject to the law is to serve as the basis for the validity of the norms. We wish to attempt to separate the two lines of construction from one another. A norm is valid because it is acknowledged. If one were to seek to apply this principle to just any norm, it would be impossible to construct a system of legal levels, because in that case, the lower levels would be unable to derive their validity from the higher ones but instead would have to acquire it directly from acts of acknowledgment. For this reason, Bierling distinguishes between direct and indirect acknowledgment: The highest norm is acknowledged directly and each resulting norm is acknowledged indirectly through it. “Ordinances of certain persons in the state should bind their fellow countrymen: If even this one statement is acknowledged, then as long as it is acknowledged, all resulting ordinances of this kind are acknowledged as well.”5 Bierling is well aware of the constructive nature of such an act of “acknowledgment.” “In the assumption of indirect acknowledgment—(i.e., of acknowledgment of consequences stated implicitly in the acknowledgment of its premises) an ‘ideal consciousness,’ a mind proceeding strictly by 4. Ernst Rudolf Bierling, Juristische Prinzipienlehre, vol. 1 (Leipzig: J.C.B. Mohr [Paul Siebeck], 1894). 5. Bierling, Kritik, 1:135 ff.

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logic is tacitly presupposed.6 Of course I admit this completely. . . . One who acknowledges a norm referring to other norms also acknowledges the norms (including those that as yet lie in the future) to which that one norm refers. This opinion of ours is nothing more than an application of the logical principle that the effect is contained in the sufficient cause.”7 The legal order is a logical context faced by the ideal consciousness as apperceiving subject. Within this formal outline, Bierling sketches the details of the graduated construction. Where a relation of cause and effect connects the legal statements, this formula could give rise to the belief that each logical deduction from a legal maxim itself forms a new level. Yet Bierling rejects this possibility: Although the legal statements can be logically deduced from one another, such deduction does not suffice to generate a level. The generation of a level requires “a particular norm-enacting act, hence a particular act of will to which the fundamental norm only refers in a particular way. This act of will is not yet entailed in the acknowledgment of the general, fundamental norm.”8 The order of levels is a context of delegations of legal enactments; it is the intermingling of logical deduction and an act of will to which the higher norm refers without anticipating its content. Such intermingling also characterizes the theory of levels that Merkl later integrated, in more precise formulation, into the system of the pure theory of law. As Merkl submits, the difference between legal contents at the various levels lies “in the addition originating in the subjectivity of the organ that is active on the respective level of the generation or application of law to which the objective law that has come over from the higher level of generation or application of law is added.” “It involves a unique combination of subjective and objective factors.”9 Bierling places special emphasis on the fact that the subjective factor, the incoming element of the will, springs from the subjectivity of the organ rather than from those doing the acknowledging or recognizing. The context of the generation 6. Christoph Sigwart, Logik, 2nd ed. (Freiburg i. B: J.C.B. Mohr [Paul Siebeck], 1889–1893), 2:582. [English: Christoph Sigwart, Logic, by Dr. Christoph Sigwart, vol. 1, The Judgment, Concept, and Inference, vol. 2, Logical Methods, trans. Helen Dendy, 2nd ed., rev. and enl. (London: S. Sonnenschein & Co., 1895).—Eds.]. 7. Ernst Rudolf Bierling, Zur Kritik der juristischen Grundbegriffe (Gotha: F.A. Perthes, 1883), 2:359 ff. 8. Bierling, Prinzipienlehre, 1:109 ff. 9. Adolf Merkl, “Das doppelte Rechtsantlitz,” Juristische Blätter (1918): 426.

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of law is self-enclosed and derives strictly from the fundamental norm; the law is generated by organs delegated to this purpose. Acknowledgment by those subject to the law or interpretation by legal dogmatists can neither contribute to nor destroy the validity of legal norms of the lower levels. All statements emerging as legal statements within a given order must be derived from the fundamental norm of the system in such a way that the norm of the higher level refers to a further act of will that must create the legal norm of the lower level. As an example of such a sequence, Bierling offers the following: As long as the basic constitutional norms concerning legislation are valid as first-order norms, all laws originating in a constitutional way contain second-order norms. Thus all norms treating matters of civil law, for example, all norms regulating testaments whose validity is based upon legal norms of the kind just mentioned—namely, on norms of a second order—are third-order norms. In the end, therefore, all norms deriving their obligatory force from third-order norms— such as, among others, dispositions made by an heir or executor in accordance with the testament that gives him the right to act to this purpose, are derived from matters of civil law, etc.—emerge as norms of the fourth order.10

The image of the legal context as a context of delegation has attained more clarity. At the same time, it has achieved the essential preparatory work for a more intensive analysis of the relationships between the levels: relationships to which we allude for the time being only very indistinctly. As we will find in the clearest formulations of the pure theory of law, Bierling’s formulation is ambiguous. This ambiguity stems from a reliance on terminology taken from material areas of law, usually from civil law. This is not the place to provide a detailed substantiation of this claim in Bierling’s case. Instead, we take up that crucial concept by which he seeks to capture the dependence of the validity of a norm and its level: the legal transaction. Broadening the meaning of this concept taken from civil law, Bierling defines it as “every enactment of subordinate legal norms,” or as “an enactment of legal norms on the basis of preexisting superordinate legal norms.”11 Of all legal acts—acts that are intelligible as legal, that is—he emphasizes those acts that are also acts of 10. Bierling, Prinzipienlehre, 1:112 ff. 11. Bierling, Kritik, 2:118.

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norm-enactment. Apparently aimed at creating a binding legal act as the lowest level of the system, this concept directs the legal problematic not toward legally relevant conduct in general, but primarily toward the legal norm that is of particular significance for a civil lawyer. The concept of the legal transaction has now been expanded beyond the sphere of civil law to encompass laws, ordinances, and judicial decisions as well. “With respect not only to the ultimate ground of their legal validity, but also with respect to the mode of their foundation or creation, law and authoritative disposition on the one hand and all possible kinds of transactions of civil law on the other hand are things of essentially the same kind.”12 Beginning with the level of the constitution, the law should be understood as a legal transaction. Bierling even occasionally describes acts at the constitutional level as legal transactions, namely, as legal transactions of international law.13 Yet he does not draw the conclusion that the constitutional level should be regarded as fundamentally legitimated by international law; at this point, his theory of “direct acknowledgment” of the fundamental norm (i.e., of a state’s constitutional norm) comes into play. Because of its name, Bierling’s theory of acknowledgment has been greatly misunderstood. Because he lacked the basic sociological terminology that was created by Max Weber, his strained efforts to clarify the state of affairs described by the term acknowledgment were never entirely successful. Bierling protested against the opinion that “the word, ‘acknowledgment’ is always thought to mean a ‘conscious volition’ or ‘conviction.’ Involuntary acknowledgment is still acknowledgment, and this includes not only compelled or coerced, but also unconscious, involuntary acknowledgment.”14 In order to include acts that are coerced or “unconscious,” the ordinary meaning of the word by which one generally understands a voluntary and conscious act is completely denatured. Acknowledgment “is not a transitory act, but an enduring, habitual conduct in relation to the relevant (legal) principles.” Acknowledgment should be understood not as a series of positive actions, but as a habit of conduct, for which Bierling uses such synonyms as respect, esteem, sense of subordination.15 This series of synonyms reveals the dif12. 13. 14. 15.

Loc. cit., 127. Loc. cit., 354. Bierling, Kritik, 1:82. Ibid.

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ficulties in his theory: In denoting a mode of conduct that belongs to the layer of habit, it makes use of a word that is better suited to describing a single, sharply delineated act. Bierling went so far in his efforts to clarify the matter that the habit of “acknowledging” became synonymous with “membership in a community.” Whether the community tie is called “purpose, “goal,” “common will,” “common sense,” “drive,” or “feeling of esteem,” “a norm is enacted” wherever such a tie exists. Through it, a norm becomes “valid,” with its validity “consisting” in the fact that people actually act in such a way that their conduct is intelligible according to the norm called the law. Thus does the norm as a schema of interpretation fit to the conduct of the people forming a community. By Bierling’s own definition, acknowledgment is only an awkward expression for the reality that a norm presenting itself as a legal norm can be applied to human conduct in social reality. A basic norm—a constitution—is acknowledged only when an identifiable group of people has patterned its conduct on a legal order that is derived from this basic norm. Whether voluntarily or involuntarily, whether aware or unaware of what he is doing, the individual “directly” acknowledges the constitution by conducting himself in accordance with legal norms. Only in isolated phrases does Bierling attain clarity as to the nature of acknowledgment. On the whole, his thought moves in a linguistic medium that is attuned to conscious, sharply delineated acts. We have seen that he has a clear sense of the thoroughly unpsychological ideality of the legal order and contrasts the logical context with an ideal consciousness as the organ of apperception. But then we discover a renewed attempt, in the context of the theory of acknowledgment, to understand the unity of this order as a concrete, psychological act of acknowledgment that encompasses all layers of the system. He concedes that this involves “a unique kind of ideal acknowledgment,” for the merely “indirectly” acknowledged legal norm takes effect only when it is regarded as a “logically necessary consequence of the directly acknowledged norm.” Acknowledgment, which must cover the fact of habitual conduct, must also bring the ideal connotation of legal statements together into a unity. Just as a series of suitable synonyms for “acknowledgment” emerged in the description of the habit, so does a “normally thinking man” appear alongside the ideal consciousness; such a man is rational enough to acknowledge the resulting norms 95

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uno actu16 with the basic norm. For “every normally thinking person,” Bierling believes, it is natural to comprehend the norms flowing from the basic norm “only to the extent that the norm in question enters his mental horizon in the first place.”17 Yet Bierling is not entirely sure that people will always think normally enough to preserve the unity of the law, for he speaks occasionally of the inner “admittedly not unconditional adherence of the normally organized mind to the logical relation of cause and effect.”18 The current presentation has made the merits and failings of Bierling’s theory sufficiently clear. Although burdened by an inadequate terminology, the undertaking has carefully worked through the fundamental problems of the immanent context of the validity of the legal order and of the social justification of validity that transcends legality. Taking as our starting point the situation in which Bierling left this complex of problems, we will now seek to sift systematically through its layers. This we will do by continually using certain analyses provided by the pure theory of law, in particular by the works of Kelsen and Merkl, and we will seek thereby to illuminate step by step the structure of constitutions.

II. We begin with a clarification of the question as to what the unity of a context is. Is it the legal order? A quintessence [Inbegriff] of norms or a quintessence of acts? A quintessence of legal phenomena or of legal forms? etc. Although neither these nor other turns of phrase are entirely clear and satisfactory, they still appear as the means to describe the material that is to be grasped as a unity. For example, let us take as our starting point the requirement to understand human conduct as legal acts in terms of an interpretive schema. Let us furthermore understand these acts in the context of other human conduct that is also to be qualified as legal acts. Even in this very formal-sounding statement, we find material baggage that will create difficulties when applied to the concrete phenomena of positive law. The word law and such terms derived from it as genesis of law, creation of law, enactment of law, application of law, etc., are encumbered beforehand with the idea 16. [of one act—Eds.] 17. Bierling, Prinzipienlehre, 1:46. 18. Ibid., 108.

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that moral duty is involved, and clashes of meaning result if we wish to describe a murder, for example, as an act of law, a genesis of law, or as norm concretization, or if we insist that this act springs from the law’s meaning or foundation.19 The burden of axiological meaning ought therefore to be removed from a terminology that, in accordance with its intention, expresses linguistically formal relationships that lie beyond assignments of value. At this point, the question is better left undecided as to what the law [Recht] is. So long as the analysis is occupied with the form of the connection among acts that will later be characterized as law and schemata of interpretation, we postpone the introduction of a concept of law for good reason. We therefore content ourselves with the observation that human conduct must be understood in terms of an interpretive schema—as acts defined in an interpretive schema. In a modern state or legal order (whatever these may be), a multiplicity of such acts and interpretive schemata merge into a unity, because the interpretive schema is itself generated in a second act, which is in turn understood through another interpretive schema, which is itself generated in a third act, which for its part is again, etc. Individual acts may combine to form series of acts; the series of acts combine to form series of a higher order; these in turn combine to form a network of acts and interpretive schemata, but in such a way that I can proceed in all directions from any point of the network and can in principle reach any other point of the network that I wish. If I deliver a judgment as a judge, I must understand my act of judging in terms of the interpretive schema of trial norms. These in turn are intelligible as laws according to the interpretive schema of the constitution; this renders intelligible the act of legislation in which a civil code is produced; this in turn renders intelligible a concrete sales contract, etc.20 I can understand the formal context of law in terms of the concepts of act and interpretive schema up to the act of establishing a constitution—an act that can no longer be understood in terms of an interpretive schema set in another act. Only a neutral formulation of this kind avoids the difficulties that arise as soon as concepts are used in which an axiological secondary meaning resonates. For example, the concept of the context 19. Cf. Hans Kelsen, Allgemeine Staatslehre (Berlin: J. Springer, 1925), 265 ff. 20. Compare with this presentation the presentations of Felix Kaufmann on the theory of gradations: Die philosophischen Grundprobleme der Lehre von der Strafrechtschuld (Leipzig: F. Deuticke, 1929), 30–36.

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of delegation is burdened with the same meanings as the concept of law itself. When I speak of the delegation of a norm enactment [Normsetzung] or the delegation of an act, I can still make the step from law to the transaction of civil law. To regard a punishable act as having been delegated by a norm of criminal law [Strafrechtsnorm], however, does not appear to me to be an entirely successful formulation. This difficulty is avoided by a formulation that locates the context in a system of acts for which one act provides an interpretive schema for further ones, which in turn provide a wealth of interpretive schema for further acts until the context flows out in acts which themselves provide no further schemata. Generally speaking, the attempts made by Bierling and the pure theory of law to capture the formal unity of the legal context have not yet attained the outermost degree of purity. Their results are marred by the fact that they usually isolate a single relationship between two acts of material law and establish this relationship as a universally valid model for the relationship between legal acts in general. In most cases, the relationship between a law and legal transaction or between a law and a judicial verdict is taken as the starting point for a demonstration that all other relationships among acts are of the same type as those that were first indicated. As his model for arranging norms and acts, Bierling chose the legal transaction in its significance as an enactment of subordinate legal norms resting upon the foundation of preexisting, superordinate legal norms. In applying it to the sphere of law and constitution, the model broke down, for it attempted to capture acts that no longer establish laws but provide schemata by which to interpret norms. Bierling was forced to contrast this group of acts, as transactions of legal activity, to the legal transactions. Likewise, the pure theory of law models its image of the context of acts on the gradation of law down to the judge’s verdict or the transaction of civil law, and it speaks of “application” of a higher norm as a sustained category of the legal system. The genesis of law is identified with the application of law, and the essence of application is defined as follows: “An organ more or less concretizes and individualizes the given, relatively abstract, and general legal material. It therefore involves a unique combination of subjective and objective factors. At this point, the impact of the subjective factor is all the greater, the more general and content-poor the constitution and the more specific and content-rich the legal norm that is conditioned by the 98

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intervention of the organ subject are.”21 Customarily, one speaks of application when a judge applies a legal norm to a fact. This concept of application is first reinterpreted in order to include the judge’s relationship to the trial norms, which is the relationship that enables his activities to be grasped as judicial in the first place, and the relationship is further burdened by the requirement that the act signify the enrichment of the content of a norm that has already been established in a previous act. At precisely the constitutional level, however, this very complicated concept breaks down, because although a law may consist in a more detailed elaboration of a legal content that has been set out in the constitution, it need not do so. In a constitution like the French one, for example, such a relationship is even precluded, because the constitutional laws of 1875 contain strictly organizational provisions. Barring a change in the republican state form, they do not materially restrict the right of parliament to legislate; nor do they prescribe any positive legislative guidelines. The statement that the French parliament “applies” the constitution when, for example, it amends the civil code, appears to me to be senseless—unless one means by this that the act of legislating as such should be understood in terms of the constitution. And if one were to seek to describe as an application of the penal code not only, as is customary, the judge’s application of the penal code to the punishable conduct, but also the punishable conduct itself, this way of talking would again lead to peculiar sounding results. To be sure, the application is a concept of legal content that also pertains to the sphere of constitutional law, to the institution of the Supreme Court, for example, but it seems to me to be unusable as a formal category of the legal context. The concept of application often emerges in close connection with the concepts of concretization and individuation. Merkl describes individuation in the following terms: “The legal forms of the higher level maintain a general structure, whereas the legal forms of the lower level usually evince an individual structure. . . . The progression from level to level represents a progression from the general to the less general, until the level of absolute particularization in the sequence of levels of legal forms is finally reached; hence, one might characterize the process of the genesis of law as a process of legal individuation.” Parallel to individuation, the 21. Merkl, “Das doppelte Rechtsantlitz,” 426.

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law passes over into forms that are continually more concrete, so that the process of the genesis of law can also be regarded as a “process of concretization.”22 Now, these concepts of individuation and concretization are equivocal in many respects. First, as Kelsen has emphasized,23 every act is individual and concrete, whereas the interpretive schema must be called general and abstract. To oppose the two pairs of concepts would thus mean the same thing that the concept of “application” means: namely, the relationship of an act to its interpretive schema, according to which it is understood as an act of a certain kind. Second, concretization is understood as the gradual completion of a norm-content. This would be something like the example in which a legal norm-content, which provides the framework for more specific legislation, is supplemented by the contents of an executory law [Ausführungsgesetz] and further by ordinances, decrees, and instructions. We shall designate this type of series of acts as the step-wise completion of a norm content. Such a stepwise completion has substantial significance in the constitutional sphere, because the process of the legal construction of a federal state often makes use of this combination of acts. A more or less generous constitutional autonomy is prescribed for the member states, namely, that the organs of the member states (for example, legislative assemblies) should determine the content of their constitutions; yet material determinations of the federal constitution usually limit this autonomy. For example, a federal constitution can require that the member states have a republican constitution, or it can also interfere rather profoundly in the organization of the supreme organs, determining such matters the following: “In accordance with the provisions of the provincial constitution and the promulgation by the provincial prime minister in the provincial law gazette, a provincial law requires the resolution, documentation, and countersignature of the provincial parliament” (Art. 97, 1, Austrian constitution). Essential contents of the provincial constitutions are anticipated in this way, and in the material just introduced, for example, the constituent organ may contribute only the form that the documentation and coun22. Adolf Merkl, Die lehre von der Rechtskraft entwickelt aus dem Rechtsbegriff: Eine rechtstheoretische Untersuchung (Leipzig and Vienna: F. Deuticke, 1923), 221. 23. Kelsen, Allgemeine Staatslehre, 232.

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tersignature must assume. The federal constitution regulates to the minutest detail such matters as that provincial parliaments must exist and that their legislation must take a certain path. The distribution of the genesis of norm-content among a multiplicity of acts is, very generally, one form by which the relatively independent political life of a smaller community is incorporated in a legally satisfactory way into the political life of a comprehensive community. Yet the creation of the norm-content cannot be distributed within the constitutional sphere alone; with the help of such legal forms as the legislation of fundamental principles, the legislation of perpetration, and the execution [of the law], it can be gradually accomplished in the sphere of civil law as well. Further, gradual completion is a useful instrument if an organ like the parliament generates the materially and politically fundamental components of a legal content, whereas an expert bureaucracy is left to fill out the principles with technically necessary individual provisions. Third, the establishment of law is understood, specifically by Kelsen,24 as concretization. Using the example of a punishment of an unjust act: That a concrete state of affairs to be linked with the consequences of injustice exists at all, and that it is linked with a concrete consequence of injustice—this entire relationship is created by the judicial verdict. Just as the law in the realm of the general links the two facts of legal prerequisites and legal consequences, they must first of all be linked by the judicial verdict in the realm of the particular. . . . Hence, the verdict—which declares the legal state of affairs in the concrete case as given and expresses a concrete legal consequence—is nothing other than an individual legal norm, the individuation or concretization of the general or abstract legal norm.

Let us try to untangle this web of acts and interpretive schemata. Norms of criminal law may, for example, define theft and may further state that the act of theft is punishable by one year in prison. If I understand a man’s act as theft, then I understand it in terms of the norm of criminal law that defines theft. Any person whatsoever can perform this act of comprehension and state that this action is theft as defined in the norm of criminal law. However, if this act and this statement are not the act and statement of a particular person such that I can understand them as the act of a judge according to an interpretive schema of trial norms, they are legally irrelevant. Aside 24. Ibid., 233.

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from his act of understanding the act as theft, the judge performs yet another act in which he declares what kind of punishment the thief should receive and when and where it is to be carried out. This second act is entirely different from the first one. In terms of organizational practice [organizationstechnisch], moreover, a person other than the one who performed the first act could perform the second. In a certain sense, this kind of separation of the two acts can be found in the procedure of courts using juries. According to the norms defining the judge as the sentencing organ, the second act should be understood as the one that prescribes the punishment, and the type and extent of the punishment itself should be understood in terms of the norms that define the type and extent of the punishment of unjust acts. These two acts of the judge, which together constitute the verdict, can in turn be regarded as the precondition for acts executing punishment in accordance with other norms. This entire, complicated layering of acts and interpretive schemata is bound together and packaged into a well-defined unit by the aim of penal legislation and the successful accomplishment of this aim. This entire unit (and this analysis, undertaken a propos, by no means goes to the heart of the matter!) can be subsumed to the headings of concretization and individuation. We would prefer to speak here of a series of acts whose collective meaning is the successful realization of norms. The two types of series of acts, which we have called the gradual completion of norm-contents and the successful realization of norms, point to the general phenomenon of self-enclosed series. Yet the analysis of the concepts of application, concretization, and individuation has demonstrated a tendency to move beyond a selfenclosed series of acts. There is a clear, pronounced tendency to understand a single, specially selected relationship between acts and interpretive schemata as constitutive for the entire context of law. This tendency gains support from the simplified image used to depict the legal context: that of a graduated structure that clearly derives its notion of the height and depth of the levels from the phenomenon of the gradual completion of norm-content. Our neutral description of the legal context of acts that are intelligible in terms of interpretive schemata, which for their part are enacted in turn, which for their part are in turn, etc., can only yield a numbered sequence of schemata and acts, a ranking of interpretations that cannot give rise to an image of high and low. Only when we regard 102

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the favorite model of the succession of constitution, law, ordinance, and administrative decree as typical do we discover an element of super- and subordination in the gradual completion of the norm content that occurs in the wake of these acts. This element exists only to the extent that the first segment of content generation for this content has fundamental material and perhaps even fundamental political significance, while the following segments do not so much determine the general character of the content as encompass the more or less subordinate layers. This sequence, which extends from materially and politically dominant segments of content to materially and politically subordinate ones, is the core of the hierarchy of high and low in the succession of levels. Yet in the context of acts and interpretive schemata, a clear, parallel series of acts does not necessarily correspond to the series of segments of content. Interpretive schemata for those persons who are issuing ordinances do not necessarily appear in laws that leave the completion of their norm-content to the ordinances; on the contrary, these interpretive schemata are usually contained in the constitution itself, so that acts of legislation and administration should be regarded as parallel rather than as subordinate to one another. Article 18 of the Austrian constitution, for example, states that the state administration can be carried out only on the basis of laws and that the administrative bureaucracies may issue ordinances within their areas of jurisdiction on the basis of laws. In providing this schemata, the constitution contradicts its own language, since the ordinances, which are apparently issued “on the basis of laws,” are in reality issued on the basis of those constitutional provisions according to which they are intelligible as administrative acts in the first place. In the articles 19 and 20 that follow, the organs that are to carry out these administrative acts are identified in more detail, so that the laws themselves, which require supplementation of their normative content by ordinances, in fact have very little latitude in which to supplement these norms of constitutional law. For example: The minister of finance is entrusted with executing this law, whereby is established the jurisdiction of the bureaucracy to which the execution of this law belongs, which can at times be a doubtful matter. Compared to its extensive founding in the constitution, therefore, the “basis” in law is very modest. Talk of superand subordination of law and ordinance is meaningful only for the fundamental, materially superordinate position of the content of 103

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the law with respect to the executive, materially subordinate position of the content of the ordinance. For the relationships among acts and schemata of interpretation within which the relation of constitution, law, and ordinance is structured, by contrast, such talk has little or no meaning. Such erroneously assumed formal super- and subordination appears never to have been addressed by the theory of gradation. The question as to super- and subordination in the official channels of the courts, by contrast, has aroused passing attention. “Quite contrary to customary expectations,” Merkl once claimed that “a relation of condition and conditioned-ness (and along with it, of super- and subordination) obtains (contrary to normal expectations) between civil and public legal transactions. Similarly, the individual act—for example, a judicial verdict or decree of an administrative office of the so-called lower instance (viewed in terms of the office hierarchy)—is the prerequisite of the corrective act of the instance above it.”25 With its concepts of higher and lower, this rigid image of an order of levels comes into open conflict with the pretheoretical image of law. In the series of acts, the legal transaction is subject to the verdict of a subordinate court; this verdict, in turn, is subject to that of the higher instances; a consistent theorist of gradation must treat this series just as he treated the series of law-ordinance-judicial verdict, and establish a relation of superand subordination among them. The parties to a contract would be ranked above the lower court judge, and the judge would be ranked above the higher courts. How can this construction be reconciled with the fact that a councillor at a district court or even at the supreme court ranks much higher, even if only in the administrative hierarchy, than a simple district judge? More clearly than in the preceding case, the multiple strata of both the formal context of acts and the meaning of a series of acts are caught in a contradiction if one seeks to capture them in a single layer of terminology. The review of verdicts of lower courts by a higher instance is a purposive context of acts in which the verdict of the higher instance appears as the “higher” element because it verifies the material and issues the final decision. As in the preceding case, this purposive context is embedded in a context of acts that has its own formal structure. 25. Merkl, Rechtskraft, 215.

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The acts of the various courts will in general be formally coordinated, since they are intelligible according to the very same norm contents regarding the procedures and organization of the courts that have been established by the laws and constitution. As this analysis reveals, the formal sphere of the context of acts and interpretive schemata is the fundamental layer of the entire legal context, the form of the series in general. Yet even if it is the fundamental layer, it is still no more than one layer: No more than one portion of the total significance of the legal phenomena as a complete theory of these phenomena should represent it. The contexts of meaning of the few series of acts that have been discussed here already lie beyond the formal context of the acts, and it seems to me theoretically inadmissible to apply to the formal actcontext of the law in general those relational concepts that have been won from particular series of acts and their area of meaning. Precisely in the constitutional sphere categories like super- and subordination, concretization, individuation, and context of delegation have a very limited application. For example, these concepts cannot at all capture such an important constitutional series of acts as the path of legislation. According to the Austrian constitution, the Federal Council [Bundesrat] can object to a legal decision of the National Council [Nationalrat] if that objection is supported by solid reasons. The federal chancellor [Bundeskanzler] then communicates this objection to the National Council. According to the provisions of constitutional law, this entire series of acts of the legislative process should be understood as a series of coordinated acts, and it is completely meaningless to say, for example, that the objection of the Federal Council is superordinate to the federal chancellor’s communicating act, or that the federal chancellor concretizes and individuates the objection of the Federal Council or that he applies the objection by communicating it, or that his communicating act is delegated by the objection. The various series of acts have their own contexts of meaning, and these cannot be understood as a single formal one shared by all series of acts of the entire context. Above the formal layer of acts and schemata lies that of the meaning of the content of the series of acts, and the unique character of the structure of its series must be investigated for each area of law—including constitutional law.

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III. Above the formal substratum of acts and interpretive schemata lie the series of acts of a particular, material content of meaning: such series as the gradual supplementation of a norm content, of control, of execution, of the generation of law, etc. In the analysis of these contexts, we have wherever possible avoided speaking of a legal or state order or of the validity [Geltung] of norms or legal maxims, since these concepts already envisage a layer of meaning that is higher than those that have been mentioned to this point. To speak of validity in the formal sphere would not serve our purpose, for what meaning should any talk of the validity of an act or interpretive schemata have? Referring to an act, validity can mean only that the act is intelligible in terms of an interpretive schema—and to capture this relation, talk of intelligibility in terms of a schema suffices entirely. With reference to the interpretive schema, validity can mean only that it has been generated by an act that is, as an act of the genesis of an interpretive schema, intelligible in terms of another interpretive schema.26 In the formal sphere, therefore, validity has the same meaning as the context of interpretation and as the tracing of this context back to a first act in which it originated. (We will have to attend to this question of origin more closely.) Yet the concept of validity is also inapplicable to the sphere of the series of material contents. The acts are linked in such a way that events or acts become prerequisites for further acts. Putting forward a motion in parliament is the prerequisite for treatment in accordance with the order of business. The decision following the third reading is the prerequisite for communication to a second chamber, whose decision is the prerequisite for documentation and countersignature. This in turn is the prerequisite for publication of the law in a law gazette. This series includes no normative classifications, but only statements specifying under what conditions personal conduct should be understood as acts of a certain kind. For example: The reading aloud of paragraphs of a document and 26. Here the greatest care in word usage is required. Each act (even the one that does not produce an interpretive schema) “has” a meaning, namely, the one by which it is understood according to an interpretive schema. The meaning of a legislative act, for example—i.e., the meaning by which the act is understood as a legislative one in terms of the constitution—is not to be mistaken for the meaning of the interpretive schemata that are produced in this act: that is, with the meaning of the content of the law.

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discussion of the paragraphs read are to be understood as a third reading and debate about a law, under the condition that a second reading has preceded it and that the second reading is such if a first reading has preceded it, etc., back to the advancement of the motion. The normative quality of a series of acts is first constructed by interpretations in terms of an order of values. These interpretations can be carried out either by the producers of the schemata of the formal legal context, by the agents of the series of acts that are understood as normative, or by uninvolved outsiders such as legal scholars. We take as an example the following chain of acts: enactment of a schema that defines murder, enactment according to that schema of an act that is to be understood as murder, enactment of the indictment, verdict, and penal system. If, in its normative content of meaning, this chain is captured by the statement that a person who murders should be punished in a particular way, then the creator of the contents of penal and trial law may have regarded this association as a duty. Yet the legal scholar can also carry out the normative categorization of misdeed and punishment, just as the perpetrator, judge, and prison warden also can do. We must be clear that the normative meaning does not adhere to the association as such, but is instead imported from outside. I can observe the same series from the standpoint of other normative schemata as well. As a legal scholar, for example, I can normatively interpret a vagrant’s property offense in winter that leads to his detention in prison in such a way that I understand the property offense as a prohibited act and the incarceration as an evil that ought to punish the legal infraction. The vagrant might consider the punishment as offering pleasant accommodation in a heated room with free maintenance of his basic needs, and for this reason he might deem his commission of the offense extremely advisable. The merchant concluding business deals makes use of certain business forms that have been standardized by the state in his own interest: This he does in order to lay claim to the state’s power in the case of nonfulfillment by a business partner. Likewise, the vagrant makes use of the designated form of offense in order to secure certain actions by the state that are in his own interest. We prefer the first interpretation of the normative meaning of the series of acts, because people with a vagrant psychology are in the minority. According to general experience, loss of money, deprivation of freedom and (in 107

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extreme cases) loss of life are usually regarded as an evil, just as the coercive infliction of this evil by organs of the state is usually regarded as punishment. According to the stronger groups of a community, those circumstances whose existence becomes a condition of punishment should, from the point of view of an ethical order, be regarded as prohibited. Series of acts should be understood as normative associations only in terms of a value system in whose validity both the generators and subjects of the law generally believe. If we erect a supreme norm whose content requires that human coexistence proceed without struggle or argument, the obligation to find the indispensable means to this end arises along with it. Coercive acts are obligatory because general experience holds them to be a useful means for achieving peaceful coexistence. The appropriateness of the coercive act as a means is very much enhanced when the organs entrusted to impose the penalty and execute the punishment share the labor. Such execution will serve its purpose all the better if potential differences in opinion and attacks on life, liberty, and property in the broadest sense are standardized in such a way that the question as to whether a socially prescribed or proscribed behavior is involved could be easily answered. This purpose is served by the content of the so-called norms of civil and criminal law. These latter norms are interpretive schemata set in normative series of meaning by defining acts: If performed, such acts can become prerequisites for coercive acts. If the penal code merely defines what bigamy is, this achieves nothing more than a definition of bigamy. We can interpret bigamy as forbidden and the criminal law as prohibiting bigamy only because the offense lies within the context of the series of acts that has an evil as its final consequence. Kelsen has devoted special attention to the layered quality of normative meaning and has constructed the schema of a legal norm into which any normative series must fit. This schema states: “If a person, through his act or omission, brings about an event E, then he should be confronted with a coercive act C.”27 Kelsen also brought attention to the fact that the normative character of the series of acts is intelligible only by assuming certain experiences that mediate between duties of a higher and lower order. The infliction of punishment cannot undo anything that was done by the act 27. Kelsen, Allgemeine Staatslehre, 49.

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of injustice. Thus, if we view punishment as a means to establish order, we must concede that it cannot enforce anything regarding the injustice that has occurred in the concrete case. Punishment can be understood as a successful means of enforcement only on the basis of a theory of prevention that draws its conclusions from experiences of the effectiveness of the threat of punishment. “The coercive act, especially punishment, should induce people either not to cause or to prevent the socially damaging event that forms the prerequisite of such punishment.”28 Kelsen also noted that statements determining which kinds of conduct result in a coercive act of the state can be called norms in only an “abbreviated” way. The statement “Thou shalt not steal” is “only the abbreviated version” of the meaning of the association of a fact with a coercive act of the state.29 The normative meaning settles relatively loosely on the series of acts, and the various normative fragments of meaning (norms of civil, criminal, and procedural law) are best fused into a unity by the schema of the hypothetical legal statement that was just introduced. This schema is maintained not only in those legal spheres that aim at achieving a certain conduct of the citizens; it also proves very useful when applied to the conduct of the persons who perform the coercive acts. The hypothetical legal statement can be completed by the conditioning fact of an act of thievery followed by the punishment of incarceration. Similarly, it might be completed by the breach of conduct of an organ followed by a disciplinary action. The entire context of acts and interpretive schemata can be broken down into successive layers of normative series of acts. Here, however, an ethical postulate must always be maintained as the prerequisite according to which the normative meaning penetrates into the series of acts and seeps into its minutest details. The concept of a normative association of acts that concludes what is often a very extensive conditioning series of acts is a concept of type. In modern legal ordinances generating interpretive schemata for illegal conduct, we often find the type of series that constructs illegal conducts and judicial procedures of all stages in order to end with the imposition of a legal penalty. And for the purposes of this system-formation, it would be very agreeable if all 28. Ibid., 50. 29. Ibid., 52.

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elements of the formal context of acts and interpretative schemata could be incorporated into such normative series and if the meaning of a normative series in no case transcended the acts and schemata it contained. If all formal elements could be accommodated into series of normative meaning and if all incipient normative series could find their completion within the formal context, the entire legal system could be meaningfully classified in terms of the normative series. The conduct of the citizens would be intelligible as legal because it would emerge in series ending with punishment or execution. The conduct of persons performing the coercive acts would be intelligible as legal because it would emerge in a series terminating in disciplinary actions of various degrees. The conduct of persons who generate interpretive schemata for the conduct of those subject to the law (legislators and those issuing ordinances) would be intelligible as legal because it would emerge in series terminating in sanctions of a different kind, etc. In accordance with a supreme requirement of order, a certain conduct of citizens and the coercive conduct of organs is obligatory. As a further consequence, acts of coercion and of the standardization of conduct in interpretive schema must also be compelled as obligatory. To this end, new persons are necessary who coerce and generate schemata and who, for their part, are in turn compelled, etc. According to this principle, several series that are self-enclosed in terms of normative meaning would be joined such that the conduct of persons who issue legal orders and execute them in coercive acts would in turn be understood as ordered and sanctioned by coercive acts. Formally, such joining could link one member to another ad infinitum. In the present empirical material of modern political associations, however, this layering is usually already very thin with the second member and breaks off entirely with the third. We find thoroughly developed interpretative schemata for the conduct of citizens and a well-formed coercive organization serving its enforcement: A debtor must honor his obligation as stipulated in the loan agreement, and if he does not, the law will be enforced against him. By contrast, the conduct of persons belonging to the coercive staff (to express it concisely) is no longer sanctioned in this comprehensive way. In accordance with the nature of the interpretation of legal statements, court activities are constituted so that an exhaustive sanction is technically absolutely impossible. The well-justified opinion of a supreme tribunal must be accepted 110

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as final and is subject to no further review, because any coercive procedure directed at the correctness of the verdict (i.e., the court’s fulfillment of its duty) could in fact consist only in a material review of the verdict, and this would only pose afresh for its own act and judgment the problem that was just solved concerning the correctness of the preceding judgment. This is why the decision of a final instance, which cannot in principle be sanctioned, can generate new law, even (as it often does) in opposition to the law, to the application of which the court in question has been called. Article 4.2 of the Austrian constitution, for example, determines that no internal tariff boundaries or other restraints on traffic may be erected within the federation. There can be no doubt that toll roads are restraints on traffic. Nevertheless, the Austrian Constitutional Court has ruled that toll roads are not restrictions of traffic in the sense of Article 4. If it were not that the “correctness” of the verdict remains unsanctioned because it cannot be sanctioned, one could say that the Constitutional Court has by its verdict reneged on its duty to apply the constitution. A good jurist can, of course, convincingly prove that tollbooths barring the road every ten meters do not restrict traffic in the least, and the opposite opinion of a sanctioning judge would be just another opinion supported by grounds that are no weaker, to be sure, but no stronger either. In the next of the interconnected normative contexts, the coercive act is ultimately altogether lacking. The organ, which establishes the interpretive schemata for the conduct of legal subjects, for the conduct of coercive staff, and ultimately for the disciplining of this staff, is itself seldom subject to sanction. It is thus no longer a link in a normative series that concludes with a coercive act directed at the conduct of the legislating organ. Just as decisionmaking can be only partially sanctioned in accordance with disciplinary law for technical reasons, so a complete sanction of the legislative organ, be it an absolute monarch or a parliament, is impossible as well. In certain circumstances, the constitution provides no more than that a certain organ is permitted to legislate. It provides for no coercive staff whose coercive acts would seek to ensure, for example, that the legislative body should pass laws at all, or perhaps only laws of a specific content. If the constitution does not provide for courts that review laws with respect to their material constitutionality, then the adherence of parliament to certain basic rights and freedoms set out in the constitution is not 111

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sanctioned either. A normative series seeking to determine a particular conduct of the parliament as obligatory has been initiated, but it has not been brought to its meaningful conclusion in coercive acts. However, if a court is entrusted with this kind of review, then the sanction—or better, the nonsanction—is only pushed back one act further, for the decision of the court itself cannot in turn be sanctioned. As a rule, therefore, no self-enclosed normative context of meanings corresponds to the self-enclosed formal context of acts and interpretive schemata. The normative meaning transcends the formal network and incorporates as coercive for certain types of conduct of the supreme organs social conduct that can no longer be understood according to the interpretive schemata of the formal context. But here the very types of conduct are involved that Bierling sought to comprehend under the term acknowledgment.

IV. The question concerning the closure of the system, which is to say, concerning the structure of the constitutional level, can be posed in terms of each layer of meaning. In the formal context of acts and schemata we arrive at an act that furnishes a schema for further acts without itself being interpretable in turn according to a contextual schema. Let us call this act the act of generating a constitution. I believe that in fact little can be said about the constitution and the act of generating a constitution in the unity of meaning of the formal context. At least, no more can be said than that it is a first interpretive schema, established in a first act, which cannot itself be interpreted in terms of some schema of the system. Each attempt to go beyond this act leads at once beyond the formal context into other layers of meaning and interpretation of meaning. As it appears to me, Felix Kaufmann has come closest of all to this formal, pure layer and the problem of closing it in his already mentioned work on guilt in criminal law.30 Kaufmann endows the concept of the basic norm—a concept through which such authors as Bierling, Kelsen, Merkl, and Verdross seek time and again to overcome the problem of closure—with a purified formal meaning. 30. Kaufmann, Strafrechtschuld, 34 ff.

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He defines this meaning as “the recapitulation, for example, the rational reconstruction of those ‘final’ criteria—that is, of those criteria that cannot be traced back any further—according to which the procedure that is in certain circles called the ‘application of law’ occurs in fact. For this reason, it lies ‘behind’ the constitution itself, because it determines which norms are to be regarded as constitutional norms, because it—succinctly put—represents the quintessence of the criteria of positivity.” This criterion of positivity is not itself positive: that is, it is not enacted in an act of the context as an interpretive schema. Moreover, it lacks the character of a norm, so that, according to Kaufmann, the term fundamental norm would best be avoided, because it might lead to misunderstandings. At this point, we would need to add to his analysis only the observation that this pure concept of the criterion of positivity also oversteps the context of acts and schemata and thereby passes over into other layers of constituting the meanings of law and state. The entire complex of meaning of the political association called state, including its legal order, seen from the sphere of the formal context, can in no way be closed off. We can speak of this formal context as an object of this study at all only if the unity of the entire complex of meaning is already present prescientifically and if we extract from it the fundamental layer of acts and schemata. Without a relation to its emergence in a complex of meaning called state, the context as such would dissolve in all directions, by no means stopping at the constitution. Probing beyond the act of generating a constitution and inquiring as to the origin of its meaning, we stumble into a maze of wishes, programs, commands, acts of obedience, and theories of all persons who participate in the political life of the time and who interact with each other, understand each other, misunderstand each other, intersect, and amalgamate. That we then select from this boundless diversity the conversations of several gentlemen and set apart their discussions, meetings, signatory acts, etc., as an act of generating a constitution can never be justified from the standpoint of the formal context of acts and schemata, but rather requires material meanings and normative interpretations. Kaufmann’s attempt to elaborate the fundamental layer of acts and schemata in a way that is free of material and normative constructs of meaning has thus been completely successful. I would prefer only that it avoid a theory adhering to the criterion of positivity; for the conclusion of the fundamental layer is not to be found in the 113

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theory itself, but must be sought in layers of meaning of a higher order. In his theory of the orders of norm or levels of law, Bierling does not clearly and expressly state where the context is to be closed off, but the examples he provides make it clear that he sought to derive such closure out of the layer of the material content of meaning. Direct acknowledgment by all fellow jurists is to provide the basis of the validity of norms of the first order. Yet because an ideal consciousness carries out this indirect acknowledgment, and because such acknowledgment is to be understood as a logical context of the norm-orders, the concept of acknowledgment does not intend a real, psychic conduct in this sense. This attitude cannot reveal the point at which the formal context passes over into different layers of meaning. Bierling discovers two cases in which a norm can be understood, not in terms of the formal context, but through direct acknowledgment as such. First, all norms “whose external introduction or enactment has come about through violence and in opposition to the law that previously existed, be it through imposition from above or through revolution,” require such acknowledgment. Bierling has in mind a revolutionary disruption of the continuity of law and the genesis of a constitution through acts that cannot be interpreted from the standpoint of the earlier constitution as acts of constitutional amendment. But Bierling does not seem to think that preservation of legal continuity in the formal sense offers sufficient grounds for the legal validity of a constitution in all circumstances. Even foundings proceeding in continuity with the existing law—such foundings as that of the North German League or of the German Reich—at first entailed “merely imposed constitutions that achieved legal closure only through acknowledgment by all the members of the Reich as such.”31 The pure theory of law tends to proceed exclusively along the series of acts and schemata. Even if the norms concerning constitutional amendments are granted, the theory tends to claim, for example, that a democratic republic derives the validity of its constitution from a constitutional monarchy, and that the latter in turn derives its validity from the decree of an absolute monarch, so that the ultimate ground of validity of a republic’s laws would be the decree of the absolute monarch. If one 31. Bierling, Prinzipienlehre, 1:110.

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follows this formal series to its logical end, one could perhaps reach the conclusion that the valid state-form is an absolute monarchy despite the existence of the democratic republic. Bierling saw very well the collision of meanings that would result if one were to seek to understand a complex of meaning in its selfenclosed state in terms of a single, arbitrarily selected layer. Although he did use psychological language, he by no means thought in psychological terms at the wrong place, and so he saw very clearly with his concept of indirect acknowledgment that an amended constitutional norm could be comprehended as a derivative norm in terms of the constitutional norm that legitimates the amendment. He insisted, however, that such norms, which are indirectly acknowledged, must also be regarded as directly acknowledged. They would thus belong to two different orders at once, “depending on the viewpoint under which we are considering them at a given moment.”32 Although Bierling did not exactly present this impartial judgment with full clarity, he nonetheless seems to have favored direct acknowledgment. This can be seen from the statement cited previously, in which he unreservedly demanded direct acknowledgment as the indispensable prerequisite of legal closure. Here a material constitutional concept, a concrete content of meaning, serves to close the complex of meaning. In order to attain the meaning of the legal order, one must derive it from a constitution: that is, from the quintessence of the interpretive schemata surrounding the creation and function of the supreme legislative and administrative organs. At this material content of meaning, Bierling makes the cut-off that he perceives will delimit the meaningful unit of the state and its order. Although the formal context of acts and schemata may indeed reach behind this constitution to earlier legitimating constitutions, Bierling’s theory of direct acknowledgment rejects this path to legitimacy. In terms of material meaning, a state can have no more than one constitution; it cannot be organized in more than one way. Because he prefers to think within the layer of the material content of meaning, Bierling regards every expansion of the context of meanings beyond this organizational closure as nonsensical. As developed by Kelsen, the theory of the fundamental norm moves on the normative layer—the third of the layers of meanings 32. Ibid., 113.

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treated. In Kelsen’s attempt at closure, it becomes even more clear than in Bierling’s that the sphere of law cannot in principle be completed within itself. It depends rather upon certain forms of social organization, namely, states, and it is comprehensible as law only in their terms. Without explicitly stating it, Bierling worked with a type concept of the state, and for this reason he drew the line at the constitutional level. He did not want to allow the state’s legal context to extend further than its entire complex of meaning, whose type appeared to him more or less clearly as a ruling organization with legislative and administrative organs at its pinnacle. As long as this pinnacle organization remained unchanged, the identity of the social phenomenon called state was preserved. Kelsen develops this type-concept more extensively. In doing so he places greater emphasis on the normative layer of meaning. For him, positive law is and must be a coercive order, because the norms regulating social conduct spring from the arbitrary whim of a human authority and cannot be conclusively recognized as ethically necessary. “One has to take into account the possibility that people act in a way that is different from that which the norms of positive law prescribe. Precisely this aspect makes coercion an indispensable element of positive law.” Positive law is a coercive order in the sense of an order that mandates coercion. In order to accomplish coercion, organs functioning on the principle of a division of labor are set in place. Such an organization with a coercive staff is a state. “And thus one can also say that the state is the completed form of positive law.” An association whose order is forcibly established by a coercive staff is a social organization whose order is called positive law. The legal order is defined, not immanently, but as the order of a specific type of association. The validity of this order stems, not from absolute norms, but only from the assumed validity of a fundamental norm. “The obligatory quality [das Sollen] of positive law can always be only hypothetical. . . . On the assumption that one should conduct oneself in accordance with the resolutions of a particular popular assembly, a particular parliament, that which this monarch commands, which this people’s assembly or parliament resolves is lawful, norms that have come into being in this way are ‘valid,’ that which these acts entail ‘should’ occur.” With this information as to the content of the basic norm, Kelsen develops a normative theory of the closure of the system. The theory stands relatively independently beside a formal theory of 116

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the basic norm. According to the formal understanding, the basic norm is the constitution in the sense of legal logic: It introduces a constitutional legislator who establishes norms for legislation and thereby generates the constitution in terms of positive law. With his theory of the criterion of positivity, Kaufmann made this component of the fundamental norm more precise and purged it of all normative content. Already independent of the formal function of the criterion of positivity in Kelsen’s theory, the normative content achieves independence as the normative justification of legislative activity ever again in the substantive formulations of the basic norm. It is not the constitutional act but the interpretive schema, which is the material content of the constitution overlaid with a normative meaning that allows the activity of the organs that stand under the constitution to appear to be obligatory, that is to be legitimated. In its normative significance, the hypothetical basic norm sets in place, not the legislator of the constitution, but the legislator as such. This meaning of the basic norm consistently transforms the lowermost of the normative series that were investigated earlier—namely, the series in which a conduct of a citizen is placed under sanction—into the core problem of normativity. The basic norm does not demand that the parliament act in accordance with the constitution, but that the citizen act in accordance with the laws passed by the parliament. (This disregards entirely the fact that a norm placed above the constitution could only demand that the legislator of the constitution conduct himself according to the basic norm.) And in a more precise definition of the basic norm, Kelsen specifies the formula of its content as well. For the formula stating that whatever the supreme authority commands ought to occur is only a short form for the following, complete formula: “Under conditions determined by the supreme authority, such coercion as this authority determines should be exercised and this only as it determines it. The basic norm has the form of the legal statement, the basic form of the legal statute.” The fundamental normative categories are those of order for the citizens, normative compliance through the citizens, and the coercion of normative behavior of the citizens. The basic norm is an abbreviated expression for an association of meaning [Sinnverknüpfung] that states that the order established by particular organs should be followed by those subject to law if they want to avoid the coercive acts that are directed by the same organs. For good reason, this basic norm 117

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relates only to the lowermost normative series and not to the series layered above it, because, as was indicated earlier, the higher series does not follow the schema of norm-association that the legal statement prescribed. According to its nature, a basic normative hypothesis that seeks to capture the meaning of a series ending in the enactment of a penalty cannot satisfactorily close on its own either the unity of the entire structure of meaning called “state” or the unity of the normative layer of meaning. For in keeping with its own purpose, such a norm is oriented toward a complete normative series, whereas the series in which the acts of supreme organs lie remains incomplete.33 None of the three layers of meaning is self-enclosed. Each points beyond itself to its completion in another. In principle, the formal context flows unendingly in all directions and its starting point cannot be based upon its own unique autonomy [Eigengesetzlichkeit]. Making the cut at the constitutional act refers to the material content of meaning of certain social acts and beyond these to the acknowledgment by those who are subject to the law. Ultimately, the normative meaning settles above the layer of material meaning. In the course of the layering of the normative series upon one another, this normative meaning moves toward acts and schemata whose ground of validity must be sought beyond the context of the series altogether in further layers of the constitution of meaning.

V. Traditionally, a science called legal theory investigates the formal context of acts, the material contents of meaning of a series of acts, and the normative meaning. The three layers coalesce into the concept of the validity of an order, a legal statement, or a norm. With the help of this concept, legal theory treats these layers as though they were indistinguishable and as though they comprised a single realm of ontological being; here, the realm of nature opposes that of duty [des Sollens] or normative validity. The use of various modes of expression in applying the concept of validity effectively indicates its equivocations. In the fundamental formal layer, a norm’s 33. The theory of the basic norm is presented according to Kelsen’s work, Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus (Charlottenburg: R. Heise: 1928), 9, 11 ff., 19, 25 ff. [Voegelin miscites this book as Die politischen Grundlagen . . . —Eds.]

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validity signifies no more than the ideal quality of the meaning of the interpretive schema. The meaning of an interpretive schema is an ideal object, and insofar as one seeks to oppose its ideal quality either to its real embodiment in written characters or words or to its real ideation in a stream of consciousness, one can speak of its validity. In the second layer (that of the material content of meaning), validity means the range of application of the interpretive schema in its personal, spatial, and temporal dimension. For example: A German legal norm is “valid” for me because I am of age, because I live within the territory of the German state, and because the norm’s term of application has neither expired through a time limit nor been terminated by another norm. Validity is part of the meaning of the norm. Within the layer of normative meaning, finally, validity signifies the superimposition of a value-content upon the acts and schemata, by virtue of which the acts or schemata appear as either obligatory or nonobligatory. The scholar who works with legal materials is essentially interested only in the second layer. The fact that he deals with meanings is the unreflective precondition of his activity, an activity that consists in arranging meanings according to material contexts. If, by contrast, the quintessence of meanings is understood as a meaningful system of norms, the normative meaning can become important as an interpretive principle. In a problematic case, the legal dogmatist considers what should be regarded as obligatory or nonobligatory according to the intentions (which can be ascertained from the context) of a hypothetical legislator. For the jurist of positive law, the unity of legal science is constituted pragmatically. Such advocatory professions as administrative civil servant, judge, or juristic councillor require for their expert exercise a more or less comprehensive knowledge of certain portions of the context of acts and schemata. The requirements of these professions delimit the legal material that is processed in works of positive law. As a rule, this material encompasses all the general norms as well as such individual norms as judicial verdicts and administrative ordinances: These help to develop the general norms that in practice serve as the bases of future decisions. Because they are of little practical importance to professional activity, this scientific context addresses neither the legal transactions undertaken and fulfilled by citizens nor their illegal acts, even though this portion is quantitatively the largest. 119

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Because he traces the formal structure of the context down to acts that themselves no longer establish interpretive schemata, the legal theoretician attains a more comprehensive view of the material. Insofar as these legal materials appear to the legal theoretician as a unified order or context of validity, their unity is nevertheless imported from the outside in the same way as the pragmatic unity of the jurist of positive law is imported into legal materials. Because the normative meaning transcends the formal context, the law cannot be organized as the self-enclosed system of a series of normative acts. The series of acts of the higher order thus remain wholly or partly unsanctioned. Here gaps of meaning appear that cannot be closed internally within the layers and that are revealed by the dissolution of the concept of validity, a concept which, as a category of law, seeks to create the illusion of an ontologically independent legal reality. In view of this state of affairs, the claim that in legal theory a unity is imparted to the law from outside already goes too far. At best, an attempt is made to capture as a unity that which cannot be captured at all, according to the internal laws of meaning of these layers, without drawing in further elements of meaning. Earlier, an attempt was made to understand the formal context of acts and schemata through categories formed on the model of certain content-based relationships of acts. Now a similar attempt is made in facing these three layers as a whole: One seeks to grasp their unity by use of concepts that originate from a layer of meaning lying beyond the old ones. As was already demonstrated, most of the layers and their relationship to their foundations become visible through an analysis of the misuse of such concepts as legal transaction, application, and concretization. Similarly, the various meanings that flow into a seeming unity become visible in the concepts that serve to describe the unity of law. The concept involved here is above all the concept of order. The concept of order is applied to bind the quintessence of all the legal elements into a unity—the unity of the legal order. This legal order is defined even more precisely as an order that regulates the external conduct of people toward each other or as a coercive order. If we attempt to understand the unity of the three layers of meaning as the unity of an order, we encounter difficulties. The formal context involved here consists in acts and schemata and it terminates in the downward direction in acts that are intelligible 120

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in terms of schemata but that do not themselves produce further ones. If order is understood as a quintessence of norms, which is to say (provisionally) a quintessence of interpretive schemata, then everything that is not an interpretive schema falls outside the legal context. This excluded remainder would be made up of acts, and not merely the final ones that no longer generate any schemata, but any act whatsoever. At each point of the formal context, that context would have to be split into the schema, which belongs to the order, and the act, which does not. We are engaged here, not with a single, order-endowing act that would stand over against a multiplicity of order-fulfilling acts, but with the entire manifold of acts through which order itself is generated and whereby the generating acts simultaneously complete a higher order. If we were to understand by order, not the quintessence of norms, but the quintessence of norm-completing acts, then we would have to follow the opposite train of thought: All interpretive schemata would be excluded from this quintessence. If, however, one expands the concept of order to encompass both acts and schemata, and if one understands the legal order as a context that generates itself from the fundamental norm to the final concretizing act, then the concept of order loses all specific meaning and collapses into our concept of the formal context. From these considerations, I would conclude that the law of legal theory, the law of an analysis of meaning as it is employed here, is not an order. If legal order means the unity of the entire legal context, then all talk of a legal order is meaningless. If it were to signify one of several orders that are formally, materially, and normatively related in the legal context, on the other hand, talk of a legal order would be thoroughly meaningful. For example, the entirety of civil and criminal law can be understood as order: that is, as the quintessence of norms regulating human social conduct. Here is present a quintessence of norms that are held together by the intention to regulate the conduct of citizens toward one another in a way that is free of contradiction. Following Max Weber’s usage, we will call this type of order an order of regulation [Regulierungsordnung]. The structure of meaning of this order is rather complicated. Disregarding the fact that it may be constructed by series of acts of progressive completion and by verdicts, we recall only those layers of meaning for which a normative meaning overlays the interpretive schemata. In order to comprehend as an order of norms the collection of types of social 121

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relations that civil law and criminal law present themselves as being, these types must be interpreted as instrumental to bringing about human conduct that is deemed valuable. The norms are first a meaning behind the typifications that is constructed in the material contents of meaning of the interpretive schemata. The norm “Thou shall not steal” cannot be found in the criminal code but can only be interpreted as the meaning behind punishments that are established as the consequence of certain types of conduct. If we endow the concept of order with the meaning of a quintessence of norms—of structures of the normative sphere of meaning based in the other two layers—the concept becomes useful in a new, fourth layer lying beyond normativity. The legal context as a whole is not itself an order, but founded within it we may typically find three of the orders just described. The first one is the regulatory order. The second (once again following Max Weber) is called the administrative order [Verwaltungsordnung]. An administrative order is an order that regulates acts of association. “Organized action is either a) the legitimate action of the administrative staff itself, which is oriented toward carrying out its order by virtue of governing power or representative authority, or b) the actions of the members of the association as directed by the administrative staff.”34 Aside from the acts of the administrative staff itself, actions of the remaining participants in the association are also acts of the association insofar as such actions are directed toward the order of the association, are aimed at implementing that order (through financial contributions and personal services), and are guided, finally, by the leadership of an administrative staff, as in the case of a war. The third type of order, upon which Weber places no special emphasis, is the constitutional order. Here are regulated the actions of those persons who generate the other two orders and especially the regulatory order. 34. Max Weber, Wirtschaft und Gesellschaft (Tübingen: J.C.B. Mohr [Paul Siebeck], 1922), 26. Expanded ed.: 1925; 5th ed.: Max Weber, Wirtschaft und Gesellschaft: Grundriss der Verstehenden Soziologie, ed. Johannes Winckelmann (Tübingen: J.C.B. Mohr [Paul Siebeck], 1976), 26. [Voegelin does not indicate which German edition he is using. English translation: Max Weber, The Theory of Social and Economic Organization, trans. A. M. Henderson and Talcott Parsons, ed. with an introduction by Talcott Parsons (New York: Oxford University Press, 1947), 146. We have departed somewhat from the translation of Henderson and Parsons. A newer translation that corrects some of the faults of this translation and retains others in this section is Max Weber, Economy and Society: An Outline of Interpretive Sociology, 2 vols., ed. Guenther Roth and Claus Wittich (Berkeley: University of California Press, 1978). See 1:48.—Eds.]

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We may take note that in these definitions, alongside the three concepts of order—regulatory, administrative, and constitutional orders—an order as such is mentioned as though its meaning were completely obvious. This concept of order is used in phrases such as “order that is established by the administrative staff.” Undoubtedly, the regulatory order is intended in this case, and its designation as order as such draws express attention to the fact that we are not dealing here with an elementary analysis of the nature of social action, but rather with the stepwise unfolding of a highly complex type concept in which a historical and social structure is to be grasped. The investigation is oriented toward the type of the modern state, the entire structure [Aufbau] of which is rationally regulated by statute. According to our assumption, a seamless net of schemata and acts spans the total structure of meaning [Gesamtsinngebilde] of the state. A fully developed administrative order and, as a rule, a rational, statutory constitutional order in the form of the written constitution can be found in this type of rational organization of rule. Administration proceeds as a continual traffic of official rule-bound transactions, and the acts of the organs must remain within the jurisdictions that have been prescribed to them.35 Only in this rational state type are the three orders linked within a “unity” of the legal context, in that a statutory interpretive schema rises above each regulating or coercive act. Through the rationalization of the acts of command, compliance, decision, and coercion in a parallel series of statutory schemata, a context of acts is created that can become foundational for a political theory according to which all state actions must appear as the fulfillment of legal duties by its organs. In the phraseology of this kind of theory, the actions undertaken by the organs occur on the basis of the law, not as acts of personal arbitrariness; and the citizen obeys an anonymous law: He is subject to law, not to the command of a personal ruler. In service of this political theory, the lawfulness of a citizen’s conduct is measured, not according to the subjective principles of justice of the judge, but according to the types of the regulatory order; the actions of the administrative staff are placed under a statutory order; and the generation of the order itself, finally, occurs on the basis of a statutory constitutional 35. Here see Weber, Wirtschaft und Gesellschaft, 125 (5th ed., 125) [Weber, Economy and Society, 1:217–18].

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order that renders the legality of actions of the supreme organs testable. Depending on a state’s history, the rationalization of the ruling association can either be driven to the most extreme limit or a portion of the actions constituting the association could escape it. A statutory constitutional order, for example, can be partly or fully lacking, as in England. In this case, the formal context of acts and schemata is broken off before it reaches its pinnacle in the act of giving a constitution. Instead of terminating in a single act that is itself no longer interpretable in terms of a statutory schema, the context ends in the upward direction in a multiplicity of acts that are no longer connected into unities of meaning by a statutory interpretive schema. In my opinion, it becomes perfectly clear here that the various orders fall into one single formal context, that they are orders regulating the actions of persons who are meaningfully related to one another. Because the acts regulated by a constitutional order are the same as those in which the regulatory order is generated, the regulatory order of an authoritative association is joined with the constitutional order of the same association, and the acts of the citizens are joined with these acts and orders because they are acts that are regulated by the regulatory order. Extending from the act of establishing a constitution to the act of execution, the unity of meaning of the entire formal context is achieved through its inclusion of all orders in which meaningfully related acts are rationally typified within a ruling association. For the unity of meaning of the association as such, nothing whatsoever depends upon rationalization in statutory orders: The orders can be partially or completely absent. Inversely, the orders become component parts of a context only because they are orders in the unity of meaning of a ruling association.36 By way of the formulation of law in the service of a particular political theory, that concept of order that is central to the meaning of the ruling relationship and ruling association, namely, the concept of a regulatory order, now reenters the picture. In a ruling association we are concerned with that order which presents itself as the quintessence of ruling commands directed at fellow 36. From this state of affairs significant consequences result for the attempts to conceive of the “legal order” as a systemic unity and to grasp the claimed autonomous unity in a corresponding unity of legal-scientific unity of knowledge [Rechtswissenschaftliche Erkenntniseinheit]. Statements concerning this question would be of a purely polemic nature, however, and they would not essentially benefit this analysis. For this reason, I have forgone them.

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members of the association. These ruling commands are enforced as such by the administrative staff and obeyed as such by the fellow members of the association. According to Max Weber’s definition, rule is to be understood as the prospect [Chance] of having a command with a particular content obeyed by particular persons.37 He defines rule in greater detail in another passage, as the state of affairs whereby “an express will (‘command’) of a ruler or rulers seeks influence and does in fact exert influence so that, to a socially relevant degree, this action proceeds as though the ruled had made the content of the command, for its own sake, into a maxim of their conduct (‘obedience’).”38 This ruling relationship can emerge in an association: that is, as a social relationship restricted in its regulatory capacity toward the outside, a relationship whose order “is ensured by the conduct of certain people whose task is to enforce it: a leader and, eventually, an administrative staff.”39 A closed circle of people that orients its actions by the idea of an order does not yet constitute an association; it is merely a closed social relationship. An association exists when an administrative staff and its manager (head of a government) coerce this order. Only when the order consists in the commands of a ruler and the actions of the fellow associates proceed as though they were directed by the commands of the ruler is an association a ruling association. Such a ruling association can be called a political association only if its order is continuously and successfully realized by the application and threat of physical coercion on the part of the administrative staff. In order to elaborate the unity of meaning of the ruling association that has recourse to physical coercion, we have followed Max Weber in essential points, but in order better to isolate the element of legitimacy, which remains to be investigated, we have not followed him in all points. For the sociologist, a political association as it has been typified here is present only if persons (parliaments or kings) exist who issue commands as rulers, if an administrative staff must enforce the ruling commands by the threat and, 37. Weber, Wirtschaft und Gesellschaft, 28 (5th ed., 28) [Weber, Theory, 152. Roth and Wittig follow the Henderson and Parsons translation, rendering Chance as “probability,” which gives too technical a nuance (Weber, Economy and Society, 1:53).—Eds.]. 38. Weber, Wirtschaft und Gesellschaft, 606 (5th ed., 544) [Weber, Economy and Society, 2:946]. 39. Ibid., 26 (5th ed., 26) [Weber, Economy and Society, 1:48].

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when necessary, the application of coercion, and if, as Max Weber states, the fellow members of the association obey those commands to a socially relevant degree. Talk of a “socially relevant degree” establishes a judgment as to whether or not, in the sociologist’s estimation, the political association can be regarded as existing in a situation of more or less grave disobedience and of the inability of the administrative staff to execute orders. The opinions concerning its existence of the persons—the ruler and the subjects— participating in the association are independent of this judgment. A prince, for example, can issue commands in the expectation that he will be obeyed; he can believe in the existence of the association at a time when so few fellow members are inclined to obey his commands that a sociologist would declare that the association no longer exists. And a party of fellow members who attempt a revolution because, in their opinion, the association would cease to exist without it, could be deceived and soon discover that the administrative staff (police, army) is strong enough to maintain the existing order. The content of meaning of the political association thus becomes restricted to the presence of the meaningfully interrelated acts of command, compliance, and enforcement; for the time being, any consideration of motives behind actions (fear, habit, the ruler’s belief in his divine election, belief in legality, belief in charisma, etc.) is suspended. Isolation of the political association took as its starting point the concept of regulatory order in particular and the concept of order in general. We spoke of order as a quintessence of norms or a quintessence of the ruler’s commands. This latter phrase is oriented toward a model of order that in its primitive form is comprised of such commands of a ruling person as the following: all members of the association should fulfill responsibilities they have assumed; or, all members of the association should refrain from specific acts (theft, inflicting bodily harm, etc). The model of a ruling association informed by this terminology is a small association led by a single ruler who dispenses orders directly to a circle of subjects: roughly, the head of an extended family giving instructions for reaping the harvest or changing the campsite. Characteristic for the modern state is a phenomenon we will call mediatization of the ruling relationship. A complicated apparatus of acts and interpretations that we have already had opportunity partially to analyze usually inserts itself between command and obedience. The command stating that 126

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one ought to fulfill responsibilities incurred by contracts entered upon is an interpretation that erects itself above the acts that typify the contract in the German civil code, above the entry into a contract with a contract partner, above the complaint of the partner because of nonfulfillment of my obligations, above the institution of the court, the decision of the court, the institution of execution, and the act of execution itself. This chain of acts that have in part occurred already and are in part still expected to occur is the basis of the interpretation that can be summed up in the command that “thou shalt fulfill obligations arising from contracts entered upon.” Although this command can be claimed to be the meaning of the complicated organizations and of the expected acts, no ruler issues it. Commands that do preserve the form of a command (for example, an order to pay taxes) but are issued by a department that is not a ruler are mediatized in a different way. Members of the administrative staff issue commands whose content has been constructed by a process of gradual completion and by a chain of mediating acts that may be very long. Thus the layer of meaning of the ruling association that we have just achieved and that seemed to complete the others by constituting a unity has escaped us again because the relationship of rulers and ruled does not consist in an immediate correlation between acts of command and compliance. Rather, by means of the apparatus of the typification of conduct, the apparatus of the threats of sanctions coming from the technical distribution of the production of the content of order, this relationship is sundered into social forms. These forms render the terminology oriented to a simple model meaningless. The state is indeed a ruling association, but according to the analysis to this point, it remains incomprehensible why a relationship in which there is no ruler who gives commands and therefore no subjects who receive orders should nonetheless be regarded as a ruling association. This gap of meaning that opens up here is closed in the modern state by political theory. Political theory proves to the citizen of a state that he is indeed a citizen, that a state indeed exists, that he lives in this state, and that he obeys the rule of the people when he follows the instructions of an unpleasant fellow in an office. And if enough citizens believe the claims of the political theory in critical moments (such as in the case of a war) and if they adopt this political theory as their own conviction about the state, the state also exists in fact. Yet political theory does not prove only 127

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the presence of a ruler. In explaining why the commands of the ruler must be obeyed, it is essentially also a source of legitimacy for rule. Yet this problematic of meaning and the question whether the political theory believed is an essential part of the reality of the state require a more comprehensive investigation in a context of their own. In the present context, only a few preliminary remarks about the relation of normativity and legitimacy are permitted. By normativity we understood the meaning that overlays the series of acts in accordance with a demand for order in regard to content and that allows the individual acts to appear as obligatory or nonobligatory. The overlay of meaning assumes that the producers of the interpretive schemata regulating the conduct of citizens meaningfully connect those schemata with the schemata regulating the conduct of the coercive staff in such a way that, in keeping with general experience, the conduct of the coercive staff is unequivocally characterized as an evil. Through this characterization and according again to the general experience of this circle of people, any conduct of citizens that induces such conduct of the coercive staff is just as unequivocally characterized as forbidden. This overlay of meaning assumes that the citizens, for the influence of whose actions this apparatus was put in place, understand it in the same way: they can regard neither the presumed evil as something good, nor the presumably forbidden actions as something ethically sanctioned, nor both at once. At this point two questions must be distinguished from one another. On the one hand, there is the question of the value intentions that are founded by the schemata pertaining to fellow-associates and coercive staff. On the other hand, however, there is the question of the legitimacy of the ruling relationship, i.e., of the belief the ruled have in the binding force of commands because they proceed from the ruler (irrespective of their content), and inversely, the question of the belief of the ruler that his commands make a claim to obedience simply because he, the ruler, has issued them. Belief in the normativity and the legitimacy of commands need not run a parallel course. A command can be deemed legitimate and at the same time mandate something that, in the opinion of the obeying parties, should not happen. Conversely, the legitimacy of a command might appear very dubious to its recipient, even though he approves of its content. The tension between normativity and legitimacy may become very great. The belief that the content of commands that 128

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had to this point been regarded as legitimate is immoral can gain such strength of conviction that the belief in legitimacy is shaken, which can lead to the removal of an erstwhile legitimate ruler. We began this section by demonstrating the equivocal meanings of the juristic concept of validity. We now close it by indicating the equivocations of the so-called sociological concept of validity. By validity, sociologists understand first of all the “existence” of an order. This meaning emerges in such expressions as the one stating that an order is “valid” if it is obeyed; to the extent to which it is not obeyed, its “validity” diminishes. This equivocation corresponds to the layer of meaning of the ruling association. The second meaning emerges when one asks the following: “On what final principles can the ‘validity’ [Geltung] of a rulership, that is, a claim on the obedience of ‘officials’ made by the ruler and on the ruled made by both, be supported?”40 In this case, validity signifies the belief in the legitimacy of a ruling relationship. This significance corresponds to the layer of meaning of political theory as the source of legitimacy.

40. Ibid., 611 (5th ed., 549) [Weber, Economy and Society, 2:953].

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6 Max Weber

A Lecture Given on June 14, 1930, at the Vienna Sociological Society on the Tenth Anniversary of His Death Our Western scientific culture manifests a tension between reason and action. On the one hand, reason exerts a dissolving influence upon our belief in the rational justifiability of values. On the other hand, we have difficulty acting with the required force of conviction in the absence of such belief. The natural sciences have been eliminated from the unified, medieval image of the world, in a process following the rank-order of the realms of being according to their distance from the core of human being. The first to be eliminated were the mechanical sciences. Then came those of the plant world and of animal life. Following the sciences of nature came those of such spiritual realms as religion, art, and language. And finally, the sciences treating the human as a psychic, spiritual being—a being both for himself and in society—were affected. In none of the realms of being has the activity of reason destroyed reality and values. Yet it has most certainly destroyed the naïveté of our belief in the “rectitude” of our valuations and the directions of our actions. The index of the recognizability of their obligatoriness [Gesollt-Seins] was taken from the attitudes and possibilities of action that were recognized as having value. The result was that the agent was now burdened with full responsibility for a deed, whereas previously he could shift responsibility for it upon rational This essay originally appeared as “Max Weber,” Kölner Vierteljahrshefte für Soziologie 9 (1930): 1–16.

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causes. Although the values of the mastery of reality, of the clarity and integrity of action and intellectual conscience, have been recreated, intellectual certitude has been removed from our convictions regarding the values according to which we act. As a result, the demands made on the strength of belief have been pushed to their limit. This separation of cognition and faith has not progressed at the same pace in all the nations of our cultural milieu. The national communities of the West—that is, France, England, and those in the process of formation in America—live within traditions of ideas that have been forming their political society and their people since the seventeenth century. The Western states achieved definitive national unity directly following the Great War, a period during which Germany reached a low in its political and spiritual form.1 In France, the creation of political form by the two cardinals and by Louis XIV was accompanied by the creation of a linguistic form and its preservation by the academy, as well as by the creation, through the salon, of a polished private form of social intercourse. From Madame de Lafayette to Marcel Proust, polished manners have provided the foundation for the culture of the psychological novel and its cultivation of internal temporality [Innerzeitlichkeit]. Such cultivation has found its philosophical expression in such varied sources as the cogitare of Descartes’s monologue to the metaphysics of duration of Bergson to the Eleatic problems posed in the philosophical poetry of Paul Valéry. From the monarchy through the revolutions and restorations up to the democratic republic, an uninterrupted tradition of analysis of the stream of consciousness as real being has endured the changes of political form; and since the revolution of 1789, such analysis has been supplemented by the theory of the political freedom of the citizen: by the freedom, that is, to do as one will within a small, private sphere. The National Assembly’s doctrine of freedom, stated most clearly by the Abbé Sieyès, called for the freedom, not to act, but rather to possess a tranquil, dispassionate, petty-bourgeois existential space, a private sphere that has the same meaning within the realm of the state as the culture of privacy has in the forms of social intercourse and philosophical speculation. The philosophic doctrines, the culture 1. [The German territories and post-1871 Germany were not traditionally considered part of the West by European scholars until the late nineteenth and early twentieth centuries.—Eds.]

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of language, of communicative forms and of the novel, political theory and the science of society that is subsumed entirely to that theory—all of these are united under a central faith in the value of the human being and of his liberum arbitrium,2 and under a faith in the choseness of the French nation to realize the value of the human being within its cultural community. The same observation applies to England. Even in the present era, the precision of English social psychology and the impact of its political theory have still not produced any self-reflection as to the ethical and metaphysical presuppositions of these disciplines. Even where theory seeks with obvious political intent to create the spiritual foundations for the newly gained power of the Labour Party, it fails to transcend an ideal of man and community that is based on the universal, voluntary consent to leadership by suitable persons. Established by Cromwell’s Protestant revolution, the English ideal found its philosophical development in the work of Locke. Although reason serves here as an instrument in the realization of social values, it never becomes independent. Thus it never penetrates to the core of human and state activity in a reflective, paralyzing way. The American science of society is the one that is most strongly bound by its political ideas. Here, the external impetus is the task that the nation be newly formed out of masses of immigrants. The necessity to assimilate foreigners into a homogeneous layer of co-nationals presses all the resources of social and educational psychology into its service. This accounts for the emergence in America of rough-hewn theories that lie far beneath our rational professional standards, yet nonetheless render good service as rules of thumb for the psychological and educational incorporation of the foreign masses. Internally, the robust attachment to tangible goals must be understood in terms of the structure of American society. The population that is socially predominant today is comprised of descendents of the European peasantry and petty-bourgeoisie, complete with their narrowness of horizons. The spiritual capacities to cultivate intellectual tools have been lacking; and where they might have existed (or certainly exist today), they have been restricted by the disrespect allotted to anyone who isolates himself by achievements that must remain unattainable to the less2. [free will—Eds.]

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talented masses. The security and continuity of the will of the state is so great in its citizens that American scholars can subjectively overlook without any pangs of conscience the results of research whose effects are deemed irrelevant to or uncomfortable for the effectiveness of the state. So far as general society is concerned, no damage to their reputation results. Thus, for example, the medieval period is for the American instructor of social science as naïvely the Dark Ages as it was for us during the heyday of the liberal era; without being challenged by anyone, he may further dare to insist that great art has arisen solely in connection with the democratic form. Supported by this empirical postulate, he will then prophesy an unparalleled flowering of the arts for America. Against the backdrop of the great spiritual traditions of the West and of the realms of thought that are closest to life and its effects and that remain sheltered by the protection of a faith that has not yet been corroded by thought, the unique movement of both the German spirit and the figure of Max Weber within it emerge more clearly for us. The history of our spirit does not proceed steadily, but rather rises and falls in enormous fluctuations. The flowering of classicism and romanticism followed the nadir of the seventeenth century, and this flowering in turn was followed by the new nadir of the end of the nineteenth century. At the lowest point of this collapse, to which even language fell victim, a gradual reclaiming of the cultural heritage began in philosophy and history. In the person of Stefan George, the creator of a new language arose. The wonder of a recurring renewal is much discussed at present, and it is said that the good fortune that distinguishes Germany from the other nations is the eternal youth of our people. To be sure, this good fortune is necessary today more than ever before. The nation lacks political unity and has never produced an image of the political life of German citizens and of their public interrelations and relations to the leaders of their state, an image that would have impressed itself on the individual existence so thoroughly that it would have seemed an unquestionable aspect of human nature, as it did in the West. Souls are not connected here by the kind of firm faith in community values that would protect the instruments of public action from paralysis by the intellect. Instead, each individual is thoroughly exposed to the insecurity that is bound to follow the destruction of even this final innermost and unquestionable certitude. Among us [Germans], each individual bears the responsibility 133

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for the maxims of his actions in the community, whereas a Western human being may move freely within the forms of his tradition. This is not to deny the many ties that arose in the era of the small states, above all, the Prussian, Protestant community culture, but these ties have produced no common German form, nor could they have. It cannot be disputed that a great number of German social researchers have reduced their science to the lowest level in the service of interested parties—but this is a problem involving private affairs and not the traditional forms of the nation. Only where the brightest mind, the broadest education, the strongest spirit and passion meet in the unity of a person in these heights of Max Weber does the distress of the German spirit become manifest in the existence of one man and his work. In the decade since his death, the best interpretive efforts have discovered that the surest path to the inmost core of his person begins with the most external hallmark of his work: its encyclopedic and fragmentary character. The thematic range of that work covers economic history, economic and political theory, sociology of religion, sociology of government and of law, music and economics, epistemology, methodology, logic, topical political issues, and the ethics of the scholar and the politician. In surveying this abundance, we discover its unity in the values that guided Weber in his selection and formation of material. The question concerning value leads straight to the heart of the dialectical problematic in whose mirror-play his passion sought in vain a fixed point. Except for the comprehensive history of ancient agriculture, only the smaller essays and speeches out of the plenitude of his works were brought to a definitive conclusion. For the most and even the overwhelming part, his oeuvre was fragmentary. The series of essays on Roscher and Knies remained unfinished, and the debate with Eduard Meyer was not brought to an end. The treatments of the sociology of religion were to have been supplemented by analyses of the Psalms and the book of Job, of Talmudic Judaism, early Christianity, and Islam. The gigantic work on economics and society was not completed. This fragmentary character of his work was interpreted as a feature of his personality. The lively philosophical mind knows all too well that closed systems and casings are problematic; it is too thoroughly suffused with the certainty that life also must remain unfinished and fragmentary and cannot be forced into form and completion. The existential philosopher lets the beam of his spirit glide over the 134

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world; he lets its meaning shine forth as the means to illuminate his own existence and—if not to understand his own meaning in the world—then at least to recognize his place in it. If this last need were met, then all further investigation of the material would become pointless. To interpret Weber as a fragmentary thinker is to touch upon the core of his being, the source of strength on which this life nourished itself. The unifying element of Weber’s encyclopedic materials is its relationship to value. The fragmentary character of the work thereby becomes intelligible as an expression of philosophical existence; the distance of the relation of value to the ground of existence grants a hint as to the richness of the inner structure of his spiritual center that we are to understand. A Neo-Kantian logic of history of the most abstract, withdrawn kind furnishes the image of an opposition between values and the materials that are brought into relation with these values. Yet in applying the model of a science that takes some value or other to shape the formless materials into an image of history with its help, Max Weber uses this model only to smash it each time he applies it. For him, the material was never formless. He had a sense of the unique and peculiar meaning of history and of the fateful determinacy of humans and deeds. In history, he saw a throng of powers and passions of both the utmost reality (if this superlative is allowed!) and a principled regularity that does not arise from the meddling of a historian. In forming history, the historian uses, not the pallid, anonymous values invented by some philosophical system or other, but the values that are at hand in the cultural tradition of his time. If, as in Germany, the tradition fails and is unable to provide the nation with great educational values, then the scientific investigator himself, if he is a strong, creative personality, must establish new values. The event [das Geschehen] is a realm of being complete with its own laws to which the investigator himself, to the extent that he too is a person acting in the flux of events, is also subject. At the same time, history is an image to be formed by the investigator using the resources of his person. He faces history freely as the one who establishes values and forms images, and at the same time he is inescapably bound by the laws of an objective event that has produced him, together with his person, his origins, and the values according to which he shapes the image of history in the first place. For Weber, the dialectical opposition of free creation and the principled necessity of this creation gains 135

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a special clarity in the movement of action from magic to reason, in the progression from magic and religious ties to the everyday of our understanding. Weber understood the history of the world, with its creation of the concept in antiquity and of the experiment in the Renaissance, as a process of intellectualization extending throughout the millennia that has destroyed belief. We no longer believe in demons or the magical powers with which we might subdue them, or in gods, in the efficacy of sacrifice and prayer, in revelations, seers, and prophets. We no longer believe in the divine charisma that descends upon the elect, or in the incarnation of a god and the foundation of his kingdom; for Germans especially, the belief in particular forms of national community—the very belief that lends Western humans the calm decisiveness of actions undisturbed by doubt—has also been lost. We are the disenchanted, facing a world that forces us every day and hour to act in order to live. With the fully formed power of our understanding, we can survey the possibilities of a situation, pursuing its various paths in thought to their end in all their consequences and side effects. We can survey the means to an end and consider whether such means contradict the meaning of the end and ought not to be applied to achieve it. Science is the rationally perfected instrument for the calculated orientation of action with regard to its possibilities and means. Science serves self-reflection and the recognition of the factual connections that our actions must establish if they are to be responsible. Yet even the most precise, value-free progression through series of experiences and even the most painstaking weighing of prospects still provide us with no goals and values by which to channel our actions definitively along a certain path. The work of understanding does not destroy values; it only destroys the belief that absolute values can be recognized by understanding. It places all values in a row in a nonpartisan way and points out the paths to their realization. We understand the national values of the French, English, and German cultures; we understand the peaceable and the heroic person, the friend of the weak and the impatiently strong. Yet understanding them all does not produce a decision for one or the other of these irreconcilable values. A fullness of goals and possibilities press in on a person from all sides, restricting his life and forcing him ultimately to the point of a decision for which he must bear responsibility, without him being able to justify on the basis of understanding 136

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his conviction according to which he was compelled to act thus and not otherwise. In deciding between contending forces and values, a person is led only by the daimon that steers his life’s fate. The anemic formula of the value-relating method dissolves in the dialectical play of freedom and necessity. This play is then taken up in the deadly seriousness of a daimonic activity that must at each moment choose, in absence of standards and directors of choice, among the paths that are illuminated by understanding. The contemporary human lives in a world that has been disenchanted by the work of understanding, and this is the general predicament of the Western cultural milieu; it is intensified to the utmost for the Germans, because each individual, lacking the tradition of community forms, must create the world for himself anew. Max Weber’s fate concerns us so intimately because we see in it the destiny of us all, albeit heightened to force and greatness by the relentlessness of his probing intellect and the strength of his passion. Where the uniqueness of his life lies beyond this general aspect, we might perceive it more clearly if we compare it to the life of another who had been seized just as strongly by the dialectic of freedom and necessity and was forced to perceive the ground of his existence as a tension between the two, namely, Nietzsche. Nietzsche’s life played out in the same glare of disillusion and disenchantment that characterized that of Max Weber, and they were sufficiently proximate contemporaries to have suffered—each in his own way— from the collapse of Germany following the war of 1870. The one suffered from both the decay of the spirit in language and a superior freedom and malice of thought. The other was pained by a failure that became clear only some time later: the nation’s failure to fulfill the task of creating a new form of political life, a task that had been imposed upon it by the new unity. Nietzsche already knew the contest of motives that ensues once the understanding has become too clear and incisive. Beginning from the same dialectics of life, both men arrived at very similar formulas by which they sought to achieve clarity concerning their own situations. “Before an act,” Nietzsche says, there step into our reflective consciousness one after another the consequences of various acts all of which we believe we can perform, and we compare these consequences. We believe we have resolved upon an act when we have decided that its consequences will be more favorable than those of any other; before reaching this conclusion we

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In the passage following the one just cited Nietzsche dispels the illusion that our calculated weighing of motives can produce a clear, final result. Once we have deduced the series of possible actions, we imagine that we have arrived at a rational decision and thereby at a legitimate motive of action. In fact, however, the moment of action is determined by motives entirely different from the “picture of the consequences.” What here comes into play is the way we habitually expend our energy; or some slight instigation from a person whom we fear or honour or love; or our indolence, which prefers to do what lies closest at hand; or an excitation of our imagination brought about at the decisive moment by some immediate, very trivial event; quite incalculable physical influences come into play; caprice and waywardness come into play; some emotion or other happens quite by chance to leap forth: in short, there comes into play motives in part unknown to us, in part known very ill, which we can never take account of beforehand.4

This invisible and unconscious contest of motives supplements the conscious contest, and the illusion of decision in the realm of consciousness is no more than one of the motives in the deeper contest of hidden forces. Nietzsche describes in psychological terms and from the standpoint of the psychologist a process that Max Weber replays in the sphere of spiritual forces as an agent who is free of illusions. As a psychologist, Nietzsche seeks to undermine the illusion of rational decision, and he wishes to show that despite all the preparatory work of the understanding, the directional force of action springs from other sources. Weber sees through this illusion and dismisses it; as a result, he moves within the dialectic 3. [Friedrich Nietzsche, Daybreak: Thoughts on the Prejudices of Morality, trans. R. J. Hollingdale, with an introduction by Michael Tanner (Cambridge: Cambridge University Press, 1982), aph. 129. Perhaps because he first gave it as a lecture, Voegelin did not provide any references to his sources in this text.—Eds.] 4. [Ibid.—Eds.]

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of the ethics of responsibility. Science can tell us which practical positions can be traced back according to their inner logic to certain fundamental worldviews. Further, Max Weber holds that a scholar working free of the bias of values can “force the individual, or at least we can help him, to give himself an account of the ultimate meaning of his own conduct. This appears to me as not so trifling a thing to do, even for one’s own personal life.”5 The individual should give himself an account and he should experience the weightiest responsibility for acts that he has undertaken without cause—for cause signifies ratio, but understanding fails in the realm of decision. “I do not know how one might wish to decide ‘scientifically’ the value of French and German culture. . . . We live as did the ancients when their world was not yet disenchanted of its gods and demons, only we live in a different sense. As Hellenic man at times sacrificed to Aphrodite and at other times to Apollo, and, above all, as everybody sacrificed to the gods of his city, so do we still nowadays, only the bearing of man has been disenchanted and denuded of its mystical but inwardly genuine plasticity. Fate, and certainly not ‘science,’ holds sway over these gods and their struggles.”6 Emptied of the familiar meanings we falsely attribute to it, responsibility stands on the knife edge separating the deliberation of reason from the daimonism of action. In Max Weber’s world, responsibility has acquired a meaning of its own as an expression of the trembling excitement and torment of conscience over the fact that an act I have undertaken that is my act is nonetheless at the same time not my act, because another power acts through me when I act as a free person. Responsibility meets irresponsibility in the paradox of the act. Although we can dismantle the paradox dialectically, as we have done here, such dismantling must not of course be misunderstood as a “solution.” It is no more than a linguistic approximation of the existential excitement that occurs at the moment of the accomplishment of an action. Nietzsche has captured this paradox in the aphorism “To reassure the sceptic.” “ ‘I have no idea how I am acting! I have no idea how I ought to act!’—you are right, but be sure of this: you will 5. [Max Weber, “Science as a Vocation,” in From Max Weber: Essays in Sociology, trans., ed., and with an introduction by H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), 152. This text was originally a speech that Weber delivered at Munich University in 1918.—Eds.] 6. [Ibid., 148.—Eds.]

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be acted upon! at every moment! Mankind has in all ages confused the active and the passive: it is their everlasting grammatical blunder.”7 In mentally assimilating this existential paradox, the depths of Weber’s person draw him toward the freedom of the acting human being and toward responsibility. Nietzsche, by contrast, tends toward nonfreedom, irresponsibility, and innocence. “The complete unaccountability of man for his actions and his nature is the bitterest draught the man of knowledge has to swallow if he has been accustomed to seeing in accountability and duty the patent of his humanity.”8 The psychic struggles of the human, by which he is torn by various motives in order to opt for the most powerful one in the end, cannot be credited to him as his deserts. Deep sadness overcomes the one who recognizes the necessity of all that occurs. Yet once he sheds the moral aspect, this sadness ultimately resolves itself into the new freedom of the wise person. With the destruction of illusions and the keener psychic understanding of those things that had to this point been the objects of our erroneous assessment, of our love and hate, the new habit of comprehending, of not loving, not hating, but of surveying with detachment will gradually grow and give rise to the innocent human who is aware of his innocence. No longer allowing himself to be driven to deeds by passions, the irresponsible, innocent man will remain true to the meaning of his actions. Through continual change in the attitude of his spirit, he will try to escape rigidity. Driven by spirit, he will proceed from value to value as the “noble traitors to all things that can in any way be betrayed.”9 He will feel himself a wanderer on the earth, even if with no fixed goal. “But he will watch and observe and keep his eyes open to see what is really going on in the world; for this reason he may not let his heart adhere too firmly to any individual thing; within him too there must be something wandering that takes pleasure in change and transience.”10 As wanderer and ultimately as seer and prophet, Nietzsche followed this path of loose attachment to things and betrayal of values into a vita contemplativa. Max Weber was no contemplative wanderer and no impassioned herald of the future. At the root of his existence he was a doer. Yet 7. [Nietzsche, Daybreak, aph. 120.—Eds.] 8. [Friedrich Nietzsche, Human, All Too Human: A Book for Free Spirits, trans. R. J. Hollingdale, with an introduction by Erich Heller (Cambridge: Cambridge University Press, 1986), vol. 1, aph. 107.—Eds.] 9. [Ibid., aph. 637.—Eds.] 10. [Ibid., aph. 638.—Eds.]

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the paralysis of action by understanding had gripped him so deeply that he did not want to acknowledge his charisma as a leader, a quality that he possessed to a degree shared by few minds of his age, so that he did not attain the certainty of his calling. Weber’s personality was stamped by Protestant Christianity and thus could not open itself freely to its fellowmen. As little as he would have been capable of surrendering himself entirely to a great man (if he had been able to find a greater man than himself in his time), he was equally unwilling to tolerate such surrender to himself. The influence from person to person that manifests itself in the West in great public forms gained its most noble expression among us [Germans] in the private, intimate education of a friend. Friendships such as those that existed between Herder and Goethe, for example, between Goethe and Karl August, in the associations of the Romantics, or in the circle surrounding Stefan George today: These are the singularily German form of authority over people and service for people. The renewal of eros from the spirit of classical antiquity was inaccessible to its withdrawn dedication to duty, a dedication inclined toward the impersonal, absolute power of fate. Weber rejected their new incarnation of God, the rebirth of the divine in man and the submission to the authority of another. Although it preoccupied him to his final days, this theme was incomprehensible to him. As a doer, he was forced to accept and affirm his time. Despite all evils he saw in it, he had to use power and the masses (both of which George rejects) as instruments of his activity. This necessity left him most profoundly conflicted. Service to a human being, even if he were a hero, would injure the dignity of a human being, because dignity can only be preserved in service to an objective thing. Despite the barren isolation that rebuffed devotees and followers, Max Weber’s passion for the deed was strong enough to experience the nation as the statesman’s cosmos of activity and to impel him to point out to his people the path of political formation. Although he often praised his good fortune to be a German, the passages in which he addressed the image of the Germany that he loved are few and brief. He extols his country’s eternal youth and its vigorous strength of infinite renewal—qualities that offer us hope to see a happier realm bloom out of the contemporary, horrible collapse as well. And he admires its simplicity and objective pragmatism, its ability to find beauty in the ordinary rather than in intoxication 141

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or in the gestures of others. Yet his praise of objectivity and the capacity to act as hallmarks of national character only describes the features of his own situation: that of a great, naked human force living in the everyday world of understanding without the mediation of a form in which it believes, while the West takes pleasure in the good fortune of its traditional forms. Weber portrays the character of his nation on the model of his own character, and new values cannot emerge from this sphere. In the realm of political action, his political writings appear with the same assumptions and absence of illusions with which he approached social reality as a scholar. Just as he placed his own life under the daimon, so he restricts political action to the daimonic deed in the sphere of power without believing in the superiority of particular state forms, in political ideas, or in a world mission of the German nation. The influence of power must prove itself on the given materials, and it must not go beyond these givens. A politician who is moved by the fate of his people should not concern himself with universal developmental tendencies. Rather, he should bear in mind in his formative work the next tasks on which all future fate depends. Germany is one modern, geographically spacious, mass state among others; it can achieve political validity, and this means a share of political power in the world, only if its political maturity qualifies it for the job of interfering in the development of the world. “Only a politically mature people can be a ‘ruling people’ [Herrenvolk]. And only if it holds the administrative reins in its own hands and participates decisively through elected representatives in the selection of its political leaders can a people be called mature.” This democratic element does not stem from any kind of conviction as to the value of democracy as the only state form that can produce happiness; rather, it is the result of the kind of consideration that Weber captured in the term statetechnical [staatstechnisch]. By state technique he understood the instrumental use of social-scientific experiences in the service of instituting a state that functions well politically. In the situation of his time, he regarded a constitutional monarchy on the English pattern to be the best functioning form, because it distances itself from the struggle of political contenders through the way in which it occupies the supreme position in the state. Moreover, it has created in the person of the monarch both a powerful symbol of political unity and a nonpartisan, neutral power. In a state distin142

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guished by extreme parliamentarism, the intangibility and remoteness of the monarch offers security against the degeneration of the political struggle and helps to preserve the composure and dignity of the forms of this struggle. Nonetheless, the special, unalterable conditions of the German situation—among them, the uncommon political tactlessness of the last monarch—led Weber to opt for the republican form. “For me, state forms are techniques,” he wrote in a letter of 1917, “like any other kind of machinery. I would strike a blow against Parliament and for the monarch, if he were a politician or would promise to become one.” Thus his thought does not move along the familiar tracks of political ideas to which the struggles of the day accustom us, but works according to his state-technique approach, complete with its units of bureaucracy and political leadership. A large apparatus of professionally trained officials is required to cope with the modern tasks of the state. Mastery of all the means for conducting political affairs gives the bureaucracy such a great significance that in cases when leadership selection does not function satisfactorily there is a danger that the bureaucracy might usurp tasks that are actually political. Max Weber lived under the impression of the damaging consequences of the rule of civil servants following Bismarck’s death, and he deemed such rule to be the chief cause of the repeated failure of German foreign policy and thus to be one of the causes behind Germany’s slide into world war. He saw as Bismarck’s legacy a nation that lacked political education and, above all, political will, since Germany had grown accustomed to the statesman at the helm taking care of politics. The Parliament was politically powerless and could not be otherwise, since parliamentarians who became ministers had to leave the Parliament. They were thereby robbed of their power bases among their party following, lost their independence, and had to integrate themselves into the more than questionable rule of court and civil servants. Upon Bismarck’s death, both a political tradition and the men who might have cultivated it were lacking, since the chancellor did not tolerate being surrounded by men of strong character. Further, the peculiar construction of the Bismarckian constitution also thwarted the successful selection of leadership for the future. (Its mode of leadership selection was a feature of Western parliamentarism that greatly impressed Weber.) 143

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Weber’s political requirements indeed bear the outward features of a democratic system, yet they issue, not from an ideal or a worldview, but from his insight into the nature of politics as a responsible struggle for power and followers: A leader of a modern mass state can successfully exercise power only with the help of a devoted following. The unalterable givens of the contemporary situation made him regard parliamentary forms as the most suitable by which to form a body of followers and to select leadership. Note well: As the most suitable. The brilliant analyst of the foundations of the legitimacy of rule did not, of course, believe in the “rightness” of any one theory of parliamentary representation. He also had a good eye for the plebiscitary and caesarist features of mass democracy such as they had emerged during the war in the de facto dictatorship of Lloyd George. Weber did not only believe it to be practically possible to exclude the layer of representatives that stood between the people and a charismatically talented leader, he regarded it as in no way injurious to a good state-technical selection of leadership. To him, a full-fledged dictatorship was only an extreme case of the dictatorial tendencies that arise in even the most representative parliamentary form and that in no way undermine this form but are precisely the elements that make political leadership—which can always be only the leadership of a few, if not of one individual— possible in the first place. Every form of leadership selection was acceptable to him, as long as it produced both an enduring class of politicians and a political tradition that does not allow the management of affairs to sink below a certain level and, unlike the Bismarckian constitution, did not function only under a great statesman of the kind that emerges once in the course of a century. The sharp delineation of the type of the responsibly active political leader is an embodiment and an intensification of the daimonic element of the personality that lies behind the activity of the understanding. This type corresponds in political reality to the civil servant who makes technical calculations using his understanding. The breaking of this existential dissonance in the medium of politics returns us to the modulations of the dissonance itself. We said that in addressing the paradox of the coincidence of responsibility and irresponsibility in the existential act, Nietzsche inclines more in the dialectic unfolding toward the necessary determinacy of action and, hence, toward innocence, while Max Weber inclines more strongly toward freedom and responsibility. Both now follow the 144

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laws of the dialectic and turn from the attitude of their inclinations toward the opposite direction. Nietzsche’s higher man lives as a wanderer in the vita contemplativa, in constant abstinence from the act, and the diversity of the world reveals itself to his observing eye with increasing richness. Yet in adopting this attitude, his constant companion is delusion. He fancies that he is a spectator and listener who has been placed before the great visual and acoustic spectacle that is life; he calls his own nature contemplative and overlooks that he himself is really the poet who keeps creating his own life. Of course, he is different from the actor of this drama, the so-called active type; but he is even less like a mere spectator and festive guest in front of the stage. As a poet, he certainly has vis contemplativa11 and the ability to look back upon his work, but at the same time also and above all vis creativa,12 which the active human being lacks, whatever visual appearances and the faith of all the world may say.13

Those who sense the world by thinking are the ones who produce the whole unfolding world of colors, perspectives, and assessments; the men of action merely translate this world into the everyday. “Whatever has value in our world now does not have value in itself according to its nature—nature is always value-less, but has been given value at some time as a present—and it was we who gave and bestowed it. Only we have created the world that concerns man!”14 Contemplation of the world produces, not a copy of the world, but rather a new world of psychological and intellectual values. The wandering spectator is the genuinely free, creative man. He is not pressed by necessity like the man of action. In him the human element has been freed to perform an act that it can experience in the active voice, without grammatical blunder. Max Weber takes the opposite path. Beginning with the responsible act that cannot invoke convictions, programs, or religious demands as its justification but must instead assume all blame by its daimonion alone, he soon comes to the act that occurs under inescapable circumstances. Twice in his work the word inescapability [Unentrinnbarkeit] appears in a decisive passage. The first time, the 11. [contemplative power—Eds.] 12. [creative power—Eds.] 13. [Friedrich Nietzsche, The Gay Science: With a Prelude in Rhymes and an Appendix of Songs, trans. with commentary by Walter Kaufmann (New York: Random House, 1974), aph. 301.—Eds.] 14. [Ibid.—Eds.]

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historical situation of science, which is understood here as the activity of understanding in service both of self-clarification and of the knowledge of interrelated facts, is described as “inescapable,” and the second time, inescapability is presented as the hallmark of bureaucracy in contrast to other historical bearers of the modern, rational form of life.15 In both cases, that which is inescapable is the ever-more self-devouring power of that rationality by which we are supposed to orient our actions and our life. This fateful bond is not the law of the daimon but rather an external destiny growing from the community, ananke,16 if we wish to remain with the language of primordial words. Of course, as Max Weber himself adds, this 15. [The first passage is found in Max Weber, “Wissenschaft als Beruf,” in Max Weber: Wissenschaft als Beruf/Politik als Beruf, ed. Wolfgang J. Mommsen and Wolfgang Schluchter, abt. 1, bd. 17 of Max Weber: Gesamtausgabe (Tübingen: J.C.B. Mohr [Paul Siebeck], 1992), 105. The passage reads as follows: Das Wissenschaft heute ein fachlich betriebener “Beruf” ist im Dienst der Selbstbesinnung und der Erkenntnis tatsächlicher Zusammenhänge, und nicht eine Heilsgüter und Offenbarungen spendende Gnadengabe von Sehern, Propheten oder ein Bestandteil des Nachdenkens von Weisen und Philosophern über den Sinn der Welt—, das freilich ist eine unentrinnbare Gegebenheit unserer historischen Situation, aus der wir, wenn wir uns selbst true bleiben, nicht herauskommen können (Science today is a “vocation” organized in special disciplines in the service of self-clarification and knowledge of interrelated facts. It is not the gift of grace of seers and prophets, dispensing sacred values and revelations, nor does it partake of the contemplation of sages and philosophers about the meaning of the universe. This, to be sure, is the inescapable condition of our historical situation. We cannot evade it so long as we remain true to ourselves). English translation from Weber, “Science as a Vocation,” 152. The second passage is found in Weber, Wirtschaft und Gesellschaft, 129 (5th ed., 129): Ueberlegen ist der Bureaukratie an Wissen: Fachwissen und Tatsachenkenntnis, innerhalb seines Interessenbereich, regelmäßig nur: der private Erwerbsinteressent. Also: der kapitalistische Unternehmer. Er ist die einzige wirklich gegen die Unentrinnbarkeit der bureaukratischen rationalen Wissensherrschaft (mindestens: relativ) immune Instanz. Alle anderen sind in Massenverbänden der bureaukratischen Beherrschung unentrinnbar verfallen, genau wie der Herrschaft der sachlichen Präzisionsmaschine in der Massengüterbeschaffung (Only a private economic interest, within its sphere of interest, is regularly superior to the bureaucracy in area-specific knowledge and factual knowledge. It is the only true instance [at least relatively] of immunity against the inescapability of the rational, bureaucratic rule of knowledge. All others have inescapably succumbed in mass-associations to bureaucratic mastery, exactly like the rule of the objective-pragmatic precision machine in the provision of mass goods). Our translation. An alternative English translation may be found in Weber, Economy and Society, ed. Roth and Wittich, 1:225.—Eds.] 16. [necessity—Eds.]

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fateful situation is inescapable only if we wish to remain true to ourselves. Yet what then does this restriction through truthfulness mean? Why should we remain true to ourselves? Why should we not take the leap into a new faith if we can manage it? The answer to this question is the final answer in the mirror-play of the dialectic and it leads us to a psychic ground in whose depths our gaze gets lost. Over and again in Weber’s work we find evidence of his extreme sensitivity on questions of honor, personal dignity, and composure. Nothing about 1918 wounded him so deeply as the repulsive exhibitionism of those who had collapsed and of those who had exposed themselves, wallowing publicly in feelings of guilt. No aspect of the revolution embittered him so much as its carnivalesque element (which every revolution probably has) and the agitated conduct of the literary and ideological rabble, which wrote with no conception of the politically possible and with no inclination to act responsibly as it experimented about upon the wounded body of the nation. Here as always when honor and responsible comportment are involved, Weber’s antidotes to emotional outpourings and breakdowns and to the failure of judgment and understanding alike to prevail were objective pragmatism and shame. Like the rule of reason and the daimonism of action, these two qualities are polar opposites; indeed, they only transfer the former contrast into the realm of the soul. The innermost realm isolates itself behind a wall of objective dedication to a suprapersonal task. Struggles of conscience, feelings of guilt, the despair of abandonment—such things do not belong in public view. A person’s most intimate elements belong to the person alone. In the end, we too stand before this wall of a soul surrounded by the most brilliant, passionate objectivity, and we must allow the faith that probably suffused its action, but that could not be shared, to remain its secret.

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7 The Austrian Constitutional Reform of 1929

I. The Austrians are not a nation and the Austrian republic is not a national state. Every investigation seeking to understand the peculiar character of the Austrian constitution in contrast to the great democratic national states must begin with this basic fact. In its classical form of Western mass democracy, the nation state is organized on an image of the political life-form of the citizen, and this form conditions the sentiment and reason that motivates the conduct of the individual citizen in all public, social, and state affairs. A single ideal of the citizen’s form of political life pervades the whole nation. In France, the speculative content of this ideal was developed in the eighteenth century. It was defined politically in the Declaration of 1789, demarcated against communist misinterpretation during the revolution, and further developed and reinforced by nineteenth-century liberalism. The English political form has found no definitive formula to parallel the French one, but its much older tradition of charters, bills, and petitions, its parliamentary reforms of the nineteenth century, and its present educational system have outlined a citizen ideal, and it has no less thoroughly informed the political life of the nation than the French case. Internally, the constitution of a nation state is an organizational mode befitting the ideal of a citizen of a national community, the political form of association within which the political form of life of an individual can unfold according to its ideal. Externally, belief in the chosen status of a nation is characteristic for the nation state: In the course This essay originally appeared as “Die Österreichische Verfassungsreform von 1929,” Zeitschrift für Politik, Abhandlungen 19 (1930): 585–615.

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of the nineteenth century at the latest, the great European nations discovered that God had destined them to fulfill a special mission in the world and had selected their unique form of life and spiritual world as the best above all the others. (On the occasion of this best of all worlds, the other worlds and the parallels to the problem of theodicy should be recalled.) In France, this discovery had long been the source of psychic tension in French history when Comte developed it into a philosophical system. Amid a similar tension in the life of his nation, Fichte made the same discovery for Germany. Dostoevsky identified the powerful religiosity of the Russian realm [Russentum] as the mark of its chosen status above the peoples of the earth. England’s status as a chosen nation seems to me to be regarded more as a traditional matter of course that renders largescale metaphysical justifications superfluous. The ideal of the citizen life-form and the citizen’s faith in the chosen status of his people are the principal motives in the life of a nation. These motives take effect in the emotion of crisisfilled moments, in the logic and energy of conducting political business, and, finally, in the intellectual sphere of philosophic speculation. These are the materials to which the forms of political organization are adapted, and they are that which endures in the flux of forms—from their existence the constitution receives its meaning. Compared to these motives, these primary expressions of national vigor, both the diversity of legal forms into which a constitution must branch out and the structural principles of this diversity are of only secondary significance. These two motives— to be a political man, a citizen in the fullest sense, and to believe in the chosen status of a community that makes one a citizen of a certain kind—mutually condition one another, because one is not a citizen “as such” but one has the unmistakable political habitus of a particular historical community. By its very nature, belief in the significance of a particular form of political life forces belief in the absolute meaning of the community that has created this form. The constitution gains its central meaning only as the organizational form of a type of historically determined, socially meaningful phenomenon in terms of which the legal structures should be interpreted. When we say that the Austrians are not a nation and that Austria, therefore, is not a nation state, we mean this in the fullest sense, that Austrian political life lacks the phenomenon of meaning that 149

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has just been described, that there is no political ideal of the Austrian, and that no one believes in the chosen status of the Austrian nation in the divine plan of the world. The unique development of the Austrian constitution, especially the latest reform, should be understood in terms of the lack of this basic phenomenon of meaning that constitutes a nation. We can state a priori from the particular constitutional problem of a state that is ruled by law but lacks national purpose what possibilities for constitutional development it has: If the creation of the constitutional form does not arise from this center of purpose, the secondary moments of the constitution become independent, and if the necessary personal energies stand behind them, these principles must be open to the tendency toward a typically pure elaboration. Now, there are basically two such secondary moments. On the one hand, there is the immanent context of meaning of the legal form. And on the other, there is the purposive “application” [Verwendung] of the legal form (regardless of immanent meaning) in the service of political particular interests. If the first moment—the immanent meaning of the legal forms— becomes independent, we would expect the entire constitutional text to be construed according to purely juristic principles based upon a supreme political axiom. Because it cannot be created from the national phenomenon of meaning, this supreme axiom must be taken from the inventory of political principles of the time. Today, therefore, the supreme axiom would be either the principle of parliamentary democracy or that of dictatorship. A constitution of this type will be the work of scholars or experienced jurists. If the second moment, political particular interests, becomes independent, the immanent meaning of the legal form will generally suffer, because it would be an extraordinary coincidence if a concrete political interest were satisfied by a meaningfully pure constructed legal form. The rule of particular interests will manifest itself symptomatically both in the corruption of legal technique and in the fragmentation of the constitutional text into formal legal particles whose principles are no longer connected. The text of such a constitution is typically formed, not by scholars, but by partisan politicians assisted by jurists. Austrian constitutional history has seen both ways of making these secondary moments independent. Following the somewhat fragmentary constitution of the years of revolution, the constitution of October 1, 1920, constituted the republic as a federal state. 150

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This constitution is a more or less pure case of a text construed according to the immanent meaning of the legal form. The example is not entirely pure, because political interests have broken through the rational construct in many places. These breaches, however, do not go so far as to mar the main features of the construction (the erection of a federal state and a parliamentary republic). It is well known that a scholar, Professor Kelsen, edited this constitution. The second moment, political particular interests, became independent in the constitutional amendment of December 7, 1929. More clearly than in the text of the amendment itself, this tendency is evinced in the government draft of October 18, 1929, which we will take under analysis here. Although the objective structure of the legal form could not be entirely eliminated from this draft either, such varied and mutually incompatible principles as parliamentarism, dictatorship, and the class-based state exist here side by side. The only explanation for this phenomenon is that no one regarded the objective content of the legal form to be important, and that the forms were “pragmatized,” because roots in any national phenomenon of meaning were lacking; that is, the forms were brought into a relation of ends and means that was alien to them and that enlisted them into a party system of spoils and patronage. The authors of this constitutional draft were politicians, while expert jurists played only a secondary role.1

II. Since the overthrow of the monarchy, the development of Austrian internal politics can be traced in the process of framing the Austrian constitution, and conversely, it can be understood in terms of the problematic that was just elucidated. It might very well be said that, in the first year after the collapse of the monarchy, no Austrian politician was capable of assessing the situation to the point that he might have conducted a clear and purposive political campaign. Regarding the content of the peace treaty, for example, such high hopes were cherished for the incorporation into the republic of German South Tyrol and the Sudetenland Germans that incorporation long remained a crucial political issue. Annexation 1. It should be mentioned here that the draft evinces first-class juristic work. The amendment of December 7, by contrast, is marred by several serious cosmetic flaws, which were probably caused by its hasty preparation.

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to Germany stirred the feelings of broad strata of the population, while the understanding of the “international, homeless, monied immigrants” tended in the opposite direction and expected great economic advantages from a Danubian federation. The political power of socialism and communism over the future had not yet been correctly estimated, and both the political energies of the socialist leaders and the fears of the bourgeoisie fluctuated with the ups and downs of the soviet dictatorships in the East and the West. One thing the Austrian revolution did not have was ideas. A weak-nerved resentment indulged itself in such decorative measures as the abolition of aristocracy and honors, in the elimination of medals of merit, and in the expropriation of castles—outbursts that were neither original nor politically significant. Likewise, the titles of the new state organization bore the stamp more of agitation than of statesmanlike will or of clear ideas of management. Here were organs with such sonorous titles as state councillor [Staatsrat], state chancellor [Staatskanzler], and state notary [Staatsnotar]—legal constructs that vanished from the constitutional scene with the abatement of the revolutionary, re-creative mood. (And it was a mood, not a will).2 In the midst of all this gesture-rich excitement there now occurred a gesture that probably unintentionally became of decisive significance for Austrian constitutional 2. Here I lay particular emphasis on the unclear and atmospheric quality of a revolution whose actions do not arise from the clarity of an idea but lie instead in the realm of gestures. In contrast to this view, the former federal chancellor, Dr. Renner, has insisted for some months that he patterned his institutions (state council, etc.) on the Swiss model with the intention of giving a small nation an appropriate constitution—one that is both as apolitical as possible and focused mainly on the work of administration. In an interview with the Vienna Morgen of December 30, 1929, Dr. Renner stated the following: “A small nation without a global mission and unmistakably destined to be incorporated eventually as a mere member into a national state, does not need nor can bear much more than that.” According to this statement, the first institution of the state was based upon a clear plan. Yet to the best of my knowledge, if one can judge by the opinions expressed in the newspapers and scientific literature of the time, the observation of Swiss institutions played no notable role in shaping Austrian institutions in the years 1918 through 1920. Unless documentary evidence proves the contrary, I believe much more that Dr. Renner’s interpretation of the roots of the constitution stem (without him perhaps being aware of it) from a much later period (perhaps first from the autumn of 1929?), and that during the critical years a most profound ambiguity surrounded this point. [On the historical background of this episode, and on Voegelin and Austria’s constitutional development during this period, see Erika Weinzierl, “Historical Commentary on the Period,” in The Authoritarian State: An Essay on the Problem of the Austrian State, by Eric Voegelin, trans. Ruth Hein, ed. Gilbert Weiss, vol. 4, Collected Works of Eric Voegelin (Columbia: University of Missouri Press, 1999.—Eds.]

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history. The resolution of October 30, 1918, of the provisional National Assembly had established Austria as a centralized, unitary state without even mentioning the provinces [Länder] in the constitutional text. There were strong indications that Austria could have developed into a unitary state without suffering all too great inner distress. The federal state, in the full sense of the word, is attached to specific, historical situations: to the small states under sovereign princes of Germany, or to the colonial foundings in America. The Austrian crown provinces, by contrast, were already unified under the Habsburg monarchy for many decades and some even for many centuries. Within the German provinces that comprise the present territory of the Austrian republic, no ethnic differences such as those between the German southwest and the heavily Slavic central and eastern Germany existed. It would be equally difficult to describe the provincial units as carriers of independent, intellectually highly developed cultures. In brief: There has never existed such an essential difference between a Tyrolian and a Salzburger, an East Tyrolian and a Carinthian, a Lower and an Upper Austrian farmer, a Styrian and Burgenlander, that this difference could have served as the basis of even a modest political independence. These uncommonly advantageous prerequisites for the formation of a unitary state were disrupted by the gesture just mentioned: State Chancellor Renner invited the states to “join” the federation by signing treaty-like declarations. With this gesture, the Vienna government, which was erecting Austria as a unitary state, destroyed its own work. The government now permitted the states to constitute themselves as revolutionary units and to unite into a federation by means of formal declarations. The declarations trickled in hesitantly (some states did not send one at all), but politically interested parties were given the formal occasion to form power bases. Weak at first, these bases soon developed such strength that a concurrent government of the states arose in the form of interstate conferences that worked alongside the Viennese central government and that even threatened to take the constitution out of the hands of the central government. State Chancellor Renner’s yearslong hesitant attitude toward the question of framing the constitution made the growth of this threat, parallel with the growing organization of political power in the states, possible. To this day, the reasons for his behavior have not been fully explained—nor are they likely to be explained in the future. Certainly, the workload of 153

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the peace negotiations was heavy and hindered any simultaneous completion of the important constitutional work. Yet even after the peace treaty was concluded, work on the constitution was not substantially advanced.3 Whatever the reason, the situation had become so threatening by the summer of 1920 that the National Assembly was forced to pass a constitution at all costs if it wished to prevent the state politicians from taking this task from it. As befitted the situation, the constitution of 1920 was a federal constitution. But the defeat of the idea of a unitary state was not so much a victory of the state governments over the Viennese central government as it was the first expression of a consolidation of political power relationships. Federalist policy clashed with the interests of the Christian Socialist Party, and the growth of the states’ power was at the same time a growth of the bourgeois opposition. In the summer of 1920 this power has become so strong that the Social Democratic Party could no longer assert the fundamental rights and freedoms that had been patterned on the Weimar constitution (by which the Catholic marriage law would probably have fallen at the same time), but was forced to content itself with the promise of a later treatment of the matter (which has not occurred to date). The demands for a unitary state or a federal state had become the demands of the two major power groups that were gradually becoming equally balanced, the social democratic and bourgeois parties. At that time, the social democratic impulse had already found its main support in the urban district of Vienna, whereas the base of bourgeois power was in the provinces. In the period prior to 1920, the opposition between Vienna and the states that had always been latently present in the monarchy developed with full intensity. This development had partly economic grounds: The relatively self-sufficient provincial agrarian regions suffered the consequences of the collapse less than the capital city, which contained a third of the country’s population, and the provinces regarded this city as a heavy economic burden. A further decisive influence was the contrast in worldviews between the strongly religious Catholic provinces and social democratic, antireligious Vienna. Finally, 3. The underlying historical data for these statements can be found in the newspapers. Because it opened with a speech by [Ignaz] Seipel on May 5, 1920, I refer here only to a piece by the Christian Socialist Party entitled “Heraus mit der Verfassung” dating from the spring of 1920. The article has now appeared in a collection of Seipel’s speeches and essays entitled Der Kampf um die österreichische Verfassung (Vienna: W. Braumüller, 1930), 83 ff.

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attacks on the judaization of Vienna through the leadership of the Social Democratic Party, through the influx of Eastern Jews, and through the relations to Hungarian communism could be found in the daily newspapers of this period at every turn. Austrian federalism, therefore, has three sources. The first is that gesture of the state chancellor by which he invited the states to submit declarations of their agreement join the federation. The second is the lack of statesmanly energy, which gave the political organization of the states time to grow large and powerful. The third source is the consolidation of party strength on the basis of the opposition between Vienna and the states—between the agrarian, Catholic provinces and an urban socialism whose leadership and intellectuals had been strongly judaized.4 We must keep this genesis of Austrian federalism in mind in order to understand its modifications in the development of the Austrian constitution. By the summer of 1920, the parties reached 4. In a Munich lecture of January 21, 1929 (now available in print in the collection cited above, 156 ff.), Dr. Seipel expressly reflected on the roots of Austrian federalism in the opposition of parties. There we read: [That] federalism has been so welcomed and has taken such deep root in the Austrian states stems from a less attractive phenomenon: from the intensity of party oppositions in Austria. The elections of the first few years of the republic showed immediately that the probably permanent classification of the people according to parties is determined by the unique stratification of our population, by the territorial division into agrarian and industrial regions, and especially by the disproportionately large size of the capital in Vienna, which is home to almost one-third of the total population of the state. . . . The states were happy to embrace federalism as a countermeasure against “red Vienna,” as they called it. (166) Dr. Seipel himself supported federalism from the very beginning for this very reason; see, for example, his article in the Reichspost of November 20, 1918: “The only democratic path for state-building is that of the federation. . . . The new state of German Austria will not be able to achieve a definitive existence except through a federation of the crown-provinces, whose population does not lack for organs for the legal expression of its will” (55, 57). In this sense too, his praise in the Munich lecture cited above: “The idea of the first Austrian chancellor—of that old partisan of a Greater Austria, Dr. Renner—was not at all a bad one. He sought (or at least presumed) declarations from the states of their intent to join the federation. That he did it early, that he thereby anticipated the peace dictate, was an even better idea. He thereby founded part of an Austrian sentiment for statehood” (166). To be sure, Dr. Seipel held different views on the suitability of the Austrian crown lands to form member states of a federation at the time when the interests of the Christian-Democratic Party were not yet linked with this issue. Concerning plans for constitutional reform he wrote in 1917: “To present the crown lands of today as federal states is completely ahistorical; in their present form, none of them has ever been an independent state” (19). Yet he does remark on the same page that in general, “it is an awkward thing to build constitutional reform on a state of affairs that once existed in the past.”

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the approximate equilibrium of power that still obtains today— the situation of the Social Democrats was overestimated at the time. (The fact that the bourgeois parties promoted federalism was due, among other things, to the predicted predominance of Social Democrats in the central government; the bourgeois parties sought to guarantee themselves a considerable share of power via federalism. History, however, moved in the opposite direction: The bourgeois parties were predominant in the central government and the Social Democrats had a strong power base in Vienna, with one-third of the population and far more than half of the total wealth.) This state of equilibrium, together with the lack of political experience in a newly founded state (which, for example, did not foresee the future advantageous position of social democracy that federalism had created) brought about a situation in which the first secondary moment of the constitution—the internal context of the legal forms— could become independent. Austria was construed in 1920 as the model of a federal state. The legislative and executive powers were divided between the federation and the states, and a residual power was formulated for the states—everything, that is, for which the national government was not expressly responsible. Both central and state parliaments were created, and the states participated in federal legislation through a federal council [Bundesrat] in which they were represented in proportion to the size of their population. As organs shared by the federation and the states, both an Administrative Court and a Constitutional Court were established, and their shared aspect was emphasized in that both the National Council [Nationalrat] and the Federal Council participated in the process of appointing judges to these courts. How, according to the reform bill [Reformvorlage] of the Schrober government from October 18, 1920 (Rv.), should the federal state now be construed? The statement that Austria is a federal state (Article 2.1) was preserved. In the implementation, however, the legal form was substantially altered in almost all points. The powers were redistributed, the control of the central government was enhanced, the province of Vienna received special status so that one-third of the population would have been centrally organized, and participation of the states in composing the highest courts was revoked. In the constitution of 1920, the jurisdictions had already 156

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been distributed5 in such a way that serious doubts arose, in view of the paltry rights of the states, as to whether Austria could still be called a federal state. The reform bill deprived the states of an additional number of their few legislative and executive powers and transferred these to the federation. This included citizenship rights (according to the revision, the states would no longer have had jurisdiction in matters concerning their own state citizenship), security police, traffic police, theater and cinema, weapons, munitions and explosives, the establishment of a defense corps, and funeral and undertaking services. Purely externally, this shift to the advantage of the federation expressed itself in the fact that the sixteen comprehensive items (Article 10) that establish the legislative and executive power of the federation swell considerably, while the modest number of items in Articles 11 and 12 (the sharing of legislative and executive powers between the federation and the states) shrink even further. The most important change is the establishment in the states of independent senates responsible for penalizing administrative infractions, the members of which are appointed in part by the federation. The state governments are thus no longer the supreme authority in matters involving administrative penalty. The sanctioning of provincial administrations has been transferred to independent, centrally organized agencies. According to the revision, the distribution of powers between federation and states apportions the provinces a share of jurisdictions that is so negligible and insignificant that one can hardly speak of an independent legal and therefore political existence of the member states anymore. From these meager remains, according to the proposal, Vienna was to give up even more. The taxation power (the most important remaining one) was removed from Vienna’s legislative powers (Article 109 Rv.) and was to come under special regulation by the constitutional law governing finances [Finanzverfassungsgesetz]. Provisions concerning exemptions from inspection also discriminate against Vienna. Article 102.4 of the constitution reserves to all provinces the right to indirect federal administration, so that a constitutional provision would be required to withhold from a province its right to indirect federal administration. But the revision formulated Article 110.2 on the basis 5. This distribution of jurisdictions was first activated in 1925. Henceforth, references to the constitution will be to its amended form of 1925.

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of which a simple ordinance of the federal government could deprive the mayor of Vienna of indirect administration if he, in its view, did not comply with its directives. Simple ordinances of the federal government could thus transfer the province’s administrative jurisdiction to a federal commissioner. There was also decisive intrusion into the autonomous administration of the province. Although construction and taxation are the most significant activities of the Viennese administration, corporate authorities were to be formed for decisions of the last instance in both these areas. These authorities were to consist in twelve members, half of whom would be dispatched from associations of professional representatives and specialists (Chamber of Commerce, Chamber of Engineers, State Sanitation Council, Federal Office of Monuments, Chamber of Labor). For these matters, then, the autonomous administration of the state would no longer reside in the state executive but in an independent corporate organ. Article 111 (Rv.) further restricts state autonomy, stating that within four weeks of passage, the federal government can annul any resolution of the community council that it deems has overstepped the bounds of its authority to the detriment of the federation. Although this decision may be challenged in the administrative tribunal, such a challenge has little practical meaning, since, according to recent experience, at least one year elapses between complaint and decision. Article 112 (Rv.), finally, deprives the community of Vienna of the right to file a complaint with the Administrative Court. If a federal law or government ordinance infringes on Vienna’s rights, Vienna (in contrast to other states) has no subsequent legal recourse against such infringements. This prejudicial treatment justifies the conclusion that the State of Vienna can no longer be regarded as a federal member that enjoys a rank equal to that of the other provinces. For Vienna, the Austrian state was construed as a centralized, unitary state. According to the reform bill, Austria would be a unitary state for one-third of its population and a federal state for the remaining two-thirds. Federal state principles come under further attack in the revision through its reorganization of the Administrative and Constitutional Courts, two organs that can then be described in terms of a constitutional system as neither federal nor state organs, because their jurisdictions affect federation and states in the same

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way, and that are therefore organs of a general order of law that overarches them both. The Administrative Court is the final controlling instance of the entire administrative apparatus. The Constitutional Court resolves jurisdictional conflicts among the states and between the states and the federation. Because of the significance of these courts to both the federation and the states, onehalf of their members had to this point been appointed with the participation of the Chamber of States [Länderkammer]. The federal government nominated the vice-president and half of the members of the Administrative Court. Then, if the Chamber of States consented, these were appointed by the federal president. The remaining half of the members of the Administrative Court was directly elected by the Chamber of States. The reform bill has now dispensed with this participation of the Chamber of States. One could of course argue that while the legal form of a federal government requires this participation of the member states in the staffing of organs of the general constitution (that portion of the constitution that stands systematically above both federation and states), in practice implementation down to the minutest detail might be of little importance, so that it would therefore make relatively little difference to the federal state structure whether or not the federalist principle were applied on this point. Perhaps this violation of the logic of the legal form is actually of little practical importance. It becomes immediately significant, however, when the omission is made in the process, not of newly constructing a federal state, but of deconstructing a rational structure that was already present in minute detail. In this destructive act, which is directed against the immanent meaning of the legal form, we see a symptom of the shattering of those social prerequisites that a federal state requires. The proposed shift of jurisdictions to the benefit of the federation, the increased federal control over the administration, Vienna’s unique centralist status, and the reorganization of the highest courts, according to the revision, dismantle the federal state to such an extent that only the organizational framework remains. The report on the federal government draft of the Constitutional Committee refers to this preserved framework. “It is crucial to the character of the federal state, on the other hand, that jurisdictions in matters of legislation and execution are distributed between

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an overarching state and a number of member states (Articles 10 through 15), and that, on the other hand, member states, at the very least, must be granted involvement in the area of legislation concerning the entire state (Articles 34 through 37)” (p. 2). In an estimation of value, the federal framework appears to be regarded with a great deal of respect here, whereas the material content of the federation is neglected. This may perhaps appear odd, for one might expect the opposite to be the appropriate position. Large cosmopolitan centers have a population that is almost as high or even higher than that of Austria, after all, and an outside observer might well find the expense of ten parliaments and governments to be excessive for this size of population. If we consider the genesis of the Austrian federal state together with the foundations of its large parties in the rivalry of Vienna and the provinces, however, the unique function of the federal organization becomes clear. Federalism is the territorial organization of party power. The state parliaments and governments are the bases of the party machines, the centers of the spoils and patronage system of the parties. The wasting away of the federal state to its bare skeletal remains must be understood as the purifying removal of a fictitious federal content in which no one is really interested, while the spoils and patronage system of the parties remains intact. We would say, then, that according to the reform draft, Austria is a centralist state into which the party machines are installed as constitutional components of the federal state form. The power and sinecure that legitimately accrue to the party machine through the state organizations are by no means negligible. With the financial power of Vienna as its mainstay, the Social Democratic Party has built up a bureaucratic apparatus that, according to widespread conservative estimates, comprises thirty thousand employees. Individual profits are also considerable: Through the legitimate accumulation of the salaries, pensions, and private income that accrue to the position of politician, incomes can be procured that are not only impressive by Austrian standards but could even be called comfortably middle class by American standards. As long as the framing of the Austrian constitution depends upon the current complement of politicians, the external structure of the federal state, which is the source of power and sinecure, will probably never be changed, even if the federative content should disappear entirely. 160

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III. As thoroughly as it destroys the federal state, the reform bill dispenses with the old constitution’s second large context of meaning, the legal form of parliamentary democracy. According to the old constitution, Austria was a republic distinguished by extreme parliamentarism and hardly touched by elements of direct democracy. The federal president was elected by the common assembly of both chambers, and he was not granted all the powers with which presidents are customarily invested. In particular, he possessed the rights neither to appoint and dismiss cabinet ministers nor to dissolve Parliament. The National Council elected the government upon nomination by a main committee consisting of its own members. Removal from office was based upon either the wish of members of the government themselves or a loss of confidence communicated by an express resolution of the National Council. Through its right of consent and election in the formation of the Administrative and Constitutional Courts, the parliament influenced these constitution-preserving organs just as much as the executive branch did. The parliament’s character as the principal constitutional organ was underscored by regulations seeking to guarantee its permanence. The National Council had a fixed, fouryear legislative term that was not divided into sessions, and in order that no parliamentary vacuum should arise, a legislative term of the National Council had been provided to last until the new National Council convened. Furthermore, if we consider that Austria’s two presidents to date have regarded their office as purely representative, and that they have not attempted to use the powers granted them by the constitution to exploit their position as president to acquire an even greater political power that would control both the parliament and the government, then the closed structure of pure parliamentary rule, counteracted by no other power, becomes manifest. The reform bill breaks with the extreme parliamentarism of the 1920 constitution. Not only does it break with it, it suppresses the significance of Parliament by redefining presidential power to the extent that only the semblance of parliamentary supremacy remains, just as the mere semblance of a federal state remained in 1929, whereas the real power arrangement became centralist. The change in the significance of Parliament is indicated externally 161

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by the fact that the National Council is no longer a permanent organ; its legislative term is now structured into sessions. Yet this change, too, was merely cosmetic, for the provisions that usually accompany the division into sessions (reopening of the parliamentary process, removal of members’ immunity, and cessation of payment of the parliamentary allowance) are absent. Furthermore, the relevant articles are presented as wishes and their implementation is left to the discretion of the president; thus, they are significant only as a protest against the Parliament, and they appear as such in the text of the definitive amendment of December 7, 1929. The regulations surrounding the dissolution of the National Council, by contrast, were both practically significant and destructive of Parliament’s position. To that point, the National Council itself could dissolve itself only by its own decision. According to the bill, however, the federal president could now dissolve the National Council. The provision stating that this could occur only once for the same cause provided no substantial restriction, because causes can be found without difficulty. In the event of a dissolution, the federal government was charged to order a new election only if no “extraordinary conditions oppose it.” The government itself was to decide over the presence or absence of extraordinary conditions, so that it was given the possibility of not reconvening the National Council and of governing without Parliament. The draft even offered the federal president the opportunity to dismiss the government (Article 70) after dissolving the parliament (on the basis of Article 29) and legitimately to exercise a kind of dictatorship by a government comprised of his own minions. A further strong invasion of the legal nature of parliamentary democracy was the right in the revision of a president to pass emergency ordinances. Several paragraphs were added to Article 18 of the constitution, which establishes the legality of the administration. One of these paragraphs grants the federal president the right, upon recommendation by the government, to issue an ordinance if there is not time to wait on the otherwise constitutionally required resolution of the National Council on the matter in question. This is not a right that can be exercised only when the parliament is not assembled and a delay might prove detrimental. Rather, government and president can themselves decide at any time whether parliamentary negotiations are taking too long. Where the order of business of the National Council (stated in paragraphs 18 and 37) 162

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gives sufficient means to render any obstruction impossible, this right might perhaps serve in the struggle against the opposition. Above all, however, it would likely grant a federal president who has made himself a dictator the right to legislate. Equally destructive to the republic’s character as a state ruled by law was paragraph 3 of the same article (according to the revision), which granted federal security agencies the right, if public peace and order or the physical safety of individuals or property is endangered, to take the necessary precautions to avert the danger. If “particular legal provisions do not exist,” these authorities are further entrusted to declare noncompliance with their precautions punishable. This means that the police would be allowed to issue ordinances according to their own discretion and without a legal basis. Alongside administration based on law, therefore, an absolute police rule without legal basis would emerge.

IV. Our observations regarding constitutional law do not seek to be exhaustive; the materials presented should suffice to clarify the process by which content has been substituted and legal forms dissolved. The secondary moment of the immanent context of meaning of the legal form, which became independent in 1920, was largely neglected in the reform of 1929. It cannot disappear entirely, because a jurist must express himself in legal forms (this is not to the credit of the constitutional reformers). Fragments of the meaning of the earlier work remain scattered about everywhere, and some new legal formations have in fact been added. The substantively new content in the constitution has arisen with the coming to independence of the second secondary moment, the particular political interest. Portions of the constitutional text that are contradictory in principle (again, first after the revision) are unified by the attempt to enlist the entire inventory of legal forms, both extant and newly added ones, for the muzzling of the Social Democratic opposition. A few examples: All provinces are equally affected by the changes in the distribution of jurisdiction. Beyond this, however, all special provisions that are directed against Vienna are directed immediately against the Social Democratic Party. Ordinances concerning taxation are aimed at weakening the party’s financial strength. The corporate authority on matters of building 163

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construction aims at the achievements of the Social Democrats in housing construction, an area to which they owe much of their popularity. The provisions concerning the Urban School Council [Stadtschulrat] are aimed at the Vienna school reform, which does not correspond to Catholic principles. (Compare also all the special ordinances that were mentioned earlier.) The Vienna police administration was to be a direct federal authority, whereas the state police agencies were placed under the charge of the state governor. As a result, the mayor of Vienna would have no influence on the police ordinances issued that are without legal basis.6 The autonomous administration of Vienna was restricted to the point that it was practically abolished. While this group of legal norms aimed at the power center of the Social Democratic Party in Vienna, the restrictions of the parliamentary institution were directed at the Social Democratic opposition within the National Council and other representative bodies. The president’s right to pass emergency ordinances, the threat of which could have silenced the opposition, has already been explained. Equally important is the rewriting of the budget law: If the cost estimates are not settled before the end of the fiscal year, financing is to be continued on the basis of existing norms (51.3 Rv.). Here, oppositional means of control in debates on the budget are rendered worthless.7 To these are added other provisions that supplement the first ones and form a system that seeks to destroy the opposition. Previously, each state had sent to the National Council the number of members that was proportionate to its size. This meant that Social Democratic Vienna had twelve of the fifty members. According to the reform bill, however, each province would now be repre6. In view of the tension that has developed between the president of the police and social democracy since the events of July 1927, this provision has caused particular difficulties. 7. Compare here the opinion of Dr. Seipel expressed in the book cited earlier: “If the right to issue emergency ordinances and an automatically activated temporary budget measure are secured by constitutional reform, these steps are taken in order to protect the government and the parliamentary majority from blackmail by the minority in every instance that is crucial to the state and the economy” (Der Kampf um die österreichische Verfassung, 140 n). See also the article in the Reichspost of November 1, 1929 (ibid., 237): “In truth, the constitutional Reform Bill that was cited means no more and no less than the removal of temporary budget measures. This would in turn do away with the most offensive abuses of our parliamentarism, namely, the intentional delay of budgetary negotiations in order to make a temporary budget measure necessary, which in turn enables haggling and blackmail.”

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sented in the State Council equally with two members: the state governor and the provincial financial adviser [Finanzreferent], so that Vienna would now have two of eighteen votes. Previously, at least one seat in the Federal Council had to be apportioned to the second-strongest party in each state legislature. Now the provision is that in all eight provinces except Vienna the state governor and financial adviser can only be members of the majority party, so that the Federal Council would in fact consist of sixteen members of the majority parties and two Social Democrats. Article 101.1 of the revision prescribes the election of state governments by a majority vote of the provincial parliaments rather than by the prior system of proportional representation.8 Therefore, because the Social Democrats have no majority in the provinces, no Social Democrat can now become a member of the provincial government. For the City Senate of Vienna, by contrast, no majority vote is prescribed, so that here, Christian Socialists may become city councillors. This convenient structuring of the state governments and the state legislatures is then exploited in the composition of the federal assembly that is charged with selecting the president. According to Article 38 of the revision, the Federal Assembly is comprised of the National Council, the State Council, the Upper Chamber, and the remaining members of the state governments and the Vienna City Senate.9 In the National Council, the bourgeois parties have an absolute majority; the Chamber of States brings them sixteen of eighteen votes and the eight state governments consist solely of bourgeois parties, and a number of Social Democrats remain only in the City Senate. The presidential elections become a private affair of the governing parties (especially because the bourgeois parties can still pack the Upper Chamber at will). The mode of election is of great significance because through it, the president, who will thereby be a party man, receives significant functions in the reform bill. Taken together, then, government, parliamentary majority, and president would form a brilliantly constructed legal figure by which one could do more or less anything without having to take any kind of regard for the minority. We also must consider 8. At this point it would be appropriate to note the extraordinarily restricted autonomy of the state constitutions. 9. Because its strange construction has been eliminated in the course of negotiations, I will not examine in detail the individual provisions regarding the presidential elections.

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the provision of Article 44.3 of the revision, according to which the federal constitution may be amended by a plebiscite requiring a simple majority if the majority of the National Council should desire it. This provision completes the picture of a brutal, ruthless rule of the bourgeois party machines. A few further minor details: The elections in the representative bodies of local communities are to be determined by a majority vote; if the community has more than three thousand inhabitants, the elections are to be based on a proportional vote (Article 119 Rv.). The reason for this is that the bourgeois parties usually have the majority in the smaller communities and they do not want to share power. In the larger communities, the situation is more advantageous for the Social Democrats, and so the electoral right of proportionality must guarantee a corresponding share of power to the bourgeois parties. According to Article 11 of the revision, the federation assumes jurisdiction over care for the deceased and funeral services. This would make it possible to close down the Vienna crematorium, an operation that has been a thorn in the side of the Christian Socialists.

V. The examples provided should sufficiently illustrate the establishment of particular interest as an independent principle. The constitution of 1920 could trace the meaning of the legal constructs so thoroughly into the details both because the power groups were in a state of approximate equilibrium and because experience concerning the practical implications of the individual provisions was still lacking. Today, power has shifted to the clear advantage of the bourgeois parties, and ten years of experience have taught the politicians things they did not know in 1920. Today, they have a better command of the juristic instruments of politics and they exploit this gradually acquired ability to their advantage. Today, as this analysis has demonstrated, the uniquely Austrian constitutional problem is the pragmatization of the legal form in the service of the ruling party machine. The reform bill aimed so clearly and exclusively at the most minute exploitation of immediate party advantage that an observer consulting the text of the bill alone might well conclude that Austrian constitutional life consists in no more than a struggle of party machines, and that the Austrian people, unless they belong 166

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to the class of career politicians, have nothing to do with the matter. This conclusion is all the more remarkable if one considers that the constitutional reform movement was in fact a popular movement that spread throughout the Austrian provinces and has lately extended to Vienna as well. The origins of the Home Defense Force movement [Heimwehrbewegung] go back to the beginnings of the republic. It began as a defense against socialist terror and against the formation of Social Democratic defense units, but its vast expansion and its significance to the overthrow of the constitution date to the events of July 1927, which led to the burning of the Justizpalast in Vienna. Today, the movement contains a core that cannot be completely clearly identified, namely, the will to train the population to a defense-oriented consciousness of the state. Surrounding this core is a diversity of very loosely connected and by no means clear practical, political intentions, scraps of programs, and slogans. Our investigation began with the fact that Austria is not a national state and that the inner development of its constitutional history must therefore draw on the momentum of secondary moments. The educational core of the Home Defense Force movement introduces an entirely new element into Austrian political life: namely, an incipient consciousness of statehood and an ideal of the physically fit citizen who is capable of discipline and interested both in his state and in the purity of public life.10 Above all, the Home Defense Force opposes the Marxist theory of class struggle (and hence the Social Democratic Party as well), because it sees in it the greatest obstacle to an education that yields a consciousness of the statehood of a state comprised of all citizens and not of one specific class. The race issue has intensified this militant attitude. Since the foundation of the republic, this issue has been important in the relationship of the states to Vienna, for the opposition to Marxism also represents a clear attack on the socialist leaders of Jewish origin. In its struggle against anti-state internationalism, the Home Defense Force emphasizes its nonpartisanship. Its attacks are aimed directly at the Social Democratic Party only because 10. This insight is also allusively present in Seipel’s essay: “It is true that Austrian Home Defense Forces subject their members to military discipline; they do this not out of some kind of militarism, but for the sake of the discipline itself. The danger in which they are in—and certainly, the best of them are aware of it—is the danger of becoming a mere party themselves even as they fight against the predominance of parties. Only a military discipline can save them from this danger” (188).

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this party preaches class struggle and arouses dissatisfaction among the masses, not because the Home Defense Force is anti-labor: In the Styrian industrial region, for example, a substantial portion of the labor force has actually left the ranks of free labor unions to join it. Its nonpartisan character manifests itself in its opposition to the party machines, regardless of party program. Ten years of a parliamentary republic have rendered the parties the only political powers that are unopposed by any controlling or countervailing element in public life. Politics does not move beyond partisan struggles, and the objectivity of all issues is destroyed by their being drawn into this struggle (our analysis of the reform bill has clearly shown this).11 The public blames parliamentarism for this state of affairs and for this reason seeks a constitutional restriction of the parliamentary principle. A radical wing of the Home Defense Force movement explicitly opposes the entire complement of reigning politicians, irrespective of party program.12 The mood opposing parliamentarism occasions the demand for a strengthening of presidential power. Resentment against the party machines manifests itself in demands for a reorganization of the state according to corporate principles. There is talk of a German people’s state [Volkstaat] that can come into existence only if it is a corporate state. An incipient consciousness of statehood is not a political program; it expresses itself in the attitude of the citizens toward the 11. Compare here Seipel: It can and does happen that men who have not been elected at all stand at the helm of such a party, or, if they were elected, it was not by a popular vote to the state legislative body (in Austria, we call it the federal legislative body), but to a provincial or community administration. In their capacity as party leaders or as members of a party executive committee, however, they exert both in the appointment and fall of a government, as well as in the actual acts of legislation, exactly the same or even a greater influence, as if they had been elected to Parliament. Indeed, it may happen and has already happened that candidates who failed to be elected, and thus have been directly rejected by the people, push themselves between the people and its government without any legitimacy whatsoever. The tendency of this party power to push itself forward grows steadily. Here, Dr. Seipel offers an excellent sketch of the development of the Austrian party system into a boss-system in the American sense (185). Compare also: “We noticed long ago the deficiencies, the excessive splintering of the people as a whole into parties, an undemocratic interposition of the party machines between the electorate and the people’s representative—the only legally responsible body” (197). 12. “That the Home Defense Forces are subordinate neither to any majority party nor to all of them taken as a whole causes certain difficulties and engenders dangers” (Seipel, Der Kampf um die österreichische Verfassung, 134).

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state and toward political existence, and in order to become a dependable habit, it requires a prolonged period of quiet growth. As the case of the Austrian Home Defense Force movement indicates, the consciousness of statehood can sniff out its enemies with a reliable instinct: internationalism, intellectual Jewry, party machines. Yet it has nothing with which to confront these social realists beyond its aversion and a will to make a fresh start—and these do not suffice. Indeed, they do not even suffice to achieve an internal reform of public life while the old legal forms are preserved, if the leaders of the movement, even if they are informed and upright men, lack the charisma required for political leadership on a grand scale—and this means they lack everything. The impetus of this new consciousness of statehood is strong enough to expand organizationally: Besides the narrower formations of the Home Defense Force characterized by the military discipline of their members, the larger organization of the Homeland Alliance for “civilians” was established. The threatening attitude of the Home Defense Force made such a strong impression that the pressure of the group made the present constitutional reform possible in the first place. Thus far, however, its success has been very modest. The analysis of the reform bill alone has demonstrated that leadership of the reform has rested entirely in the hands of majority politicians. Demands for restriction of the parliamentary system, the strengthening of presidential power, and the suppression of party rule were taken up and methodically elaborated for the purpose of suppressing the one party and strengthening the position of the other. Insofar as the reform instituted a dictatorship of one of the two powerful party machines, the intentions of the Home Defense Force movement were transformed into their exact opposite. The demand for a state structure based on social estates entered the draft only through the very modest Articles 34 through 37. These introduced an Upper Chamber formally, but shelved its concrete establishment indefinitely. Thus, to the extent, at least, that the movement sought expression in constitutional reform, the government destroyed the purposes of the Home Defense Force movement by means of the draft revision itself, before parliamentary negotiations even began.13 13. The reason the Home Defense Force movement may be caught and “used” by the majority parties in this way lies with the anti-Marxism it shares with them.

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All that remained to the parliamentary proceedings was the struggle of the Social Democrats against the attempt to establish a dictatorship of the government majority. They succeeded in this struggle on most of the essential points. Vienna will not become a federal city, but instead remains a state. The relocation of the final instance of direct federal administration had to be granted to the federal cabinet minister. Disciplinary Senates for Administration [Verwaltungsstrafsenate] will indeed be formed, but their centralist tendency will be mitigated by granting chairmanship to the head of the agency for whose sake the senate was created. This means that in Vienna, either the mayor or his representative has the chair. To be sure, Article 111 of the amendment now introduces the corporate authorities for building activities and tax collection as being organized on a centralist basis, but their composition and appointment is to be fixed by state law. The provisions concerning the right to pass emergency ordinances turned out to be rather opaque. There exists a very strong suspicion that neither the majority politicians nor the Social Democrats knew precisely what consequences their formulation would have. To the extent that it can be gathered from reports on the negotiations, there was an intention substantially to restrict the bill’s most blatant provisions and to prevent the emergency ordinance from becoming an instrument of coercion applied against the opposition. But according to the text of the amendment (Article 18.3), emergency ordinances may be passed not only if the National Council is not in session, but also if it is unable to convene on time or if its activities are hindered by the intervention of a superior power. The president, therefore, is permitted to issue emergency ordinances between two sessions. The only parliamentary guarantee against arbitrariness is the provision that such an ordinance must be issued in agreement with the standing subcommittee of the main committee. This legal situation becomes even more precarious where another oversight in the editing has crept into the following paragraph 4. If, namely, the emergency ordinance is issued, the National Council must be convened within eight days. Thereafter, it has four months either to pass a corresponding federal law in place of the ordinance or to issue the demand by means Insofar as Social Democracy has lost ground through the constitutional reform, an important goal of the Home Defense Force movement must certainly have been realized as well.

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of a resolution stating that the federal government will strike the ordinance immediately. What happens if the National Council does neither? Should this occur, the ordinance would have to remain in force. It thus appears that an unintended legal situation has been produced by carelessness in editing that was probably caused by haste in passing the amendment. Now that it has arisen, the situation could be turned against the opposition in an alarming way. The right to issue emergency ordinances is restricted by the condition that constitutional amendments, certain financial burdens, matters of coalition law, employee and labor law, and tenant protection cannot become the subjects of emergency ordinances. The innovations in budgetary law are restricted to the effect that, if the budget is not approved and no temporary measures have been agreed upon, the management of finances may be continued on the basis of existing norms only two months longer. The existing structure of the Federal Council remains the same. The provisions about the Upper Chamber were shrunk to Article 35 and hence to nothing: “The Upper Chamber consists in representatives of the professional classes of the federation; its composition, as well as the principles governing appointments to it, are regulated by a special provision of the federal constitution.” In the future, the people will elect the federal president. If the first ballot does not produce an absolute majority for a candidate, a deciding ballot between the two candidates who have received the highest number of votes will follow. The parties that have nominated these two candidates, however, may replace them with others on the second ballot.14 Compared to the reform bill, then, the president’s rights are considerably restricted. We have already addressed the question of the right to issue emergency ordinances. The president can dissolve the National Council, but the government must arrange new elections in such a way that the newly elected National Council is convened ninety days, at the latest, after the dissolution of the old one. The clause that the government must hold new elections only if it is 14. This regulation can again be understood only by means of party politics. The largest parties are the Christian Socialists and the Social Democrats: Their candidates are likely to receive most of the votes. An absolute majority, however, requires a coalition of the bourgeois parties. For this reason, if the first ballot produces no result, then a coalition candidate is to be set up on the second ballot. Since a voter for one of the bourgeois parties cannot know who the final candidate will be and will cast his vote invariably for the bourgeois candidate when faced with the dilemma of a second ballot, this electoral mode amounts to the appointment of the president by the united bourgeois party machines.

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faced, in its view, by extraordinary circumstances has been deleted. The president appoints and dismisses the government, but if he appoints a cabinet when the National Council is not in session, he must convene the National Council within a week in order to introduce the new government. If the National Council fails to give the new government its confidence, the president must remove that government from office. The supreme command of the federal armed forces, which Article 80.1 grants to the president, probably exists only on paper, since paragraph 3 of the same article states that “the power of command of the federal armed forces is exercised by the federal minister (Article 76, paragraph 1) charged with it.” Exactly what the president is to command is not entirely apparent. Once again, these examples should suffice to clarify the essential points. The government draft used the initiatives of the Home Defense Force movement to reinforce the rule of the party machinery. The parliamentary treatment of this draft, which resulted in the bill that produced the amendment of December 7, 1929, paralyzed this undertaking to the extent that, despite the concessions that the opposition was forced to make, the distribution of power on the whole underwent no substantial changes. Certainly, the internal significance of the legal constructs has been destroyed. The “pragmatization” of the legal forms has shown that the substantive content of the old constitution, at least from the viewpoint of the majority, is no longer considered to have any political value, but a new value has not replaced the old one. The weakened version of the bill that was incorporated into the amendment has not been able to conceal the extensive invasions into the old constitution and the stigma of abuse of the form to gain power and private sinecure. As evidence of this, we will present the reorganization of the three highest courts of the republic—the Supreme Court in civil and criminal matters, the Administrative Court, and the Constitutional Court—as examples. The demand for “depoliticization” was raised with regard to all three courts. In the constitutional amendment, this demand has been formulated as follows: “Members of the federal government, of a state government, or of general representative bodies may not hold membership in the Supreme Court. Even if they have resigned their mandate, members of general representative bodies who have been elected for a special legislative or functional period are disqualified from holding such membership until the expiration of 172

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the legislative or functional period. Whoever has held one of the above-mentioned functions in the past four years cannot be appointed to the office of president or vice-president of the Supreme Court” (Article 92.2). Articles 134.4 and 134.5 apply the same criteria to qualification for membership of the Administrative Court, and Article 147.4 and 147.5 apply it to the Constitutional Court. It was determined for the Constitutional Court in addition that employees or functionaries of a political party cannot belong to it. With regard to these provisions for depoliticization, the transition law of the constitution (also dating from December 7, 1929) now contains an Article 4. This article states that “the provisions of Article 92 paragraph 2, article 134 paragraphs 4 and 5, and Article 147 paragraphs 4 and 5 in the version of the second amendment of the federal constitution apply only to appointments that have been made following the implementation of this law of the federal constitution.” At first sight, these provisions seem to attempt to articulate that everything remains as it was for the time being and that depoliticization should occur gradually in the future. In fact, however, in conjunction with other legal statements (Article 2, paragraphs 24 and 25 of the transition law), these provisions will effectively hinder achievement of the goal of depoliticization. Further still, a path to radical politicization by the ruling party machine is now opened up. Let us examine the three courts separately: 1. The former minister of justice, Dr. Dinghofer—a leading politician of the Party for a Greater Germany (großdeutsche Partei)— has recently been appointed president of the Supreme Court. Dr. Dinghofer nominated himself (or had himself nominated) as candidate for the presidency of this court when he was minister of justice, and in this capacity, he signed (or had signed on his behalf) his appointment to the presidency of this court. He, the president, is the only professional politician on this court. If there were anyone to whom the determinations of incompatibility should apply in full force, it would be him. Since he is a member of one of the majority parties, however, Article 4 of the transition law guarantees him both sinecure and an undisturbed enjoyment of office. 2. Article 134.6 sets the maximum age limit for appointees to the Administrative Court at sixty-five years. Members of the tribunal who have completed their sixty-fifth year of life by December 31, 1929, are to retire on January 1, 1930 (Article 2, paragraph 24 of the transition law). This provision applies to the current president, 173

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Dr. Schuster von Bonnot. He is not a politician. On the contrary, his incorruptible impartiality has often made him a source of discomfort. Completely unfounded as such, the maximum age limit for members of the Administrative Tribunal is an exceptional provision aimed at the president, in order to remove this apolitical professional jurist and to replace him, in accordance with the new mode of appointment, with a personality who is more considerate of political interests. 3. Finally, the Administrative Court was the most nettling thorn in the government’s side and particularly for Dr. Seipel, who stubbornly defended his judicature on the dispensation issue, which did not correspond to the wishes of the Christian Socialists. Up to this point, the court has consisted of five majority politicians, three Social Democrats, and four independent members (apart from the president and vice-president, who were likewise not politicians), but the verdicts of the court nevertheless did not fall as they should have and thus all nonpartisan judges had to be removed. This will occur in the form of relieving both present members and their substitutes of their office on February 15, 1930, even though they have been appointed for life (Article 2, paragraph 25 of the transition law). The recommendations for new appointments are to be delivered by January 31, 1930, and the new mode of appointment (Article 147.2) has been instituted in such a way that members who cause the government discomfort can never form a majority. We can now summarize the results of depoliticization. The political president of the Administrative Court retains his post. Its apolitical president loses his. All the apolitical judges of the Constitutional Court lose their offices and will be replaced by persons who are comfortable for the government.

VI. At the end of the reform and compared with 1920, the power relationship between the large parties has shifted only slightly to the advantage of the bourgeois party machines. Their complete control of army and police, their insight into the strategically weak position of Social Democracy and their support by the Home Defense Force movement give the bourgeois parties a predominance that they try to exploit. No one is satisfied with the result: The Social Democrats have been driven solely to the defensive, the majority parties have 174

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achieved only a few of their goals, and the Home Defense Force has achieved as good as nothing. In the previously cited Morgen interview of December 30, 1929, Dr. Renner assumes the attitude of a man who has done his duty by warning the republic against the danger of the Home Defense Force and who must now must leave it to the bourgeois majority to deal with the situation. The task, he says, has become a matter for the citizenry and is no longer our business in the same sense as it was before. The proletariat has secured itself from all violence and awaits what is to come with complete tranquillity. It is above all the task of the bourgeois world to eliminate the evil it has itself unleashed into the world. Through constitutional reform, the bourgeois parties have unambiguously made the state their own, and it is both their interest and their duty to lead the state out of this miserable situation. But today, the bourgeois parties that have made the republic their own through the constitutional reform have the floor.

These words reflect the situation exceptionally well: The majority parties have secured a certain preponderance for themselves and must now see to it how they will deal with the Home Defense Force, whose demands they have not met. The turn of phrase by which Dr. Renner turns the republic over to the majority parties as though it were their private affair is remarkable: Not only does it accurately appraise the current situation (namely, that the state is now in fact a private affair of the bourgeois party machines), it is also prepared to regard this political attitude as a matter of course. A better illustration of the lack of a suprapartisan consciousness of statehood can hardly be given. Dr. Seipel does not hold the present-day constitutional reform to be the final one. In the foreword (of December 8, 1929) to his oftcited book, he writes, “Government and parliament have achieved something, but not nearly enough. What the parliament and parties still especially require is to be educated into true democracy.” On the occasion of the New Year’s Eve party of the Viennese Christian Socialist Community Club, he says: I realize my own responsibility when I indicate that I demand constitutional reform most persistently and that it was I who brought the movements to concentrate all their energies on the passage of the constitutional reform, even though these movements came from outside and seemed at first to storm democracy and parliament as

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Dr. Seipel refers here to his special service of having steered the popular movement away from its anti-parliamentary and anti-party goals and channeled its energies into the passage of the present reform. What was meant by the announced reform of the party remains to be seen. The Home Defense Force has been hard hit by the outcome. Its leaders were not fully clear on the meaning of their own movement, and they believed they could make an immediate transition from the education of a citizenry to the management of government business without the existence of a politically useable program. During the parliamentary treatments of the draft at the end of November, the federal leadership still offered explanations like the following: Supported by the pressure of our popular movement and its absolute determination to force a reconstruction of the state under any circumstances, and in the midst of which we will not shrink from setting aside paper constitutional provisions in cases where the welfare [Notrecht] of the people demands it, federal Chancellor Schober can confront Austro-Marxism with the choice to accept his constitutional reform in such a way that the first foundations for the construction of an authoritarian state can be laid. The genuine people’s state will follow in further phases of construction. To this point, it appears as though Austro-Marxism has grasped the gravity of the situation and is willing to surrender everything—and this without even a service in return—that has enabled it to establish the rule of creeping Bolshevism in Austria up to now. Should this happen, we must know that the first stage of our ideal state has been attained, in which, of course, the constitution must be framed in such a way that it is a thoroughly workable basis for the future work, and for which reason it must never, ever represent a rotten compromise. Should Austro-Marxism fail to understand the signs of the times, our highly esteemed Federal 15. Neues Wiener Tagblatt, January 2, 1930.

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Now, the amendment contains nothing but the information that the problem of classes should be gotten under control someday. Because it has turned out to be a compromise of a most rotten kind (to use the jargon of the statement), the amendment has become a visible future goal for the Home Defense movement, just as the reform itself was in its own time. In the near future, the movement will not be capable of feeding on the agitation that springs from the combative mood, but must instead proceed very soberly with its work. Will it succeed without the momentum that is lent by the visible goal, or will it stifle and crumble away? The further development of the Austrian consciousness of statehood will critically depend on the answer to these questions. For the moment, therefore, the driving forces of Austrian politics have retained their power. The basic situation of the population and the territory remains the opposition between Vienna and the provinces. The capital, with one-third of the population, has lost its old position as the residential center of an empire with a population of fifty million. It will thus always be larger than the administrative, economic, and cultural tasks of a population of six million would require. The opposition of interests between the industrial proletariat and the chiefly agrarian provinces builds upon this basis. Since the collapse of the monarchy, Austria has been caught up in a process of dismantling the industrial state and moving toward an agrarian state, a process that is already evident today and that will continually enhance the political power of the farming class in the future. The agrarian provinces are on the economic and political rise, while industry, finances, and, hence, Vienna, are in the throes of decline. These trends are further enhanced by the social and cultural differences between residents of a large city and inhabitants of the countryside. Because Austria is not a national state and because its consciousness of statehood is still in its most modest beginnings, the Austrian people continues to be torn between the two great, state-transcending world-views of Marxist internationalism and Catholicism. Insofar as Marxism regards the state as the instrument of the exploiting class and urges commitment to the class 16. Neues Wiener Tagblatt, November 23, 1929.

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struggle, it is not (as the words of Dr. Renner that were cited earlier indicate) the appropriate foundation for constructive politics. Yet the way in which the majority parties regard the state as their private domain (as the analysis of the revision has shown) is also unlikely to contribute much to the unification of the people.17 The world-view behind Christian Socialist politics, especially behind the politics of Dr. Seipel, is Catholicism. We have seen its influence both in small matters (such as the provision in the reform bill against the crematorium) and in larger ones, namely, in the battle against the Constitutional Court, which was probably the victim of its dispensational judicature. When the Reichspost, a newspaper that publishes views similar to those of Dr. Seipel, launches a campaign against the Constitutional Court that is replete with a battery of insults of the coarsest kind, the reputation of the state and its highest organs is certainly not enhanced. Nor is it uplifting when Dr. Seipel personally utters suspicions drawn from thin air against the intellectual honesty of a member of the court, with the obvious intent of depicting this member as politically corrupt.18 In this case, Catholic convictions have a demoralizing effect on public life. The head of government and the politician no longer feels himself to be a responsible statesman, but does and says these things from a standpoint “within” his spiritual estate, as Dr. Seipel himself so aptly describes it.19 Yet this approach is no more supportive of the state than the Marxist one is. At best, it uses the state to achieve the ends of a world-view that transcends it. Since the foundation of the republic, the opposition of these two spiritual powers that are damaging to the state has been the driving force of Austrian political life. By the look of matters currently, it appears that it will remain the driving force in the future as well. Constitutional reforms cannot change anything about this unfortunate situation: Although they may very well establish the dictatorship of one of the two parties, they are incapable of creating a will to statehood. At present, the only sign that this fundamental problem of Austrian politics might be resolved some day is the Home Defense Force movement. From this movement or from 17. Compare to this the undoubtedly ironic statements of Dr. Seipel concerning the state as res publica [a commonwealth—Eds.] and as res privata [a private affair— Eds.]. See his speech on the tenth anniversary of the republic at the University of Vienna (Der Kampf um die österreichische Verfassung, 153 ff.). 18. Cf. ibid., 221. 19. Cf. ibid., 202.

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other movements that replace it and have the same goal of creating a consciousness of statehood, we may be able to expect a gradual reform of public life. Next to these, reforms of the text of the constitution can be of only secondary significance. Another solution that would relegate the secondary moments of the constitutional framing process to their properly subordinate place would be annexation to Germany. This step would make the German nation into the meaning of politics for Austria as well.

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8 Ought in Kant’s System

If one were to understand legal theory as a theory of the science of positive law, one could construe it without mentioning obligation or ought [das Sollen]. The task of the legal scholar consists in establishing and interpreting the relevant legal statements, connecting the statements into a system, and subsuming cases into it. His task is devoted to legal contents. What ought—the peculiarly imperative aspect of legal statements—might be, a jurist whose attention is trained upon his materials needs neither to know nor to ask. Only when we expand the idea of legal theory beyond that of a theory of science and seek to understand the phenomenon of law in the context of the totality of our experience of the state do we have to examine further the types and origins of compulsion with which those universal and individual schemata of human action that we define as legal statements are endowed. The law, which the legal scholar investigates and forms scientifically, is itself a phenomenon and product of the spirit [Geist]. It is here, in its primary constitution (primary in contrast to its secondary synthetic constitution by legal science) that the imperative moment emerges. An analysis of ought is a component of the foundation of a legal theory in the broader sense of intellectual history, but the more recent theory of law, which is primarily a theory of legal science, has not satisfactorily undertaken such analysis. Although Kelsen worked his way so close to the essence of ought, even the pure theory of law as represented by some of its contemporary proponents tends to restrict itself to working out a theory of science and to eliminating the problem of ought. We believe that the cause of this restriction lies in the This essay originally appeared as “Das Sollen im System Kants,” in Gesellschaft, Staat und Recht: Untersuchungen zur Reinen Rechtslehre: Festschrift für Hans Kelsen zum 50. Geburtstag, ed. Alfred Verdross (Vienna: Julius Springer, 1931), 136–73.

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fact that a more deeply probing investigation of ought is possible only within the purview of an all-embracing philosophical view of the essence of man. With the exception of a great individual thinker like Nietzsche, such a view has been absent in Germany since the end of idealist philosophizing. Certainly, more recent German philosophy has attempted from various directions—anthropological, phenomenological, ontological, characterological—to elaborate a new viewpoint. These efforts have now succeeded to the point that the common goal of the various approaches is within sight, but they have not succeeded far enough to facilitate the development of a philosophy of human beings and their actions that would also include the problems in intellectual history of the jurist. We therefore return to Kant, because we find in his work a clear view of the essence of the human being, and because we hope that in examining his ideas concerning the moral law and ought, we will expose the topography of a problem area that is independent of his time and person. In this way it may even be possible to lay the groundwork for a theory of ought that is a desideratum of contemporary legal theory.1 Kant did not draft his image of a human being himself; rather, the human traits that he regarded and defined as essential corresponded to the general European view of his time. The close affinity of his view of a human being to that of Rousseau is well known. An equally close, albeit less well known affinity is the material relationship (if not a relationship in terms of literary history) to the view of human beings of Kant’s contemporary, Thomas Reid. At the end of the eighteenth century, human beings were regarded as belonging to nature and, to that extent, as being individuals of an animal species. Beyond this, human beings were regarded as being 1. The following investigations are an excerpt from a part of my lectures on Kant’s doctrine of state and society (1929) and on Kant and Schiller (1930). The informed reader will easily notice the close affinity of my analyses to those of others, especially those of Scheler. The Critique of Pure Reason is cited according to Erdmann’s edition [Kant’s Kritik der reinen Vernunft, ed. Benno Erdmann, 6th printing (Berlin: de Gruyter, 1919)—Eds.]; all other quotations are from the editions of Felix Meiner’s Philosophische Bibliothek. [Voegelin is referring here to the Felix Meiner Verlag, a German publishing house that publishes philosophical works, including most of Kant’s philosophical opus. To avoid confusion between Voegelin’s references and our references to English translations, we have left Voegelin’s references with German titles and page numbers (except where he explicitly uses paragraph numbers) for the Erdmann or Meiner edition in the body of the text as appropriate and inserted our references as footnotes.—Eds.]

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unique in their faculty for free, deliberative action that weighs pros and cons. To this extent, they were considered to belong—in Kant’s words—to humankind as a moral species [sittliche Gattung]. The common view of the dual character of human beings as individuals of two genera, one natural and one cultural, was now broken down into national and personal variants. One was no longer content with the dualistic division, but attempted to clarify the structure of both essential parts individually by means of more precise analysis. The actions of a human being, to the extent that they could be ascribed to him as a creature of nature, were distinguished in greater detail as actions of reflex, instinct and habit. And his genuinely human actions were characterized as reasonable, technical, and genuinely free. It seems to us typical of the British2 variation on this fundamental theme that it places stronger emphasis on the sensory sphere. Reflexive and instinctive action is painstakingly fitted to an automatism of habit, and the sphere of reason that is superimposed on it is not regarded as independent, but is referred in great detail to the lower, sensory layers instead. Reason is the faculty to coordinate means to ends according to a rational purpose; it is a faculty to anticipate future events and shape the present situation with a view to them. Fundamentally, however, the rational sphere only expands the sensory sphere in terms of its temporal and purposive horizon; it does not introduce new contents. Whereas an animal spends its life rushing from pleasure to pleasure as external circumstances and the automatism of its reactions present them, a human being can assimilate larger time-segments and arrange the future in a purposive way. Reason raises animal life to the light of consciousness and enriches it by means of a planned ordering of the future and a rationally purposeful economy of available means. The conception of reason as a faculty of insight into value relationships blends almost indistinguishably into this conception of reason as the understanding of purpose [Zweck]. For if I fix my eyes upon my future life and weigh my future actions with a view to finding the right means to execute them, then I must already have some insight into the future purposes that are to be realized; I must already know what I should do in order to adjust my present 2. [Here, as elsewhere in his early writings, Voegelin typically has Englisch where we would use British.—Eds.]

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actions to my anticipated future ones. Terminologically, the insight into value will hardly be discarded, because values already float unproblematically before the gaze of normal reason, of common sense, of common human understanding; an animal lives in a world of ends [Zwecke] that have been prescribed to it by its sensory organization; a human lives in the same world, but the ends have become long-term ones. An animal knows what is good for the moment; a human surveys a more extensive span of time and thereby recognizes a good in the broader context of life. An independent feeling of duty is assumed only for the sake of gaining insight into the rules of human co-existence, which are difficult to derive from animal nature, especially the basic rule that every man living in a community must conduct himself in such a way that his conduct is compatible with the interests of every other individual. Conduct ought to be guided by the basic principle that we should not do anything to another person that we would consider unjust if the same conduct were inflicted upon us under the same circumstances. The principle of the equality of all human beings as individuals of a species emerges with complete clarity in this basic principle, and it leads to a formula that is very closely related to Kant’s categorical imperative. The law acquires its particular British aura of meaning due in part to its strong ties to the animal species character of human beings and in part to its foundation in common sense as a communio opinio3 of “gentlemen.”4 (As a rule, the social content of the concept of common sense is not given adequate attention in historical treatments of doctrine in British philosophy.) For both reasons, and despite the material relation of the British theory to the theory of Kant, moral law cannot here attain the status of an a priori principle that has been divested entirely of the empirical conditions of human life and co-existence that it has attained in Kant’s theory. With that, we have already alluded to the other essential modification of the fundamental schema of the human being in Kantian philosophy. The emphasis of investigation shifts from the sensory to the intellectual half, and with this shift in emphasis the degree of precision in investigating the structure also changes. By and large, the sensory sphere is regarded as the sphere of instincts 3. [“an opinion held in common”—Eds.] 4. [Voegelin employs the English word gentlemen here, apparently to emphasize the British character of this idea.—Eds.]

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and automatism, of necessity dictated by natural laws, without the subdivisions that occasionally occur within this sphere acquiring any systematic significance. The upper, intellectual sphere, by contrast, is on several occasions painstakingly divided into the spheres of technical or practical understanding and of moral reason. In the systematically important context of physical theology and ethical theology, for example, The Critique of Judgment distinguishes technically practical from morally practical reason (327).5 The Groundwork of the Metaphysic of Morals makes an even more precise distinction between skillfulness, cleverness, and morality and the corresponding technical, pragmatic, and moral imperatives. By skillfulness is understood the rational coordination of ends and means in general. By cleverness is understood the rationality of means in relation to the specific purpose of happiness. By morality, finally, is understood free conduct in accordance with the moral law (36 ff.).6 The Metaphysic of Morals (The Doctrine of Virtue, § 3) distinguishes between the human as a rational being (homo noumenon) and the empirical human as a reasonable being.7 Only as a rational being does the human have personality and freedom and is he a potential subject of a duty. The introduction to the Metaphysic of Morals (26 ff.).8 distinguishes between the moral personality, which is capable of responsibility, and the psychological personality, which is the unity of the empirical self. In Religion within the Limits of Reason Alone we find a classification that includes human sensuous nature [Sinnlichkeit] as well (25). This classification is divided into: 1) the foundation of a human being, as a living being, in animality, 2) the humanity of a human being as a living and simultaneously reasonable being, and 3) his personality as a reasonable being that is also responsible for his actions.9 5. [English: Immanuel Kant, Critique of Judgement, trans., with an introduction, by J. H. Bernard (New York: Hafner Press, 1951), 302, §88. English translations in this essay are based, with some alterations, on this edition.—Eds.] 6. [English: Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. and analyzed by H. J. Paton (New York: Harper and Row, 1964), 82 ff. English translations in this essay are based, with some alterations, on this edition. The reference may be found at 41 ff. of the second edition of Kant’s original German publication.—Eds.] 7. [English: Immanuel Kant, The Metaphysics of Morals, introduction, trans., and notes by Mary Gregor (Cambridge: Cambridge University Press, 1991), 215. English translations in this essay are based, with some alterations, on this edition.—Eds.] 8. Kant, Metaphysics of Morals, 50–54. 9. [English: Immanuel Kant, Religion within the Limits of Reason Alone, trans. with an introduction and notes by Theodore M. Greene and Hoyt H. Hudson (New York: Harper and Row, 1960), 30 ff.]

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The rational capacities of a human being are thus variously classified, but always in such a way that the crowning faculty is sharply isolated from the lesser, sensory capacities that derive their ends from nature. The sphere of reason is not, as in the British view, a further development and expansion of the sensory realm by a more sophisticated set of instruments, but rather a realm that is fundamentally different from it. In continually reiterated statements, Kant takes pains to indicate the full depth of the abyss that separates moral reason and good will from the capacities of technical and pragmatic understanding that are bound to nature. The moral laws have no need of experiential knowledge in order to be comprehensible, and though its principles should be applied to human beings, moral philosophy should develop these principles without referring to anthropological knowledge (Grundwerk, 11).10 In erecting the moral law, one should not seek to derive its reality from the particular qualities of human nature. The moral principle is identical for all rational beings. It is valid for human beings because they too have reason, not because they are individuals of an animal species endowed with specific natural abilities (Grundwerk, 6).11 Natural human ability is significant only to the extent that the moral law must be applied to it and to the actions stemming from it: “A metaphysics of morals cannot be based upon anthropology but can still be applied to it” (Metaphysik der Sitten, 18).12 Because in this way the will and the moral law lack any inherent relationship to a human being as a creature in and of nature, Kantian ethics are fundamentally not consequentialist ethics [Erfolgsethik]. Whatever a human being achieves or fails to achieve through his actions in the world of phenomena, it can never be a measure of his moral will or character. The good will is good, not by virtue of what it achieves, but solely by virtue of its volition; if through ill fortune or an all-too-meager endowment with natural abilities the will were entirely unable to realize its good intentions, “it would nonetheless shine as a jewel for its own sake, as something that has its full worth in itself” (Grundwerk, 11).13 A human being towers above his earthly existence as if with a spiritual head, so to speak, in another world; the things he sees there with his mind’s eye are subject to 10. 11. 12. 13.

Kant, Groundwork, 57. Ibid. Kant, Metaphysics of Morals, 44. Kant, Groundwork, 62.

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laws all their own. If the things of this higher world are of some significance to earthly existence, or if a lesson for life in this world can be drawn from his spiritual vision, then it is only by chance or divine intention. In British commonsense philosophy, a human being is a member of an empirical social community. His sensory nature is the firm underpinning above which both the personal goals ennobled by understanding and the forms of social intercourse rise. Four prior ideas happily coincide in the idea of a community of equal persons whose conduct is mutually attuned to one another: that of individuals of the same species; the Christian-bourgeois idea of the community of equal souls; the bourgeois-natural law idea of the society of humans possessing equal rights; and the ideal of the British aristocratic community. As with West European thought in general, British thought—to the extent that it is concerned with the human in society—has always had the strong realities of a national aristocracy and bourgeoisie as its solid mainstay. Because this kind of mainstay is absent for Kant, his utterances concerning empirical society take their bearings from an idea of a human being whose best part is not of this world. It seems, for example, that Kant never firmly grasped what nobility is. Because of nobility’s hereditary nature, Kant regards it as a privilege of rank that precedes merit and, consequently, as “a thought-entity without any reality” (Metaphysik der Sitten, 156).14 The institution of nobility is inadmissible because it cannot be assumed that any man would discard his freedom. Since the will of the people could never consent to such a groundless prerogative, nobility contradicts the fundamental, natural principles of law. Nobility may be required and tolerated for some time, but it must ultimately be abolished. “A nobility is a temporary fraternity authorized by the state, which must go along with the circumstances of the time and not infringe upon the universal Right of men, which has been suspended for so long” (Metaphysik der Sitten, 204).15 Kant appears to have had no knowledge whatever of blood and lineage, and thus of the essential foundations of society. He does not understand the body and blood conditions of the noble life and thus he provides no place for their laws in his ethics. 14. Kant, Metaphysics of Morals, 139. 15. Ibid., 174.

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Kant’s relation to the bourgeoisie is somewhat more realistic, even if it still appears thin in comparison with the reality of 1789. The members of the National Assembly knew full well that they wished to understand by citizens and men [Menschen] only the propertied portion of the nation. Their doctrine of the Third Estate served as a model for the restriction of the politically enfranchised population that we find realized in the censory [zensitären] monarchy. The great concern reflected in the Declaration of the Rights of Man and Citizen was that the lower estate should not misunderstand the term man [Mensch] and claim it for itself, which it soon did. Kant’s theory of citizenship mirrors these strong tensions between the estate of “man and citizen” and those creatures that do not belong to it. Aside from freedom and equality, the defining characteristic of the citizen of a state is economic independence. He cannot be dependent for his existence upon a fellow citizen but must be a member of the community by his own efforts and rights. If the man in question is dependent for the maintenance of his existence or the exercise of his profession upon someone else, then independent existence is lacking. A cabinetmaker who has his own shop and sells the furniture that he makes is independent; a woodcutter who comes to a house to split logs for the winter wood supply is not. A home teacher is not independent, a state employed, tenured schoolteacher is; women and children, collectively, are not independent. Members of the state who lack independence are called associates of the state [Staatsgenossen]. Although they cannot be active citizens, legislation must consider them human beings to the extent that no norms to which they could not consent may be established for them. By focusing solely on the independence of its members, Kant attempts to capture both the social structure that arose historically and the institution of the Third Estate established in state law, without paying any attention to their historical and institutional features. Further, he does not regard the bourgeoisie as a form of life that has been placed in the peculiar historical position of struggle with the aristocracy on the one hand and the thronging masses on the other. Instead, the bourgeoisie is a timeless type embodying all the requisite characteristics of a normal human being who has wiped away any privileging that muddies the ideal. The concrete form of life becomes a timeless idea. Thus, the historical-social elements are excluded from Kant’s view of the nature of the human being as thoroughly as the sensory 187

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elements were. Left behind in the end is only a something [ein Etwas] called noumenal or intelligible, pure in itself and dragging along the weight of earthliness as sheer ballast. However strictly separated from its pure core as the entire psychophysical and historical nature of man may be, the investigation that is directed toward the entire human being in all his empirical conditions cannot entirely tear the two parts from one another. Rational actions, even if they are subject to regulation by an autonomous will, should nonetheless retain a remnant of their relation to the animal nature of the human being. In order to be able to speak of this modest degree of relationship, Kant devises the term guiding threads [Leitfaden] of instinct. The will should be cultivated and by means of culture be liberated from the despotism of those desires in which the fetters of instinct make themselves felt; the will is thereby enabled to follow the moral law entirely. Yet the will should be liberated only from those fetters that tie us “to certain natural things”; it should not neglect all consideration of nature. It should treat the instincts as though they were given to it as guiding threads, in order to “strain or relax, to extend or diminish them, according as the purposes of reason require” (Kritik der Urteilskraft, 301).16 As thin as the relationship might be, all human actions are nonetheless ultimately materially conditioned as the actions of a body in a bodily world. Both the ontic structure of a human being as a corporeal being and the structure of its field of influence—inanimate nature and other human beings—prescribe the typical contents of its actions. In purifying the human essence, or noumenon of all sensory being that accrues to it, the natural sphere is not in fact negated but merely isolated as the sphere of the inessential, the unworthy, that which should be stripped away. The representation of sensory goals should not motivate action, but sensory being is completely real, and ought stems precisely from the possibility that a human being might lapse from its essence into sensory reality. Kant repeatedly dealt with corporeality in this sense, as that of an impurity of the innermost being that ought to be stripped away in a temporal process, and on several occasions he drew a parallel between his own view and that of Rousseau. In its beginnings, the human race was subject to the rule of its instincts and was directed by these to what was best for it. In this state, actions followed 16. Kant, Critique of Judgement, 282, §83.

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predetermined mechanisms and neither commandments and prohibitions nor infractions of ethical norms existed. This happy estate is disturbed by the stirrings of reason, which introduces misery and wretchedness as well as the advantages of culture into the history of humanity. Kant finds the beginnings of history and the progress of its reason portrayed pictorially in the Bible: The automatism of nature corresponds to the innocent life in paradise, and the progress of reason is symbolized by the Fall. Thus the transition from the animalistic crudeness and guardianship of nature to the state of moral freedom and reign of reason is a progression, to be sure, but it is at the same time an evil. By it, human beings move from a life of innocent security and purity into a life of dangers caused by the free, untrammeled, and hence uncertain guidance of reason and by the manifold vices and sufferings of culture. In these reflections, Kant’s affinity with Rousseau is at its closest. Both thinkers see a pleasant, innocent state of nature at the beginning of human development and posit that reason destroys this state in order to make way for the iniquity and suffering of the civilized estate. The only ray of hope for Kant is that the evil of culture might be eliminated by continuous effort, “until perfect art becomes nature again, which is the ultimate goal of the moral destiny of the human species.” Each individual human is called by nature to contribute to this progress to the best of his abilities (Mutmaßlicher Anfang).17 Kant calls the brief essay that we just cited, the “Speculative Beginning of Human History,” “a mere pleasure trip” to which the criteria of rigorous systematic investigation should not be applied. Yet this remark disparaging the value of the system must not mislead one into regarding the essay’s ideas as being of negligible importance to understanding Kant’s thought. Indeed, we would even venture to claim that the expansion of Kant’s system into problems of social philosophy and the philosophy of state must remain 17. [Voegelin again refers in this essay to the German Meiner edition. Accessible German editions of “Mutmaßlicher Anfang der Menschengeschichte” are found in Kants Werke, Band VIII: Abhandlungen nach 1781 (Berlin: Druck und Verlag von Georg Reimer, 1912), 109–23, and in Manfred Frank and Véronique Zanetti, eds., Immanuel Kant: Schriften zur Ästhetik und Naturphilosophie: Werke III (Frankfurt am Main: Deutscher Klassiker Verlag, 1996), 359–76. Translations are our own, and English citations refer to this edition: “Speculative Beginning of Human History,” in Perpetual Peace and Other Essays, trans. Ted Humphrey (Indianapolis: Hackett Publishing Company, 1983), 49–60. “Speculative Beginning of Human History” was written in 1786, five years after the first edition and a year before the second edition of The Critique of Pure Reason were published. The Critique of Practical Reason was first published in 1788, and The Critique of Judgment in 1790.—Eds.]

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thoroughly unintelligible if we do not assume a particular image of man and society that may not have been systematically thought through, but whose dogma is nonetheless unshakable. This “pleasure trip,” this play of thought that is provisioned with caveats of nonbindingness, is an essential component of Kant’s entire oeuvre that cannot simply be left aside in a comprehensive consideration of that oeuvre, because it is precisely this essay that allows us to understand those elements of the main works that are irrational in the context of the system. Together with the theory of the division of human beings into rational and sensory halves, the pessimist doctrine of the misery of the cultural condition—a doctrine that regards this condition as the work of the rule of reason—is the decisive doctrine [Dogma] that precedes all Kantian speculation. It brings into the system the disjunction [Zwiespalt] between the perfection of the person and the perfection of the species that Kant never succeeded in constructively resolving. The Fall of humanity, the activation of reason, is an event, not of personal development, but of the history of mankind as a species. Only in humanity as a whole do the evils of culture and the social world strive for dissolution at the end of history. Only the entire species, not the individual, attains the state of the full development of rational talents that is required to lead the perfect life. Certainly, evil is removed from the life of the species at the end, but the fate of the concrete person is never satisfactorily resolved. In terms of fulfillment of the meaning of his existence, the human ranks even lower than the animal, which fulfills its destiny by living out its individual life. Human existence remains bound as a whole to sensory being and nature; it only soars above them in a particular way, to its salvation and its ruin. Kant sees the first stage of the activation of reason, that process by which the full human being emerges from the animal, in the comparison that reason makes between that which has been enjoyed instinctively to that which another sense imagines to be enjoyable. Through such comparison, reason awakens the drive to expand experience beyond that which is merely instinctual. The strict bond to the intake of food gives way to a comparative survey of possibilities, and human beings find themselves at the brink of an abyss: “for of the individual objects of his desires to which instinct had referred him up to now, an infinity of the same was revealed to him, and he was entirely at a loss to make a choice among them. From this state of freedom, once tasted, it was now impossible 190

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to return to servitude (under the rule of instinct)” (52).18 Now activated, reason exerts its influence on sexual instinct and tames the blind satisfaction of it. Whereas the first stage of reason still served mere instinctual gratification, the second already evinces some degree of the rule of reason over the impulses. In a third stage, the future is also taken into consideration: Reason orders life according to a plan and prepares it for distant goals. At the same time, however, this step directs the gaze toward the uncertainty of the future, toward anxiety and the fear of death. In a fourth and final stage, a human being finally raises himself above the animal level and grasps that he is the goal of nature, and he recognizes at the same time that his relationship to his fellow human beings is different from his relationship to the rest of nature. Although he may subordinate everything else to his purposes and erect himself as the highest end, he sees in other human beings equal participants in the gifts of nature. As his equals, they are beings who can never become for him a mere means. Let us survey the Kantian portrait of the human being. We see a human in society, but in the society of all of humanity as a species. Bearing within himself a noumenal core, he is at the same time a sensory being. His sensory element, however, adheres to him as something external, insubstantial, contemptible, and worthless, and if he seeks perfection, he should let his actions be guided by reason alone. His pure will must have the moral law as its sole motive and need not concern itself with the consequences of its actions in the sensory world. He lives in nature and society, and the content of his actions will accommodate itself to the structures of this environment, because it cannot do otherwise, but he must not let his actions be determined by any kind of impulse issuing from this environment—be it the pleasure taken in beautiful form, be it pity, friendship, or love—if the action should contradict the law of reason. Empirically, he belongs to a particular social circle; he is an aristocrat or bourgeois or peasant. Yet if he seeks to act morally, he must not accept the norms of his class as the motive of his actions but must obey the imperative of the moral law that is identical for all human beings. In terms of his essence [Wesen], he is a member of humanity as a whole, an exemplar of the moral species of which Kant is nonetheless forced to concede that “not much is 18. Kant, “Speculative Beginning of Human History,” 51.

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to be boasted about it.” Only in the entirety of its development can the rational aptitude completely unfold. In contrast, the life of an individual human is a fairly meaningless fragment. If the most fortunate thinker has reached the maturity of judgment and stands at the verge of the greatest discoveries, then he has grown old: “He grows dull and must leave it to a second generation (which begins again from scratch and must again retrace the entire path that has already been traced before) in order to add one more span to the progress of culture” (58).19 As his sole certainty, his sole firm footing, a human being can only retreat from the absence of meaning and value of life—in both its details and the entirety of its course—to his intelligible core. Yet even here in this last refuge, as we shall see presently, it remains uncertain whether one’s actions really accord with the moral law and are therefore truly moral. The particular color of Kantian ethics arises from this fundamentally flawed assessment of life, just as the main features of his system and its problems are derived from this miserable view of human beings. Kant’s thought moves within the schema of a division of human being into a lower, sensory half and an upper, rational half. He does not content himself with the conventional content of this schema, however, but superimposes on it a new one without dispensing with the old. The portrait of human being is twice divided in two in such a way that the divisions do not stand independently side by side, but intersect. In the traditional schema, the sphere of reflexive, instinctual, and habitual behavior is completed with the superior faculty of a rationally purposive and morally insightful ordering of life. Kant preserves this schema, but distinguishes an uppermost personal stratum within the superior faculty. Opposite this faculty, the entire remainder of a human being—even the part endowed with understanding and reason—is, as an empirical being, an inferior creature. A pinnacle called noumenal or intelligible, one that is devoid of time, sense, and matter, towers above the human being. This pinnacle is so emptied of all knowable content that it does not serve as much more than a demarcation of the limit of human existence. The origin of this intelligible point in the traditional schema can be recognized only in the fact that a 19. Ibid., 55 n.

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moral law can still be derived from it despite its emptiness; the content of this moral law, as we noted earlier, is closely related to the empirical-rational supreme moral principle of British philosophy. In this way an intermediate realm between the sensory sphere of the traditional schema (which is without any doubt inferior to reason) and the intelligible-rational sphere of the Kantian schema comes into being. Viewed from below, this intermediate realm should be called reasonable. Viewed from above, it should be called empirical. This intermediate realm is the site of all genuinely Kantian problems. That which Kant understands as history, with its particular laws of temporal development, occurs here. Here is the human realm, which is distinguished as finite from infinite divine reason. In this realm the intelligible moral law with its compulsory character emerges, a law expressed by the formula of the imperative and of ought. Let us now place ourselves into the middle of this realm by hearing how Kant defines the essence of duty: Duty! Thou sublime and mighty name that dost embrace nothing charming or insinuating but requirest submission and yet seekest not to move the will by threatening aught that would arouse natural aversion or terror, but only holdest forth a law which of itself finds entrance into the mind and yet gains reluctant reverence (though not always obedience)—a law before which all inclinations are dumb even though they secretly work against it: what origin is there worthy of thee, and where is to be found the root of thy noble descent which proudly rejects all kinship with the inclinations and from which to be descended is the indispensable condition of the only worth which men can give themselves?

It cannot be less than something that elevates man above himself as a part of the world of sense, something that connects him with an order of things which only the understanding can think and which has under it the entire world of sense, including the empirically determinable existence of man in time, and the whole system of all ends that is alone suitable to such unconditional practical laws as the moral. It is nothing less than personality, i.e., the freedom and independence from the mechanism of nature regarded as a capacity of a being that is subject to special laws (pure practical laws given by its own reason), so that the person as belonging to the world of sense is subject to his own personality so far as he belongs to the intelligible world. For it is then not to be wondered at that man, as 193

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belonging to two worlds, must regard his own being in relation to his second and higher vocation with reverence and the laws of this vocation with the deepest respect (Kritik der Praktischen Vernunft, 111 ff.).20 As beings living in the intermediate realm we have the experience of duty, because we can look beyond our person, which is at the same time sensory being, to our personality, in which we can find laws of action that impose themselves, to the extent that we are persons, in a very particular way: in that of imposing duty, of binding, of obligating. Duty makes itself felt in the compulsion of our person by a law of reason found in the personality. We are conscious of duty because our existence is split into pure being and an ontically lesser part. In experiencing ourselves as bound by duty, we experience our sensory-rational person as subject to our nobler part, as dependent upon our intelligible, rational personality. Neither person nor personality, however, are mere layers of a human being that differ in their rank of worth; they are at the same time centers of the will. The core of the person is the will, that is, “a kind of causality belonging to living beings so far as they are rational” (Grundwerk, 74).21 In another passage, the will is presented as the capacity “to act in accordance with his idea of laws, that is, in accordance with principles” (51).22 It is “the faculty to act according to the idea of laws, that is, according to principles” (34).23 Formulated somewhat differently, there exists within the human being a center of energy [Kraftzentrum] that can also be called a power center [Machtzentrum] to the extent that it is not blindly subject to external determinations in the way that a natural object is. It is the power center of a conscious, deliberating self and, within the possibilities of influence that typically belong to its character as power, it can act according to intentions. This center can—we still wish to avoid the word freedom—choose among its possibilities of action. Here, in Kant’s conception of the will, the problems resulting from the two realms of human existence and their intersections are abundantly evident. Depending on whether it refers to its place in the lower realm of the senses, to its place in the intermediate 20. [English: Immanuel Kant, Critique of Practical Reason, trans., with an introduction, by Lewis White Beck (New York: Macmillan, 1985), 89–90.—Eds.] 21. Kant, Groundwork, 114. 22. Ibid., 95. 23. Ibid., 80.

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realm of rational sensory being, or to intelligible causality, a rich, if not always entirely solid, terminology attempts to render the nuances of the power center: There is willw [Willkür],24 a will, a faculty for desire, a good will, a perfectly good will, a pure will, a free will. The neutral term used for the deliberative power center of the intermediate realm is often simply willw. To the extent that it is capable of acting according to the idea of a law of reason at all, this willw is pure will. It is not a perfectly good or sacred will, however, because its innermost law of existence that necessitates it is not the law of reason, since it can very well be influenced by sensory being. If we analyze its underpinnings, willw is “sensory to the extent that it is pathologically influenced (by sensory motives).” If willw were necessarily determined by the senses, then it would be animal. As human willw, it is free “because sensibility does not necessitate its action. Rather, a human being is endowed with the capacity of self-determination independently of any coercion through sensuous impulses” (Critique of Pure Reason, B 562).25 The most precise differentiation of the nuances of the will given in this context can be found in the Metaphysik der Sitten (11 ff.). “The capacity for desire is the capacity to be by means of one’s representations the cause of the objects of these representations.” The capacity for desiring in accordance with concepts, insofar as the ground determining it to action lies within itself and not in its object, is called the capacity for doing or refraining from doing as one pleases. Insofar as it is joined with one’s consciousness of the capacity to bring about its object by one’s action it is called willw; if it is not joined with this consciousness its act is called a wish [Wunsch]. The capacity for 24. [There is no good way to distinguish Willkür from Wille in an English translation. We agree with Professors Silber and Greene that “ ‘choice,’ ‘power of choice,’ ‘will,’ and ‘volition’ ” are all potentially misleading, since Wille can also be translated as any of these synonyms. We also agree that “the correct interpretation of Kant’s theory of the will depends upon a careful distinction between ‘Wille’ and ‘Willkür’ ” and that the reader should therefore “know when the words ‘Wille’ and ‘Willkür’ occur in the German text.” Accordingly, we follow their convention of rendering Wille as will, and Wilkür as willw. (See Theodore M. Greene and John R. Silber, “Preface to the Second Edition of this Translation,” in Kant, Religion, cxxxix.) The editors thank Paul Caringella for his assistance with these distinctions.—Eds.] 25. [Immanuel Kant, Critique of Pure Reason, trans. Norman Kemp Smith, unabridged ed. (New York: St. Martin’s Press, 1965). Voegelin’s method of citation, in which the first and second editions are distinguished by letters A and B and the page references are to the original editions published by the Königliche Preußische Akademie der Wissenschaften, is the standard method for citing this central Kantian work. Translations from Kant are either those of Smith or our own; the standardized method of citation makes further page references to English editions in footnotes unnecessary.—Eds.]

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published essays, 1929–1933 desire, whose inner determining ground, hence even what pleases it, lies within the subject’s reason is called the will. The will is therefore the capacity for desire considered not so much in relation to action (as willw is), but much more with regard to the determining ground of the willw to action. The will itself, strictly speaking, has no determining ground; insofar as it can determine willw, it is instead practical reason itself.

Here, the power center at which the nuances reveal themselves is called the capacity for desire [Begehrungsvermögen]. Life itself, as the capacity of a being to act according to its representations, forms the innermost core of this capacity (Metaphysik der Sitten, 11).26 If the determining ground of action is located, not in the object, but in the subject of desire, one can speak of inclination; if this inclination is bound up with a consciousness of power, then it is called willw. With that, the power center has been constituted to the point that we find ourselves in the intermediate realm. In the discussion of the determinations of action of willw, the terminology now becomes somewhat unclear. Viewed from above, willw is determined by reason and can therefore be called a free willw; willw so nuanced, however, is not yet will itself. The faculty of desire is subdivided into willw, a center of the intermediate realm, and will, an intelligible center. The will is also a capacity for desire, but not willw: instead, “insofar as it can determine willw, it is practical reason itself” (Metaphysik der Sitten, 14).27 The single faculty of desire is thus broken down into a neutral power center whose efficacy is determined by other power centers beyond which one can inquire no further as to determining grounds. In the downward direction, these determining grounds are the sensuous inclinations. With this we reach a closure, because there can be no further inquiry about the meaning or grounds of sensuous being. In the upward direction, the closure is made by practical reason—which is itself a determining ground “but strictly speaking, has no determining ground” (Metaphysik der Sitten, 14).28 As a sensuous-rational faculty in the sense of the intermediate realm, the desiring faculty is a center that is conscious of its own self, and for every self-consciousness, the problem of closure emerges: This consciousness must be the content of a second act of 26. Kant, Metaphysics of Morals, 40, 41–42. 27. Ibid., 42. 28. Ibid.

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consciousness, and this in turn must be the content of a third, and so on ad infinitum. If I wish to arrive at a self, then I must bring this regress to a close in some way. In general, the techniques of such closure need not concern us any further but only the particular variant of the problem that confronts us here: We have before us, not a simple consciousness, but a conscious power center. In some peculiar way for which Kant offers no clarification, reason and the faculty to act effectively intermingle to form a whole, but one whose constitutive elements can nonetheless still be distinguished. This whole, for which a term is lacking, is will that has been suffused with the light of knowledge, and the regress which, in accordance with its essence, could only unfold in the encapsulation of consciousness by consciousness is mirrored onto a power center that is itself entirely incapable of immanent division: Kant’s analogue for the consciousness of consciousness is the empowerment [Er-Mächtigen] of power. While power is an agent that receives its light from reason, it is also—in the manner of a consciousness divided within itself—inwardly distanced, a faculty that is the ground of its own faculty. Power is an inclination [Belieben], and its action is the inclination of its inclination. This already very opaque and philosophically more than questionable construction now becomes further complicated by the fact that willw is not the lowest starting point of a regress whose course is determined by the interlocking of reason and an analogous power toward an intelligible terminal point. Rather, willw already lies within the intermediate realm and is determined from below by sensory being as well. Willw, which is at once knowledge and will, is influenced by the lower power center of sensuousness [Sinnlichkeit] and is at the same time aware of this influence, which cannot be a necessary one, because then the entire upper regress would be impossible. The concept of influence [Affizieren] is a concept of the intermediate realm. With its help, determination by sensuousness is moderated to an extent that remains compatible with the determination of willw by reason. Seen from the opposite angle, the moderating concept that makes the influence from below possible is the concept of a pure will that is nonetheless not pure in itself but can be applied only to actions arising from a pure will (Metaphysik der Sitten, 14).29 From the midpoint of willw, the concepts are formulated in such a way that 29. Ibid.

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their principle meaning aims either upward or downward (influence by sensuousness, determination by reason), but in a secondary meaning these concepts must remain compatible with the other series (influencing, not necessitating, pure, but not pure in itself). Through the application of such overlapping concepts as faculty of desire and subject or human being, all three power centers— sensuousness, willw, and reason—are merged into one. Willw can either surrender to the inclinations and allow itself to be influenced by sensuousness in this way, or it can look up to the moral law and make it the maxim of its action. In principle, lawfulness according to reason is the same for all rational beings regardless of their human finitude or of their divine infinitude. For the divine holy will, certainly, objective lawfulness is at the same time a subjective law of action; for it, there is no choice of maxims; its life is pure reason and pure morality. Only for a finite being is the moral law accompanied with its special imperative character of compulsion. Accordingly, the moral law is for a human being an imperative, commanding categorically, because the law is unconditional; the relation of such a will to this law is one of dependence under the name of “obligation” [Verbindlichkeit], which signifies a constraint to an action, though this constraint is only that of reason and its objective law. Such an act is called duty [Pflicht] because a pathologically affected (though not pathologically determined, and thus still a free) willw is accompanied by a wish arising from subjective causes. This wish, consequently, often opposes pure objective grounds of determination and is therefore in need of the moral constraint of the resistance offered by the practical reason, which may be called an inner but intellectual compulsion. In the supremely sufficient intelligence, willw is correctly thought of as being incapable of any maxim that could not at the same time be objectively a law, and the concept of holiness, which is applied to it for this reason, elevates it, not indeed above all practical laws, but above all practically restrictive laws, and thus above obligation and duty.” (Kritik der Praktischen Vernunft, 42)30

Only if intelligible reason alone were to determine the will would action inevitably occur according to law. Because a finite being is always subject to the possibility of sensuous influence upon its will, the law seems distanced from the will. Because the law is not the immanent law of the development of the life of the will itself, its removal makes itself felt in compulsion, in ought. 30. Kant, Critique of Practical Reason, 32–33.

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Let us disregard for the moment the fact that a moral law is a general rule having a specific content and hold fast only to the claim that insight into the moral correctness of one’s actions, whatever the sources might be, is possible for a human being. According to the foregoing investigation, the following existential constitution results: Human existence is a whole, encompassing the spheres of sensuousness, sensory reason (or rational sensory being), and pure reason. In addition, a human being is a living, effective center of power. In keeping with its possession of power, human existence is doubly torn internally, divided within itself: first by the illumination of existence by rational capacities of every degree, spanning from the rationally purposive, hypothetical faculty to unconditional rational insight, and second by the division of the will. For just as existence as a whole has power, so does each of its partial spheres have its own center of influence, all of which are connected to one another in a context of influence, because willw is both intelligibly determined by the sphere of the will and influenced sensuously from below. The split in the will is embedded in and illuminated by reason, so that the two interpenetrate to produce structures like knowing, deliberating willw or rational will (which is not a will determined by reason, but one that interpenetrates with it; Kant occasionally equates will with practical reason, but this is not a relationship of identity, for the whole of reason and will is structured into being and efficacious entities). Externally, human existence is a closed power center; internally, it is a cosmos of will illumined by reason. The internal structure of existence, which has revealed itself as an interpenetration of the orders of being and will, is, furthermore, at the same time a hierarchy. For the will that is “the same” as reason is also the core of value, the authentic self [das eigentliche Selbst] of human existence, and the rational determinations of willw by practical reason are at once moral determinations. Now, if the human will were perfectly good, then the objective, rational rules of morality would also be the subjective determining grounds of its actions. Because the will in itself does not fully conform to reason, however, “then the actions that are objectively recognized as necessary are subjectively contingent, and the determination of such a will according to objective laws is compulsion [Nötigung]. That is, the relation of objective laws to a will that is not absolutely good is conceived as one in which the will of a rational being, although it is determined by principles of 199

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reason, does not necessarily follow these principles in virtue of its own nature” (Grundwerk, 34).31 In order to postpone the matter of the moral law for now, we formulate these statements somewhat differently and grant only that actions can be seen as morally necessary, but we avoid speaking of objective laws and the lawful nature of the will. Regardless how, it would then be possible to determine the morality of an action by returning to the intelligible will. Kant calls the result of this decision, as ideal objectivity, a command, and he calls the formula in which the command is expressed an imperative, a proposition containing the word ought (Grundwerk, 34).32 Conversely, the “ought” of the imperative formula indicates the relation of the intelligible core (which is reason and will) to a will “that is not necessarily determined by this law in virtue of its subjective constitution.” The imperatives state “that it would be good to do or to leave undone a thing; only they say it to a will that does not always do a thing because it has been informed that this is a good thing to do” (Grundwerk, 34).33 According to this formula, imperatives are the expressions of commands. Commands are given in decisions concerning an action’s morality through an appeal to the intelligible core of man. The situation of appeal, the scrutiny of an action by a higher instance, is given through the ontic structure of man, through his division into an intelligible and an empirical part of existence. The empirical part is divided further into purely a sensory and a rational-sensory part, and the latter connects the lower to the upper part by means of its dual nature. We have reproduced only the essential features of the structure of existence as Kant described them, without touching upon the question of their development. But how do we know of the logos of existence? Where does our knowledge that a moral law is compulsory come from? How do we know that there is an intelligible reason? Kant calls the informing experience, in which one becomes conscious of the compulsory nature of a concept of duty, the moral sentiment [moralische Gefühl]. He tries to explain this sentiment by use of an analogy to the feeling of pleasure in the sensuous affect of the desiring capacity. To the extent that our willw is dependent upon sensory perception [Empfindungen], it 31. Kant, Groundwork, 80. 32. Ibid., 81. 33. Ibid.

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follows its inclinations. We experience a need for an object of some kind; in the experience of the need, which we gratify by following our inclination for gratification, the affect of our desiring capacity reveals itself to us through our senses. The moral sentiment is the corresponding feeling through which we are determined by reason and the moral interest we take in an action corresponds to the inclination. “The dependence of a contingently determinable will upon principles of reason is called an interest. Hence an interest is found only where there is a dependent will that in itself is not always in accord with reason: to a divine will we cannot ascribe any interest” (Grundwerk, 35).34 Kant claims that it is impossible to discover any interest the human being might take in moral laws, but he also really does take an interest in them. The foundation of this interest would be our moral sentiment, “which has been mistakenly given out by some people as the gauge of our moral judgments; it should be regarded rather as the subjective effect exerted by the law upon the will, an effect for which reason alone provides the objective grounds” (Grundwerk, 91).35 In order that the sensuously affected, reasonable being desire at all that which obligation prescribes in the first place, the capacity of reason that imbues willw with a feeling of desire is required, just as the inclinations make the imagined gratification of cravings appear as desirous. It is entirely impossible, however, to see how a mere thought, which itself contains nothing sensory, could arouse a feeling of desire or non-desire. Only this much is certain: that the validity of a command does not depend upon the interest we take in it, “but that a command x interests us because it is valid for us as human beings, because it has arisen from our will as intelligence, hence from our true self” (Grundwerk, 91).36 In the Metaphysik der Sitten, the moral sentiment is treated in its systematic place as “a pre-concept for the subjective receptiveness to concepts of duty in general” (241 ff.).37 There are certain moral qualities that every human has and through which he can be obliged in the first place. A human being cannot be obliged to possess a moral sentiment, for such possession precedes all awareness of duty. “Any consciousness of compulsion depends upon moral feeling aware of the compulsion present in the concept 34. 35. 36. 37.

Ibid. Ibid., 128. Ibid., 129. Kant, Metaphysics of Morals, 201.

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of duty” (242).38 The insight into the correctness of a command is a matter of reason, and the culture of reason can offer enlightenment as to what duty is and is not. The moral sentiment, however, is not a moral sense through which morally good or evil is recognized, but an experience through which the binding, compulsory character of commands becomes conscious. The experiences of the moral sentiment reveal the “ought” of a command. As ideal objects, commands, which are formulated as imperatives, are distinct in terms of their content from the stirrings of moral sentiment, nor are they recognized as morally correct in terms of their content by means of moral sentiment. The moral sentiment is not the site [Instanz] of moral decision. Further, the character of compulsion is also distinguished from the stirrings of feeling, for it is precisely in the moral experience of feeling that compulsion is first revealed as something other than the experience, something facing it, something objective. Compulsion is a component of the ontic structure of existence, a power relationship between the authentic self of a human being and a worse self that is characterized as worse by the very fact that its actions might diverge from the commands of the better self and follow sensuous inclinations. The power of the better self is not absolute but simply compulsory, an ontic state of affairs that can be defined by terms like compulsion, obligation [Verbindlichkeit], or ought [Sollen], but that can originally be given only in retrospective experience [Nacherleben]. Moral sentiment unlocks the power relationship that moves from the inauthentic to the authentic self. Kant unlocks the relation of the freedom of the will to the determination of the will by reason through his conception of the moral law. Between the two, freedom and moral law, there exists a reciprocal relationship of the kind that establishes freedom as the ground of being of the moral law and the moral law as the ground of knowledge of freedom. “Freedom is indeed the ratio essendi of the moral law, but the moral law is the ratio cognoscendi of freedom. For had the moral law not already been distinctly thought in our reason, we would never feel justified in assuming something like freedom (whether or not this immediately contradicts itself). If there were no freedom, however, the moral law could not be encountered in us at all” 38. Ibid.

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(Kritik der Praktischen Vernunft, 4 n).39 According to Kant, this mutually informing relation [Aufschlussbeziehung] of moral law and freedom arises from the “formality” of the moral law. If the will is determined by commands that represent a material content of action, then it is empirically and sensorily determined. Only if a command is entirely free of material content and thus possesses only the pure form of law is the will determined by pure reason. That is to say, will is determined by its own law; it is autonomous and free because it is equal to reason. If the pure, general, law-giving form serves as the determining ground of a will’s actions, then that will does not depend upon the law of empirical causality. “But such independence is called freedom in the strictest, that is, the transcendental, sense. Therefore a will to which only the legislative form of the maxim can serve as a law is a free will” (Kritik der Praktischen Vernunft, 37).40 It is obvious that the moral law, which Kant claims to be formal, has a content. By its very nature a law establishes a relation between two terms, and a law without content is a contradiction in terms. We postpone the problem of content for now, however, and consider only why Kant would have made the claim of formality and what he might have hoped to gain by it. A first determinant of the assumption of formality lay with the traditional view that the moral determination of action in general is linked to a universal law. By moral laws, Kant understands universal theses that are acknowledged as valid for the will of any rational being. Even if a material content for these laws were conceded, an ethical theory that works with the laws would have to begin with the ontological premise that all authentic human selves are ahistorical exemplars of a single type, without personal uniqueness. For this reason, each would compulsorily approach his lesser self with the same principles in all existential situations. This is an ontological assumption that we no longer make today and that we must therefore ignore in order to advance to that part of Kant’s theory of ought that is of value for us. For Kant, a second decisive basis for the assumption of a formal law lay in the fact that he was incapable of understanding the content of the course of a human life as the development of a personal being. We have already seen that such elements as human 39. Kant, Critique of Practical Reason, 4 n 1. 40. Ibid., 28.

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corporeality, aristocracy, political status, and history do not count as spheres of the development of personality. Kant had no access to certain contents of the expression of existence that are utterly essential. However deeply he probed the one problem that could excite him, the problem of duty, his soul remained closed to all other existential contents. This is why almost all contents—the totality of all the kinds of actions that are peculiar to human beings— fall within the category of impersonal material, being represented as motivating willw solely by means of sensuous influence, whereas only a very modest remainder is left to the moral law as the expression of a person. The disproportionate distribution of mass is so great that Kant may have believed that he had shifted the entire material content of action to the sphere of the senses and had preserved for reason, the authentic self, a form without content. The third reason for the assumption of formality is the identification of the authentic self, which is represented as the source of law and ought with pure reason. In principle, the content of the latter is accessible as intelligible only to a divine faculty of contemplation, not to a finite understanding. These three reasons have the following consequences: 1) Kant is unable to capture in his system the notion that the authentic self may or may not be able to allot an ought-index to any random material content of a command without the mediation of a universal law; 2) the inevitable universal law is represented as empty because a) the personal content of the Kantian self is so meager that it can be easily overlooked and b) the content of the self as intelligible reason cannot in principle be known. From the equation “authentic self = pure reason = lawfulness” it necessarily follows that the moral decision of the authentic self must be characterized by a quality of a law, and this quality is none other than formality. For Kant, formality is the expression of a determination of a will that is experientially clearly distinct from sensuous influence or the surrender to sensuous inclinations. Because of its formality, the moral law can serve as a reference, an informing experience [Aufschlusserlebnis] of the determination of a will arising from the spontaneity of its own reason. Thus does the moral law also serve as an informing experience of the internal laws, the autonomy of will. “We can become aware of pure practical laws in the same way that we are aware of pure theoretical principles, by attending to the necessity with which reason prescribes them to us and to the elimination from them of all empirical conditions, 204

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which reason directs. The concept of a pure will springs from the former, just as the awareness of pure understanding springs from the latter.” The true subordination of concepts is that “morality first reveals the concept of freedom to us while practical reason first posits the insoluble problem of this concept to speculative reason” (Kritik der Praktischen Vernunft, 38).41 In a different context, this insoluble problem is posed in such a way that the connection of the informing question [Aufschlussfrage] to the law and its formality does not gain linguistic expression. For this reason, spontaneity—that defining characteristic of the informing experience [Aufschlusserlebnis] to which formality ultimately refers— becomes more clearly visible. Without expressly weaving the moral law into his argument, Kant argues (Grundwerk, 87) that the claim of the law itself—that of universal human reason upon freedom of the will—is based “on a consciousness and an accepted presupposition that reason is independent of purely subjective determination by causes that collectively comprise all that belongs to sensation and comes under the general name of sensuousness.” A human being can regard himself as a sensuous being subject to the laws of the course of nature. He can also think of himself as an intelligence and, as such, as endowed with a will, a causality that operates independently of external laws. “That he must represent and conceive himself in this double way rests, as regards the first side, on consciousness of himself as an object affected through the senses; as concerns the second side, on consciousness of himself as intelligence—that is, as independent of sensuous impressions in his use of reason (and so as belonging to the intelligible world).”42 The authentic self is revealed in experiences of the spontaneity of the will. Through such experiences, the commands emerging from the will acquire the character of having arisen from a higher I. The experience of spontaneity and the discussion thereof still lie entirely within the schemata of the double division into two. The practical freedom that we experience is that of an independence of compulsion through sensuousness, the experience of the spontaneous, groundless determination of actions by a human being who is also susceptible to sensuous influence. In this human being a metaphysical reality is revealed for which Kant likewise chooses 41. Ibid., 29. 42. Kant, Groundwork, 117.

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the term spontaneity, because he means by this reality a center of influence—the intelligible I—that is not subject to laws of nature but is capable of initiating series of actions on its own. The discussion of this relation between intelligible I and empirical I, between the thing in itself and the thing as phenomenon, occurs in terms of a schema that Kant superimposed on the traditional one: the genuinely Kantian dualism of a mundus sensibilis and a mundus intelligibilis. Prior to investigating this new problem of transcendental freedom with its simple dualist schema, a few observations concerning the form of Kantian philosophizing within the tripartite schema are in order. Kant’s thought is characterized by a peculiar vagueness that we have not succeeded in dispelling; nor could we have succeeded, for the vagueness is not the result of a lack of clarity based on deficient analytical incisiveness, but a result of the essential form of Kant’s philosophizing. Linguistically and sensuously, conceptual incisiveness is rendered impossible by the images that serve as the means of expression of the idea. The traditional dualistic schema is indicated by the terms sensuousness and reason, but it is not sufficient for a schema that requires terms of its own: for the understanding [Verstand] as the comprehensive faculty of cognition, for the faculty of rationally purposive deliberation [Überlegung], and for pure reason [Vernunft]. Understanding and reason therefore often emerge as synonyms, thereby allowing the background unity of a higher human faculty to shimmer through. On top of the traditional image is overlaid a second one for which an empirical human being, together with his higher capacities, serves as the basis for an intelligible pinnacle that reaches up into another world. The terms used for this other world (realm of understanding or realm of reason) are the same terms that are used in the first image for designating those higher capacities and that now, as empirical terms, belong to the sensuous basis. A third image presents a human being as a phenomenon [Erscheinung] who possesses—not above himself, but behind himself—the thing in itself that appears within him as a human being that is at once phenomenon [Erscheinung] and that which appears [erscheint] behind his own phenomenon. A merging of the terms thus becomes necessary once again, because a human being as phenomenon is of course not an other than a human being in itself, but the same human being merely regarded under different aspects. In a fourth image, the authentic self serves as a kind of core, 206

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a middle, around which external existential layers are deposited. Through all these reflected images, the concepts are blended such that no one image expresses the meaning more accurately than any other one. On the contrary, the primordial image comes to life only if one moves through the series in the spirit of one who participates in this philosophizing himself. The structures of the topic interpenetrate with the sensuous, linguistic images to form expressions of the philosophizing spirit. The “vagueness” of the thoughts has its essential ground in the fact that the topics are not objectified, not captured in statements that describe them, but serve with their very structure as a means to express the living, philosophical flow that infuses them all. With pangs of conscience at the barbarity of the procedure, we have attempted to strip some of these topics of their function as expressions of philosophical movement and to examine them in detail as objects. For example, we dissociated the classification of a human being into instincts, habits, practical understanding, and spirit from the classification into a better and worse self. We attempted to divorce issues surrounding the will from those involving the structure of being and to isolate the rationalistic elements, the idea of law, from the authentic self. We were able to make these divisions because these themes were detachable elements of the Kantian concepts, even if they simultaneously performed a function entirely different from that of expressing a movement of philosophical thought. The units of expression mirror the movement through the themes that we separated out from the rest: Reason took on hues of law, of an unknowable core of the I, of an authentic self, of will, of intelligence. Will was holy when the philosophical gaze was trained upon God, was perfectly pure when the gaze drifted toward a finite but nonsensuous being, was not perfectly pure but still free when the sensuous affect on will was taken into account. When this affect was considered, the concept of a willw determinable by reason appeared. Because reason and will are the same, however, will now determined willw. There were thus two power centers that were merged again in the concept of the desiring capacity; for what was involved here, after all, was the will of only one individual. Willw was not merely determined by reason but was itself rational, in that sensuousness only influenced and did not necessitate it. Reason is will but not identical to will; willw involves deliberation but is not simply the capacity to form rational plans, etc. 207

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This extensive manifold of nuances and series of nuances of the one rational existence of the human being is linguistically molded into a unit by the modal adverb insofar as [sofern]. At some point that is regarded as sufficiently secure to serve as a starting point, the philosophizing process begins. It then passes through the field of topics in that it relates the points to one another with the phrase “insofar as.” Insofar as willw is sensuously affected, it is not pure; but insofar as it is capable of being determined by reason, it is free. Insofar as the will is free, it is determined by a moral law; insofar as it is determined by moral law, it is determined by reason. Insofar as the will is itself reason, it obeys its own law by complying with the moral law; it is autonomous. Insofar as it is autonomous, self-determining by use of its reason, it is an authentic self. Insofar as it is an authentic self, it compels willw, and it can compel willw insofar as it is a causality. Willw can be compelled to the extent that it possesses the capacity of moral sentiment. The imperatives determine the causality of a rational being “merely with regard to” their ability to produce an effect, and they are then called hypothetical imperatives. They determine the will as will “even before I ask” whether or not I possess the ability required for a desired effect, and are then called laws. The laws entail a requirement that, “if it is to be practical,” must not depend upon pathological conditions of the will, etc. As in these passages, the phrase “insofar as” can be replaced by different expressions, but its function remains the same: to mirror a core substance, to which the statements themselves are never directed, by means of a diversity of expressions linked forward and backward to one another by the relation “insofar as.” All other relations that appear linguistically lose their actual meaning. If reason is the same as will, or reason is the same as law, then no relationship of identity is asserted, but solely the background identical existential substance whose modes appear as reason, will, and law. If the laws are described as necessary, then the idea of their moral self-evidence flows out into this term, as well as the idea of their relation with the others to a value content according to which—”insofar as” laws are the same as reason, the same as will and the same as causality—necessity is to be understood as an effective, determining power. Necessity then blends into compulsion, into which the real determining power— albeit not absolute power, due to the contravening sensuousness— is blended into ought, which arises from the ontic difference in 208

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value of the authentic and the worse selves, etc. A thinker can move back and forth from any random point of the network of concepts to any other other point by means of the connecting “insofar as,” because the starting point is never the identical background substance itself but only an image that has the same rank as all the rest. The will is the same as reason “insofar as . . . ,” just as reason is will “insofar as . . . .” Every image is at once itself and the other, because no one image is It Itself [Es Selbst], but the same Something shimmers through each of them that is also mirrored in all the others. Each of the images is transparent for the same core, but the core itself never becomes the subject of a statement. All statements refer to it only through statements about the other images. This produces a balanced, self-reposing, freely floating system of concepts that never objectivizes its philosophical themes but simply prescribes the paths along which philosophizing existence must necessarily proceed if, with its gaze trained upon the metaphysically real, it transforms the metaphysically real along necessary paths. This world of most vivid philosophical expression is doubly conditioned: by the basic images that set off the movement of the “insofar as” and by the contemplation of the identical [des Identischen] that expresses itself in the movement. The predetermined terminology is furnished by the conventional terminology of the time: sensuousness, understanding, reason, will, capacity for desire, human, subject, finite being. Kant begins with this terminology and then robs it of its traditional solidity by drawing it up into the stream of his philosophizing: A human being is a sensuous, intelligent, rational being, the union of sensuousness and reason. Reason is restricted by sensuousness and, to that extent, is subject to its influence; the influence of sensuousness is restricted by reason; will is at once sensuous and nonsensuous, at once reason and unreason, at once determined and undetermined; reason equals will, which equals willw, which equals sensuous affect; the will determines willw, willw determines moral sentiment, moral sentiment is bound to willw, hence to will, hence to reason, which in turn excites the moral sentiment through its law, etc. Everything can become everything because the thematic is conceived only as an expression for the One and Identical from which it emerges. Yet this single, identical metaphysical element has disclosed itself to Kant in the form of a deeply stirring awareness of the spontaneity of action and of moral necessity. Here is the experiential center that 209

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holds and maintains his conceptual world, that restrains it from chaotic confusion and from collapsing upon itself. Ought is revealed to us in the stirrings of the moral sentiment. The contents of the commands are revealed through an a priori insight of reason, and the freedom to act in accordance with moral commandments is revealed in the experience of spontaneity. “[Freedom] holds only as a necessary presupposition of reason in a being that believes itself to be conscious of a will, that is, of a capacity distinct from mere appetition (a capacity, namely, of determining himself to act as intelligence and consequently to act in accordance with laws of reason independently of natural instincts)” (Grundwerk, 89).43 Again, we bypass the problem of the moral law and its contents, so that the path leading to the disclosure of the constitution of existence leads directly from the experienced spontaneity of my actions to that wellspring of spontaneous action that Kant calls causality issuing from freedom. How such a spontaneous causality that is not subject to the laws of the experiential context is possible cannot of course be stated, because it lies beyond all experience. Its compatibility with experience, however, can be very well demonstrated. Indeed, it is an indispensable task to do so, because the concept of freedom has now imposed itself as a problem by way of the experience of spontaneity. In the Critique of Pure Reason, Kant undertakes the proof of the compatibility of experience and transcendental freedom; it seems to us that the main features of the structure of even this work, whose main project is the critique of knowledge, are essentially determined by the intention to provide a foundation for practical freedom. The investigation of the problem of freedom culminates in the explanations of the antithetical nature of the third antinomy. As spontaneous intelligible causality, transcendental freedom is distinguished from practical freedom, that is, from the independence of willw from the compulsion of sensuous impulses (B 562)—and transcendental freedom is described as the prerequisite for practical freedom. The occasion for addressing the problem of freedom is described in a way similar to that of later works, as an experience in which a human being knows “himself also through pure apperception; and this, indeed, in acts and inner determinations that he can43. Ibid., 127.

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not regard as impressions of the senses” (B 574). This formulation of the experience of the spontaneous determination of action deserves to be preferred to all later ones, because its description has not yet been muddied by the theory of the moral law, and spontaneity has therefore not yet mingled with the additional problem concerning the origin of the content of practical laws. These statements, which already refer directly to problems that arise in a system of ethics, now emerge in the course of a critical epistemological investigation, which primarily has another topic in view. It turns out that essential parts of the Critique of Pure Reason—mainly the third antinomy itself, but also the investigations of phenomena and noumena—have been formulated from the very beginning in such a way that they become useful for setting up the problem of freedom. In the context of the critique of reason, the problem of the third antinomy is at first developed as a critique of knowledge; its end point in the spontaneity of human action need not be in view from the beginning. The place of the antinomy in the construction is most precisely predetermined by the beginning points of transcendental aesthetics and analytics, specifically: a) by the table of judgments and categories; b) by the possibility of a free use of categories that does not relate to experience; c) by the possible relationships that our ideas can have and in particular the relationship to objects; d) by the selection of categories in which the synthesis comprises a series of classifications of the subordinate conditions into a conditioned whole; e) and finally, for the third antinomy, by the series of causal conditions. The entire, highly complex epistemological problematic has nothing directly to do with the questions of ethics, and one could imagine a continuation of the investigation that does not end by solving the problem of human spontaneity. Very soon, however, the ethical goal becomes visible behind the primary epistemological one, and it even gains so much in significance that the order of priorities is reversed. For in the footnote to the thesis of the third antinomy, the hardly developed problem of closing the infinite regress of causes with an unconditional cause is already diverted toward the question that is important to Kant, namely, the question concerning the intervention of unconditional causes at any random point of a phenomenal series. According to his thesis, the phenomena of the world cannot as a whole be derived from causality according to laws of nature but instead requires the assumption of an unconditional causality, i.e., a causality that arises 211

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from the freedom of complete clarification. For if everything that occurs were viewed solely from the standpoint of natural laws, then, proceeding from the context of experience, every cause would have an older one that precedes it in time, and there would always be only a subaltern and never a first beginning, which would be required for the full determination of a phenomenon. We must therefore assume “an absolute spontaneity of causes, a series of appearances proceeding in accordance with natural laws that begins of itself, hence a transcendental freedom” (B 474). In the footnote to the aforementioned thesis, we now see that the investigation concerning the origin of the phenomenal world was developed and pressed only as far as was needed to gain a foundation for the doctrines of the freedom of the human as a rational being and of the experience of ought. As soon as the necessity of a first beginning of the world is demonstrated, the thought presses hastily forward to the conclusion: “But since the capacity of a series in time to originate entirely from itself has thereby been proven (though not understood), it is now also possible for us to admit within the course of the world different series as capable in their causality of beginning of themselves, and so to attribute to their substances a capacity of acting from freedom” (B 478). We find a standard for the almost impolite haste with which Kant turns from the primordial mover of the world to man if we recall the meditations of Saint Augustine on the relation between creator and creatura. Just as Kant does, Augustine also investigates the cosmological question of the beginning of the world, of the entire creatura together with its time, even though for him, too, human beings are the most important of the creatura’s parts. Yet with what devotion does Augustine delve into the details of the relation between the eternal creator and the temporality of the world, continually seeking and finding ever new and pertinent formulas by which to capture aeternitas and permanere in their persistence beyond the flux of time. How suffused with the experience of creaturely lowliness is his talk of the distentio animi, the disintegrated state of the spirit from which he must return in intentio toward the divinity. Compared to this modesty, the impulses behind Kant’s thought become clearer. When Kant, having only just alluded to the puzzle of divine spontaneity, quickly returns to his little god, the spontaneous man, we sense an obsession with the this-worldly spontaneity of human action and its obligatory law. 212

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We note a similar turn from contemplation of the world to human beings in the way the investigation of the thing in itself and the noumenal sphere is channeled to the specific question of the noumenon of man. The aura of vagueness surrounding the concept of the thing in itself, which has left room for such variegated interpretations, has as its underlying reason, like the vagueness and haste surrounding the concept of spontaneity (which has been of less interest to more recent epistemologists and thus less disputed), the fact that the central intention of Kant’s speculation is not aimed at achieving a complete solution to the problem of the thing in itself insofar as it emerges in a theory concerning our knowledge of the world of experience. In the critique of knowledge, a clarification of the nature of the noumenal sphere is pursued only as far as is required to demonstrate the possibility of a trans-empirical region and to indicate its compatibility with our experience of the phenomenal world. Certainly, like the antinomy, the theory of noumenal objects has its place in the context of a critique of knowledge. Only opposite a beyond lying outside its bounds can restriction of the use of categories to the conceptual elaboration of that which is given to sensuous perception be understood as a restriction. In its most careful formulation, the concept of the noumenon is a limiting concept having a strictly negative application, but even in this thinning out, it is “nonetheless not arbitrarily invented, but connected to the limitation of sensuousness” (B 311). Beyond this most narrow formulation of the thing in itself as a concept of the limit of knowledge extend abysses of questions: Does a thing in itself correspond to every empirical object as a phenomenon? Should the thing in itself be posited as a correlate of our faculties of contemplation and cognition? Are there things in themselves that could not emerge into empirical view at all? Which intellectual faculty is capable of apprehending the things in themselves? How does the thing in itself relate to ideas in plants, animals, and the regular arrangement of the structure of the world, etc.? Without illuminating these abysses too deeply, Kant picks his way between them on a direct path to the thing in itself, to the extent that it is the intelligible character of a human being. Linguistically, the turn from the cosmological to the human-ethical problem is prepared by replacing the words suited to describing the natural sphere with ones that might be applied to a human being. This being itself is not mentioned at first, however. The paragraph 213

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bearing the heading “Possibility of Causality through Freedom, in Harmony with the Universal Law of Natural Necessity” (B 566 ff.) begins with the sentence: “Whatever in an object of the senses is not itself appearance, I entitle intelligible.” Terminologically, we still move here within the natural scientific and epistemological sphere. Here we would have to say that sensibility and its field, that of the appearances, is itself limited by the understanding to the point where it does not itself have to do with things in themselves, but only with the mode in which, owing to our subject constitution, things appear to us. This was the result of the entire Transcendental Aesthetics, and it also follows naturally from the concept of an appearance in general: that something which is not in itself appearance must correspond to it, because appearance cannot be anything in itself, outside of our mode of representation. Hence, if we are not to move in a continuous circle, the word appearance already indicates a relation to a something the unmediated representation of which, although sensible, must nonetheless be something in itself, even apart from the constitution of our sensibility (upon which the form of our intuition is based). Something, therefore, that is an object independent of sensibility. (A 251 ff.)

While the first statement still addresses the relations between object and subject of cognition, the second speaks not merely of intelligible or noumenal grounds or causes of the phenomenal thing, but of a “faculty” [Vermögen] that is “not an object of sensible intuition.”44 Further, Kant calls the object of the senses the less natural term being [Wesen] and the phenomenal manner of its efficacy, actions [Handlungen]. The third sentence replaces the term being with subject. “Accordingly, we must form both an empirical and an intellectual concept of the causality of the faculty of such a subject, and to regard both as referring to one and the same effect” (B 566). The sixth statement, finally, introduces the term character. “But each and every efficient cause must have a character, that is, a law of its causality, without which it would not be a cause at all” (B 567). In this way, the discussion of the thing in itself is transposed into a discussion about the relations between the empirical and the intelligible character of human beings. For—and here a human being is suddenly pushed onto the carefully prearranged scene— “the human is one of the appearances of the sensible world and, to 44. [Sinnliche Anschauung could also be rendered “sensory perception.” The role of “intuition” as a translation of Anschauung, however, plays an important role in interpretations of Kant.—Eds.]

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that extent also one of the natural causes the causality of which must stand under empirical laws” (B 574). Thus far, the results would not be surprising and the explanations not worth the effort that Kant takes with them. Behind a human being as phenomenon for our senses there would be a human being in itself, just as behind every phenomenal thing we should assume a thing in itself. The full implications of these extensive preparations become clear only when Kant takes the final step and identifies a human being, as a thing in itself, with the rational personality that is revealed by the experience of spontaneity. For, he follows, “in inanimate nature, or in nature animated by merely animal life, we find no ground for thinking that any faculty is conditioned otherwise than in a merely sensible manner. Only a human being, who otherwise knows all of nature solely through the senses, alone knows himself through pure apperception” (B 574). Through this identification, the critique of knowledge is radically transformed into an ontology of the real [Realontologie]. The concept of the thing in itself was erected as a counterpart to our knowledge of the phenomenal world. In this sense, the entire world, to the extent that it is the thing appearing behind the appearance, was to be understood as intelligible. The thing in itself was intended as a terminal point in a relation, regardless of what was thought to serve on the other end, whether human sensuousness influenced by the thing in itself (B 59 ff.) or the counterconcept of thing as appearance (B 308). In the course of the terminological shifts that we have just indicated, the epistemological relational character is now suppressed by another, entirely different meaning of the noumenon that is revealed to us in the experience of spontaneity that illuminates existence. It is now no longer a matter of understanding how objects are present to a perceiving consciousness, but rather how human existence is structured and how its structures are revealed to us. In this new thematic configuration, the presence or absence of a revealed, authentic self serves as the criterion for an ontological classification according to which the entire world of beings (if we disregard the purely intelligible beings) falls into the two great classes of human and subhuman nature. On a later occasion, Kant captured this classification even more concisely as the difference between objects and persons. “Beings whose existence depends, not on our will, but on nature, have nonetheless, if they are non-rational beings, only a relative value as means and are 215

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consequently called things. Rational beings, by contrast, are called persons because their nature already distinguishes them as ends in themselves, that is, as something that may not be used merely as a means, and consequently imposes to that extent a limit on all willw (and is an object of respect)” (Grundwerk, 53).45 The same distinction is drawn in the Metaphysic of Morals: “A person is a subject whose actions can be imputed to him” and “a thing is that to which nothing can be imputed” (26).46 At this point, the clarity of our analysis would greatly improve if we could examine the Kantian ontology and characterology of a human being in greater detail, because the consequences of identifying reason with the thing in itself are revealed in the fluctuations of the ideas concerning the nature of the intelligible ego. Whenever, in the analysis of the intelligible character, the emphasis is upon reason, humans appear as ends, as rational personalities and points of accountability that are equal in their intelligible core, hence also equally subject to the same laws of reason. Whenever the investigation places more emphasis on the thing in itself as the background of the empirical character, an intelligible character seems to belong to each empirical one, and this intelligible character is capable of producing this particular empirical character and no other. As a result, there are as many intelligible as there are empirical characters and each intelligible character is the exact mirror of its empirical character, and the empirical character is the sensory schema of the intelligible one. When the emphases of observation are more or less balanced, humans differ with respect to their empirical character but are equal with respect to their possibility of acting in freedom. Yet in Kant’s case, these distinctions and their various solutions would traverse into the problems of time and history; as such, they could be portrayed only in the broader context of an analysis of the entire conception of the state and of society. Here, we aim merely to show the goal to which Kant’s investigation strives, namely, transcendental freedom. This freedom is “the capacity to initiate a state of affairs on one’s own, one whose causality does not itself stand under another cause determining it in time, as required by the law of nature” (B 561). A being that is at once empirical and intelligible has such capacity. It would not “in its intelligible character, stand under any conditions of time; time is only a condition 45. Kant, Groundwork, 96. 46. Kant, Metaphysics of Morals, 50.

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of appearances, not of things in themselves. In this subject, no action would begin or cease, and it would not, therefore, have to conform to the law of the determination of all that is alterable in time, namely that everything that happens must have its cause in the appearances (that precede it). In a word: its causality, so far as it is intelligible [intellektuell], would not have a place in the series of those empirical conditions through which the event is rendered necessary in the world of sense” (B 567). Kant derives the fact that intelligible reason has causality from the imperatives; and with that, we have returned to our discussion of the informing experience: “Ought” expresses a kind of necessity and a kind of connection with grounds that is found nowhere else in the whole of nature . . . [it] expresses a possible action, the ground of which cannot be anything except a mere concept, whereas in the case of a merely natural action, the ground must always be an appearance. . . . Whether what is willed be an object of mere sensibility (the pleasant) or of pure reason (the good), reason will not give way to any ground that is empirically given and it does not follow the order of things as they present themselves in appearance. Instead, reason frames for itself with complete spontaneity an order of its own according to ideas into which it fits the empirical conditions and according to which it even declares actions to be necessary that have not yet occurred and that will perhaps never occur. At the same time, reason also presupposes that it can have causality in regard to all these actions, since otherwise it could expect no experienced effects from its ideas. (B 575)47

For Kant, ought is not a random philosophical topic beside others, but the one phenomenon of our existence that aroused him so profoundly that his entire philosophizing welled up from the ground of this arousal. The identification of the rational personality and its freedom with the thing in itself is not to be understood as an incidental diversion from the main lines of the investigation or as the derailment of an epistemologist; rather, the application of basic epistemological concepts to the problems of ethics is the essential goal to which the theory of ideas in the Critique of Pure Reason is consciously directed. The very introduction of the term idea sketches the ideal of the state for which the theory of ideas is to serve as the systematic foundation (and which first occurs in the ethical writings). Kant appears to have believed that his idea of the 47. [The passage extends to B 576.—Eds.]

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state was a clarification and clear exposition of an idea that had been only incompletely and unclearly formulated by Plato. He defends the Platonic republic against banal attacks and recommends following through with its thought so that renewed efforts might place it in a light that Plato was not entirely capable of giving it. Likewise, he presents his formula of the ideal state based upon a natural law as an improved version of Plato’s formula, and he holds fast to this formula to the end of his philosophizing. “A constitution allowing the greatest human freedom in accordance with laws by which the freedom of each is made to be consistent with that of all others (not of the greatest happiness, for this will follow of itself) is at the very least a necessary idea that must be taken as the foundation not only of the first draft of a state constitution, but of all laws. For one must initially abstract from the current obstacles that might arise, not so much inevitably from human nature, as from the neglect of genuine ideas in the legislative process” (B 373). In Kant’s view, the establishment of such an ideal is of eminently practical significance, because the primordial image of a true state can lead the empirical, legal constitution of human beings to ever-higher degrees of perfection and thereby approach the idea in an infinite process. The idea that is formulated in the absence of experience is especially indispensable for principles of morality, legislation, and religion, because it is impossible to derive the laws “prescribing what ought to be done from what is done, or to impose upon them the limits by which the latter is circumscribed” (B 375).48 The unique dignity of philosophy lies in the contemplation of this object and the erection of a majestic moral structure; an illumination of the problem of ideas would serve in founding this structure (B 375ff.). Reference to the final, practical purpose of the doctrine of ideas recurs in the section concerning the transcendental ideas, where Kant defends these ideas against the reproach of superfluity. Here, he argues that the transcendental ideas might well make the transition from natural to practical concepts possible, though we must “await explanation in the sequel” (B 386). Finally, his positing of the antinomies is followed by a remarkable discussion of the interest of reason in conflict, accompanied by a typification of the kinds of maxims and thoughts of those people 48. [Cf.: “In practical philosophy we are not concerned with accepting reasons for what happens, but with accepting laws of what ought to happen, even if it never does happen—that is, objective practical laws” (Kant, Groundwork, 94).—Eds.]

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who would side with either the thesis or the antithesis of the antinomy. Kant’s sympathies clearly lie on the side of the enthusiasts for freedom. Every “well-disposed person,” if “he understands what is to his true advantage,” would have to be in favor of the ideas insofar as they give room to personal freedom. The foundations of morality and religion would be shaken if doubts were to arise over such matters as whether the world has a beginning, whether my soul is one and imperishable, whether my actions are free, or whether the world has a primordial mover. “The antithesis robs us of all these supports, or at least appears to rob us of them” (B 494). The “well-disposed,” the one who “heartily shares” in the practical interest, might also be moved by reasons of popularity. A person with common sense is all the more prepared to assume a solid beginning point and take his way from there; finding himself “with one foot suspended at all times in midair” (B 495), he would not take pleasure in an infinite regress to ever-new causes. Certainly, some good reasons might be offered by the opposing side, but the moral interest comes up too short here. Nor could the defenders of empiricism hope for popularity. For this reason, there should be little concern “that empiricism will ever pass the limits of the Schools, and acquire any considerable regard in the community or some favor with the multitude” (B 502). These references to a practical, final purpose in the decisive passages of the Critique of Pure Reason are formulated in such a way that they lead to the problem that we have postponed at length, namely, the contents of the moral law. From these contents we extract both the ideal state in general outline and the typical features of the human being that would make the ideal his guide to the kind of empirical action that is supposed to bring him nearer to the idea. This person is “well-disposed,” with a slightly commercial tinge to his convictions, because in assuming the idea of freedom, he does so well aware of “his true advantage,” but also with his “heart” in this practical interest. Disinclined to adventures, he cannot be satisfied with floating in the infinite regress of conditions “with one foot in midair at all times.” He prefers a secure beginning in order then to move straight ahead, accompanied by the comforts of leisure and the feeling of having his back covered. As we have already heard, these people do not amount to much; Kant occasionally says of them that they are cut from such crooked wood that 219

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it would be difficult to make something entirely straight of them. In the total development of humanity, however, they still move, albeit in an infinite approach, toward an ideal state of community. They are all individuals of humanity regarded as the moral species, all exemplars of a certain type of creature. They do not, however, move toward this ideal state as solitary individuals, but instead are bound together within a community with specific laws, because in contrast to subhuman nature, they are all ends and not mere means and they must all reciprocally respect their character as ends. “A human being, and in general every rational being, as well as every rational being there is, exists as an end in itself, not merely as a means for arbitrary use by this or that will: In all his actions, whether they are directed at himself or at other rational beings, he must be regarded at the same time as an end” (Grundwerk, 52).49 Because of their curiously anonymous character, statements about humanity as the one just cited offer us a deep look into Kant’s idea of community. One could imagine a statement declaring that a concrete individual A exists as an end in himself, and thus should always treat himself as an end and offer resistance whenever another uses him as a mere means. If we were to speak so concretely of A, then a need for new, clearly formulated assumptions concerning the purposive existence of person B and the nature of the community to which A and B both belong would arise, in order to reach the conclusion that person A too, even if he were an end, would have to treat person B as an end as well. Kant does not encounter these problems, because he does not distinguish between me, you, and the community, but instead allows these entities to merge in the anonymous man. If we were to seek to introduce concrete terminology into the statement cited above, we would encounter difficulties, because the term human being refers at one point to a concrete individual and at another to a typical, individual person, and the existing relationships between the two are made possible only because human being has a third meaning as well: that of a species, of humanity, of the metaphysical unit of all human beings. Kant views the multitude of human beings as a unified body of ends dispersed into a multiplicity of ends that all ultimately participate in the whole end. The laws regulating the relations among ends proceed solely from this reconnection 49. Kant, Groundwork, 95.

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within the higher unity. Humanity as a whole is the vehicle of the development of reason toward its ideal end-state, which can only, however, be attained through a process of reciprocal influences [Wechselwirkungen] among the individual, human, rational personalities. Humanity and a human being are the same insofar as they are both reason, and a personal moral law from pure reason that serves to test maxims of individual actions is at the same time a moral law of humanity as supra-individual reason. The content of the moral law is thus determined by the character of reason as a metaphysical substance that is dispersed among individual human beings and that develops within human history toward its perfection. Consequently, “what serves the will as a subjective ground of its self-determination is an end; and this, if it is given by reason alone, must be equally valid for all rational beings.” Thus does one of the formulae of the moral law read as follows: “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end” (Grundwerk, 54).50 The terminological shifts and equations with which we are already familiar are reproduced in a cosmos of concepts for which all meanings blend into all the rest: A human being is an I, and an I is the same as the Thou and the same as humanity to the extent that all, as reason, are ends; my reason is the same as your reason and the same as human reason; I exist as an end, you exist as an end, and, insofar as it is reason, humanity also exists as an end; individual reason is intelligible in contrast to individual sensuousness, and since reason is the same as the thing in itself and, further, since phenomenal things are given in the context of the world of experience, all are things in themselves, which are, in turn, the same as individual rational personalities, and these, connected within a world in itself, are the same as the mundus intelligibilis.51 The personal moral law, which, as a law of reason (because reason is the same as humanity), is also a supra-personal law, should “bestow on the world of the senses, as sensory nature (as far as rational beings are concerned), the form of a rational world, that is, of a supra-sensory nature. Yet it should do this without doing harm to the mechanism of the former” (Kritik der Praktischen Vernunft, 56ff.).52 The dualism 50. Ibid., 95, 96. 51. [“intelligible world”—Eds.] 52. Kant, Critique of Practical Reason, 44.

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of phenomenon and thing in itself was equated with the division of existence into sensuousness and reason. Now, this dualism is expanded again and equated with the duality of the worlds of the senses and the world of reason. Analogously to sensuous nature, supra-sensory nature is an existence of beings subject to laws: not analogous to sensory beings subject to the heteronomous laws of experience, but analogous to ends subject to the autonomous law of reason. “But the law of this autonomy is the moral law, which, therefore, is the fundamental law of a supra-sensory nature and a pure world of understanding whose mirror image should exist in the world of the senses, yet without harming the laws of the same” (Kritik der Praktischen Vernunft, 57).53 The context of humanity’s ends is at once a context that is subject to laws patterned on the model of natural laws. To this blending of meaning corresponds the formula of the categorical imperative: “Act as if the maxims of your actions were to become through your will a universal law of nature” (Grundwerk, 44).54 The duty to act in such a way that supra-sensory nature becomes possible, as well as the other duty to respect the ends in oneself and one’s neighbors as members of a community, are two major components of the contents of the moral law. Other duties supplement them, in particular the duty to promote the development of the community; but investigation of this duty belongs in an analysis of the problem of history. For us, a few brief remarks concerning the first two duties will be sufficient, since the essential point, namely, the expansion of personal ethics to social ethics through a further nuancing of the concept of reason, has become clear. As we indicated at the beginning, our investigation of Kant’s theory of ought was intended as a reorientation. Its purpose was to study the topic of this problem area in the work of a thinker who possessed a total view of human being. If the analysis is to bear fruit, we must now attempt to extract from the peculiarly Kantian ideas the problematic that is relevant to us. 1. If we state that an action is obligatory [gesolt], then we mean that we have an experience of compulsion in which an authentic self grants an obligatory character to a questionable action. We do 53. Ibid. 54. Kant, Groundwork, 89.

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in fact have experiences of the kind that Kant describes, experiences for which we are aware, as acting agents, of our agreement or nonagreement with a Something that commands us to commit or omit a particular act. Because this Something reveals itself to us in the spontaneity of action, we are inclined to call it a self. In the experience of moral compulsion, we find ourselves abandoned by externally determining causes, and our actions become something groundless and original, spontaneously determined through our self as obligatory. Kant surrounds this core of compulsion with the constructs of the philosophy of reason. For him, the authentic self is no pure wellspring from which the index of an action’s content as an ought or non-ought flows, but rather it is a rational self that provides us with a moral law having a particular content. The authentic self not only compels; it also provides rules by which to scrutinize the moral value of maxims of action. We must remove this content of the authentic self—a content from which Kant constructs the natural system of law and morals from compulsion. Similarly, we must also eliminate the secondary meaning of compulsion as a causal influence of the authentic self on the worse self. The claim of such an influence seems to us “overly exuberant,” in the significant sense that this influence is not to be found in the description of the experience of compulsion. If we leave aside the moments of content and of influence, the structure of the informing experiences [Aufschlußerlebnisse] (which we have by no means represented in its full complexity) is immediately simplified. The moral sentiment had to be assumed as a faculty of willw, because it could be determined by the intelligible will only through this faculty. Insofar as compulsion was a causal influence, the experience of moral sentiment was the recipient of compulsion. If we set aside the theory of influence, then we no longer need the informing experience in which we became aware that the authentic self is efficacious. Furthermore, if we eliminate the rational construction, then the moral law as a ratio cognoscendi of causality in freedom also falls away, and nothing remains to us except the experience of a spontaneous determination of our actions out of a background of our self, a background to which Kant’s term of authentic self is quite well suited. Yet the experience of compulsion would have to be investigated in the broader context of a description of conscience, regret, and experiences of guilt. 223

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2. On various occasions, we found it necessary to point out the extraordinary poverty of Kant’s image of man and society. Corporeality, nobility, political reality, and history are not regarded as essential contents of existence but are collectively dismissed with a derogatory gesture as sensuous being and contrasted with a nearly empty core of existence. This evacuation is extensive, but it nonetheless leaves several important contents behind: above all, the idea of a realm of reason, a realm of ends to which all rational personalities belong. “But by a kingdom I understand the systematic connection of different rational beings through communal laws” (Grundwerk, 59).55 In accordance with their universal validity, the laws determine ends, thereby disregarding the personal differences among human beings and their private ends. Only as rational beings are humans subject to a common law that requires that every human being treat himself and all others never merely as means, but always also as ends. “But herewith arises a systematic connection of rational beings through communal, objective laws: that is, a kingdom that can be called a kingdom of ends (admittedly only an ideal), because these laws intend the mutual relationship of these beings as ends and means” (ibid.).56 We have already shown how a nuancing of the concept of reason served to expand the personal law to include a community law, and we also briefly indicated the systematic purpose this achieved. Specifically, if we drop the rational construct and empty the authentic self of content, then all that remains is compulsion and an index of obligation that it conveyed upon an action. We can speak of a genuine and a derived ought and we can even define the duty of a human A as the material content of an action that is marked for him by a genuine or derived ought, but we cannot go beyond this narrow range and arrive at the concept of a right. This difficulty does not exist for Kant, because he accepts a community law according to which the freedom of one individual must conform to that of everybody else, so that he can conclude the following: “Therefore, if a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws, that is, it is right. Hence there is connected 55. Ibid., 100. 56. Ibid., 101.

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with Right by the principle of contradiction an authorization to coerce someone who infringes upon it” (Metaphysik der Sitten, 36).57 The harmonious absence of contradiction in this statement is achieved by a Kantian process of thought with which we are now familiar. The right of the concrete person is the same as the right of the typical person and the same as the law of the community. Likewise, concrete freedom is the same as typical freedom and the same as the freedom of the community. Even if we cannot accept this Kantian construction, we nevertheless find in it a preliminary sketch of the investigations that would have to be undertaken in order to justify the concepts of a claim and of duty. Assumptions would have to be made concerning person B, a person toward whom I can make a claim as a person who is as capable as I am of moral compulsion. Further assumptions would have to be made concerning a community between myself and person B, the realization of which could give rise to such phenomena as promises, imposing duties on oneself, and demands. Complete clarification of the concept of right would presuppose an investigation of the forms required for the realization of community. 3. Kant distinguishes between hypothetical and categorical imperatives. “The former declare a possible action to be practically necessary as a means to the attainment of something else that one wills (or that one may will). A categorical imperative would be one that represented an action as objectively necessary in itself apart from its relation to a further end” (Grundwerk, 36).58 All practical laws are equal in that they represent a possible action as good and hence as necessary for a subject determinable by reason. If the action is good only as a means to something else, then the imperative is hypothetical; if it is represented as good in itself, then the imperative is categorical. With this distinction, Kant touches upon a fundamental problem of ought, one whose implications are certainly much more extensive than is evident in his thought. We have reduced the meaning of ought to a description of the character that an action acquires when it is committed spontaneously, out of compulsion by our authentic self. Strictly speaking, whether or not an action was obligatory can be answered only in retrospect and only if we know whether we have committed it spontaneously 57. Kant, Metaphysics of Morals, 57. 58. Kant, Groundwork, 82.

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and out of compulsion. We must first live through an action before we can say whether it was prompted by an ought or not. Alongside this ought in its actual sense, this original ought, we find claims concerning the obligatory character of actions of the hypothetically imperative kind. We wish to classify these other kinds of ought as derivative. An important kind of derivative ought, for example, is the one concerning actions made in recurring situations. Through an original experience of compulsion, the material content of an action may once have acquired the character of an ought. That content then retains this character when its action becomes necessary in a typically recurring situation. In this case, the imperative would be doubly hypothetical: once with regard to the assumption of the original ought-indexing, and again with regard to the assumption of the situation’s recurrence. Another important type of ought is the technical imperative. If the original ought-indexing refers to an undertaking that can be broken down into a series of acts, then, hypothetically, all members of that series and all further series of acts attaching themselves to these members are bound to the original ought as the means of realizing the action that had received the original ought-indexing. For the theories of law and of the state, the most important type of ought is the derivative one, which assumes a relation of rule. When a person A issues a command to a person B, the ought in the statement of ought that is defined as a command is hypothetical in reference to the existence of a relationship of rule between the persons A and B. The legal ought is a derivative type of ought, one that requires for its clarification an analysis of its hypotheses concerning the governing relationship and the governing alliance. 4. The construction of a system of natural law becomes possible wherever the authentic self, as a source of moral compulsion, also provides a rule for the scrutiny of cases of action. If the moral law is set forth as a rule for scrutiny, then the entire material content of action assumes the place of cases to be decided. A moral and legal casuistry arises, and the series of typical, settled cases are organized into a system. If we exclude the content of the law of reason, then the idea of casuistry disappears along with it and is replaced by a typifying, value-free science of the material contents of action. In place of speculations concerning the correct right—for example, of property—an investigation would emerge of those traits of human beings that require all legal orders to concern themselves with 226

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the problem of property. Our contemporary legal theory is still so deeply mired in the thought-forms of natural law that such a simple question as the one just alluded to (which would have to emerge, for example, in any foundational theory of human rights and civil rights) has, as far as I know, not even been posed yet in theories of the state.

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9 Postscript to The Art of Thinking

When I received this book, its title aroused doubts. An art of thinking reminds one embarrassingly of other arts: of the art of being joyful or the art of becoming energetic, for example. At best, one might expect one of those shallow, psychological introductions to philosophical questions of the type that is not rare in America. The mistrust was unjustified, however, for it turned out that this art of thinking was intended as a theory of education for the modern person: one that seeks to instruct him to preserve his best, innermost, and most personal core, and not only preserve it, but first to find it at all under the overwhelming influence of cinemas, newspapers, political slogans, banal literature of the day, sociability, conversation. That such a theory of education can have the high qualities that are evinced by the work at hand is due to the personality of its author. Dimnet has at his disposal the sure foundation of a philosophical formation that is as extensive as it is deep. Not only is he versed in the highly developed art of education of the Catholic orders but, as a Frenchman, he lives in the tradition of a democratic belief in the educability of each individual citizen and in the possibility of including him as a full person in the community. Finally, more important than all tradition and all knowledge, he This essay originally appeared as “Nachwort,” in Die Kunst des Denkens: Ein Buch für Jederman, übertragen von Clothilde T. Schweiger mit einem Nachwort von Eric Voegelin, by Ernest Dimnet (Freiburg in Breisgau: Herder, 1932), 279–96. A second edition of the German translation was published in 1934. Original English edition: Ernest Dimnet, The Art of Thinking (New York: Simon and Schuster, 1928). The German subtitle Ein Buch für Jederman (A Book for Everyman) does not appear in the original English title. Voegelin’s “Nachwort” appeared only in the first two German editions. A third and a fourth German edition, edited with a foreword by Karl Holzamer and using the translation of C. T. Schweiger (Frankfurt am Main: Verlag Josef Knecht, 1951, 1956), delete Voegelin’s “Nachwort” and insert one by Professor Holzamer entitled “Denken, Phantasie, und Nivellierung.”

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himself, as his book betrays on every page, has gone down the path he now shows to others. His theory springs not only from learned knowledge, but from the original experience of self-education. Along with the considerable merits of the author and his work, the book contains something that is unfamiliar to the German reader. That a Frenchman could write it in the English language and that it could have had great success in America shows that Western democracy possesses strong supranational common features, that a humanity has been formed here that responds immediately and very intensely to the problems and solutions of this book. In Germany, by contrast—where we might hope for a success for this book no less extensive than in America—a few explanatory remarks would be helpful in order to clarify for the German reader the basic features of the spiritual situation of Western Europe and America and, by contrast to these, those of his own. The book seeks to lead its reader back to himself from the daily hustle and bustle in which he is lost. It seeks to instruct him to see clearly his own person and its possibilities of development. It seeks to teach him to value what he sees in that he develops his gifts and consciously forms his life from the essence of his person. These are all ideas that lie entirely within the range of the German promotion of humanity, and they are reminiscent of Goethian ideas of life-formation [Lebensgestaltung]. The surprise is that these aids are not offered in a highly developed special language that is understandable only to the philosophical specialist and that is certain to deter the unschooled from the outset. Rather, they are posed in simple words, the meaning of which can be grasped by everyone and which ought immediately to rouse in every reader the belief that he too, however little special intellectual schooling he may have, is called to participate in the community of spirit. The author’s great philosophical knowledge is not placed as a massive obstacle in the path of those who are less knowledgeable, but it has become a life-wisdom whose vitality is comprehensible to each on his own. The reader is not placed before a knowledge that he must acquire, but finds himself pulled unawares into a spiritual community by a living person of great personal charm from whom a wealth of stimuli flow effortlessly to the reader. The abyss between the abstract spirit and the concrete, everyday life of the human is bridged by the incarnation of the spirit in the person of an author who speaks to his readers as equals. 229

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This democratic attitude of the spirit is unfamiliar in Germany, whose idea of humanity has in part a decisive aristocratic tendency. After the disintegration of the medieval political and spiritual traditions through the rising of the nation states, which developed a new secular spirit of the nations in widely differing forms, all of these nevertheless had to solve the same problem: replacing the lost Christian cultural unity with a new worldly one. In the idea of the Christian community, each person had his fixed position, both as bound by his type to his social estate and by virtue of his immortal, irreplaceable soul. The ruler and the priest, the poor and the rich, the farmer and the craftsman, the king and the subject—all were raised in the mystical community; all were bound to Christ and through Him to one another by the mediation of his earthly representatives. The sacrum imperium was the most perfect and most significant realization of a hierarchically structured spiritual community whose highest ranks were held by the people who stood closest to the central idea—who were, in other words, raised in its tradition, animated themselves by its fire to express that idea originally, and able to change the old expression through the new one. The seers of the Most Holy were His mediators to the lower ranks of the many, who led their particular lives infused by this spirit of those seers, and then translated the idea into the manifold of the community and its particular functions. Plato’s figure of the wise ruler who serves as seer and mediator of the idea is the abiding symbol for the hierarchy of a spiritual community. This idea, whose spiritual formation lay in the hands of the priest, found its clearest and most radiant development in the medieval kingdom. As the idea of the bond in Christ lost its power over the mind, the individual was released from the community that had enveloped him to this point, but without being adopted into a new one. Earthly spirituality was not strong enough to bind to itself even the last and the most distant man, and we now find ourselves in a period of straining, searching reflections that extend in all directions and that sometimes appear to us as grotesque but that seek to declare and bring about a new unity out of the ruins. I note only the idea of the seventeenth and eighteenth centuries, according to which a collectivity of great worth was to form itself harmoniously out of the selfish, combative conduct of humanity: This idea is even strictly and rationally worked out by Kant. We see Schiller despair that the great mass of humans could be led in the foreseeable future 230

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to true humanity; he was prepared to relinquish it and content himself with the formation of the personality in small, select circles. In his opinion, the masses were too much fettered to their particular occupations to be able to elevate themselves to the spirit. He held this to be impossible for the great majority because the vital needs of life engulf them and rob them of their breath. Schiller already saw before him the great chasm between the educated few and the many—groups that are so far from each other that when Disraeli spoke of them, he could call them the “two nations.” Here begins the peculiar German aristocratic turn of the secular idea of humanity, which takes the place of the medieval soul and its life in Christ. Whereas Schiller despaired over this state of inner conflict, Nietzsche coldly recognized it as the necessary condition of all higher culture. An unfathomable power had consigned the majority of human beings to the lot of slaves in order to enable the few to create the work of the spirit in leisure. The early socialists Marx, Engels, and Lassale still lived wholly in the tradition of this aristocratic idea of humanity, but they found the solution in advancing technical productivity, through which the masses also would be granted the leisure required to lift themselves up to those heights of humanity that had been attainable only to the few up to now. Today we see the most extreme opposition between such “select circles” as that of Stefan George and his circle, which further cultivate the aristocratic direction of the humanity idea, and on the other side, a characteristic turn: Whereas early socialism wanted to make education accessible to all, the radical striving of the most diverse circles today would dispense with education in order to see privilege disappear along with it. The German contrasts are not foreign to Western democracy either; they are decisively overlaid by the idea of the nation in which everyone has a rank identical to all others as a citizen and a person. A strong, broad, prosperous, and educated class of citizens in a state that was united into a nation and centrally organized early in its history has given French democracy the form it has today. Up to the World War, the representative ideology of the Third Republic was a solidarity for which worldly political and Christian ideas melted into an idea of the person that is foreign to Germany. Here we can sketch only the most general features of this view of the person. The idea of the nation, which has only now begun to attain recognition in Germany, provides the solid framework. 231

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In part, our concept of “the people” still has the meaning that it acquired as a concept by which to fight the absolutism of the princes: that of a mass of the population confronting the ruling classes, however they might be composed. In part, our concept also means an ethnic or cultural unit. This meaning is intended either as a scientific concept for separation according to class, or as a historical-philosophical concept, if “the people” is understood as the metaphysical source of its expression in history. In no case does the concept have the abstract meaning that it has in the French idea of the nation. The revolutionary constitutions distinguish “nation” and “people” and expressly provide that no part of the people is permitted to pose as the representative of the nation. France has no national parties in our sense—all parties, even social-democratic parties, are national, and only within this context is there space for special interests and doctrines. The power of the French idea of the nation provides an almost perfect substitute for the Christian unity of the Middle Ages; conationality is a bond that embraces all Frenchmen irrespective of their estate, confession, or skin-color and that binds them into a unified body. No individual is excluded from this community of solidarity. The French thinkers were also confronted with the phenomenon of the industrial division of labor. Unlike the Germans, however, they did not draw from the absorption of the masses in their everyday occupations the conclusion that the spiritual estate would be the possession only of the few; rather, they emphasized the binding element that is inherent in every division of labor. Durkheim and his school regarded the division of labor as a source of new ties between citizens, and they declared the German interpretation to be exaggerated. It is inconceivable why specializing in a job should hinder the person in developing his personality; precisely this social division of labor is the only form by which each person might find the occupation befitting his particular aptitudes. On the contrary, an economic form in which each would have to achieve countless different tasks would only hinder one from cultivating one’s personal talent. What is for the German thinker an occasion for dismal claims about the society’s disunity becomes for the French thinker a new support for national unity. The conceptions of the political person and his freedom that have been traditional for hundreds of years favor this interpretation. Where, in speaking of freedom, the German means a brisk activity in the public realm directed toward the outside, the Frenchman 232

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means the security and tranquillity of a private sphere that is closed off to everyone else. It is a thoroughly defensive idea of freedom: The individual does not seek to exert external influence but expects from the state the protection of an intimate sphere in which he is allowed to be a human being. This idea is already expressed by Bodin. We find it again in Montesquieu and Rousseau, and it is the basic idea of the liberal politics of a Siéyès just as much as of the conservatism of a Necker. Finally, the Christian solidarity idea, which is particularly strong in France, exerts its influence in the same direction as these elements of secular thought. The community is imagined in the Pauline sense as an ethnic unit in which each person, through his good and evil deeds, is in solidarity with all the rest. What each individual does is credited to the totality. Through the deeds of its parts, good and evil rise and fall within the whole community as though within communicating vessels. Beginning with the solidarism of de Maistre, this thought moves in manifold transitions through French spiritual history up to the present. At the beginning of this century, Bouglé interpreted worldly solidarity as a laicization of the Christian idea of charity. These few hints should make the attitude of Abbé Dimnet comprehensible. For him, there is no spiritual elite and no masses lost to the spirit, but only members of a community who can advance equally to the essence of their person and whom the individual who has reached this goal through the advantage of circumstances is obliged to provide help. Author and reader of this book are connected, not as an outstanding spirit or specialist speaking to the lowly or unschooled, but as a human being speaking to a human being out of his conviction of solidarity. The book had its first great success in America (then in England, and a French edition is now in preparation), where it was received in the same spirit in which it was written. In America, the conviction of spiritual democracy has secular and Christian roots that are similar to those of France. The worldly idea is the community of equals. For large parts of the population, this ideal actually existed in America in the pioneer period. It has also had further influence as an idea in industrial society in the form of an influence on social-political legislation and administration of justice. The Christian idea is that of the puritanical community. Parallel to the solidarity idea in France, it has assumed the form of a theory of human “like-mindedness” in recent social theory. The American 233

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philosopher John Dewey has introduced the Pauline concept of the like-mindedness of the members of a society into his social philosophy; this was as a substitute for Gidding’s older concept with the same meaning, that of “consciousness of kind.” It is the concept that a consciousness of a similar type forms the foundation of a community encompassing all humanity. With that, the more worldly sounding concept of Gidding has also gained an external relationship to the democratic theories of Christendom. In America and France, the elements of the Christian tradition and the nation state and secular ideas of humanity have been brought into a connection in the philosophies of representative thinkers that is lacking among us. Although we possess the tradition of thought from which the Western democratic belief in unity originated, it is scattered, and each element has developed separately from the rest. Hegel developed an idea of the state that might parallel in its abstraction the Western concept of nation, but it does not rest on the notion of the community of citizens, as it does in France. Instead, it is an abstracted power that does not refer back to the personal elements that constituted it. The problem of the division of labor has not, as in France, led to an image of worldly solidarity, but to the various interpretations that we have portrayed as aristocratic, production-technical, or radically leveling ones. The Christian idea of community has not merged with the idea of the nation into a unit—in its Protestant form in the philosophy of Count Paul Yorck of Wartenburg, for example, or in its Catholic form, in the solidarity idea of Scheler’s theory of the entire person. The Christian and the post-Christian, pagan development of spirit run on separate paths: As a result, the Western idea of humanity is as inwardly foreign to the German as the German idea is to the Western democrat. We must keep these differences in mind when we take a book like Dimnet’s to hand, so that we do not allow ourselves to be so surprised by the outward forms of this spirituality that we overlook an essential content that is also valid for us. The essential content is the challenge to clear away from the “I” all the cluttering routines of everyday life that arise from the standardization of the job, from reading the newspaper, from the political slogans, etc.—in order to come to ourselves. John Dewey said concerning this: “One may at first be disappointed in finding the secret of the entire art put in a sentence: ‘The Art of Thinking is the art of being oneself.’ But 234

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if one comes back to the book often enough, and if after tasting frequently one absorbs and digests, then one will, I am confident, find in his interpretation of the sentence a revelation of himself that will lead him, if he will only permit it to do so, to serener intellectual heights than he has known.”1 In his explanation as to what the innermost self to which we should find our way is, Abbé Dimnet can tap the rich inheritance of the French culture of personality. No other people has so long an uninterrupted tradition of occupying itself with the construction of personality and with the phases of its development as do the French. The first psychological novels (those of Madame de Lafayette) emerge toward the beginning of the seventeenth century, and they move in a chain of masterpieces through Rousseau and Flaubert to Marcel Proust; this series in turn has a great prehistory in the medieval novels. Parallel to it runs French philosophy with its main line extending from its beginning in the meditations of Descartes through to the duration philosophy of Bergson in a progressively more intense preoccupation with the problems of the stream of consciousness and instruction about how to advance through the outer layers of the everyday, superficial images to the core of the person. The ideas of the first part of this book stand before this background of an old culture; these ideas familiarize the reader with the deep layers of his person in order to show him where “genuine thought,” which is “living thought,” is to be found. The intellect is not the person himself, but only an instrument by which the person is set upon various materials. These materials themselves, the “images” that surface in consciousness, are not the person either—yet here, the “art” already begins, because a person can assimilate those pictures and series of pictures that lead one most quickly to oneself. One does not need to remain with everyday routine, but one can raise oneself to great spiritual achievements in art, moral education, and religiosity. One does not need automatically to live within the conventional forms of society but can detach oneself from them and nimbly, critically, and independently select from the materials 1. [Voegelin provides only a German translation and no reference for this remark. It may be found in John Dewey, “The Way to Think: Review of Ernest Dimnet’s The Art of Thinking,” Saturday Review of Literature 5 (1928): 423, reprinted in John Dewey: The Later Works, 1925–1953, Volume 3: 1927–1928, ed. Jo Ann Boydston and Patricia Baysinger, with an introduction by David Sidorsky (Carbondale: Southern Illinois University Press, 1984), 316–17. The quote from Dimnet is located at The Art of Thinking, 92.—Eds.]

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only those that appeal to one’s innermost self. The occupation with great thoughts is the way to discover the individual person in its distinctiveness. And once one has found oneself, one ought to make the effort to live in oneself too, and to fall as seldom as possible from this essential life back into everyday routine. “To find oneself” and “to be oneself” are the two tasks of the art of thinking. Abbé Dimnet very deftly explains that everyone is called to practice this art. He speaks of childhood and the enormous agility of the spirit in the period under age ten; after this age, education and environment begin to have such a strong influence that the original vitality is killed and situations and thoughts take on a routinized form. It lies within the power of everyone to take up his childlike vitality again and select from the possible thoughts and situations those that are essential to him. As far as possible, the whole of life should be a sequence of states that are interlinked by the character of essentiality. The Bergsonian picture of duration [Dauerstrom] is used in order to make it clear that one can lead one’s life at different levels of depth in this stream, and that the worthwhile life consists in holding oneself continually on a certain, personally essential level. Yet how is this goal to be reached? Dimnet describes in detail both the obstacles on the path and the means to remove them. He speaks of the art of concentration, of necessary solitude, of the method of dealing with people, of the choice of books, of the relationship to modern literature, to newspapers, of the fulfillment of social duties, the necessity of keeping one’s distance, the recovery of the style of life through a reigning idea, cultivation of thought and elegance, intuition, etc. In closing, I select from this wealth of ideas only one more, since it sheds light on the author’s disposition: the demands of comprehension.2 His concept of comprehension is not the German one: that of ever deeper immersion of oneself into the object being observed. He does not mean devotion to a thing, but rather a critical, sharp, thorough penetration of it that links cherishing to understanding. “Comprehension is criticism, and criticism or judgment is a mere synonym for THOUGHT.”3 In its double function of intellectual and moral purification, Descartes’s skepticism 2. [Voegelin translates Dimnet’s comprehension with Verstehen.—Eds.] 3. [Dimnet, Art of Thinking, 148.—Eds.]

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makes its influence felt here. Comprehension is the exact opposite of taking things up; it is the rejection of all that cannot hold up to criticism, and it leaves standing only that which comprehension takes up as correct and which the conscience credits as personally real. John Dewey says about it: “But the point that I think I cherish most highly is that Abbé Dimnet has had the courage to insist on the connection between capacity of thinking and the qualities that are usually called moral.”4 This connection results in a skeptical distancing from everything mediocre in others as well as in one’s own person. It at once purifies and insulates the private sphere. To the extent that it recalls a human being from social-automatic life to his personal life, it isolates him; yet through just this recalling it creates the possibility that humans can encounter one another as equals on the basis of genuine humanity. Let us recall what was said before about French freedom: Securing the private sphere against unauthorized interventions by the state is the political aspect of that preservation of the person that appears to us here in the form of a critical, distancing self-discovery and a securing of the intimate against the standardizing of the environment. The mutual penetration of worldly and Christian ideas, of political and meditative humanity into an idea of humanity that can connect the extremes of a rigid, abstract idea of nation with an individually most variable suppleness in the preservation of the intimate sphere, allows us to recognize, more clearly in this contrast, the opposite dangers of the German imbalance of these tensions. The aristocratic idea of humanity, to which a parallel can scarcely be found in the West, stands opposite a demagogic coarsening of the many in the core of their being, for which no counterexample can be found in the West, either. Today, the most strongly standardizing, person-destroying influences issue from the political sphere. The so-called “politicizing” of the citizens, their active participation in political life, is unavoidable in a democracy by its very nature, because this is the form in a democratic state by which the great majority of citizens are shut out of politics. Regardless of how they are recruited, only a few leaders can steer the state. For this reason, each political unit requires its forms by which the majority is hindered from influencing the politics of the leading class. The form from which we already have won distance is the legal privileging 4. [Dewey, “Way to Think,” 317.—Eds.]

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of the ruling class and the corresponding legal diminution of the ruled. In the modern political community in which the members are legal equals, the subtler form of standardizing spirits by means of political ideas, programs, and slogans was developed. The modern form by which a mass democracy is organized is spiritually the more dangerous to the individual personality, for the political propaganda fills his spirit with abstract clichés, which are infinitely distant from any essential genuineness of the personal, and therefore radically negate the best and unique features of the entire human being under circumstances when they mold it. For all its outward dependence, the older form left the intimate person free. The one who understands how to read the book of Abbé Dimnet will recognize not only the difficulties of this situation but also the possibilities of saving the spirit in spite of them.

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Index

Absolute monarchy, 39, 114–15 Acknowledgment, 10–11, 90, 91–92, 94–96, 112, 114–15 Administrative order, 122–23 Aeternitas, 212 Affizieren (influence), 197 Agriculture. See Farms Aktelement (act element), 29 Alcoholic beverages, 83 America. See United States “American Theory of Due Process of Law and Freedom” (Voegelin), 14, 72–88 “American Theory of Property” (Voegelin), 63–71 Ananke (necessity), 146 Anerkennung (acknowledgment), 10–11, 90, 91–92, 94–96 Animal nature, 183 Anne, Queen, 51n25 Anschauung (intuition), 214n44 Anschluss (1938), 21 Anthropology, 185 Antigone, 48 Aphrodite, 139 Apollo, 139 Application of law, 98–99 Art of Thinking (Dimnet), 21–23, 228–38 Aufbau (structure), 123 Aufschlussbeziehung (mutually informing relation), 203 Aufschlusserlebnis (information experience), 205, 223

Aufschlussfrage (informing question), 205 August, Karl, 141 Augustine, St., 212 Ausführungsgesetz (executory law), 100 Austin, John, 27, 43n16 Austria: Administrative and Constitutional Courts in, 156, 158– 59, 161, 173–74, 178; annexation of, to Germany, 151–52, 179; and Anschluss (1938), 21; Catholicism in, 154–55, 164, 177–78; Chamber of States in, 159; Christian-Democratic Party in, 155n4; Christian Socialist Party in, 154, 154n3, 165, 166, 171n14, 174, 175–76, 178; constitutional history of, 150–51; Federal and National Councils of, 105, 156, 161–66, 170–72; Federal Assembly in, 165; federalism in, 153–60, 155n4; Home Defense Force movement in, 167–69, 167n10, 168–70nn12, 13, 172, 174–79; Homeland Alliance in, 169; Jews in, 155, 167, 169; lack of national solidarity in, 21; local elections in, 166; as not nation state, 148, 149–50, 177–78; overthrow of monarchy in, 151, 152; Parliament in, 161–62; Party for a Greater Germany in, 173; path of legislation in, 105; and peace negotiations after World War I, 153–54; police in, 163, 164, 164n6; political party system as boss system in, 168n11, 174–76; presidential elections in, 165, 165n9;

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index provinces (Länder) of, 153–60, 163– 66; Renner in, 152n2, 153, 155n4, 175, 178; Social Democratic Party in, 154–55, 156, 160, 163–68, 170, 171n14, 174–75; Supreme Court of, 172–73; toll roads in, 111; Vienna’s position in, 157–58, 159, 160, 163, 164–67, 170, 177. See also Austrian Constitution Austrian Administrative Court, 156, 158–59, 173–74 Austrian Constitution: Administrative and Constitutional Courts, 156, 158–59, 173–74, 178; amendment process for, 166; budgetary law, 171; care for deceased and funeral services, 166, 178; Chamber of States, 159; citizenship rights, 157; distribution of powers between federation and states, 157–60, 163–66; emergency ordinances, 162–63, 164n7, 170–71; Federal and National Councils, 105, 156, 161–66, 170–72; Federal Assembly, 165; and federalism, 153–60, 155n4; history of, 150–54; and internal tariff boundaries, 111; local elections, 166; of 1920, 150–57, 152n2, 161, 163, 166; and “on the basis of laws,” 103; and ordinances and administrative acts, 103–4; and parliamentarianism, 161–62, 168; and path of legislation, 105; police powers, 163, 164, 164n6; and political particular interests, 166–67; presidential elections, 165, 165n9; presidential powers, 161–63, 171–72; and provincial laws, 100–101; reform of 1929, 21, 148–79; Renner on, 152n2; Seipel on, 175–76; Senates for Administration, 170; State Council, 165; Supreme Court, 172–73; taxation power, 157, 163, 170; Urban School Council, 164; and Vienna, 157–58, 159, 160, 163, 164–67, 170. See also Austria Austrian Constitutional Court, 111, 156, 158–59, 172, 173, 174, 178 “Austrian Constitutional Reform of 1929” (Voegelin), 21, 148–79 Austrian Supreme Court, 172–73

Authentic self, 199, 204–7, 209, 215, 222–23, 226 Authoritarian State (Voegelin), 6 Bakery trade, 85 Basic norm, 112–13, 115–18 Begehrungsvermögen (capacity for desire), 196 Belieben (inclination), 197 Bentham, Jeremy, 27 Bergson, Henri Louis, 56, 131, 235, 236 Bible, 189 Bierling, Ernst: on acknowledgment, 10–11, 91–92, 94–96, 112, 114–15; on basic norm, 112; on democracy, 10–11; gradation theory of, 89–94, 98, 104, 114; on legal transaction, 94, 98; positivism of, 10; and “purified” theory of law, 8, 9–11; and type concept of the state, 116; on unity of the law, 89–96, 98 Bigamy, 108 Bismarck, Otto von, 143 Bodin, Jean, 233 Bouglé, Célestin Charles, 233 Bourgeoisie, 187 Britain: culture of, 132; and Dimnet’s Art of Thinking in, 22, 233; and due process, 77–81; Labour Party in, 132; law in, 51n25; and Magna Carta, 77, 80; monarchy in, 77; national unity of, 20–21, 131, 132; national values of, 136; as nation state, 148, 149; Parliament in, 51n25, 77–81; and unity of law, 124; Voegelin’s views of, 20 Bundeskanzler (federal chancellor), 105 Bundesrat (Federal Council), 105, 156 Categorical imperative, 183, 225–26 Catholicism, 154–55, 164, 177–78, 228, 234. See also Christianity Causation: and Bierling’s gradation theory, 92; breakdown of, 19; and juristic sovereignty, 35–36; Kant on causality, 208, 210–15, 217, 223 Chance (prospect), 125, 125n37 Charisma, 141, 144 Charity, 233 Chignola, Sandro, 1n1 Childhood, 236

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index Child labor, 76 Christian community, 229–30, 232, 234 Christian-Democratic Party, 155n4 Christianity, 132, 134, 141, 229–30, 232, 233. See also Catholicism; Protestantism Christian Socialist Party, 154, 154n3, 165, 166, 171n14, 174, 175–76, 178 Christian solidarity idea, 4, 22, 233 Citizens and citizenship, 149, 157, 187, 237–28 Civil law, 33, 46, 93–94, 108, 121–22 Cleverness, 184 Closure and unity of the law, 112–18 Coercive acts, 26, 59–62, 108–11, 116, 224–25 Common-law tradition of property, 64–65 Commonsense philosophy, 183, 186 Commons, John R., 53 Communism, 148, 152, 155 Community: and acknowledgment, 95; Christian community, 229–30, 232, 234; Christian solidarity idea, 4, 22, 233; Dimnet on, 233; of equals, 64, 233, 238; Kant on community law, 224–25; Kant on formation of, 230; political community, 6, 14, 21, 237–38; types of, 64 Comprehension, 236–37 Compulsion, 202, 205, 208, 223–26 Comte, Auguste, 149 Concept formation, 41–42n13 Concretization, 100–102 Congress, U.S., 39, 78 Consciousness of consciousness, 196–97 Consciousness of kind, 234 Constitutional law, 51, 51n25, 99, 103– 5. See also Austrian Constitution; United States Constitution Constitutional monarchy, 39, 114 Constitutional norms, 115 Constitutional order, 122–23 Constitutions: and courts for review of laws, 111; establishment of, 124; of federal states, 100–101, 105; French constitution, 99; and immanent meaning of legal forms, 150, 163; Kant on, 218; and legal transactions, 94; of nation states, 148–49; norm of

state constitution, 45; and political particular interests, 150–51, 166–67; provincial constitutions, 100–101. See also Austrian Constitution; United States Constitution Context, unity of, 96–102, 105, 112–14 Contract: freedom of contract, 76–77, 81; in Germany, 127 Cooper, Barry, 1n1, 2 Coppage v State of Kansas, 86–87 Corbin, Arthur L., 33 Courts. See Austrian Supreme Court; United States Supreme Court Creative Evolution (Bergson), 56n2 Creator and creatura, 212 Criminal law, 98, 101–2, 108, 121–22 Criterion of positivity theory, 112–13, 117 Critique of Judgment (Kant), 184, 188 Critique of Practical Reason (Kant), 193–94, 198, 203–5, 221–22 Critique of Pure Reason (Kant), 16–18, 195, 210–11, 217, 219 Crito, 48 Cromwell, Oliver, 132 Dauerstrom (duration), 236 Davidson v City of New Orleans, 78–79, 78n8 Death, 55, 56, 58, 60 Debtors, 110 Delegation, 98 Democracy: Bierling on, 10–11; and education, 228; in France, 231–32; and like-mindedness, 5, 14, 233– 34; and nation state, 148–49; and political life-form of citizen, 21; and politicizing of citizens, 237–38; property and freedom in, 71, 72–75; rule versus, 88; as unique, 10; Weber on, 144 Dempf, Alois, 23 Der sinhaffte Aufbau der sozialen Welt (Schütz), 19 Descartes, René, 131, 235, 236–37 Dewey, John, 5, 14, 234–35, 237 Dickinson, John: on causation and juristic sovereignty, 35–36; compared with Kelsen, 31–33, 41–44; on hypostasis, 36, 37; in improvement of the state, 47; institutionalism

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index of, 8, 11, 18, 28, 34–35, 37–38, 40, 47; on international law, 37, 40–47, 42–47; on juristic sovereignty, 35–38, 47; on justice, 48; on legal norms, 30, 32–36, 38–40, 43–44, 46; on legislative organs, 38–39; on location of supreme, sovereign organ, 38–40; on misinterpretations of sovereignty, 35–38; on multiplicity of legal orders in a state, 42–47; on openness of legal system, 8–9, 51–52; on psychologism, 35, 36; on régime of law, 47; on state, 36–38, 39; on statesmanlike virtues, 14, 18; summary on theory of sovereignty of, 29–30; on supervision of sovereign, 50–51; and theory of sovereignty and the pure theory of law, 7–9, 11, 18, 27–52; writings by, 7–8n16 “Dickinson’s Theory of Sovereignty and the Pure Theory of Law” (Voegelin), 6, 7–9, 11, 18, 27–52 Dictatorship, 144, 150 Dimnet, Abbé, 21–23, 228–38 Dinghofer, Dr. (President of Austrian Supreme Court), 173 Direct acknowledgment, 91, 114–15 Disraeli, Benjamin, 231 Distentio animi, 212 Division of labor, 232, 234 Dogma (doctrine), 190 Dostoevsky, Fyodor, 149 Due process, 77–82, 87–88 Durkheim, Émile, 232 Duty, 193–94, 198, 204, 222. See also Obligation Economics, 53, 54, 56, 134 Education, 22–23, 228–29, 231, 236 Eigengesetzlichkeit (internal and unique autonomy), 90, 118 Eigentliche Selbst (authentic self), 199 Élan vital (urge to live), 56 Empfindungen (sensory perception), 200 Empirical I versus intelligible I, 206, 216–17 Empiricism, 219 Employment. See Labor Engels, Friedrich, 231 England. See Britain

Enlightenment, 76 Epistemology, 16–18, 217 Equality, 68, 187 Erfolgsethik (consequentialist ethics), 185 Erleiden (suffering), 60 Er-Mächtigen (empowerment), 197 Eros, 141 Erscheinung (phenomenon), 206 Es Selbst (It Itself), 209 Ethics: of Kant, 185, 192, 211, 217, 222; of Weber, 19, 139–40 Ein Etwas (a something), 188 Evil, 189, 190 Executory law, 100 Existentialerlebnisse (existential experiences), 2, 4, 6 Farms, 57, 58, 63, 67–68, 74, 83, 84 Federalism and federal state, 39, 100–101, 105, 153–60, 155n4 Fichte, Johann Gottlieb, 149 Fifth Amendment, 73, 78 Finanzreferent (financial adviser), 165 Finanzverfassungsgesetz (constitutional law governing finances), 157 Flaubert, Gustave, 235 Formal layer of meaning, 112–14, 118–21 Fourteenth Amendment, 64, 71, 73, 77, 78–79, 82 France: constitution of, 99; culture of, 131–32, 139; and culture of personality, 235–36; Declaration of 1789, 148, 187; democracy in, 231–32; and Dimnet’s Art of Thinking, 22, 233; and division of labor, 232, 234; and freedom, 131–32, 232–33, 237; National Assembly in, 131; national unity of, 20–21, 131–32; national values of, 136; as nation state, 148, 149, 231–32, 234; parliament of, 99; philosophy in, 235; and solidarism, 4, 22, 233; Third Estate of, 187; Third Republic of, 231 Freedom: and citizenship, 187; and due process, 14, 77–82; and economically weak, 75; and economic circumstances, 87; eighteenth-century theory of, 87; and

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index France, 131–32, 232–33, 237; German view of, 232; and justice, 63; Kant on, 17, 187, 193, 202–3, 205, 210–12, 214, 216–19, 224–25; Locke on, 11, 12, 14; and moral law, 202–3; and property, 71, 72–75, 84–85; sphere of, 69–70, 74–75; and spontaneity, 205–6, 210–13, 215; Weber on dialectic of necessity and, 137, 144–45 “Freedom and Responsibility in Economy and Democracy” (Voegelin), 20 Freedom of contract, 76–77, 81, 83–84 Free will, 132. See also Will Frontier and pioneer ideal, 12–13, 57, 58, 62, 63, 67–68, 84, 233 Fundamental norm, 113, 115–18

Giddings, Franklin Henry, 234 God, 207, 212 Goethe, Johann Wolfgang von, 41, 229 Government, function of, 49 Gradation theory, 89–94, 98, 104 Gradual completion of norm-contents, 102–4 Granger cases, 70 Great Britain. See Britain Greece, 139 Greene, Theodore M., 195n24 Grossdeutsche Partei (Party for a Greater Germany), 173 Groundwork of the Metaphysics of Morals (Kant), 184, 185, 194, 200–201, 205, 210, 216, 218n48, 220, 221, 224, 225

Garment industry, 76 Geist (spirit), 180 Geltung (validity), 106, 129 Geniessen (use/enjoyment), 56 Genussfähigkeit (capacity to use), 13, 56 George, Stefan, 20, 133, 141, 231 German Reich, 114 Germany: annexation of Austria to, 151–52, 179; aristocratic idea of humanity in, 230, 231, 237; and Bismarck’s death, 143; collapse of, after war of 1870, 137; compared with other European nations and United States, 20; contracts in, 127; culture of, 133–34, 135, 136, 139; and Dimnet’s Art of Thinking, 229; and freedom, 232; friendships in, 141; individual responsibility in, 133–34, 137, 139–40; lack of national solidarity in, 21–22; as nation state, 149, 231–32; Parliament in, 143; as part of the West, 131n1; philosophy in, 181; and Prussia, 20, 134; Weber on, 141–43; Weimar Germany, 20, 154; and World War I, 131, 143, 147 Gesamtsinngebilde (total structure of meaning), 123 Geschehen (event), 135 Gesinnungsethik (ethics of intention), 19 Gesollt-Seins (obligatoriness), 130 Gesolt (obligatory), 222–23

Handel (action), 13, 56 Handlungen (actions), 214 Hegel, G. W. F., 234 Heimwehrbewegung (Home Defense Force), 167–69, 167n10, 168–70nn12, 13, 172, 174–79 Herder, Johann, 141 Herrenvolk (ruling people), 142 History: Kant on, 189, 193, 224; Weber on, 135–37 History of Political Ideas (Voegelin), 4, 23 Hitler and the Germans (Voegelin), 18 Hobbes, Thomas, 27 Hohfeld school of civil law, 33 Holden v Hardy, 82–84, 85, 87 Holiness, 198 Holland, Sir Erskine, 27 Holmes, Oliver Wendell, 32–33, 49, 49–50n24 Home Defense Force (Heimwehrbewegung), 167–69, 167n10, 168–70nn12, 13, 172, 174–79 Homonoia, 4–5 Hoover Institution, 1 Human nature: and authentic self, 204–7, 209, 215, 222–23, 226; British views on, 182–83, 185, 186, 193; and compulsion, 202, 205, 208, 223–26; and corporeality, 55; and death, 55, 56, 58, 60; and duty, 193–94, 198, 204, 222; empirical and intelligible character of, 216–17;

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index German aristocratic idea of, 230, 231, 237; Kant on, 181–93, 199, 206–9, 213–16, 219–22; metaphysical concepts of the person, 56; and moral sentiment, 200–205, 208, 210; and reason, 182–85, 189, 190– 92, 197–200, 205, 206, 207, 209, 221–22, 224–25; Reid on, 181–82; Rousseau on, 181, 188–89; Schiller on, 231–32; and sensory sphere and sensuousness, 182, 183–85, 188–93, 195, 197–201, 205, 206, 209, 215, 222; and spontaneity, 205–6, 210–13, 215, 223, 225–26; understanding human conduct in terms of interpretive schema, 96–97; and will, 132, 194– 201, 204–5, 207–9, 216, 223. See also Reason Hungary, 155 Hurtado v California, 79–81, 79n10 Hypostasis, 36, 37 Hypothetical imperative, 225–26 ICC. See Interstate Commerce Commission (ICC) Ideas: Kant’s idea of the state, 18, 217–19; political ideas, 4 Des Identischen (of the identical), 209 Illinois, 76, 85 Immigrants, 21 Indirect acknowledgment, 91–92, 114, 115 Individuation of law, 99 Inequalities, 68–69 Inescapability, 145–47 Innerzeitlichkeit (internal temporality), 131 Instanz (site), 202 Institutionalism: of Dickinson, 8, 11, 18, 28, 34–35, 37–38, 40, 47; and transaction, 53–62; and United States, 28 Intellektuel (intelligible), 217 Intelligible I versus empirical I, 206, 216–17 Intentio, 212 International law, 37, 40–47, 45–46n19, 94 Interstate Commerce Commission (ICC), 65, 68 Intuition, 214, 214n44

Islam, 134 Israel and Revelation (Voegelin), 18n53 Jews and Judaism, 134, 155, 167, 169 Job, Book of, 134 Judaism. See Jews and Judaism Justice: American view of, 63–64, 72; and coercion in transactions, 61–63; equality versus, 68; fundamental principles of, 82; law versus, 48–51; and property, 66–75, 84–85. See also United States Supreme Court Kansas, 76, 86–87 Kant, Immanuel: on antinomies, 210–11, 218–19; on authentic self, 199, 204–7, 209, 215, 222–23, 226; on bourgeoisie, 187; on categorical imperative, 183, 225–26; on causality, 208, 210–15, 217, 223; on citizenship, 187; on community law, 224–25; on consciousness of consciousness, 196–97; on difference between objects and persons, 215–16; on duty, 193–94, 198, 204, 222; and epistemology, 16–18; ethics of, 185, 192, 211, 217, 222; on evil, 189, 190; formality of, 18; on formation of community, 230; on freedom, 17, 187, 193, 202–3, 205, 210–12, 214, 216–19, 224–25; on guiding threads (Leitfaden) of instinct, 188; on history, 189, 193, 224; on holiness, 198; on human nature, 181–93, 199, 206–9, 213–16, 219–22; on hypothetical imperative, 225–26; on idea of state, 18, 217–19; “insofar as” in philosophizing process of, 208–9; on intelligible I versus empirical I, 206, 216–17; on intuition, 214, 214n44; on knowledge, 210–11, 213, 215; on man and society, 224–25; on moral laws, 185, 191, 198–200, 202–5, 210, 211, 219–23; on moral sentiment, 200–205, 208, 210; on nobility, 186, 224; on noumena, 17, 188, 192–93, 211, 213; on reason, 189–92, 197–200, 205–7, 209, 221–22, 224–25; on skillfulness, cleverness, and morality, 184; on spontaneity, 205–6, 210–13, 215, 223, 225–26; on supra-sensory nature, 222; on

244

index technical imperative, 226; theory of obligation (ought) of, 15–18, 180–227; on thing in itself, 213–15; vagueness of, 206–10, 213; on will, 194–201, 195n24, 204–5, 207–9, 216, 223 —works: Critique of Judgment, 184, 188; Critique of Practical Reason, 193–94, 198, 203–5, 221–22; Critique of Pure Reason, 16–18, 195, 210– 11, 217, 219; Groundwork of the Metaphysics of Morals, 184, 185, 194, 200–201, 205, 210, 216, 218n48, 220, 221, 224, 225; Metaphysics of Morals, 184, 185, 186, 195–98, 201–2, 216, 224–25; Religion within the Limits of Reason Alone, 184; “Speculative Beginning of Human History,” 189–92 Kaufmann, Felix, 112–13, 117 Kelsen, Hans: and Austrian Constitution of 1920, 151; on basic norm, 112, 115–18; on closure, 115–18; on coercive acts, 109; compared with Dickinson, 31–33, 41–44; on federal state, 39; on individuation and concretization, 100–102; on international law, 41–42; on legislative organs, 39; Merkl-Kelsen theory of levels, 33; and ought, 180; on positive law, 116; on punishment, 109; and pure theory of law, 2, 3, 6–7, 9, 15, 17, 28–29, 31–33, 91; on schema of legal norm, 108–9; on sovereignty, 31–33 Knies, Karl, 134 Knowledge: Kant on, 210–11, 213, 215; of law, 31–33 Kraftzentrum (center of energy), 194 Kundentreue (customer service), 66 Labor: division of labor, 232, 234; and legal protection of workers, 76–77, 82–87; as property, 66, 73; restriction of work hours, 76, 82–84, 85; and unionization, 86–87, 168; of women and children, 76 Labour Party, 132 Lafayette, Madame de, 131, 235 Land. See Property Länder (provinces), 153

Länderkammer (Chamber of States), 159 Laski, Harold J., 9–10n21, 28 Lassale, Ferdinand, 231 Law: and acknowledgment, 10–11, 14, 91–92, 94–96, 112, 114–15; application of, 98–99; Bierling on unity of the law, 89–96, 98; Bierling’s “purified” theory of, 8, 9–11; civil law, 33, 46, 93–94, 108, 121–22; concretization of, 100–102; constitutional law, 51, 51n25, 99, 103–5; criminal law, 98, 101–2, 108, 121–22; Dickinson’s theory of sovereignty and the pure theory of law, 7–9, 11, 27–52; due process of, 77–82, 87–88; English law, 51n25; executory law, 100; formality of pure theory of law, 18; gradation theory of, 89–94, 98, 104; Hohfeld school of civil law, 33; Holmes on, 32–33, 49, 49–50n24; and Hurtado case, 79–81; individuation of, 99; international law, 37, 40–47, 45–46n19, 94; justice versus, 48–51; Kant on community law, 224–25; Kelsen’s pure theory of law, 2, 3, 6–7, 9, 15, 17, 28–29, 31–33, 91; knowledge of, 31–33; as legal transaction, 94; Merkl on, 33, 92, 99–100, 104; meta-legal ethic, 48, 50, 52; monopoly law, 64, 66, 70; moral law, 185, 191, 192–93, 198–200, 202–5, 210, 211, 219–23; multiplicity of legal orders in a state, 40–47; natural laws, 90, 212, 222, 226–27; and norms, 5–6, 8–9, 28–41, 43–44, 46, 48, 53, 59, 91, 93–99, 108–9; obligation and positive theory of law, 15–16; openness of legal system, 8–9, 51–52; phenomenon of law, 5–6; positive law, 15–16, 90, 96, 116, 119–20, 180; prediction theory of, 32–34; and psychologism, 35, 36, 90; régime of, 47; social law, 64; as social science, 53, 54, 56; and theories of social phenomena, 53, 54, 56; and threat of coercion in transactions, 59–62; and unity of a context, 96–102, 105, 112–14; unity of legal system, 30, 35, 37, 44, 89–129. See also Austrian Constitution; Constitutions; Legal

245

index theory; Sovereignty; United States Constitution “Law in Science and Science in Law” (Holmes), 49, 49–50n24 Leadership, 144 Lebensgestaltung (life-formation), 229 Lebensphilosophie (philosophy of life), 56 Lebenszentrum (existential center), 55 Legal closure, 112–18 Legal Foundations of Capitalism (Commons), 53 Legal theory, 118–21, 180–81, 227. See also Law Legal transaction, 94, 98 Legislative organs: in Austria, 105, 156, 159, 161–62, 164–66, 168; and basic norm, 117; British Parliament, 51n25, 77–81; French parliament, 99; in Germany, 143; and Hurtado case, 79–81; impossibility of complete sanction of, 111–12; parliamentarianism, 143, 144, 161– 62, 168; and path of legislation, 105; and protection of workers in U.S., 76–77, 85; as ruler, 88; and social justice, 87; and sovereignty, 38–39; Weber on, 143, 144 Legitimacy for rule, 125–26, 128–29 Leistungsbegriff (concept of achievement), 84 Leitfaden (guiding threads), 188 Liberty. See Freedom Liberum arbitrium (free will), 132 Like-mindedness, 5, 14, 233–34 Lloyd George, David, 144 Lochner v New York, 85, 87 Locke, John: on America, 57, 58; on freedom, 4, 11, 12; natural right doctrine of, 6, 11–13, 56–58; on nature, 55; on personhood, 14; philosophy of generally, 32; property theory of, 6, 11–14, 55–58; on reason, 20; Second Treatise of Government by, 13n30, 56n3; on sovereignty, 27 Logologies, 37 Lottery, 83 Lotze, Rudolf Hermann, 90 Louis XIV, 131

Machtzentrum (power center), 194 Magna Carta, 77, 80 Maine, Sir Henry S., 43n16 Maistre, Joseph-Marie de, Comte, 233 Marx, Karl, 231 Marxism, 167, 177–78 “Max Weber” (Voegelin), 19–21, 130–47 McIlwain, C. H., 28 Mediatization of ruling association, 126–27 Menschen (men), 187 Merkl, Adolf, 33, 92, 99–100, 104, 112 Merkl-Kelsen theory of levels, 33, 104 Meta-legal ethic, 48, 50, 52 Metaphysics, 56–58, 81, 131 Metaphysics of Morals (Kant), 184, 185, 186, 195–98, 201–2, 216, 224–25 Meyer, Eduard, 134 Middle Ages, 42, 230, 232 Monarchy, 10, 38–39, 51n25, 77, 85, 114–15, 187 Money economy, 58 Monopoly law, 64, 66, 70, 75, 87 Montesquieu, Baron de, 233 Moralische Gefühl (the moral sentiment), 200–205 Moral law, 184, 185, 191, 192–93, 198–200, 202–5, 210, 211, 219–23 Moral sentiment, 200–205, 208, 210 Mundus intelligibilis (intelligible world), 221 Munn v State of Illinois, 70n4 Murder, 107 Nacherleben (retrospective experience), 202 National Biscuit Company, 68–70 Nationalrat (National Council), 105, 156, 161–66, 170–72 Nation state, 148–49, 231–32, 234 Natural laws, 26–27, 90, 212, 222 Natural right theory, 6, 11–13, 56–58 Nature: Locke on, 55, 56–57. See also Human nature Necker, Jacques, 233 Neo-Kantianism, 2, 17, 90, 135 Newbigin, Lesslie, 16n40 New Orleans slaughterhouses, 12, 14, 64–67, 72–74 New Science of Politics (Voegelin), 18

246

index Nicht-weiter-Ableitbarkeit (nonreducibility), 90 Nietzsche, Friedrich, 16n41, 19, 137–40, 144–45, 181, 231 Nobility, 186, 224 Normativity, 128 Norms: and acknowledgment, 91–92, 95–96, 114–15; Bierling on, 10, 93; of civil law, 46, 108, 122; and coercion, 108; concretization and normcontent, 100–102; of constitutional law, 103–4; constitutional norms, 115; of criminal law, 101–2, 108, 122; delegation of norm enactment, 98; Dickinson on, 8–9, 30, 32–36, 38–40, 43–44, 46, 48; fundamental norm, 113, 115–18; and gradation theory, 91–94; gradual completion of normcontents, 102–4; of international law, 43, 45–47; Kaufmann on basic norm, 112–13; legal norms, 5–6, 8–9, 28–41, 43–44, 46, 48, 53, 59, 91, 93–99, 108–9; and normative layer of meaning, 106–12, 115–18; pacta sunt servanda (agreements must be honored), 45; quintessence of, 121, 126; rebus sic stantibus (while things remain as they now stand) clause, 45–46, 45–46n19; and sovereignty, 28–41; and state, 36–41, 45; of state constitution, 45; successful realization of, 102–3; validity of, 15, 18, 91, 93– 94, 106, 118–19; and violence, 114 Normsetzung (norm enactment), 98 North German League, 114 Nötigung (compulsion), 199 Noumena, 17, 188, 192–93, 211, 213 Oakeshott, Michael, 13n30 Obedience, 48, 81, 126 Objects versus persons, 215–16 Obligation: and duty, 193–94, 198, 204, 222; Kant’s theory of ought, 15–18, 180–227; Kelsen on, 180; and legal positivists, 15–16; and moral law, 184, 185, 191, 192–93, 198–200, 202–5, 210, 211, 219–23; and moral sentiment, 200–205, 208, 210; original versus derivative ought,

226; and ought-indexing, 226; and will, 194–201, 195n24, 204–5, 207–9, 216, 223 “On the Conception of Sovereignty” (Ritchie), 27, 43n16 On the Form of the American Mind (Voegelin), 2 Order: of regulation, 121; and unity of the law, 120–24, 126 Order and History (Voegelin), 18n53 Ordinances, 103–4 Organic theory, 84 Organizationstechnisch (organizational practice), 102 Ottakring Volkschochschule, 23 Ought. See Obligation “Ought in Kant’s System” (Voegelin), 15–18, 180–227 Pacta sunt servanda (agreements must be honored), 45 Parliamentarianism, 143, 144, 161–62, 168. See also Legislative organs Party for a Greater Germany, 173 “Path of Law” (Holmes), 32–33 Paul, St., 4, 234 Permanere, 212 Personhood: Dimnet on development of personality, 235–36; Kant on, 215–16; and like-mindedness, 14; Locke on, 14; Schiller on, 231–32. See also Human nature Pflicht (duty), 198 Philosophical anthropology, 13–14, 15, 17, 18 Philosophy: commonsense philosophy, 183, 186; French philosophy, 235; German philosophy, 181; “insofar as” in philosophizing process, 208–9; Kant on, 218, 218n48; Voegelin’s disdain for English-speaking philosophy, 20. See also specific philosophers Pioneer ideal and frontier, 12–13, 57, 58, 62, 63, 67–68, 84, 233 Plato, 15, 18, 218, 230 Police, 163, 164, 164n6 Political ideas, 4 Political Religions (Voegelin), 1 Political science: and natural right theory, 57; and political community,

247

index 6, 14, 21, 237–38; Voegelin’s reformulation of, 2–7, 23; and Weber, 142–45 Political theory, 127–29 Politicizing of citizens, 237–38 Positive law, 15–16, 90, 96, 116, 119–20, 180 Positivism: of Bierling, 10; limitations of legal positivism, 5, 15–16; and property, 11; of pure theory of law, 2, 7 Positivity, criterion of, 112–13, 117 “Postscript to The Art of Thinking” (Voegelin), 4–5, 14, 21–22, 228–38 Prediction theory of law, 32–34 Princeton University, 27 Property: American theory of, 11, 12, 14, 63–75; and capacity for use, 56–57; in common-law tradition, 64–65; court cases on, 11, 12, 14, 64–74, 82–83; definition of, 65, 71, 72–73, 84–85; demands concerning legal protection of, 72; farms as, 57, 58, 63, 67–68, 74, 83, 84; freedom linked with, 71, 72–75, 73; as fundamental human experience, 11; labor as, 66, 73; Locke’s theory of, 11–14, 55–58; and monopoly law, 64, 66, 70, 75, 87; natural right theory of, 6, 56–58; and transaction, 55–57; and usufruct (proper use), 13, 14 Protection against damages, 70 Protection of workers, 76–77, 82–87 Protestantism, 132, 134, 141, 234. See also Christianity Proust, Marcel, 131, 235 Prussia, 20, 134 Psalms, 134 Psychologism, 35, 36, 90 Punishment, 101–2, 107, 108–9, 122 Pure theory of law: Bierling on, 8, 9–11; Dickinson’s theory of sovereignty and, 7–9, 11, 27–52; formality of, 18; and international law, 41–42, 44–45; Kelsen on, 2, 3, 6–7, 9, 15, 17, 28–29, 31–33, 91; and multiplicity of legal orders in a state, 41–42, 44–45; and schemata, 114–15 Quintessence of norms, 121, 126

Race and State (Voegelin), 3, 4, 5–7, 11 Railroads, 67, 68, 69, 70 Ratio, 20, 139 Ratio cognoscendi, 223 Rational state type, 123–24 Realm of understanding (or reason), 206 Realontologie (ontology of the real), 215 Reason, 20, 130–32, 182–85, 189–92, 197–200, 205–7, 209, 221–22, 224–25 Rebus sic stantibus (while things remain as they now stand) clause, 45–46, 45–46n19 Recht (law), 97 Rechtserscheinung (phenomenon of law), 5–6 Rechtswissenschaftliche Erkenntniseinheit (legal-scientific unity of knowledge), 124n36 Regulatory order, 121–23, 126 Regulierungsordnung (order of regulation), 121–22 Reichspost, 178 Reid, Thomas, 181–82 Religion, 134, 141 Religion within the Limits of Reason Alone (Kant), 184 Renaissance, 136 Renner, Dr. Karl, 152n2, 153, 155n4, 175, 178 Republic, 143, 218 Responsibility, 133–34, 137, 139–40, 144–45 Revolutions, 114, 147 Ritchie, David G., 27, 43n16 Romantics, 141 Roscher, Wilhelm, 134 Rousseau, Jean-Jacques, 181, 188–89, 233, 235 Rule and rulership: definition of, 125; Plato on, 230; ruling association, 124–29 Russentum (Russian realm), 149 Russia, 149 Sacrum imperium, 230 Sacrum Imperium (Dempf), 23 Santa Fe Railroad Company, 68 Scheler, Max, 4–5, 181n1, 234 Schemata: and formal layer of meaning, 112, 113, 119–21; of illegal conduct, 107–10; and legal theory, 120, 180;

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index and legitimacy for rule, 128–29; and pure theory of law, 114–15; and unity of the law, 96–110, 106n26, 112, 113, 114–15, 120; and validity, 119 Schiller, F. C. S., 181n1, 230–31 Schober, Chancellor, 176 Schopenhauer, Arthur, 90 Schütz, Alfred, 19 Science, 130–31, 136, 139 Second Treatise of Government (Locke), 13n30, 56n3 Seipel, Ignaz, 154n3, 155n4, 164n7, 167–68nn10, 11, 174, 175–76, 178, 178n17 Self-enclosed series, 102–4 Self. See Authentic self Sensuousness and sensory sphere of humans, 182, 183–85, 188–93, 195, 197–201, 205, 206, 209, 215, 222 Sieyès, Abbé, 131, 233 Sigwart, Christoph, 90 Silber, John R., 195n24 Sinneinheit (meaningful unit), 3 Sinnliche Anschauung (sensory perception), 214n44 Sinnlichkeit (sensuousness), 184, 197 Sinnverknüpfung (association of meaning), 117 Sittliche Gattung (moral species), 182 Skillfulness, 184 Slaughter-House Cases, In Re, 12, 14, 64–67, 72–74 Social Democratic Party, 154–55, 156, 160, 163–68, 170, 171n14, 174–75 Socialism, 152, 231 Social law, 64 Social sciences, 53. See also Economics; Law; Political science Sociology, 57, 94, 125–26. See also Weber, Max Socrates, 15 Sofern (insofar as), 208–9 Solidarism: of de Maistre, 233; and education of non-elites, 22–23; French ideas on, 4, 22, 233; German ideas on, 4–5; and homonoia, 4–5; negative and positive example of, 21–22; and U.S. Supreme Court decisions on property, 14 Das Sollen (obligation), 15, 116, 180, 202

Sovereignty: Austin on, 27, 43n16; Bentham on, 27; causation and juristic sovereignty, 35–36; characteristics of ideal sovereign, 51–52; definition of, 29–30, 34, 36–37, 48; Dickinson’s theory of, 7–9, 27–52; Hobbes on, 27; Holland on, 27; and hypostasis, 36, 37; and international law, 37, 40–47; juristic sovereignty, 35–38, 47; Kelsen on, 31–33; Laski on, 28; Laski’s pluralistic theory of, 9–10n21; and legislative organ, 38–39; location of supreme, sovereign organ, 38–40; Locke on, 27; and logologies, 37; McIlwain on, 28; misinterpretations of, 35–38; and monarchy, 38–39; and norms, 8–9, 28–41, 43–44; and psychologism, 35, 36; Ritchie on, 27, 43n16; summary of Dickinson’s theory of, 29–30; supervision of sovereign, 50–51; and U.S. Supreme Court, 8, 39–40; and unity of legal system, 30, 35, 37, 44 “Speculative Beginning of Human History” (Kant), 189–92 Sphere of freedom, 69–70, 74–75 Spontaneity, 205–6, 210–13, 215, 223, 225–26 Staat, translation of, 49n22 Staatsgenossen (associates of the state), 187 Staatslehre (political science), 2, 3–7, 23 Staatsnotar (state notary), 152 Staatsrat (state chancellor), 152 Staatstechnisch (state-technical), 142–43 Stadtschulrat (Urban School Council), 164 Stanford University, 1 State: coercive acts by, 59–62, 108– 11, 116, 126; complex of meaning of, 113–14, 123–24; core political principles of, 21; Dickinson on, 36–38, 39; federalism and federal state, 39, 100–101, 105, 153–60, 155n4; Hegel on, 234; and hypostasis, 36, 37; as identical to legal system, 36–37; improvement of, 47, 52; Kant’s idea of, 18, 217–19; and logologies, 37; modern state, 123; multiplicity of legal orders in, 40–47; and norms,

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index 36–41, 45; Plato on, 218; and political community, 21, 237–38; Prussian bureaucratic state form, 20; rational state type, 123–24; and régime of law, 47; republican form, 143; and ruling association, 124–29; type concept of, 116, 123; valid state-form, 114–15; Weber on, 142–45. See also Democracy; Monarchy; Sovereignty State technique, 142–43 Die Stellung des Menschen im Kosmos (Scheler), 4–5 Strafrechtsnorm (norm of criminal law), 98 Stufentheorie (theory of gradation), 89–94 Supra- and subordination, 103–5 Supra-sensory nature, 222 Supreme Court, U.S. See United States Supreme Court; Austrian Supreme Court Taxation power, 157, 163, 170 Technical imperative, 226 Theft, 101–2, 122 Theory of gradation, 89–94, 98, 104 Theory of the criterion of positivity, 112–13, 117 Thinking, art of, 228–38 Thirteenth Amendment, 64 Transaction: classification of, based on possibility of coercion, 59–62; as concept of institutionalism, 53; definition of, 53; example of, 54–55; and justice, 61–63; legal transaction, 94, 98; and Locke’s theory of property, 55–58; and natural right theory, 56–58 “Transaction” (Voegelin), 53–62 Type concept of the state, 116, 123 Überlegung (deliberation), 206 Understanding, 206. See also Reason Unentrinnbarkeit (inescapability), 145–47 Unionization, 86–87, 168 United States: Congress of, 39; and Dimnet’s Art of Thinking, 22, 229, 233; due process of law and freedom in, 14, 72–88; farms in, 57, 58, 63, 67–68, 74, 83, 84; frontier and pioneer ideal in, 12–13, 57, 58, 62, 63,

67–68, 84, 233; immigrants in, 21; and institutionalism, 28; justice in, 61–64; national unity of, 20–21, 131, 132–33; as nation state, 234; political ideas of, 132–33; and prediction theory of law, 32–34; scholars in, 21, 133; theory of property in, 11, 12, 14, 63–75; Voegelin’s views of generally, 20–21 United States Constitution: and due process, 78, 79; Fifth Amendment of, 73, 78; Fourteenth Amendment of, 64, 71, 73, 77, 78, 78–79, 82; Thirteenth Amendment of, 64; and U.S. Supreme Court, 8 United States Supreme Court: and constitutional law, 99; definitional process of, 79, 82, 87; and due process, 78–82, 87–88; and immutable principles of justice, 82; on property, 11, 12, 14, 64–70, 72–74, 82–83; and protection of workers, 76–77, 82–87; relationship of, to the law, 51; and social justice, 86; as supreme, sovereign organ, 8, 39–40, 50–51, 88; and unionization, 86–87 Unity of a context, 96–102, 105, 112–14 Unity of the law: application of law, 98–99; Bierling on, 89–96, 98; and closure, 112–18; and coercive acts, 108–11; and concretization, 100–102; and formal layer of meaning, 112–14, 118–21; and individuation, 99–100; and layer of material content of meaning, 103–5; and legal theory, 118–21; and legitimacy for rule, 128– 29; and normative layer of meaning, 106–12, 115–18; and order, 120–24, 126; and positive law, 90, 96, 116, 119–20; and quintessence of norms, 121, 126; and ruling association, 124–29; and sovereignty, 30, 35, 37, 44; and supra- and subordination, 103–5; and unity of a context, 96–102, 105, 112–14 “Unity of the Law and the Social Structure of Meaning Called State” (Voegelin), 4, 6, 8, 9–11, 15, 89–129 University of Vienna, 2, 178n17 Usufruct (proper use), 13, 14 Utah, 68, 69, 82

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index Vagrants, 107 Valéry, Paul, 131 Validity: and legal theory, 118–19, 129; of norms, 15, 18, 91, 93–94, 106, 118–19; of rulership, 129; sociological concept of, 129; of state-forms, 114–15 Values, 135–37, 139, 145 Verantwortungsethik (ethics of responsibility), 19 Verbindlichkeit (obligation), 198, 202 Verdross, Alfred, 45, 112 Vermögen (faculty), 214 Vernunft (pure reason), 206 Verstand (understanding), 206 Verwaltungsordnung (administrative order), 122 Verwaltungsstrafsenate (Senates for Administration), 170 Verwendung (application), 150 Violence, 114 Vita contemplativa, 140, 145 Voegelin, Eric: changes and continuities in intellectual career of, 1–3; flight from Nazi tyranny by, 1; in France, 22; at Hoover Institution at Stanford University, 1; in Munich, 1; at Ottakring Volkschochschule, 23; scholarly career of, in Vienna, 1; in United States, 1, 2; at University of Vienna, 2. See also specific works Volkstaat (people’s state), 168 Von Bonnot, Schuster, 174

and constitutional order, 122–23; on democracy, 144; and dialectic of freedom and necessity, 137, 144–45; on ethics of intention versus ethics of responsibility, 19, 139–40; on Germany, 141–43; and history, 135–37; on inescapability, 145–47; on leadership, 144; on obedience, 126; on politics, 142–45; and regulatory order, 121; as representative thinker and sufferer, 18–19; on republican form, 143; on rule, 125; and science, 136, 139; sociological terminology of, 94; sociology of, 17; on state technique, 142–43; thematic range and fragmentary nature of works by, 134–36; and values, 135–37, 139, 145; Voegelin’s writings on, 18–19, 130–47; and World War I, 147 Wechselwirkungen (reciprocal influences), 221 Weimar Germany, 20, 154 Wesen (essence, being), 191, 214 Will, 132, 194–201, 195n24, 204–5, 207–9, 216, 223 Wille (will), 195n24 Willkür (will), 195, 195n24 Women’s employment, 76 Workers. See Labor “Working Theory of Sovereignty” (Dickinson), 27–52 World War I, 131, 143, 147, 153–54 Wunsch (wish), 195

War, 122 Weber, Max: and administrative order, 122; and breakdown of causation, 19; charisma of, 141; compared with Nietzsche, 137–40, 144–45;

Yorck of Wartenburg, Count Paul, 234 Zensitär (censory), 187 Zweck (purpose/end), 182, 183 Zwiespalt (disjunction), 190

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