Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics (Contributions to Phenomenology, 110) 3030337804, 9783030337803

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Contributions to Phenomenology  110

Eva Reyes-Gacitúa Antonio Calcagno  Editors

Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics

Contributions to Phenomenology In Cooperation with The Center for Advanced Research in Phenomenology Volume 110

Series Editors Nicolas de Warren, Department of Philosophy, Pennsylvania State University,  State College, PA, USA Ted Toadvine, Department of Philosophy, Pennsylvania State University,  State College, PA, USA Editorial Board Lilian Alweiss, Trinity College Dublin, Dublin, Ireland Elizabeth Behnke, Ferndale, WA, USA Rudolf Bernet, Husserl Archive, KU Leuven, Belgium David Carr, Emory University, Atlanta, GA, USA Chan-Fai Cheung, Chinese University of Hong Kong, Sha Tin, Hong Kong James Dodd, New School University, New York, USA Alfredo Ferrarin, Università di Pisa, Pisa, Italy Burt Hopkins, University of Lille, Lille, France José Huertas-Jourda, Wilfrid Laurier University, Waterloo, Canada Kwok-Ying Lau, Chinese University of Hong Kong, Sha Tin, Hong Kong Nam-In Lee, Seoul National University, Seoul, Korea (Republic of) Dieter Lohmar, University of Cologne, Cologne, Germany William R. McKenna, Miami University, Ohio, USA Algis Mickunas, Ohio University, Ohio, USA J.N. Mohanty, Temple University, Philadelphia, USA Dermot Moran, University College Dublin, Dublin, Ireland Junichi Murata, University of Tokyo, Tokyo, Japan Thomas Nenon, The University of Memphis, Memphis, USA Thomas M. Seebohm, Johannes Gutenberg-Universität, Mainz, Germany Gail Soffer, Roma Tre University, Rome, Italy Anthony Steinbock, Department of Philosophy, Stony Brook University, Stony Brook, NY, USA Shigeru Taguchi, Hokkaido University, Sapporo, Japan Dan Zahavi, University of Copenhagen, Copenhagen, Denmark Richard M. Zaner, Vanderbilt University, Nashville, USA

Scope The purpose of the series is to serve as a vehicle for the pursuit of phenomenological research across a broad spectrum, including cross-over developments with other fields of inquiry such as the social sciences and cognitive science. Since its establishment in 1987, Contributions to Phenomenology has published more than 100 titles on diverse themes of phenomenological philosophy. In addition to welcoming monographs and collections of papers in established areas of scholarship, the series encourages original work in phenomenology. The breadth and depth of the Series reflects the rich and varied significance of phenomenological thinking for seminal questions of human inquiry as well as the increasingly international reach of phenomenological research. All books to be published in this Series will be fully peer-reviewed before final acceptance. The series is published in cooperation with The Center for Advanced Research in Phenomenology. More information about this series at http://www.springer.com/series/5811

Eva Reyes-Gacitúa  •  Antonio Calcagno Editors

Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics

Editors Eva Reyes-Gacitúa Departamento de Teología Universidad Católica del Norte Antofagasta, II - Antofagasta, Chile

Antonio Calcagno Department of Philosophy King’s University College London, ON, Canada

ISSN 0923-9545     ISSN 2215-1915 (electronic) Contributions to Phenomenology ISBN 978-3-030-33780-3    ISBN 978-3-030-33781-0 (eBook) https://doi.org/10.1007/978-3-030-33781-0 © Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For Professor Anneliese Meis Wörmer, In gratitude

Introduction

An Investigation Concerning the State (Eine Untersuchung über den Staat) occupies an interesting place in Edith Stein’s philosophical corpus. It clearly belongs to Stein’s early phenomenological period and was written after the end of her assistantship (1916–1918) with Edmund Husserl between 1919 and 1921, a very active political time for Stein as she was a founding member of the German Democratic Party in Breslau as well as an ardent campaigner for women’s suffrage.1 The work completes her social ontology, which includes discussions of empathy, society, and community. Though her work draws on the phenomenological method, her own earlier investigations, and the work of her teacher and colleague, Adolf Reinach, the text also betrays Stein’s own political convictions as she argues for the superiority of a communal sociality of the state as opposed to a contractual, societal model. Given that the text was written during the Weimar period following World War I, this is understandable, for Stein could be read as contributing to the debates about what forms of political rule would work best in a war-torn and defeated Germany. Stein’s later writings in metaphysics and Christian philosophy have received lots of scholarly attention and, more recently, so too have her early phenomenological works. Her investigation of the state, however, has received scant consideration. There are various reasons for this oversight. First, Stein’s philosophical trajectory is viewed as starting from phenomenology and ending in Christian philosophy and mysticism. The state, as a theme of phenomenological investigation, was not a central phenological concern, and the texts on the state are fewer compared to other important themes like realism, idealism, subjectivity, intersubjectivity, consciousness, and time. Second, with the exception of her treatment of empathy, most of Stein’s work in phenomenology proper has only recently been investigated. The work on the state is part of this early corpus. Finally, given the German history of the World Wars and Stein’s own violent end in Auschwitz, philosophers and scholars have been leery of approaching Stein’s text on the state, for her very belief in the possibility of a communal, lawful state comes crashing down with the end of the

 See Carolyn Beard, Stein, die Suffragette, in Edith Stein Jahrbuch, vol. 25, 2019, 85–93.

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Weimar Republic and the rise of National Socialist totalitarianism. In many respects, Stein’s writings on the state make her readers uncomfortable as it raises all kinds of challenges and difficult questions, including Stein’s own early support of the German effort in World War I. This volume fills an important lacuna in Stein scholarship and in the history of philosophy as the first major English study of Stein’s writing on the state. The book is divided into two parts: Part I considers various concepts and ideas constitutive of Stein’s theory of the state, and Part II seeks to mine the implications of her thought, applying them to various questions in bioethics, contemporary politics, and law. Also, her analyses of the state are brought into conversation with other writers and thinkers like Gertrud von Le Fort and Aristotle. Part I opens with Mariano Crespo’s chapter “The Place of the State in Phenomenological Reflection.” The author situates Stein’s essay within the framework of early phenomenology while briefly touching upon other phenomenological accounts of the state, including Edmund Husserl’s view. This general contextualizing of Stein’s work is followed by Eva Reyes-Gacitúa contribution, “Woman and the State in Edith Stein’s Thought.” In the late 1920s and early 1930s, Stein wrote often about her own ideas on woman (das Weibliche) and women’s education. These writings contain much on the relations between the state and women, especially the state’s obligation for the education of young women and girls. Reyes-Gacitúa’s chapter convincingly shows that an understanding of Stein’s theory of the state must include the discussion of women, especially given that Stein herself was an avid campaigner for women’s rights. The subsequent four chapters focus on constitutive concepts of Stein’s theory of the state. Marcela Aranda’s “People and State in Edith Stein’s An Investigation Concerning the State” explores the notion of the people (das Volk) and how it can serve as a foundation for the state, albeit not a necessary one. Stein was always against the idea of a state being exclusively founded on a politics of race and blood, and her decision to theorize the concept of a people in broader terms, Aranda shows, has implications for how Stein views community and the law. Marcelo Gidi’s article, “Certain Legal Presuppositions About the Idea of Law in Edith Stein’s An Investigation Concerning the State,” explores how Stein defends the importance of an a priori concept of law for the state, ultimately distinguishing pure law from positive and natural law theories of the state. “Legal Personhood in Positive Law and Edith Stein’s An Investigation Concerning the State” by María Eliana Martínez Fernández demonstrates the centrality of the notion of personhood for Stein’s theory of the state: the state is never conceived as a person in itself, although it bears similarities to a person as, for example, a state could be said to have a certain form of personality. Luis Mariano de la Maza’s contribution, “Sovereignty and the Ethical Demands of the State,” treats the central concept of sovereignty. The author shows that Steinian sovereignty must be distinguished from other forms of sovereignty that dominate modern theories of statehood. The last two chapters of Part I seek to extend Stein’s conceptual apparatus. In “Religion, Mysticism and the State,” Juan Francisco Pinilla makes the claim that one finds in Stein’s later treatment of religion and mysticism the possibility of extending her ides of community, which is foundational for the very essence of the

Introduction

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state to exist. He explores the notion of communal feeling and understanding in relationships between humans and God, ultimately showing that an understanding of the state could include a religious dimension. “The Challenges Posed by the Community of Law-Givers and Law-Followers in Edith Stein’s Idea of the State” by Antonio Calcagno concludes Part I of the collected volume by raising an important challenge to Stein’s theory of the state: Stein’s defense of a communal sociality for the ontic and legal structure of the state runs a greater risk of absolutism than would a societal sociality, for the latter possesses possibilities of more checks and balances that could better situate the very practice of law in relation to the members of the state. Part II opens with Alberto Rojas Osorio’s “Bioethics in Edith Stein’s An Investigation Concerning the State.” Here, Stein’s ideas of right and justice are mined for their bioethical implications. The author finds in Stein’s idea a useful limit when considering cases – a limit that could help the bioethicist think through the various important aspects of issues that may arise. “The Issue of the State’s Power and Its Abuse in the Literature of Gertrud von le Fort in Light of Edith Stein’s An Investigation Concerning the State” by Clemens Franken is a dialogue between Stein and the novelist Gertrud von Le Fort, with whom Stein had correspondence. The article sees in Stein and von Le Fort two modes of resistance to the ever-­ increasing threat of state control, especially when one considers various forms of rule like monarchy, democracy, and aristocracy. Fredy Parra’s contribution, “The Justification of the Modern State in Edith Stein’s An Investigation Concerning the State: A Political Theological View,” explores the contemporary debate surrounding political theology, a concept introduced by Theorist Carl Schmitt. Stein’s text on the state is read as showing that the pre-political foundations of the state have theological roots. In “Forms of the State: An Approach to the Work of Edith Stein from Its Aristotelian Influences,” María Esther Gómez de Pedro shows how Stein draws upon and reworks both Aristotle’s and Thomas Aquinas’ views of the state, especially the roles of sovereignty, ethos, and justice. The author demonstrates that though Stein’s views of the state draw from Reinach and other modern thinkers, one must not forget her dialogue with more ancient thinkers like Aristotle and Thomas Aquinas. The final chapter of the volume is by Soledad Alvear. “The Current Process of the Constituent Assembly and the Relevance of Edith Stein’s An Investigation Concerning the State” applies Stein’s theory of the state to contemporary political practice, namely, the project of constituent assemblies in Chile, which aims to rethink the constitution’s place and role of state citizens. We end the volume with a philosophical reflection by an important Chilean politician, who draws on her own experience and practice to build a more democratic Chile through and with the help of Edith Stein. The papers contained in the volume began as talks given at the seventh annual international symposium of the Edith Stein Centre (the Centre) of the Pontifical Catholic University of Chile (PUC) in Santiago in 2016. The theme of the conference was “Edith Stein and the State.” The Centre was founded in 2004 when a group of theologians and philosophers at the PUC gathered to study Stein’s writings on woman. This gathering resulted in the first graduate seminar on Edith Stein’s

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c­ oncept of woman, which was offered by Professor Anneliese Meis Wörmer in 2009. The title of the seminar was “Edith Stein and the Question of Woman.” More seminars were offered in the following years, and, on August 11, 2014, the Centre became officially known as the Interdisciplinary Centre for Edith Stein Studies at the PUC. The current director, Professor Juan Francisco Pinilla, sees the Centre as a place of genuine dialogue and study that seeks to extend interdisciplinary work on Stein’s thought where it can be mined for is theological and philosophical value but also extending its application to various fields and practices as evidenced by this collection. The papers here develop ideas and insights from the 2016 symposium. The editors of this collected volume hope that this work will draw scholars’ attention to the richness and complexity of Stein’s political philosophy and social phenomenology. As studies of Stein’s thought come to be, the significance of her writing on the state will also become more apparent. We view this book as an important first step in broadening Stein scholarship and the early phenomenology of the social and political.  Eva Reyes-Gacitúa  Antonio Calcagno

Contents

Part I Edith Stein’s Concept of the State The Place of the State in Phenomenological Reflection��������������������������������    3 Mariano Crespo Woman and the State in Edith Stein’s Thought��������������������������������������������   17 Eva Reyes-Gacitúa People and State in Edith Stein’s An Investigation Concerning the State����������������������������������������������������������������������������������������   29 Marcela Aranda Certain Legal Presuppositions About the Idea of Law in Edith Stein’s An Investigation Concerning the State������������������������������������������������   41 Marcelo Gidi SJ Legal Personhood in Positive Law and Edith Stein’s An Investigation Concerning the State������������������������������������������������������������   53 María Eliana Martínez Fernández Sovereignty and the Ethical Demands of the State ��������������������������������������   63 Luis Mariano de la Maza Religion, Mysticism, and the State ����������������������������������������������������������������   75 Juan Francisco Pinilla The Challenges Posed by the Community of Law-Givers and Law-Followers in Edith Stein’s Idea of the State����������������������������������   83 Antonio Calcagno Part II Applications and Extensions of Stein’s Theory of the State Bioethics and Edith Stein’s An Investigation Concerning the State ������������   97 Alberto Rojas Osorio

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The Issue of the State’s Power and Its Abuse in the Literature of Gertrud von le Fort in Light of Edith Stein’s An Investigation Concerning the State����������������������������������������������������������������������������������������  105 Clemens Franken The Justification of the Modern State in Edith Stein’s An Investigation Concerning the State: A Political Theological View��������������������������������������  115 Fredy Parra Forms of the State: An Approach to the Work of Edith Stein Based on Its Aristotelian Influences ��������������������������������������������������������������  127 María Esther Gómez de Pedro The Current Process of the Constituent Assembly and the Relevance of Edith Stein’s An Investigation Concerning the State ��������������������������������  137 Soledad Alvear

About the Editors

Eva Reyes-Gacitúa earned a doctorate in Dogmatic Theology from the Pontificia Universidad Católica de Chile with the thesis El Espíritu Santo, origen de la esponsalidad: En la Expositio super Cantica canticorum de Guillermo de Saint-Thierry. She was the first Chilean woman to receive her doctorate degree from the School of Theology at the Pontificia Universidad Católica de Chile. She also holds a major in Education and is a religion teacher. She worked as a professor and researcher at the Universidad Católica del Norte in Antofagasta, Chile, where she was the director of the UCN Journal Cuadernos de Teología and was in charge of teacher formation and pedagogy. She is the author of several publications. She is a member of the Chilean Theology Society, a member and secretary of the International Association of Patristic Studies, a member and secretary of ALALITE (Latin American Society of Literature and Theology), and a member of the Edith Stein Interdisciplinary Research Center at the Pontificia Universidad Católica de Chile.  

Antonio  Calcagno is professor of Philosophy at King’s University College, London, Canada. He is the author of Giordano Bruno and the Logic of Coincidence (1998), Badiou and Derrida: Politics, Events and Their Time (2007), The Philosophy of Edith Stein (2007), and Lived Experience from the Inside Out: Social and Political Philosophy in Edith Stein (2014). He is a member of the College of the Royal Society of Canada.  

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Part I

Edith Stein’s Concept of the State

The Place of the State in Phenomenological Reflection Mariano Crespo

Abstract  This chapter presents the preliminary results of a double task: on the one hand, I try to identify the place of the notion of “state” in the phenomenological thinking of Edmund Husserl and, on the other hand, I reflect on a particular question in the general frame of the connections between state and law, namely, the general problem of the relationships between positive law, as formulated by the state’s legislative power, and so called a priori law (Adolf Reinach) or pure law (Edith Stein), understood as law that precedes and underlies positive law. Both Reinach and Stein defend the existence of pre-positive elements. Thus, they agree with classical theories of natural law; however, they distance themselves from such theories through a criticism I consider not sufficiently justified. In other words, the similarities between Reinach’s and Stein’s theories and classical theories of natural law are closer than usually thought. Keywords  State · Phenomenology · Husserl · Stein · Reinach · Natural law · a priori law · Positive law

1  Phenomenology and the State The difficulties of definitively explaining the phenomenological conception of the state abound, so much so that they extend beyond the limits of this contribution. Such a task would correspond more to a research project or to a much wider contribution. In an attempt to offer solutions to the initial difficulties associated with the phenomenological conception of the state, this text examines the essence of the state as the founder of the phenomenological method, Edmund Husserl, defined it; however, this exploration is also encumbered by two serious difficulties. First, Husserl never carried out a systematic exposition of his theory of the state, unlike

M. Crespo (*) Institute for Culture and Society, University of Navarra, Pamplona, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_1

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Edith Stein. He did not specifically dedicate any work to this subject and, thus, the secondary bibliography on this subject is rather scant. Except for the book by Karl Schuhmann, entitled precisely Husserls Staatsphilosophie (Husserl’s Philosophy of the State) (Schuhmann 1988), published in 1988, there are not many studies devoted to Husserl’s treatment of this subject.1 The task before me then is a kind of sketching not so much of the Husserlian conception of the state, but of its place in Husserlian phenomenological reflection. The second difficulty, more serious than the first, is that, in Husserl’s works, there are contradictory statements about the ontological status of the state. Thus, in Ideas I, when dealing with the question of the scope of phenomenological reduction, he says the following: In the first place, it is immediately understandable that, with the exclusion of the natural world, the physical and psychophysical world, all individual objectivities which become constituted by axiological and practical functionings of consciousness are excluded, all the sorts of cultural formations, all works of the technical and fine arts, of sciences (insofar as they come into question as cultural facts rather than as accepted unities), aesthetic and practical values of every form. Likewise, naturally, such actualities as state, custom, law, religion (Husserl 1983: 131).

However, 33 years after writing this text in which the state is “expelled” from the sphere of phenomenological reflection, so to speak, Husserl writes the following: (…) there is no conceivable meaningful problem in previous philosophy, and no conceivable problem of being at all, that could not be arrived at by transcendental phenomenology at some point along its way (Husserl 1970: 188).

This second difficulty of the Husserlian treatment of the state constitutes, in reality, the manifestation of an even greater difficulty. The “expulsion” of the state from the sphere of phenomenological reflection is based on its consideration as a phenomenon of facticity, as something given. As Husserl himself states, “facticity pertains to metaphysics rather than to phenomenology or logic”(Husserl 1956; 394), which means that, for Husserl, this field corresponds to contingency, to what is beyond absolute certainty, namely, to pure consciousness. The state as a factual phenomenon is, as Schuhmann points out, a “problem outside of phenomenology” (Schuhmann 1988: 91). However, in other texts, Husserl either considers the state as a personal unit of the highest order, the fruit of the constitutive activity of consciousness, or as an artificial product of human activity and history. This constitutes, in general terms, the contradiction that is woven throughout the Husserlian treatment of the state. With these difficulties in mind, this text aims to present the preliminary results of a dual task: on the one hand, it will present the results of sketching the place of the state in the phenomenological reflection of Husserl and, on the other hand, it will offer a better understanding of the general problematic of the relationship between the state and the law. Here, I refer to the question of the relationship between ­positive

1  It is also worth citing an article by Stefan Strasser, “Grundgedanken der Sozialontologie Edmund Husserls” in Zeitschrift für philosophische Forschung, vol. 29, part 1 (Jan. – Mar. 1975), 3–33, even though the state is not ultimately its focus.

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law, as formulated by the corresponding legislative power of the respective state, and a priori law (Reinach) or pure law (Stein), as law that precedes and u­ nderlies all positive law. As defenders of the existence of pre-positive elements – that is, those that exist prior to all codification  – Reinach’s and Stein’s theories coincide with classical theories of natural law; however, both authors notably try to distance themselves from these theories through a criticism that does not seem sufficiently justified. In other words, the similarities between Reinach’s and Stein’s theories and natural law theory are greater than they themselves thought.2 The foregoing claim is of philosophical interest and, in addition, has a dual potential: on the one hand, it contextualizes the theme to which this book is dedicated and, on the other hand, it explains the conceptual framework in which Stein’s An Investigation Concerning the State emerged. Thus, I will only direct my comments to Stein’s work regarding this one point.

2  The Husserlian Theory of the State Taking into account these not-so-minor difficulties, where might we then start to sketch the Husserlian theory of the state, the theory that Stein would most likely have been familiar with when she wrote her text? In other words, what is his theory’s framework? Certainly, this framework corresponds to social theory, which is, nonetheless, not quite sufficiently radical since intersubjectivity is what ultimately makes any social relation possible. We must therefore turn to the Husserlian theory of intersubjectivity.3 While Husserl did not publish a systematic account of intersubjectivity as a general framework for a phenomenology of the social and, therefore, of the state (Schuhmann 1988: 47), he did provide hints in various places. Despite its fragmen2  I referred to this in the introduction to my Spanish edition of Reinach’s book Los fundamentos a priori del Derecho civil. Comares, Granada 2010. 3  “Aunque no es estrictamente social, sino más bien presocial, la intersubjetividad posibilita cualquier relación social e incluso cualquier concepción de la subjetividad. Por tanto, es una categoría básica para desarrollar una sociología o una antropología conscientes de sus presupuestos y de sus conceptos. Algunos de los temas filosóficos más importantes como la constitución del tú y del nosotros, la relación entre individuo y sociedad o el valor intersubjetivo de nuestra experiencia del mundo en general, se hallan conectados con esta problemática, la cual no sólo es relevante para cualquier teoría sociológica que se precie, sino también para el esclarecimiento del sentido original de la propia fenomenología.” (“Although not strictly social, but rather pre-social, intersubjectivity enables all social relationships and even all conceptions of subjectivity. It is therefore a basic category for developing a sociology or an anthropology that is aware of its presuppositions and concepts. Some of the most important philosophical issues, such as the constitution of the you and the us, the relationship between individual and society, or the intersubjective value of our experience of the world in general, are connected with this problem, which is not only relevant for all sociological theory worth its weight, but also for the clarification of the original meaning of phenomenology itself.”) (López, M.C., “Intersubjetividad trascendental y mundo social,” in Enrahonar, 22, 1994, 34).

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tary nature, we can reconstruct this theory from, above all, Iso Kern’s collection of different texts on the matter in volumes XIII, XIV and XV of Husserliana and other works. Allow me to refer to the main points that I consider relevant for the Husserlian theory of the state.4 The starting point of the Husserlian theory of intersubjectivity is self-perception, that is, the perception of one’s own sentient body, of one’s sensations and consciousness as a whole (Husserl 1973a: 250). To capture an external self is what Husserl calls an “interpretation.” But how does this interpretation take place? In the first place, Husserl states that the external body is given to me; it is a phenomenon for me. It is an external phenomenon regarding an external body and is united with an “intention” that “interprets” it as Leib, that is, as an animate, sentient body. Thus, in the same way that my body, understood in the sense of Leib (lived body), corresponds to a sphere of self-appearance, an external body also has a sphere of self-­ appearance that is its alone. Another subject, therefore, interprets an external sentient body as the subject of a sphere of self-perception. For me, and not for the external subject, that self-appearance is presentification (Vergegenwärtigung). As Husserl himself points out, the fundamental difficulty of all these analyses lies in offering a correct description of the perception of the self, of the presentification of the other and of the passage from the former to the latter, which is possible through a kind of “mental experiment.” I can capture an external body as Leib if I “put myself in” (hineinversetze) that body as if it were my Leib (Husserl 1973a: 266), as considering things from my point of view, from my Leib. A body that is externally given to me is given as Leib when, by virtue of its resemblance with my Leib, it demands apperception as Leib and as a subject-bearer. The perception of one’s own sentient body constitutes, then, the foundation for the perception of an external sentient body. Only in an interpretation of a body similar to mine as a sentient body and bearer of a self (similar to mine) can I capture an external sentient body. In summary and in Schuhmann’s words, “the execution of empathy creates the first real transcendence… Here, conscience moves, for the first time, beyond itself” (Schuhmann 1988: 57). With it, we reach a level of intersubjectivity that confirms that we are one with others and open to others. Now, beyond simple intersubjectivity, of being together with others, a nexus of sociality is established “whose fundamental form is found in subjects’ being with the other” (Schuhmann 1988: 61). Thus, (…) the persons are instead members of communities, members of personal unities of a higher order, which, as totalities, have their own lives, preserve themselves by lasting through time despite the joining or leaving of individuals, have their qualities as communities, their moral and juridical regulations, their modes of functioning in collaboration with other communities and with individual persons, their dependencies on circumstances, their regulated changes and their own way of developing or maintaining themselves invariant over time, according to the determining circumstances. The members of the community, of marriage and of the family, of the social class, of the union, of the borough, of the state, of

4

 Here I mostly rely on Schuhmann’s analysis in Husserls Staatsphilosophie.

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the church, etc., “know” themselves as their members, consciously realize that they are dependent on them, and perhaps consciously react back on them (Husserl 1989: 191–192).

The different ways in which this with-the-other quality of subjects is articulated constitute the different forms of “socialities” or “communitarizations.” They arise as communities of will and aspiration in various types, like those mentioned in the previous quotation, and their telos is the establishment of common resolve. Their highest form is what Husserl calls a “community of love” (Liebesgemeinschaft) or spiritual love (geistige Liebe). Spiritual love and the community of love is where a variety of subjects live a life united by personally identifying with affection and will. There, what you want, I want too; that to which you aspire, also constitutes my aspirations; in your suffering, I too suffer and the other way around; in your joy, I find my joy, etc. There is unity rather than discussion and not because of concession, but rather because of habitual identification of the affective and volitional subjectivity in which a peculiar unity arises (Husserl 2014: 301–302).

For its part, the state constitutes one of these socialities, communitarizations or “personalities of a higher order”: A state is a personal whole, although, as in any large association, its members do not all know each other. Fomenting personal relationships must take place starting from existing empathy and from existing agreement or from the subordination that naturally arises and is based on personal contact and communication. But, in this way, institutions based on personal association must be considered from indirect pathways on which people do not know one another. In any case, these are communities of certain wills, who agree, even mediately, as volitional subjects (Husserl 1973b: 182).

The state appears, then, as a “personal unit of a higher order,” invisible to whomever “sees everywhere only nature, nature in the sense of, and, as it were, through the eyes of, natural science” (Husserl 1989: 201). Therefore, in order to “see” the state and any other “object-of-culture,” a change of attitude and view is necessary. People who belong to the social “conglomerate,” however, do not relate to one another simply as bodies, as objects, but as “companions not as opposed objects but as counter-subjects who live ‘with’ one another, who converse and are related to one another, actually or potentially, in acts of love and counter-love, of hate and counter-­hate, of confidence and reciprocated confidence, etc.”(Husserl 1989: 204). As mentioned, in this order of things, Husserl defends the existence of a social teleology in which the most perfect form of communitarization is the “community of love.” Now, this social teleology, this ascent to a community of will, can be hindered or impeded. The state’s function is to prevent fundamental social disagreement by excluding conflict such that peaceful coexistence is possible (Husserl 1973b: 217). The state exists, as James Hart points out in his commentary on Schuhmann and Husserl, in order to exclude the possibility that all monads seek harmony in vain, to put limits on the forces that hinder that teleology (Hart 1992: 403) and to preserve the general horizon of interests (Husserl 1973b: 409), preventing a collision of particular goals and interests.

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To exercise this function, the state must use law. In fact, as Schuhmann reminds us, for Husserl, a state is a “unit of law-related norms that is bound by them”5 and its unity is realized “through norms that are consciously enforced and that restrict human beings’ action, limiting individual desire according to the sphere of the will to freedom against the forbidden sphere” (Husserl 1973a: 107). This brings me to the next point that I would like to raise. What are the sources of these legal norms that the state has to enact in order to guarantee the “general horizon of interests” and protect social teleology? Are these norms derived exclusively from the will of the legislator or are there other pre-positive sources prior to codification? Reinach and Stein respond to this question in their respective investigations. In what follows, I will concentrate on this point which is, in my view, a central element of any theory of the state.

3  A priori Law vs. Positive Law In The A priori Foundations of Civil Law (Reinach 2010), Reinach, one of Stein’s teachers, tries to show how positive law precedes and underlies an independent, a priori law. Stein, however, speaks of a pure law, which “exists independent of individuals and their organizations” (Stein 1925: 31–32). and “is the same at all times and in all nations; it is a perennial law and it does not emerge in one place or time” (Stein 1925: 24), while positive law “is a creations or arbitrary application and, therefore, is as diverse as convention itself” (Stein 1925: 24). What is the general framework in which this distinction between positive law and a priori or pure law arises? In my opinion, it arises in the rediscovery of a material a priori ontology. Reinach himself refers to this point.6 Husserl, who was Reinach’s and Stein’s professor, believed that one of the philosophical diseases of our time consists precisely in blindness to the a priori and he encouraged his disciples to rescue the a priori wherever philosophical interest is at stake, namely, in ethics, logic, knowledge theory, law, etc. In this order of things, one of Reinach’s aims in The A priori Foundations of Civil Law is, precisely, to highlight the ontological peculiarity of these entities whose being is independent of their capture by conscious subjects. In his work, Reinach highlights the peculiar ontological status of objectivities, such as pretensions and obligations that arise from social acts such as promises. For her part, Stein refers to the “particular being of legal objectivities that come from acts with legal effects (such as a claim, obligation, contract)” (Stein 1925: 46).  Edmund Husserl, Ms. F 1 40/178 a.  “Jedem gegenständlichen Gebiet ist eine Sphäre von apriorischem Gehalt, eine A prioriWesensgesetzlichkeit zugeordnet, und diese Sphäre ist vor aller empirischen Feststellung zu untersuchen… Für jede empirische Wissenschaft gibt es eine rationale, die Wesenszusammenhänge, apriorische Notwendigkeiten, Möglichkeiten, Unverträglichkeiten u.dgl. aufstellt.” (Reinach 1989: 440). 5 6

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At this point, it seems safe to say that the spirit of Reinach’s as well as, I dare to say, Stein’s, a priori material foundation of law is constituted by a negative response to the following question: does the diversification of positive law mean that ­specifically legal formations (think, for example, of property, claim, obligation, representation, etc.) do not have a being independent of legislative action in particular, and of the men who understand them in general? As shown here, both authors maintain that, in the face of the variability of positive law, there are legal formations whose beings are independent of the former. In short, a priori law, deploying Reinach’s terminology or pure law in Stein’s, is independent of time and is, in this sense, eternal.7 However, classical theories regarding the foundation of natural law also offer a negative response to the above question. Reinach himself recognized the existing commonalities between his a priori theory and classic natural law theories: The natural law philosophers were quite right to assume that the binding force of contracts needs no enactment on the part of the state or any other factor. They are quite right to speak in general of legal structures which exist and can be investigated independently of the existence and of the investigation of the state and its positive enactments (Reinach 2010: 137).

Therefore, the theories of a priori law or pure law and natural law share a defense of the existence of certain elements that are pre-positive, a priori, and independent of legislative action; however, both Reinach and Stein energetically reject the classical theory of natural law.8 In this sense, Stein affirms the following: “No such ‘natural law’ exists. Pure law exists independently of individuals and their organizations” (Stein 1925: 31–32). She also argues that “natural law” amounts to “a mis-

7  According to Schuhmann, the difference between Stein and Reinach is more about how pure or a priori law is translated into positive law: “Mit Reinach weiß Stein sich darin einig, dass es neben dem positiven Recht ein ungesetztes zeitloses Recht gebe. Im Unterschied zu ihm ist das positive Recht eine temporär gültige Setzung durch Akte der Bestimmung. Urheber dieser Setzung ist der Staat, der aber als solcher keine setzenden Akte vollziehen kann, da er keine Person im natürlichen Sinne ist. Es sind vielmehr immer bestimmte Individuen, die als Vertreter der übrigen Staatsmitglieder diese Akte der Rechtssetzung vollziehen.” (Schuhmann, K., “Edith Stein und Adolf Reinach,” in Selected Papers on Phenomenology. Edited by C.  Leijenhorst and P.  Steenbakkers, Springer, New  York 2005, 182.) Stein wrote as follows, “Every law seeks to establish standards for people’s behavior. The ‘validity’ of law signifies that this pretension has been recognized. Now, this validity is basically different from the existence of pure law. It designates a temporary reality, which has a beginning and an end, and which is linked to a sphere of validity. Pure law and the positive law with the same content relate to each other as essence and fact.” (Stein 1925: 25). 8  Eduardo González di Pierro recently maintained that Stein, like Reinach, rejects natural law theory, even though he does not completely agree with her. González di Pierro sees Stein’s critique as stronger than that of Reinach. For my part, I don’t think there are major differences between the two. Cf. González di Pierro, E., “The Influence of Adolf Reinach on Edith Stein’s Concept of the State: Similarities and Differences,” in Calcagno, A. (ed.), Edith Stein: Women, Social-Political Philosophy, Theology, Metaphysics and Public History: New Approaches and Applications, Boston Studies in Philosophy, Religion and Public Life, Springer, New York, Dordrecht, London 2016, 104.

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taken interpretation of pure law” (Stein 1925: 58). For his part, Reinach offers a series of objections to natural law theories. In his efforts to distinguish his a priori theory from natural law theories, he seems, in my opinion, to worry about his theory being seen as a version of natural law theories. This “fear” is rooted in a consideration of – in Reinach’s view – the normative character of these theories with respect to positive law. In short, natural law theory shares with Reinach’s a priori theory of law and with the theory of pure law an a priori stance, but they fundamentally differ by virtue of their normative character with respect to positive law. This normative character is connected with the fact of operating with a priori material. According to Husserl, natural law theories try to “give content” to positive laws which, according to him, would be wrong. For its part, the a priori part of which the a priori theory of law is concerned is formal. In the same way that formal logic is concerned with the mere forms of propositions, the a priori theory of law is nothing more than a theory of the “formal norms of legality.” Reinach maintains that theories of natural law have a predominantly normative interest in that they point the way for the legislator under all circumstances. This point of view is supported by a quotation from the Holtzendorffs Enzyklopädie der Rechtswissenschaft in which natural law is described as: … a law independent of human formulations and when it appears in these formations only appears imperfect; that is based on a higher moral ordering of the world and life and that is destined to serve as a guideline for existing criticism and development.9

For their part, the a priori laws of which Reinach speaks are simple laws of being; they are not derived from the shared human nature of the beings that discover them. These are laws that, originally, do not have a normative character,10 but rather are theoretical, such as laws about what constitutes a promise or obligation. In this sense, one can speak about the “nature” of legal entities in the same way as promise, obligation, claim, etc. Relatedly, and as J.M. DuBois highlights, Reinach argues that the universal validity of these laws “has nothing to do with their being ‘implanted by nature’ in all human beings and this is the case for two reasons. First, because these laws can be understood in themselves (they do not need to be implanted) and, second, because not all human beings recognize them” (Dubois 1995: 340). They are, then, “simple laws of being” or laws based on the essence of action and the essence of legal formations. Here, as Sophie Loidolt points out, Reinach is not interested in the content of claims and obligations, but rather in their logic. His analysis must, therefore, be carefully separated from the sphere of morality or anthropology. In this way, Reinach inaugurated, according to Loidolt, “a field of ‘juridical legalities’ that exist independently of all ‘nature,’ of human knowledge, human organization and,

9  Holtzendorffs Enzyklopädie der Rechtswissenschaft, 2. edition, 3 (cited by Reinach, A., “Die apriorischen Grundlagen der bürgerlichen Rechtes,” in Gesammelte Werke, 274 (Los fundamentos aprióricos del Derecho civil, 223). 10  The same happens with the laws of logic.

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above all, of the world’s factual development” (Reinach 1989: 278; Loidolt 2010: 83). Reinach’s attempt to explain the meaning and fundamental structures of law starting from simple ontological laws that are not originally normative has received its fair share of criticism. The first and most obvious critique points to the contradictory nature of the concept of “non-normative law.” In what sense can we speak of a law that is not a norm? It is not easy to respond to this objection, but I think that most authors who employ it ignore the philosophical background of the concept of “ontological law.” This is nothing other than Husserl’s critique of logical psychologism, that is, of the interpretation of logical laws as psychological laws. Husserl sought to highlight the “strategic” mistake made when criticizing logical psychologism, insisting on the normative character of the laws of logic, as did the Kantians of his time. The supreme logical principles such as contradiction, excluded middle, sufficient reason, etc. are not, according to Husserl, originally norms that tell us how we should think, if we want to reach the truth. Certainly, the laws of logic admit normative turns (i.e., if you want to reach the truth, you must not consider two contradictory judgments as true at the same time) but, originally, they are purely theoretical laws. Put more generally, all normative science is ultimately based on theoretical science. The same happens in the field of law. This explains Reinach’s attempt to justify the significance of the fundamental structures of law starting from “simple ontological laws” which, in the final analysis, are theoretical rather than normative in nature. This imposes, according to various interpreters, an important distinction with respect to the tradition of natural law. For Reinach, it is not about content based on “correct law” (seinsollende Inhalte “richtigen Rechts”), but rather on fundamental formal conditions and relationships (for example, “how” a legal claim arises). In consequence, acccording to Loidolt, a theory of natural law cannot be derived from Reinach’s a priori theory of law and, therefore, Reinach’s attempt should be characterized as a law of reason (Vernunftrecht) and not as natural law (Naturrecht) (Loidolt 2010: 109). Reinach’s unique contribution is found in having opened a “third way” in the antagonism between positive law and natural law. A priori objectivities, such as promises for example, are in this context “formal.” I share Loidolt’s conviction that the a priori theory of Reinach’s law and the theories of natural law are very different; however, to argue that Reinach’s a priori theory is a “third way” and significantly differs from legal positivism and natural law is not terribly convincing. This is so because this position’s characterization of natural law which, in the final analysis, mirrors Reinach’s very contribution, seems superficial. To insist on linking natural law with morality or with human nature’s definition does not quite make it radically different from a priori law. Are both spheres really so different? Is the difference between the two that the latter has to do with legally relevant, but axiologically neutral structures while natural law deals with non-neutral rights from the axiological point of view? Reinach’s arguments to distinguish radically a priori law from natural law do not seem convincing to me. This is so for two main reasons.

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In the first place, and still running the risk of falling into the same problem that I see in Reinach’s criticism, I think that his criticism of natural law theory is, as I mentioned, somewhat superficial. Certainly, to speak of natural “law” means moving within the scope of a normative discipline; however, the other side of natural law is a clear “theory” about, for example, human nature – what human beings are, but not in the sense of their contingent factual constitution. Is not Reinach also concerned about what things are and about the binding character of, let us say, the nature of things? Legally obliging someone to keep a promise, and protecting the recipient of that promise, seems to ultimately be based on the nature of promises. Would it make sense to sincerely offer a promise, but at the same time not intend to fulfill it? If so, this would imply a contradiction in the nature of a promise and in its very definition. The heart of the matter here, I insist, comes down to what is meant by nature and natural in the term “natural law.” It seems very superficial to interpret, as many do, “natural” as synonymous with “innate.” The natural inscription of this law on the human heart does not seem to point to an innate impression. It is not about “universal consent” or the physical or psychic nature of man. It neither refers to “the representation that the human conscience forms of the function of social relations and their economic demands”11 where “human conscience” means the collective or universal conscience, the “average conscience,” nor concerns a factual question, in the sense of contingent.

4  Conclusion I would like to conclude this analysis by going back to the Husserlian conception of the state and pointing out a related problem that some of his most exceptional interpreters have noted. It is worth mentioning here, as Schumann does, that: Husserl often expressed his ideas in this regard in texts oriented towards other topics, such that he only gave the problem of the state a subordinate role. Furthermore, in both Husserl’s publications and his posthumous manuscripts, a kind of fundamental text on the philosophy of the state that could serve as a guide is missing (Schuhmann 1988: 143).

Considering the foregoing claim and, above all, that the ultimate “place” of the Husserlian theory of the state is found in his theory of intersubjectivity, a preliminary concern arises: a critique of the idea of the state in Husserl would be installed, ultimately, in the Husserlian theory of intersubjectivity or at least in the method that Husserl follows in it (Schuhmann 1988: 143). “And here,” as Schuhmann points out, “For a long time, one has been able to detect the Husserlian theory’s original sin and handicap, in which the Other must be ‘constituted’ in the world of primordial expe-

 Asquini, “La natura dei fatti como fonte di diritto”, in: Arch. Giur., LXXVI, 1921, 129–167, cited by Bobbio en “Über den Begriff der ‘Natur der Sache’”, in: Kaufmann, A. (ed.), Die ontologische Begründung des Rechts, Wissenschaftliche Buchgesellschaft, Darmstadt 1965, 87–103.

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rience of each ego” (Schuhmann 1988: 143). We must recall that, in this sense, the other always appears as an alter ego, as a modificatum of the constituent self and different socialities or communitarizations. The state is found among these, as parallel to this egological structure, but on a higher level. As Anthony Steinbock points out, Just as my primordial sphere is immediately accessible and the source for the sense alter ego, so too is a community of egos (an original We) the constitutive foundation for an other We. Due to the basic structure of the egology present in the Fifth Meditation, the relation of the intersubjective cultural milieus is explicated in terms of a one-sided relation of foundation (Steinbock 1995: 75).

Given this state of affairs, I wonder if we should broaden this perspective that, in the final analysis, is Cartesian. As Steinbock also shows, Maurice Merleau-Ponty tried to point out the need to reverse how we proceed with this perspective and, instead of going from one to the other, to pose the problem of the other as a particular case of various others (Merleau-Ponty 1964: 113ff). Thus, if the other is only accessible from a constellation of others, a phenomenology of intersubjectivity should take as its starting point these “constellations of others,” among which the state is found. These considerations lead Steinbock to argue that philosophies of the social that are based on an egological model cannot offer a significant contribution. As he writes: For phenomenology in particular it means that one must abandon a Cartesian method altogether in all its forms, one can no longer begin with a phenomenology of intersubjectivity from the intuitive-reflective givenness of consciousness, but must take its bearings from the pregivenness of the world through a regressive procedure, that is, from the difference between static and genetic method (Steinbock 1995: 76).

This step from a static phenomenology to a genetic phenomenology of intersubjectivity is needed, in my opinion, to give a full account of the state; however, exploring this in detail surpasses the limits of this contribution and serves as the starting point for future research.

References Asquini, A. 1965. La natura dei fatti como fonte di diritto. Arch. Giur., LXXVI, 1921, 129–167, cited by Bobbio, N., in “Über den Begriff der ‘Natur der Sache’” in: Kaufmann, A. (Ed.), Die ontologische Begründung des Rechts, Wissenschaftliche Buchgesellschaft, Darmstadt, 87–103. DuBois, J. 1995. Judgment and Sachverhalt: An Introduction to Adolf Reinach’s Phenomenological Realism. In Phaenomenologica. Dordrecht: Kluwer. González di Pierro, E. 2016. The Influence of Adolf Reinach on Edith Stein’s Concept of the State: Similarities and Differences. In Edith Stein: Women, Social-Political Philosophy, Theology, Metaphysics and Public History. New Approaches and Applications, Boston Studies in Philosophy, Religion and Public Life, ed. Antonio Calcagno. New  York/Dordrecht/London: Springer.

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Hart, J. 1992. The Person and the Common Life. Studies in a Husserlian Social Ethics. Dordrecht: Springer/Kluwer. Husserl, E. 1956. Erste Philosophie (1923/4). Erste Teil: Kritische Ideengeschichte. Husserliana VII. Ed. Rudolf Boehm. Der Haag: Martinus Nijhoff. ———. 1970. Die Krisis der europäischen Wissenschaften und die transzendentale Phänomenologie. Eine Einleitung in die phänomenologische Philosophie. Hrsg. von W. Biemel. 2. Auflage, Husserliana, Band VI. Der Haag: Martinus Nijhoff 1976 (The Crisis of European Sciences and Transcendental Phenomenology. An Introduction to Phenomenological Philosophy. Trans. D. Carr. Evanston: Northwestern University Press. ———. 1973a. Zur Phänomenologie der Intersubjektivität. Texte aus dem Nachlass. Erster Teil. 1905–1920, Hua XIII. Ed. Iso Kern. Der Haag: Martinus Nijhoff. ———. 1973b. Zur Phänomenologie der Intersubjektivität. Texte aus dem Nachlass. Zweiter Teil. 1921–28, Hua XIV, Hrsg. v. Iso Kern. Der Haag: Martinus Nijhoff. ———.. 1983. Ideen zu einer reinen Phänomenologie und phänomenologischen Philosophie. Erstes Buch. 1. Halbband. Allgemeine Einführung in die reine Phänomenologie. Text der 1.-3. Auflage. Hrsg. v. K.  Schuhmann, Husserliana III/1. Martinus Nijhoff 1976 (Ideas pertaining to a Pure Phenomenology and to a Phenomenological Philosophy. First Book. General Introduction to a Pure Phenomenology. Trans. By F.  Kersten, Martinus Nijhoff Publishers, Dordrecht. ———.. 1989. Ideen zur einer reinen Phänomenologie und phänomenologischen Philosophie. Zweites Buch: Phänomenologische Untersuchungen zur Konstitution. Husserliana IV, Hrsg. v. Marly Biemel. Der Haag: Martinus Nijhoff 1952 (Ideas Pertaining to a Pure Phenomenology and to a Phenomenological Philosophy. Second Book. Studies in the Phenomenology of Constitution. Transl. by R.  Rojcewicz and A.  Schuwer, Kluwer Academic Publishers, Dordrecht. ———. 2014. Grenzprobleme der Phänomenologie. Analysen des Unbewusstseins und der Instinkte. Metaphysik. Späte Ethik (Texte aus dem Nachlass 1908–1937), ed. Hua XLII, Hrsg. v. Rochus Sowa and Thomas Vongehr. New York: Springer. Loidolt, S. 2010. Einführung in die Rechtsphänomenologie. Eine historisch-systematische Darstellung. Tübingen: Mohr Siebeck. López, M.C. 1994. Intersubjetividad trascendental y mundo social. Enrahonar 22. Merleau-Ponty. 1964. In Le visible et l’invisible, ed. Claude Lefort. Paris: Gallimard. Reinach, A. 1989. Einleitung in die Philosophie. In Sämtliche Werke, Textkritische Ausgabe, ed. Karl Schuhmann and Barry Smith, vol. I. München: Philosophia Verlag. ———. 2010. Los fundamentos a priori del Derecho civil. Edición, traducción y estudio preliminar de Mariano Crespo, Comares, Granada. Schuhmann, K. 1988. Husserls Staatsphilosophie. Freiburg: Karl Alber. ———. 2005. Edith Stein und Adolf Reinach. In Selected Papers on Phenomenology, ed. C. Leijenhorst and P. Steenbakkers. New York: Springer. Stein, E. 1925. Eine Untersuchung über den Staat. Jahrbuch für Philosophie und phänomenologische Forschung 7. Steinbock, A.J. 1995. Home and Beyond. Generative Phenomenology after Husserl. Evanston: Northwestern University Press. Strasser, S. 1975. Grundgedanken der Sozialontologie Edmund Husserls. Zeitschrift für philosophische Forschung Bd. 29, H. 1 (January–March) Mariano Crespo obtained his PhD in Philosophy from the Complutense University in Madrid in Spain. He has been professor at the San Damaso Ecclesiastical University and at Francisco de Vitoria University, both in Madrid. From 1995 to 2004, he was assistant and then associate professor at the International Academy of Philosophy in the Principality of Liechtenstein. From 2005 until 2013, he was associate professor at the Philosophy Department of Pontificia Universidad  

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Católica de Chile. Since 2013, he has been a research fellow of the Group “Emotional Culture and Identity” of the Institute for Culture and Society at the University of Navarra. He has also been visiting scholar at the Husserl Archives of the Catholic University of Leuven in Belgium and at the Phenomenology Research Center of Southern Illinois University in the United States. He is the author of the books Das Verzeihen. Eine philosophische Untersuchung (2002), El valor ético de la afectividad. Estudios de ética fenomenológica (2012), and, with U. Ferrer, Die Person im Kontext von Moral und Sozialität. Studien zur frühen phänomenologischen Ethik (2016).

Woman and the State in Edith Stein’s Thought Eva Reyes-Gacitúa

Abstract  In 1932, Edith Stein was invited to work at the German Institute for Scientific Pedagogy in Münster, Germany. There, she critically examined various problems associated with the education of women in her Probleme der neueren Mädchenbildung. Earlier in 1921, she devoted herself to an in-depth analysis of the state, which resulted in her work Eine Untersuchung über den Staat. Her investigation of the state drew from her early work about community in her Philosophy of Psychology and the Humanities, written in 1919. Drawing from these works, this article analyzes Stein’s concept of woman from the fundamental standpoint of public and political life. Keywords  Public opinion · Women’s education · Politics · Community · Feminine particularity

In March 1931, Stein gave up teaching in Speyer, Germany, devoting herself instead to research and to responding to several conference requests. In 1932, close to Easter, she received an invitation to work at the German Scientific Institute of Pedagogy at Münster. There, she would have the chance to conduct a critical examination of a series of problems focused on women’s education, the results of which appeared in her work “Problems of Women’s Education.” In her letter to Roman Ingarden dated March 9, 1932, Stein refers to this study (Stein 2002a: 959). Her various conference presentations were collected and edited in a 1959 publication called Die Frau. Ihre Aufgabe nach Natur und Gnade. According to Hanna-Barbara Gerl-Falkovitz, “There, she reveals an attentive and independent reading of issues concerning women and she certainly covers the real scope of the problem from political, social, philosophical-anthropological, ecclesiastical, canonical and theological perspectives” (Gerl-Falkovitz 1998: 753).

E. Reyes-Gacitúa (*) Departamento de Teología, Universidad Católica del Norte Antofagasta, II - Antofagasta, Chile © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_2

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By the time Stein wrote her work on the state, Germany had lost World War I.  Once the monarchy was defeated, a democratic period was established by the Weimar Constitution, which lasted from 1919 to 1933; however, the German peoples’ road to sovereignty was not exempt from political and social difficulties as well as a considerable economic crisis, which would eventually promote the rise of Hitler and the Nazi Party (Polakiewicz 1993: 31–33). It is important to mention that both the Weimar Constitution and the St. Paul Church Constitution (1848–1849) considered fundamental rights as necessary and constituent foundations for the state (Polakiewicz 1993: 30). The great issues of this time revolved around the concepts of community, the nature of the state, women’s right to vote, human dignity, property, etc. It was during the Weimar Republic that Stein wrote “Individual and Community” (the second part of Philosophy of Psychology and the Humanities) and An Investigation Concerning the State. She also delivered a series of lectures about other issues of her time. Stein’s text, “Problems of Women’s Education,” is well preserved and divided into five chapters (Stein 1996: 451–453). This paper tackles four fundamental tasks discussed in the aformentioned text: First, to give an account of women’s situation in this period by analyzing their position regarding the general state of affairs; second, to describe women’s thought on their nature and the uniqueness of their powers; third, to make a proposal about women’s education; finally, to explore the relation between education, women, and the state. Based on these elements, I will discuss the feminine (das Weibliche) by analyzing it from the viewpoint of certain fundamental issues of public life, politics,1 and the state itself.

1  Woman, Private Life, and the State Stein understands that professional work connects most women with public life. In fact, certain professions place women in positions of great responsibility, often at national and local levels (Stein 1996: 175, 2000: 133). They are also engaged in social or educational professions with deep involvement in health care and the maintenance of popular cultural customs and traditions. They contribute to society, eager to do what is best and with a deep feeling of responsibility (Stein 1996: 176, 2000: 133). Certainly, years of poverty influenced women’s opportunities, confining them to a life of domestic work. According to Stein, women were also affected by the consequences of the war (Stein 1996: 176, 2000: 133) as various political and social phenomena directly influenced families and women in general, for they were forced to share the fate of the state (Stein 1996: 176, 2000: 133). These phenomena are linked to the domestic, professional, and daily lives of individuals. Stein remarks, 1  Stein provides a definition of politics. She says it can have three meanings. It can first refer to the whole of the state’s activity; second, in a stricter sense, there is the nature of the state’s self-organization; finally, politics does not refer to the action of the state itself, but to the efforts of individuals and groups to give the state a certain form to force it to do certain actions.

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Today, only a few human beings in Germany have not experienced the extent to which our families’ professional work, earnings, household economies, living standards, and vital sustenance are related to the general economy and the internal and external situation of the state (Stein 1996: 176, 2000: 134).

By observing life in Germany, Stein highlights that each individual is “a cobearing member of a large social body” (Stein 1996: 176, 2000: 134). She is emphatic when stating that, “For a rational human being, it must be clear that he/she is also a co-­responsible member of a whole” (Stein 1996: 176, 2000: 134). From this co-­responsibility, she broadens the discussion of women’s suffrage, which was generally “thought as a serious duty to vote” (Stein 1996: 176, 2000: 134). Even the so-called “politically uninterested” must recognize that the use they make of their own rights is related to the political situation as a whole. This means that, for these women, the fact that their husbands and children may or may not have bread and employment will depend on a certain commitment or apathy toward the whole. So, if they have these opportunities, they will be able to develop and exert their spiritual gifts in addition to being educated and living in faith (Stein 1996: 177, 2000: 134). For Stein, the post-war years increasingly clarified how private life and state life as well as community life and state life are connected (Stein 1996: 177, 2000: 134). An example of this is Europe, where its people suffered together after the war and could re-emerge only by staying united (Stein 1996: 177, 2000: 134). Unlike in her previous An Investigation Concerning the State, in which Stein conducts a phenomenological study of the state’s essence (De La Maza: 2016: 41), in the lecture on girls’ education she addresses concrete history, analyzing and discussing vital issues on women and their relation to the state. According to Stein, a people’s community may tend to a state reorganization, making it necessary to create institutions allowing certain organisms to establish order and stability that privilege common action (Stein 2002b: 631). In this sense, it is natural to adopt either popular or state ways of living in order to facilitate or prevent family flourishing as well as a future for youth (Stein 1996: 177, 2000: 134). Stein considers that the issue of peace and understanding among nations is also a feminine topic as the International Geneva Convention showed on February 6, 1932 (Stein 1996:177, 2000: 134). In this way, the scope of action has extended from the house to the world in a few years. These elements demand an appropriate education, which must train young women to take up their rightful positions in public life and affairs (Stein 1996:177, 2000: 134). The question arises: Can this access to a profession and public life be a threat to women’s place in the institution of family? Is it necessary to neutralize this threat through appropriate female education? (Stein 1996:178, 2000: 134) Regarding this matter, there are some statements from the Church tradition – for example, the encyclical of Pope Pius XI on marriage – in which the Pope states that the first and essential task of a woman is as the heart of the family as a wife and mother. By that time, women were already aware of the dangers of taking responsibility for other tasks, thereby jeopardizing the survival and flourishing of the family (Gerl-Falkovitz 1998: 763). For this reason, Stein says, from a rather daring perspective, that these dangers are to be neutralized through adequate female education.

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In brief, according to Stein, professional work makes women become involved in public life. For this reason, they have been pushed toward vital participation in the life of the state; therefore, the right to vote becomes a serious duty and, in this sense, private life and state life overlap. Stein links this duty with the communitarian anthropological sense of Europe as a whole and of the German nation, in particular. The designation of a co-bearing [Träger] people, of a people’s community, allows the thinking of political stability by means of common action. Thus, women should be prepared for public life and they and the state should be concerned about their education.

2  Public Opinion and the State’s Position on Women Stein seeks to illustrate how the powers that configure the life, nature, and condition of women are thought. In order to do so, she considers “public opinion,” since the ideas and judgments of human beings are conditioned by what is thought and said, thereby making what is thought and/or said (Stein 1996: 180, 2000: 136) particularly relevant since they are believed to carry great practical influence. Stein notes that, until recently, it was thought that women belonged in the home and were not suited for any other activity or work. Through difficult struggles, however, this narrow view could be changed (Stein 1996: 180, 2000: 136). For Stein, it is difficult to know how this restrictive view came to exist, but she understands that opinions and judgments come from each human being. It may be too simple to maintain that certain “leading spirits” coin these opinions and judgments, which gradually push their way into public opinion. Stein sees education as a duty since each of us shapes our time in a certain way, even those she calls leading spirits, because they tend to follow the sense of the masses (Stein 1996: 180, 2000: 136), of mere popular opinion (Stein 2002b: 496). Stein is interested in clarifying the question of how we currently think of women, identifying various ambiguous or equivocal elements in the topic. According to the philosopher, there are many people who do not think, who are influenced by past opinions about the “weak sex” or even the “beautiful sex.” Furthermore, she states “About this weak sex, they cannot speak without a compassionate and even cynical smile, without having reflected more deeply about a woman’s essence or glanced at real and concrete feminine actions,” (Stein 1996: 181, 2000: 136) adding that “[T]here are… isolated romantics whose feminine ideal is painted in sweet colors over a golden background and, because of…this ideal, they would like to prevent… women from experiencing a harsh reality” (Stein 1996: 181, 2000: 136). For Stein, this romantic ideal establishes a strange connection, full of contradictions, with that other brutal position that values women only biologically, which is present among politically powerful radical groups (Stein 1996: 181, 2000: 136). Hence, Stein states that, based on a romantic ideology partly caused by the culture of race and the current economic situation, what is found here is “a cancellation of the progress of the last few decades and a limiting of women to domestic and family

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activities” (Stein 1996: 181, 2000: 136). This indicates that the spiritual essence of woman and the laws of historical development are not taken into account (Stein 1996: 181, 2000: 136), resulting in the confluence of several ill-interpreted elements that have led to a violence against the spirit of women. The acuteness of her interpretation leads Stein to state: “A politics that understands the economic and power factors of social struggle in women may certainly gain ground among women who claim a radical equity with men” (Stein 1996: 181, 2000: 137). However, there are men and women who make efforts to know women’s particularity and specificity in depth through different means, including philosophy, theology, and psychology, among others. Stein claims, then, that women’s diversity is not to be considered an inferiority, but as a particularity, and this particularity is to be accepted (Stein 1996: 182, 2000: 137). Her novel contribution lies in defending the position  that each woman has the capacity to encounter the other as well as oneself (Meis 2010: 35). Concerning the “what is said and thought” of public opinion, Stein wishes to revise judgments and opinions about what is said and thought about women’s nature and condition. She also analyzes the positioning of the state in relation to women. According to Stein, there are important changes. Thirty years prior to Stein’s essay, the state did little for girls’ education compared to boys’ education (Stein 1996:182, 2000:137). There were private middle and upscale schools for girls, which were supported by private interests and state administrations. Since the second half of the nineteenth century, female teachers’ training schools were founded by figures in the feminist movement as a response to the lack of teaching personnel (Stein 1996: 183, 2000: 138); however, for Stein, the difference between male and female education should be framed in what we can now see as a diversified system of general educational institutions and vocational schools, although they are still insufficient and not yet fully exempt from the menacing limitations of the then-current political and economic system (Stein 1996: 183, 2000: 138). Stein illustrates these difficulties by clarifying that, politically and judicially, women were considered similar to children and the psychically disabled. In fact, the 1919 Constitution of Germany gave equity to women, allowing them to become citizens with full rights (Stein 1996: 183, 2000: 138). Later, women became a key element of political power when they achieved the right to vote, a matter that could not be disregarded. Even the passive right to vote gave women the chance to influence state life at high-level positions (Stein 1996:183, 2000:138), given the election or appointment of females to political posts. In short, women’s collaboration was essential for leading positions in which greater experience was necessary (Stein 1996: 184, 2000: 138). The state includes many people, and women are a significant part of the populace; hence, they should be able to participate in the life of the state (Stein 2002b: 598). Women’s presence in public life means that women need a political and social general education to prepare them for civic duties. Here, Stein is thinking of the German people – both men and women – and, particularly, of private preparatory courses for different state jobs that, according to her, demand female work. In sum, Stein’s argument shows how women are thought of and represented in public life. She is interested in distinguishing ambiguous or equivocal elements as ­misinterpreted

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elements have led to violence toward the spirit of women. It is essential to revise what public opinion says and, therefore, analyze the state’s position regarding women. Stein says that there have been important changes, but they are not free from certain threats and challenges.

3  Women’s Education and State Limits Young women’s education is an interesting issue for Stein, since it helps develop her reflection on the nature of women as non-unitary, but differentiated matter (Stein 1996: 188, 2000: 141). This is a methodological criterion that enables her to present the epistemological foundations of her research. According to her analysis, the demand of a very precise purpose behind the reformulation of girls’ education started from the women’s movement itself, which had its genesis in previous struggles in that “the struggle was against women’s education, which was almost exclusively in the hands of men…” (Stein 1996: 191, 2000: 143). German education was different from that of Catholic countries, which kept their monastic teaching institutions and had schools staffed and directed by nuns (Stein 1996: 191, 2000: 143). Stein defends the idea that new laws for a modern suitable education that favor the “essence of women” (Gerl-Falkovitz 1998: 755) must be developed. Stein examines the Reformation, which closed convents and abandoned the religious ideal of virginity, thereby limiting women’s lives to the family and care of the home. The value of women was measured according to their conditions as wives and mothers. Women were not allowed to lead active public lives and were deprived of relevant educational opportunities (Stein 1996: 191, 192, 2000: 143). The decay of schools and educational formation also did not help the situation of women. The eighteenth century Enlightenment period raised questions about schools and once again considered the lack of adequate female educational institutions. According to Stein, public schools in the nineteenth century were directed by men who, guided by limited knowledge and other criteria, regulated schools’ organization. Stein explains: It is necessary to make women’s education equivalent to the spiritual formation of men, in the universality of both form and interests, so that German men may not remain connected, due to their short spiritual vision and the hard misery of their wives, to the domesticity of the home and so that women might instead stand by men’s side, understanding their interests and the warmth of men’s feelings toward them.2

In fact, Stein examines texts and relevant writings “…whose deep hidden truth could help justify” the view of women as a helper for men (Stein 1996: 193, 2000: 144). She holds a critical view of these affirmations and maintains that “they appear

2  (Stein 1996:192; 2000:144) A paragraph quite used by the female movement is cited, which comes from the text to commemorate the first representative meeting of leaders and teachers at girsl’s higher schools for German State authorities (1872).

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as a grotesque, petty-bourgeois parody of the Old Testament ideal. How different they are from the picture of the mulier fortis (Pr 31, 10-31) …!” (Stein 1996: 193, 2000: 144). Gerl-Falkovitz states that “...  still without the auxiliary means of historical-­critical exegesis, Edith Stein works within the textual sources of her convictions, the two Testaments” (Gerl-Falkovtz 1998: 756). Stein attentively listens to the biblical texts, distinguishing with intellectual acuity the Word of God from the vital context of that time (Gerl-Falkovitz: 756). Stein considers that female schools were structured on the basis of general education without providing for the development of women’s own judgment and autonomous activity (Stein 1996: 193, 2000: 144). Hence, she develops an idea of women’s education that might help develop maturity and a free personality within the framework of the ideal of humankind while also educating women in the fruitful collaboration of a life of culture (Stein 1996: 193, 2000: 145). She insists on a general education with special attention to particularly feminine tasks, professional school training, an education that favors a professional ethos, and an introduction to social and state life (Stein 1996: 197, 2000: 147). However, Stein sees certain limitations to this kind of education on account of the state’s influence. This is the case for Catholic educational institutions, which are not free to determine their own goals, whose curricula and educational methods are defined by the state, therefore rendering them under its control (Stein 1996: 200, 2000: 148). She states, therefore, that teaching personnel will present and try to fulfill the requirements of the state. (Stein 1996: 200, 2000: 148). For this reason, non-Catholic, masculine influences have proved determining for educational institutions (Stein 1996: 200, 2000: 148). In this respect, the need to guarantee an educational formation that seeks to develop women’s Catholic education arises. Stein advocates for the creation of free organizations that are capable of developing both  the Catholic and feminine parts; this is understood as having a positive influence on girls’ educational formation (Stein 1996: 200, 2000: 148). In brief, we must pay attention to the following goal, namely, a true Catholic education of young women that emphasizes theoretical foundations as well as practical training. According to Stein, this task cannot be left to others and, for this reason, it must be a purely feminine task.

4  Education and the State For Stein, education is understood as the formation of a human being for a given purpose (Stein 1996: 255, 2000: 184). She continues to consider the importance of who is in charge of this educational task and what it means to accomplish it. To solve this matter, she concentrates her attention on an ecclesial document, namely, Pius XI’s Encyclical Letter Divini Illius Magistri published on December 31, 1929 (the Letter). From this starting point, she highlights some notions and content of the Letter that enable her to delve deeply into the nature of Christian education.

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Stein asks if a human being can train himself/herself to do what he/she wants, according to his/her identity. She replies both  affirmatively and  negatively. As a rational and free being, he/she has the capacity to work on his/her own education; however, from the beginning of his/her existence, he/she does not possess the use of reason and liberty. Until he/she masters these gifts, others will have to work for his/ her education. For Stein, this is the fundamental responsibility for which mankind has been created, in which an individual is a member of this all-encompassing unit (Stein 1996: 256, 2000: 184–185). In this sense, Stein highlights education as the duty of the community (Stein 1996: 256, 2000: 185). Therefore, integrating the whole scope of a student’s existence and concentrating on the notion of a built or formed “self” that is built by oneself will be Stein’s most important starting point regarding human education. The conscious “self” will emerge from this process, she believes (Meis 2016: 9). In this regard, philosophical and educational approaches are profound and fundamental. The encyclical on education had already highlighted the education of human beings as the work of three communities, consisting of two societies of the natural order (i.e., family and state) along with the Church, understood as a community of a supernatural order (Stein 1996: 256, 2000: 185). Stein reaffirms the immediate purpose of the family: procreation and children’s education, understood as “a right that precedes any right of the popular community and state and, therefore, an inviolable right for every earthly power” (Stein 1996: 256, 2000: 185). But the encyclical also indicates the restrictions to which a family is subjected: in terms of an imperfect society, the family does not have the means for its own improvement (Stein 1996: 259, 2000: 187). For this reason, it needs the complementary element of another educational community with greater means (Stein 1996: 260, 2000: 187). So, the state is the second necessary natural society understood as a perfect society “since it includes all the means for attaining its own goal,”3 being entrusted with sovereignty, that is, “freedom for forming and determining itself, and included in this self-formation is the right to govern people who belong to its own domain” (Stein 1996: 260, 2000: 187). Hence, the essence of sovereignty and the state are inseparably linked to one another (Stein 2002b: 569). As an organized power, then, the state can accomplish all the earthly goals of its domain, nurturing them or even blocking them (Stein 1996: 261, 2000: 187–188). For this reason, the existence and flourishing of the institution of the family depend on its protection. To be more accurate, the state has the possibility of being present to the family in its educational and training reality, a fact that will end up, according to Stein, having its own benefit. This is because, through citizens’ education, the state could lead youth and make sure that they are educated with a social and civil mentality. This demands the recognition of the state itself and its rights, which are to be given accordingly in the recognition of citizens’ duties toward the state and their ability to accomplish them (Stein 1996: 261, 2000: 188). This is possible through the acknowledgment of 3  (Stein 1996: 260, 2000: 187). Stein citing the Encyclical Letter Divini Illius Magistri. N° 8, of Pius XI on Christian education for youth. December 31, 1929. The State is cited 65 times in this encyclical.

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certain limitations “of our time where, in the name of state omnipotence, the natural right of the family has been discussed and factually limited, and even totally discarded in a quite determined fashion” (Stein 1996: 257, 2000: 185). Therefore, we must be concerned about the family’s foundations. In this way, citizens are to be “educated as strong, healthy, vital human beings able to achieve goals as far as possible” (Stein 1996: 261, 2000: 188). When this education is provided by another side, that is, by the family or other organizations, the state must empower, take care of, and encourage institutions in a way that they can achieve their goal. Otherwise, it must create the adequate institutions for this purpose (Stein 1996: 261, 2000: 188). Therefore, the state has a non-immediate relation with young people’s education because it is not its immediate goal, unlike the family. Concerning the three original educational communities, the Church, the state, and the family accomplish their goals as far as they remain clear about their corresponding relations, forging ahead and limiting themselves to what belongs to each community, according to each one’s own sense and goal (Stein 1996: 264, 2000: 189). In this context, Stein warns about arbitrary abuse because of the nature of the state and its relation to the Church, conflicts known as the Kulturkampf, which are stoked by the abuse of aspirations by state powers and which are, at the same time, considered attacks against the universal teaching and the right of the Church to educate. Based on this consideration, Stein admits that this universal right can even be deviously exerted by Church representatives themselves. Considering these limitations, one must acknowledge how the different educational communities can conduct their work while taking into account female education (Stein 1996: 264–265, 2000: 190). Finally, Stein maintains that if the state wants to promote educational work, it must find people able to do so, thereby creating the necessary institutions to educate. These institutions will attain the goal of female education (Stein 1996: 268, 2000: 192).

5  Concluding Observations In her study “Problems of Women’s Education,” Stein says that political and social phenomena have directly influenced families and, therefore, women in general have been pushed to become vitally involved in the fate of the state. In this context, the presence of women in public life makes us think of the need for adequate education as preparation for the exercise of civic duties. She poses the question about women from her current situation, understood through contemporary issues. The problem of girls’ education and how it is thought by the state, which has the possibility of being present in girls’ educational and formative reality, immediately emerges. The question about the sense and task of the state in relation to the community remains: a state must acknowledge that it owes its existence to people who exist independently in the unmanageable plurality of individual characters and specific differences. Stein insists on continuing to explore women’s particularity and specificity as

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well as their role as citizens; however, there is the risk of interpreting that reflection as a place of appropriation of the feminine, which Stein does not intend in her argument. In this regard, she advocates for the presence of both sexes, men and women, in educational work and in political and social roles, a view we find repeated in her other texts and supported by biblical texts. Obviously, from the context of her time, she protects the importance of counting on feminine participation, which had previously been absent in other fields. In these texts, Stein does not, however, directly respond to what is particularly feminine. Maybe, in trying to define it, she runs the risk of objectifying and reducing the feminine. Nonetheless, she will directly refer to the elements that make up this specificity, thereby enabling us to think of a feminine idiosyncrasy while probing the essence of the female being to examine the question of woman [das Weibliche]. Stein’s consideration of women and the state sees both realities as mutually enriching one another. It is not possible to think of women apart from citizenship. Restricting women’s presence limits the very political concept of citizenship. Her insights can be corroborated today by the presence of women in public life and the state. As the United Nations perfectly expresses, “There is increasing and established evidence that women’s leadership in political and decision-making processes improve those processes.”4 Translated from Spanish by Rodrigo Navarrete.

References De La Maza, Luis Mariano. 2016. Persona y Comunidad en Edith Stein. Cuadernos de Teología 8: 41. Gerl-Falkovitz, H.-B. 1998. La cuestión de la mujer según Edith Stein. Anuario Filosófico 31: 753. Meis, Anneliese. 2010. Edith Stein y Tomás de Aquino: repercusión sobre la cuestión de la mujer. Teología y Vida 51: 9–37. ———. 2016. La certeza de ser y diálogo formativo en Edith Stein. Cuadernos de Teología 8 (2016): 9. ONU Mujeres In Brief: Women’s Leadership and Political Participation. See more at: http://www.unwomen.org/es/what-we-do/leadership-and-political-participation/factsandfigures#sthash.52Lyu1gt.dpuf. Polakiewicz, J. 1993. El proceso histórico de la implantación de los derechos fundamentales en Alemania. Revista de estudios políticos 81: 31–33. Stein, Edith. 1996. Problemas de la educación de la mujer. In La mujer, su papel según la naturaleza y la gracia. Madrid: Ediciones Palabra. ———. 2000. Probleme der neueren Mädchenbildung. In Die Frau Fragestellungen und Reflexionen, 127–192. Freiburg im Breisgau: Herder. ———. 2002a. Escritos autobiográficos y Cartas, Obras Completas I. Madrid: Monte Carmelo. ———. 2002b. Individuo y Comunidad, Obras Completas II. Madrid: Monte Carmelo.

4  ONU Mujeres “In Brief: Women’s Leadership and Political Participation.” See more at: http:// www.unwomen.org/es/what-we-do/leadership-and-political-participation/facts-andfigures# sthash.52Lyu1gt.dpuf

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Eva Reyes-Gacitúa earned a doctorate in Dogmatic Theology from the Pontificia Universidad Católica de Chile with the thesis El Espíritu Santo, origen de la esponsalidad: En la Expositio super Cantica canticorum de Guillermo de Saint-Thierry. She was the first Chilean woman to receive her doctorate degree from the School of Theology at the Pontificia Universidad Católica de Chile. She also holds a major in Education and is a religion teacher. She worked as a professor and researcher at the Universidad Católica del Norte in Antofagasta, Chile, where she was the director of the UCN Journal Cuadernos de Teología and was in charge of teacher formation and pedagogy. She is the author of several publications. She is a member of the Chilean Theology Society, a member and secretary of the International Association of Patristic Studies, a member and secretary of ALALITE (Latin American Society of Literature and Theology), and a member of the Edith Stein Interdisciplinary Research Center at the Pontificia Universidad Católica de Chile.  

People and State in Edith Stein’s An Investigation Concerning the State Marcela Aranda

Abstract  The emergence of new forms of cultural identity-based nationalism and tensions surrounding both states and the peoples that compose them highlights the importance of a deep understanding of the concepts of state, people, and how they are related. It is for this reason that the German-Jewish phenomenologist Edith Stein’s work Eine Untersuchung über den Staat (An Investigation Concerning the State) is analyzed. In this book, the claim of a people being a community, whose spiritual center emanates its own distinctive culture that expresses its specific character, is justified. This people’s community tends toward a state-based organization, as the state’s sovereignty and objective and legal structure ensure the stability required for its spiritual growth. Nevertheless, a people may subsist without a state. Conversely, the existence of the state is predicated on a foundation based on a people. Without them, its existence is tenuous. Hence, the people has a value of its own, with the state at its service. Keywords  Edith Stein · People · State · Community · Culture

1  Introduction Between 1918 and 1919, Edith Stein led an active political life as a member of the Deutschen Demokratitschen Partei (DDP) [German Democratic Party]. As the democratic election of 1919 drew closer, she attended several conferences in support of the party’s program. Her concern for politics can be seen in her work Eine Untersuchung über den Staat (Stein 2006, 2007), a political philosophical piece with an uncertain completion date, published in 1925. This work is the third in a series of early works in phenomenology and was preceded by Psychische Kausalität and Individuum und Gemeinschaft (Stein 1970). The goal of this paper is to address the concept of “people” and its relationship with the idea of “state,” as described in

M. Aranda (*) Faculty of Theology, Pontificia Universidad Católica de Chile, Santiago, Chile e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_3

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Eine Untersuchung über den Staat. First, the concept of a people, its reality, and its essential features are discussed. Second, we will attempt to reveal the specific bond that exists between a people and the state. In order to achieve this end, the essay will focus on the above-mentioned text, making reference to other authors mentioned by Stein only when appropriate. Any reference made to Stein’s other works will be avoided and limited to draw attention to relevant concepts requiring explanation.

2  A People as Popular Community In order to elucidate what Stein means by a people, it is necessary to explain that this social reality is a “community,” one clearly different from other communities. In small communities, such as a family or a circle of friends, the base of the community comprises fully determined individuals, whose entire personality is bonded to the life of their community, and all of whom are in personal contact with one another (Stein 2006: 19). In contrast, the community of a people is composed of a significant and open amount of people. This means that personal contact between all the members of that community is impossible (Stein 2006: 19). Despite this open-­ ended structure, the lack of personal contact between members must be compensated with an ongoing communication of solidarity between its spatially and temporally disperse constituents. Each member of the popular community must carry its distinguishing sign of membership that represents its people. As happens in every community, a particular people is distinguished by its being a certain type, which leaves a certain imprint on the personal structure of its members that provides the community’s homogeneous character (Stein 2006: 20). In Der Aufbau der menschlichen Person (Stein 2004), Stein states that der Volkscharakter [the character of the people] is expressed “in everything that comprises a given way of life… [as] shown in both its inner and outer conduct” (Stein 2004: 148). In other words, it refers to a people’s own way of being (Stein 2004: 148). This is related to the Volkstypus [type of people], yet these two concepts are not identical, as every member of the sum of a people represents different types of a whole and, also, they show different characteristics depending on the specific type of people to which they belong (Stein 2004: 148). Furthermore, the bonds binding every individual person’s life with its people are as solid as those in smaller communities (Calcagno 2012: 190). It is paramount to maintain a flow of life that incorporates all members; the existence of a consciousness that encompasses the wide diversity of its associated individuals is indispensable – at the very least, it must be present in part of its members (Stein 2006: 20–21). Another idea discussed by Stein is the number of individuals necessary for a people to be formed. She establishes that a process of growth of excessive intensity may result in the fracture of the people’s unity (Stein 2006: 25). This might happen due to a population increase caused by reproduction alone without a corresponding territorial expansion; in this case, economic concerns might act as an incentive for

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migration or colonization. This, consequently, leads to the detriment or loss of a people’s bonds, its essence, and homeland; further adaptations to new life ­conditions might imply changes to the original type, with the final effect of the creation of a new type (Stein 2006: 25). If, in this process, the state expands by means of conquest or absorption of other people, it loses its national state character or, in scenarios of assimilation, this assimilation might mean a profound change of that people’s original character. In the latter case, this means not just transformation, but also the creation of an entirely new form. Vast territorial expansion would subject that nation’s population to such different life circumstances and types of ends that, in time, it will end up breaking the people’s unity (Stein 2006: 25). Consequently, in order to speak of a single people, the number of individuals that form it must be neither excessive for a small size of land nor exiguous on a vast amount of land. In both cases, the integrity of the people would be threatened. The former would face the threat of emigration, while the latter would have to deal with communication issues. In both cases, a disparity of ways of life emerges between distant communities, leading to the fracture of a people’s unity due to the creation of new types. Now, the question arises: What is the character of a people? Stein states that the imprint of a popular community  – its distinctiveness in relation to other sorts of communities – is that a culture of its own is born out of it. Indeed, a community as vast and malleable as a people can be considered a community of people if and only if it gives birth to einer bestimmten Kultur, a culture determined by its spezifischem Charakter [specific character] (Stein 2006: 20). Stein explains that each culture is a self-contained cosmos of its own, its limits outwardly defined, that bears spiritual goods understood either as independent objects, such as works of art and science, or as stylized ways of life highlighted by particular individuals. This cosmos adheres to a spiritual center, its origin. This center is a creative community, gifted with a particular and specific spirit that has an effect displayed in all its products (Stein 2006: 20). In regard to a culture and its character, Stein shares the views of Oswald Spengler, who, in Untergang des Abendlandes. Umrisse einer Morphologie der Weltgeschichte [The Decline of the West] (Spengler 1918), maintains the symbolic character of all cultural forms and insists on the existence of the “soul” that they create (Stein 2006: 20). Indeed, Spengler states that “the great cultures are entities, primary or original, that arise out of the deepest foundations of spirituality” (Spengler 2018; 169–170). Later, he adds that “peoples are but the symbolic forms and vessels in which the men of these cultures fulfil their destinies” (Spengler 1918: 170). Consequently, the main character of a given people and what differentiates it from other communities is its geistes Zentrum [spiritual center], from which a distinctive culture of its own emerges, one which fits its specific character. This means that what distinguishes a people is its own creative spiritual dynamisms, from which a cosmos of its own spiritual goods emerge. Stein argues that a geistiger Kosmos [spiritual kosmos] is related to the idea of Totalität [totality], and that this latter concept is itself based on the representation of a world of values that form a whole (Stein 2006: 25). Hence:

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M. Aranda With a cultural cosmos, you can’t talk about a totality unless all of the cultural areas are represented in it by some works or some other objective intellectual by-products. Moreover, the discrete areas within a culture can and will be distinguished by the greater or lesser significance and originality of the works representing them. This distinguishing is the expression of the particular distinctiveness of the cultures and of the “personalities” standing behind them (Stein 2007: 31).1

This means that the number of individuals who are part of a single people must be sufficient to give rise to this totality. Otherwise, a “hollowness amidst the totality” occurs (Stein 2006: 26). Indeed, The community that stands behind a culture as a comprehensively productive personality must be so extensive that in it, to a certain degree, all partialities balance out and work together. For all the requisite abilities to develop, a certain differentiation of the life conditions of individuals and groups, all of whom are supposed to work as components in the unity of the culturally creative personality, must occur. Too great a uniformity of natural conditions, for example, the limitations of the narrow territory of a city-state, seems to stand in the way of this necessary differentiation. We can obtain further information about this by investigating the interrelation between land and people (Stein 2007: 31–32).2

Thus, whenever a number of members is sufficient, the diversity of individual contributions adds to the rise of a culture. Conversely, a single individual person is incapable of giving rise to a complete culture. The individual person cannot be productive in all domains, thus, is unable to create a total culture (Stein 2006: 26); this is also true for societies, as they develop limited domains of values (Stein 2006: 26), and associations created by affinity, such as family and friends, due to a lack of broadness of interests (Stein 2006: 26). Small communities, like social classes or families, may create their own “cultural microcosm” (Stein 2006: 21). In this particular case, smaller communities are not substantially affected, if their participation is reduced to being part of the surrounding culture, without nourishing it, or if the communities collaborate with the culture only in terms of being a part of a greater group, not as an autonomous unit (Stein 2006: 21).

1  “Bei einem kulturellen Kosmos kann man nur dann von Totalität sprechen, wenn alle Wertgebiete in ihm durch irgendwelche Werke oder sonstige objektiv-geistige Niederschläge vertreten sind; dabei können und werden die einzelnen Gebiete innerhalb einer Kultur sich durch die mehr oder minder große Bedeutung und Originalität der sie repräsentierenden Werke unterscheiden, und in diesen Unterschieden kommt die besondere Eigenart der Kulturen und der hinter ihnen stehenden ‘Persönlichkeiten’ zum Ausdruck.” (Stein 2006: 26). 2  “Die Gemeinschaft, die als allseitig produktive Persönlichkeit hinter einer Kultur steht, muss so umfassend sein, dass in ihr alle Einseitigkeiten bis zu einem gewissen Grade zum Ausgleich und Zusammenwirken kommen. Zu der Ausbildung aller erforderlichen Fähigkeiten gehört eine gewisse Differenzierung der Lebensbedingungen für die Individuen bzw. Gruppen von Individuen, die als Teilkräfte in der Einheit der kulturschöpferischen Persönlichkeit wirken sollen; zu große Einheitlichkeit der Naturbedingungen z.B. -wie sie bei der Einschränkung auf das enge Landgebiet eines Stadtstaates vorliegt- scheint dieser notwendigen Differenzierung im Wege stehen.” (Stein 2006: 26).

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Hence, a people is a community with productive spiritual forces that possesses its own form of creativity, which is expressed through the works of its culture (Stein 2006: 31) and the culture of a people is essentially a culture creator (Stein 2006: 31). Indeed, if that spiritual creative force dies, the character of the people is also ­annihilated (Stein 2006: 31). Therefore, what specifies a given people is its kulturelle Autonomie [cultural autonomy] (Stein 2006: 31). A culture, however, may be composed of a set of peoples. This scenario is named Kulturkreis [cultural circle] (Stein 2006: 31). The community behind a cultural cosmos might include, in principle, more elements than a single given people; a cultural circle might be made up of a group of peoples in a given time or throughout different periods (Stein 2006: 20–21). Along the same lines, regarding the relationship between people and land, Stein states: On the other hand, there are geographic units that—joined in a series of partial individuals—are so extended that several peoples emerge within them. Then there is one unity encompassing peoples which, inasmuch as it has to do with a unity of type, falls under the concept of race. If one intellectual community encompassing the closer communities develops out of that, then we can speak of a cultural sphere founded upon the unity of race. (The cultural sphere can in principle extend even beyond the limits of the racial unity thus broadly extended) (Stein 2007: 133).3

Stein’s concept of “race” is related to a personal type, influenced by a given environment, and stands as a specific cultural realm, even though it is clear that this cultural realm might include more peoples than the ones composed by that race. It should be remarked here that Stein considers history as the development of the life of the spirit, from which cultures take form (Stein 2006: 97). Cultures, in turn, give rise to peoples. This is the reason why history must involve, necessarily, the study of peoples, as kulturschaffende Persönlichkeit [culturally created personalities] (Stein 2006: 97).

3  The People-State Relationship In order to identify the possibility of a relationship between people and state, Stein analyzes whether both realities are different from one other or whether they are the same reality. First, she explores the structure of popular communities and ponders if state attributes can be seen in them and in their own dynamics, attributes that reveal a connection between them. Second, she analyzes what separates them.

 “Es gibt geographische Individuen, die -in eine Reihe von Teilindividuen gegliedert- so ausgedehnt sind, dass mehrere Völker innerhalb ihrer Grenzen entstehen. Es gibt dann eine diese Völker umspannende Einheit, die, soweit es sich um eine Einheit des Typus handelt, unter den Begriff der Rasse fällt. Erwächst darüber hinaus eine die engeren Gemeinschaften umfassende geistige Gemeinschaft, so können wir von einem auf die Rasseneinheit gegründeten Kulturkreis sprechen. (Prinzipiell kann der Kulturkreis auch noch über die Grenzen der so weit ausgedehnten Rasseneinheit hinausgreifen).” (Stein 2006: 97).

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3.1  Community and State Organization A popular community tends towards state organization (Stein 2006: 97). The philosopher gives two reasons to justify this claim. First, this tendency may be a response to the need for protection against threats that might put the community at risk (Stein 2006: 97) and, second, because a people’s particular imprint of creative, active community demands stability and order for that activity and creativity to occur (Stein 2006: 97). In the case of small communities, individuals keep in contact with each other, Stein adds, so that they may live without resorting to a state order, as this small circle gives allowance for each member to contemplate the entire group and the significance of every member for its integrity, which ensures holistic behavior (Stein 2006: 111). Nevertheless, whenever a community reaches a certain number, as it happens in the case of a people, [h]ere, institutions become necessary, at least those which make possible an overview of the needs and powers of the community for certain agencies to be developed specifically for that, and a fixed system for the execution of the collective decisions and transactions. This systematization and institutionalization is a matter for a system of positive law (Stein 2007: 153).4

Thus, the community’s need for forming a state is linked to the ability of that state to provide an objective and legal order through its institutional structure. For Stein, the value of the legal order lies in the attainment of the community’s total development. This is why the state in itself has no value: its value lies in its support of a community of people. Stein argues that a people’s life is developed to a large extent by means of impulsive actions and decision-making (Stein 2006: 53). Additionally, a people, as a personality empowered with creativity, verlangt nach einer Organisation [demands an organization], which allows it to live according to a legality of its own (Stein 2006: 32). Therefore, peoples are exhorted by the meaning of their organization to form a state (Stein 2006: 91), as the state is able to ensure the free development of people and communities under its charge (Stein 2006: 32). Stein draws an analogical comparison, one between cultural autonomy, a feature of peoples, and sovereignty, a feature of states, in order to justify the necessity of a state for a popular community. She argues that sovereignty is the material foundation (Stein 2006: 21) of a people’s cultural autonomy. In order to understand this statement, we need to explore her concept of sovereignty. Sovereignty refers to an essential characteristic of the state that allows it to control and legislate itself such that no external power may mandate its way of being or life (Lenz-Médoc 1956: 453–454). All actions and laws find their origin in the state; all rights enforced in its

4  “… hier werden Einrichtungen notwendig, die wenigsten für gewisse eigens dafür auszubildende Organe einen Überblick über die Bedürfnisse und Kräfte del Gemeinschaft und eine feste Ordnung für den Vollzug des gemeinsamen Wollens und Handelns. Diese Ordnung und Einrichtung ist Sache einer positiven Rechtsordnung” (Stein 2006: 111).

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jurisdictional domains stem from it; all acts of the group find in the state their starting points (Stein 2006: 21). This implies that: All who belong to the state have a share in that common and so-called formal claim for the observance of civil law. Besides that, there are content-specific claims of individual persons or groups or even of the whole civil community according to the content of the legal regulations and their addressees (Stein 2007: 116–117).5

We observe that Stein’s concept of sovereignty serves as the core of her explanation for why peoples depend on the state to satisfy the need for a stable order and security, as a means to attain a people’s spiritual development, inasmuch as the state holds the indispensable institutional means required for that end. There is no need, then, for all popular communities to aspire to a kind of state customized specifically for them (Stein 2006: 22), Stein indicates. Several peoples can comprise a single state, keeping intact their own respective personalities in such a way that all of them might aim for a state organization that remains mindful of the internal legislation of each individual people (Stein 2006: 22). This means that Stein’s thought holds a place for multicultural states consisting of several communities of peoples. This possibility is predicated on the respect for the personality of each community, holding no preference for one over the other. In this regard, a state and a community of people are not identical. It is also interesting to note that, following my reasoning above, the bond between people and state can occur with peoples that are not recognized by the state, as political functions are inextricably linked to the state. To clarify this point, Stein defines the concept of political functions: Accordingly, wherever political functions are exercised, the state is present as a reality (even if perhaps understood as under development), without any need for the idea of the state to be formulated. This still does not prevent the prevailing view of state and law from influencing the configuration of the concrete pattern (Stein 2007: 86).6

Stein points out three situations where the political functions of the state can be observed in a people: First, when a people is on the path to becoming a state; when a people becomes part of a state and the political functions that the people exert are anchored to it; and, lastly, when they become remnants of the disintegration of a state (Stein 2006: 90). In these situations, political functions in stateless peoples can occur. Stein indicates that the structure of a people may give rise to state-related aspects, even if there is no recognition. Stein adds that government is the central organ of the state. Government is the state power that presents itself though sovereign self-constitution, and is the means

5  “Es gehört ferner dazu, dass es in ihm eine das Staatsganze repräsentierende Macht, die der Urheber seiner Organisation und aller ihrer Umbildungen ist und für die Beobachtung der staatlichen Formen durch alle zu diesem Staat in irgendwelcher Beziehung stehenden Individuen Sorge trägt.” (Stein 2006: Edith Stein, 112). 6  “Unter politischen Funktionen werden wir sinnvollerweise die Leistungen des Staates oder innerhalb des Staates verstehen, die für seine Existenz unerlässlich sind, und unter seinen Organen die Personen oder Körperschaften, deren er als Träger jener Funktionen bedarf.” (Stein 2006: 90).

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by which the state becomes recognizable. The government’s functions consist of directing the state, which implies the organization of state action, legislation, and guidance of the enactment of its regulations and the execution of its orders (Stein 2006: 90). Stein reflects on the question of the meaning of government in instances of non-state communities. A popular community might express strong intentions toward organization (Stein 2006: 90), one that is expressed as the power of commanding orders, enacting legislation, ministering justice, and in appointing a legitimately sanctioned person to promulgate and oversee the application of the law (Stein 2006: 90–91). This presupposes that die staatliche Sphäre [domain of the state] of such a community is felt (Stein 2006: 90), even if no sovereign state power is attributed to it: the community has not yet extended into the realm or domain of the state (Stein 2006: 90). Up to this point, Stein has shown that a people may hold “stateliness,” even if it has not been constituted as a state. This attribute of stateliness may be constituted by specific state functions and some sort of body for decision-making that has the effect of expressing certain state-like features.

3.2  The Possibility of Separation Between People and State Even though stateliness may be found in a community of people, Stein asserts that a people may subsist without a state. She states, in a matter-of-fact way, that a non-­ state community may take measures leading to the betterment of the people and establish authorities to carry them out. But, these communities do not collapse when faced by a lack of a central body (Stein 2006: 90). She adds: Think of a village commune whose members do things as a community (cultivate their field, celebrate festivals, and the like). Thus the commune makes its appearance as a whole, and there is no agency that represents this whole and manages its activities. Its existence requires no operative norms to govern its life, and therefore also no source to issue such norms and no executive arm to provide for their enforcement. The sphere of state is completely missing here (Stein 2007, 123).7

There arises the possibility, therefore, of a people that is not a state; moreover, they are separable insofar as a people may exist even after facing the disappearance of the sovereignty of the state, resulting in the very disappearance of the state itself (Stein 2006: 17). The grounds for this argument lie in the consideration of a people as a spiritual community, one that does not require a state to receive its spiritual contents, as this spirituality emanates from the culture-making dynamism. A people 7  “Man kann sich eine Dorfgemeinde denken, deren Glieder gemeinschaftlich handeln (ihr Feld bestellen, ernten, Feste feiern und dergleichen) und die so als ein Ganzes in Erscheinung tritt, ohne dass ein Organ vorhanden ist, dass dieses Ganze repräsentiert und seine Aktionen leitet. Zu ihrer Existenz bedarf es keiner gültigen Normen, die ihr Leben regeln, darum auch keiner Quelle, von der solche Normen ausgeben, und keiner Vollzugsgewalt, die für ihre Durchführung sorgt.” (Stein 2006: 90).

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may keep the peculiarities of its community life, even in the face of an external power that strips the people of its capacity to live in accordance with its own law. Stein gives the example of the demise of the Polish state, which in no way resulted in the dissolution of the Polish people (Stein 2006: 17). Concerning the state and its relationship with its people, the question regarding the possibility of a state with no foundation in any community arises. Stein states that, in the genesis of a state, the element of the people is removed, so the only bond between the members of the state community becomes the rights and duties related to the state as a whole (Stein 2006: 21). Nevertheless, she warns: [The state] would have no inner existential authenticity, so to speak. It would always have clinging to it the character of something hollow and ephemeral. It might perhaps hold together for a time by authoritarian control, but not by any inner gravity of its own (Stein 2007: 24–25).8

The state, as a social framework that, at the height of its power, requires levels of creativity to allow it to generate content and give direction to its organizing power while providing its inner legitimacy (Stein 2006: 21). This creativity is, precisely, a characteristic of a people, understood as culture-makers. Yet, the people grant the state its identity. Indeed, if a people abandons its country and settles in a different land, the character of that specific form of a people may be changed up to a point such that it becomes impossible to ascribe to it its former statehood. In this case, the old state would vanish only to be replaced by a new state (Stein 2006: 93). Thus, the being of a state is supported by a foundation in a people. Another situation analyzed by Stein is the possibility of a state fracturing the unity of a people. In this case, renunciation of its natural foundation will always result in “irredentism,” which threatens the state’s own existence (Stein 2006: 97). This claim is remarkable, as it clearly indicates that, even if the state might exist without a people that sustains it, its existence is clearly weakened by such an absence. Stein discusses this sort of weakening through the concept of irredentism. Strictly speaking, this term is related to the Italian Nationalist ideology, whose objective after the unification of Italy in 1861 was the annexation of those lands still held under Austrian control. Consequently, it refers to any political trend that pushes for the annexation of lands currently occupied by other nations; it is justified by a sense of ownership of land based on cultural, historical, linguistic, racial grounds, etc. This implies an instability for those living in the state. Such an eventuality can be avoided, if the state has a solid foundation of a people that provides a sufficient degree of cultural identity. We come now to Stein’s discussion of value. The popular community, as a culture-­creator personality, is the recipient of ein eigener Wert [its own proper value] (Stein 2006: 111) – it has received help from the state to form itself, as the state puts

8  “Ein solches Gebilde hätte sozusagen keine innere Existenzberechtigung; es haftete ihm immer der Charakter des Hohlen und Ephemeren an; es würde eventuell eine Zeitlang durch einen regimentalen Willen zusammengehalten, aber nicht durch eine eigene innere Schwerkraft.” (Stein 2006: 22).

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its legal order at the community’s disposal. This is the reason why the state has no value of its own; its value is merely a byproduct (Stein 2006: 111). From this ­perspective, peoples are subjects of value, and the state contributes to that value, putting its legal framework at their service. Peoples, then, do not necessarily serve as foundations for the existence of the state, but the state might have them as its base; in their absence, the state will appear incomplete and fleeting (Stein 2006: 32). For this reason, even if the state may exist with no people at its base, the balance of its own existence relies on it. It stands to reason, therefore, that people and state are clearly distinct realities, but the bond between them becomes tangible once the people act as the foundation for the state, even if this is not strictly necessary, as this foundation grants the state consistency, stability, and value. Stein further writes that the state or the people, or both, may cease to exist once the legal validity of the state and the personality of the people, or a group thereof, oppose one another (Stein 2006: 32).

3.3  A State May Comprise Several Units of Peoples Within the context of her analysis of the relationship between state and people, Stein ponders whether the state must be based on a homogeneous community of a people or several isolated and clearly demarcated units of people (Stein 2006: 17). Her answer is that a state does not revolve around a single people (Stein 2006: 17) and that it is perfectly feasible to think of a federation of peoples, united by a representative state authority that encompasses and regulates, both uniformly and distinctly, the life of these peoples according to certain guidelines with no detriment to any one member (Stein 2006: 17–18). The national or popular state, she adds, is a special sort of state, but it is not identical with the complete scope of the reality of a state (Stein 2006: 17). This is why it stands to reason that the state may encompass several peoples, ultimately placing its legal framework at the disposition of each one of them, according to their particular and specific spirit.

4  People and State: Final Observations Through Stein’s ideas, we have illustrated that a people is a community that encompasses an open and diverse group of individuals, solidly bonded by a life in which all are participants that consciously embrace one another. Among its members, a continuous, synchronic and diachronic communication of solidarity is established. Each member represents the type of its people, showing certain signs of membership in its personal structure, which gives homogeneity to a people. The imprint of a people is given by its creative spiritual force from which its own, distinctive culture emerges, especially when combined with cultural circles. Regarding its relationship with states, we demonstrated that a people (or groups of

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them) can, on account of their active and creative natures, establish a stable order that must rise from a legal framework, which stimulates the very formation of a state since, in its sovereign essence, the state ensures that legal order. The constitutive elements of a state as related to the structure of a people, even if the latter does not conform to the former, is noteworthy; some aspects of state functions and decision-making frameworks discussed above are but a few examples. They, combined with a people’s capacity for culture-making, gives to the people its own value, allowing a people to be itself; no state is needed. But the possibility of forming a state gives to the state the legal structure that provides the stability a people needs. Finally, a state does not require a foundation in a people, although the possibility of this base can lie in peoples that give it consistency, stability and, most importantly, value. Indeed, the value of the state does not lie in the state itself, but on how it acts as a support for the development of its community of peoples, one that both produces and has value for and in itself. In the end, we have found an interrelationship and mutual relation between a people and the state, one that describes unity in diversity. We also found a distinction with no separation between both realities, thereby protecting both objectivities’ specific functions while being mindful of the full existence of both realities. Translated from Spanish by Jorge Jara Didier.

References Calcagno, Antonio. 2012. The Problem of the Relation Between the State and the Community in Edith Stein’s Political Theory. Quaestiones Disputatae 3 (1): 187–200. Lenz-Médoc, Paulus. 1956. L’idée de L’état chez Édith Stein. Les Études philosophiques 11(3, July/September): 451–457. Spengler, Oswald. 1918. The Decline of the West: Perspectives of World-History. Trans. Charles Francis Atkinson. London: George Allen & Unwin. Stein, Edith. 2007. An Investigation Concerning the State. Trans. Mrianne Sawiki. Washington, DC: ICS Publications. ———. 1970. Beiträge zur philosophischen Begründung der Psychologie und der Geisteswissenschaften: Eine Untersuchung über den Staat. Tübingen: Max Niemeyer. ———. 2004. Der Aufbau der Menschlichen Person: Vorlesung zur philosophischen Anthropologie, ed. Beate Beckmann-Zöller. Freiburg im Breisgau: Herder. ———. 2006. Eine Untersuchung über den Staat, ed. Ilona Riedel-Spangenberger. Freiburg im Breisgau: Herder. Marcela Aranda holds a Master of Arts in Theology with a major in Dogmatic Theology from the Pontificia Universidad Católica de Chile (2012) where she graduated with honors. Her thesis was titled “The Pneumatological Origin and Foundation of the Church in the Chilean Model of Ecclesia.” Currently, she is a professor in the Universidad Católica’s Theology Faculty in the Education in Catholic Religion program. She also participates as a member in the Edith Stein Studies Center of the same university. A specialist in Ecclesiology and the Second Vatican Council and its related subjects, she has been published by several journals, has participated in symposia, and holds extensive experience in both pastoral and education work.  

Certain Legal Presuppositions About the Idea of Law in Edith Stein’s An Investigation Concerning the State Marcelo Gidi SJ

Abstract  This paper discusses the ontic structure of the law or, in phenomenological terms, the essence of law. In her work on the state, Edith Stein develops a phenomenology of law without ever presenting it in terms of natural law or legal positivism. This paper argues that Stein, following Adolf Reinach’s concept of pure law, recognizes the a priori structure of law as such, that is, she views law as an a priori order. Keywords  Law · Edith Stein · Phenomenology · State · Justice

The purpose of this paper is to analyze the value of law in Edith Stein’s work An Investigation Concerning the State (Stein 2002), which is understood as a phenomenological reflection on both the state and law. Her text is the result of the application of the phenomenological method to a subject that was particularly controversial at the time. A pure phenomenological philosophy views objects as they are, apart from their existence and from an absolute lack of prejudices, and therefore is a truly exceptional way to analyze the state. Stein argues that, for legal entities, a priori propositions are valid. The a priori observes simple facts: The a priori does not refer primarily to knowledge of propositions or judgments, but to the exact, judged, and known state of things. Stein’s work is a reflection on the essence or universal properties of the state from an eidetic perspective, which brackets the objective world in order to arrive at knowledge of essential structures. The phenomenological method consists of bracketing the world of objects as they naturally appear to us. In this case, it focuses on the state, ultimately yielding a systematic description of the elements that comprise the state as well as dissecting the various relations that constitute the state. Stein begins her study by calling into question two of the most deeply rooted presumptions in general theories of the state: the concept of the state as a society and the M. Gidi SJ (*) Pontifical Gregorian University, Rome, Italy e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_4

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view of this structure as a conditio sine qua non of the subjects who live in this societal state, who “perform entirely determined functions” (Stein 2002:628). In the eidetic reduction, everything that could be individual and contingent in the appearing phenomenon is suspended, either by empirical intuition or by the images of fantasy, in order to remain only with the essence of the phenomenon. In this way, the phenomenon is purified so that the essence can be intuited. The reduction looks at objects as they are, regardless of their existence and from an absolute lack of prejudices. Therefore, the eidetic is opposed to what is factual and rooted in the senses. Edmund Husserl defines essence as that which is found in the autarchic being of an individual thing and as that which constitutes what the thing is. Essences are known through an essential intuition (ideation), and not through sensible intuition (experience). Essences are studied by the science of essences, a formal eidetic logic. The essences are “empty” essences, and the eidetic material that possesses content deals with true essences. In this way, all empirical science (of facts) must have a corresponding eidetic science (ontology). Husserl’s “To the Things Themselves!”, the rallying cry of his phenomenology, faithfully presides over the structure and content of Stein’s work on the state, whose task is to understand the state in itself or, in other words, the essential-ontic structure of the state. Stein cannot accept the state as the decisive organization for the realization of freedom and, thus, of the ethical life of individuals and the community. Stein analyzes the essence of the state from the perspectives of law and the sociological sciences from the idea of justice. She examines a unique form of sovereignty that operates within the being of the state, especially within the context of the relationship between the state and law, carefully and consciously separating the normative theory of law from the sociology of legal phenomena. The first part of Stein’s text, “The Ontic Structure of the State,” is to be strictly localized in the field of law. Hence, it is entirely devoted to an analysis of the constitutive elements of the state, and although it evidently dwells on the recurrent questions of state theory, it does so from sociological presuppositions. Indeed, it begins by paying particular attention to aspects, including the definitions of and distinctions between mass, community and people, which traditional theory neglects. The second part, “The State from The Perspective of Values,” is to be situated within the field of legal philosophy and the sociology of law. But what is the idea of law that is present? What are its specific characteristics and what is its essence?

1  W  hat is the Underlying Idea of Law in Stein’s Work on the State? 1.1  Pure Law and Positive Law Paragraph two of the first part of the study examines the relationship between the “state and law” (Stein 2002: 551–597). Using the eidetic method, Stein proposes to clarify the “idea of law.” From her reflection on what the idea of law is, the aims it

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pursues, its origins, and its validity, an eidetic conception of the “idea of law”1 can be formed. Scholars dedicated to the task of defining the law have inevitably found three common elements, namely, human behavior, values, and legal norms (De Vecchi 2015; Calcagno 1997). Natural law focuses on “values”; legal-formalism on “norms”; and legal-realism on “facts.” Does Stein subscribe to any of these definitions in her work? Reflecting on the idea of law, she proposes the question of law for phenomenology without ever presenting it in terms of natural law or legal positivism. In fact, with regard to the genesis of law, she exclusively accepts neither the legal positivist theory nor the naturalistic doctrine. Following Reinach’s theory of pure law, Stein recognizes the a priori structure of the law. What Reinach states, however, is that legal concepts possess an objective being or essence that is independent of any human conception and prior to any declared, societal law.2 All her reflections on law are based on legal concepts that have an objective being or essence, which exist prior to any law and are understood in and of themselves, through the so-called laws of being, that is, laws that are based on the essence of acts or the essence of legal phenomena. From the perspective of legal phenomenology, Stein creates a strict separation and distinction. In her work, she points out that law can be described in two senses. A pure law is unchanging and perpetual, to which legal a priority and legal entities belong, and from which non-negotiable and unconditional law stems. A positive law, by contrast, is changeable, arbitrary, and the fruit of circumstances and historical conventions.3 Following closely Reinach’s The A Priori Foundations of Civil Law,4 and making the distinction explicit, Stein points out that there are states of affairs with rights that exist beyond everything arbitrary and that are independent of any understanding consciousness and of any positive law or legal disposition to explain it.5 1  A philosophical definition is limited to explaining and understanding the essence of a concept, ad melius esse. See: http://www.juridicas.unam.mx/publica/rev/boletin/cont/90/art/art6.htm, accessed April 3, 2018. 2  As claimed by Maino in his Introduction, “With respect to these types of legal conceptions, there are priori propositions, that is to say, that while contemplated by the mind, they are general and necessary. It must be clarified that these are mere connections of meanings –universal and necessary– regardless of whether the legislator translates them into positive law, because they may recognize these connections, ignore or even act against them; but even in the latter case they will remain intact in their essence. They are also foreign to any ethical assessment. They have absolute validity, regardless of the minds of those who think them; they are of a synthetic nature, similar to mathematics, in the sense that they belong to a pure legal science. But unlike mathematics, only when modified and reformed, do they fall into the field of valid law” (Reinach 2010: 4). Translation mine. 3  Among the constitutive elements of the state, Stein attaches a major importance to the concept of culture, which in the law prefigures and initiates the difference between positive law and pure law. 4  (Reinach 2010: 27). 5  The distinguishing marks of the a priori law, which we would identify with natural law, are: (a) it is a supra-positive (meta-positive) law; (b) it is an intrinsically valid law; (c) it is a law axiologically superior to the positive one (i.e., it is considered as its ideal model); and (d) it would be a law with a higher obligation. (Contreras 2008: 68). Translation mine.

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A priori law has form and is intelligible. Pure law (simple laws of being or laws founded on the essence of acts and legal formations, what implies the autonomy of the right of all other science) is: not born in a place or time; it has an unconditional and universal structure; is the same for every culture and people; is perennial; and is a measure of positive law’s validity. Pure law’s being is not dependent on whether or not one understands it; it is independent of any positive law. These principles, which Stein calls “pure” relations-of-law, are the so-called fundamental concepts of law. They express a deontological judgment and have a pre-normative legal being, which should not be confused with normative purity. This allows us to reveal the existence and objectivity of certain elements underlying positive law. For example, Stein states that “The idea of justice is related to pure law.”, and that “Justice is a value-­predicate that, on the one hand, can be attributed to a legal order in force and that expresses its conformity with pure law, and that, on the other, corresponds to the subjects who collaborate in the realization of that legal order” (Stein 2002: 630). Stein also maintains the possibility of positive law, which exists alongside pure law. This is the law in force, which requires the state as its ultimate foundation. The specific task of the state is the realization of the law; it involves a legislator who creates and establishes it as well as beneficiaries who exist in a certain place and time. For Stein, positive law is an arbitrary creation or application, which adopts its determinations according to the circumstances of time and space in which it functions, and which is disconnected from a priori laws that positive law can accept or deny, but without ever affecting a priori law’s essence and existence. Positive law, as we pointed out, is not eternal; rather, it can be as diverse as appropriate or necessary, and designates a temporal reality that has a beginning and an end (Stein 2002: 551). This law, whose contents are provisions and orders, or mandates (Stein 2002: 560), does not exist in itself but by legislation, which refers to a subject who indicates something that should be, but who cannot deprive people belonging to the state of their freedom (Stein 2002: 559). Positive law, which exists by an act of the legislator and which may diverge from pure law, requires for its validity a deduction of its normative provisions from a priori concepts, as it is a form of law that has its legal concepts and sets its rules, but it does not create or produce them without r­eference to the a priori realm.6 In this sense, Reinach argues that the foundations on which connections of sense or meaning are discovered with absolute character are not built by positive law, but positive law finds legal concepts  – finds them or discovers them outside the mind, but in no way generates them (Reinach 2010: 24).

6  “To designate legal formations as creations of positive law is not only false but, ultimately, meaningless, precisely as meaningless as calling the founding of the German empire—or another historical event—the creation of historical science. Actually, what is enthusiastically discussed is that positive law finds the legal concepts that emanate from it: it does not in any way produce them” (Reinach: 2010, 4).

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1.2  Existence and Validity of the Law Stein writes, “The law designates a temporal reality, which has a beginning and an end and which is linked to an area of validity” (Stein 2002: 552). The latter term, “validity,” of clear Kelsenian origin, is linked to the very act of legislating, to the sphere of authority and to sovereignty, but is devoid of external connotations (Álvarez Alonso 2009: 49).7 The validity of positive law is based on the tacit (or sometimes express) recognition by the subjects to whom a norm is addressed.8 According to Stein, in pure law, normative dispositions can be justified in themselves by their theoretical content; in positive law, these same norms are generally disconnected from any theoretical basis and owe their content not to evidence, but to that which is purely arbitrary (Stein 2002: 553). Propositions of positive law constitute either a mandate or order, or a determination, but neither one can be said to be true or false as in the case of propositions of essence. In the section titled “The Essence of Legislative Acts,” Stein explains the possibility that both forms of law disagree with their content, that is to say, by “the provision itself and its theoretical basis” (Stein 2002: 553–555). Depending on the type of basis of a legal provision, values, or desires, there will be a coincidence or divergence with the pure law and positive law (Stein 2002: 555). Stein’s questions, in the light of the possible divergence and discrepancy between the two laws, “Why are both called ‘law’?” (Stein 2002: 551). Her answer is that the “possible discrepancy between the pure law and the positive law refers only to the content of the particular legal behavior,” but that, apart from these differences and independence from the possible discrepancies in content between these two laws, without falling into legal formalism, there is something common to both, the “form of law, the a priori structure of law as such.” This “form” that is common to both laws would be found in every law that “tries to establish norms for the people’s behavior” (Stein 2002: 552). Here, we have Stein’s critique of legal formalism through phenomenological realism, which values form, but not its degradation into formalism. Concomitant with the law regulating the form of judicial activity, there is the law that regulates the content, the subject, the substance of the judicial activity. Here, we could say that the substantive law creates the obligation or law, and the formal one regulates and makes possible the attainment of the law’s objective. For Stein, although both embody two senses of law, if they want not only to exist but also be truly existing and valid laws, not only must they have the same content of their particular comportments, but they must also have the same form. Generally, positive law uses and presupposes the concepts and a priori relationships of law. She points to an example that can illustrate these statements: “According to pure law, it is clear that the promise creates a claim, and also the right of the claimant to enforce it. This right, moreover, can be secured by a positive law.  Translation mine.  The natural law would not be the only answer to the question that had given rise to the problem of permanent change and the development of positive law. 7 8

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And positive law can also confer rights that do not exist under pure law” (Stein 2002: 576). When both laws, which possess the same form, coincide in their content, they “relate to each other as essence and fact” (Stein 2002: 576). According to Stein, the structure of pure law is analogous to that of positive law, but in its content, they can be differentiated. If there is no coincidence in content, positive law exists, but would not be valid (Stein 2002: 552); that is, the possibility of a positive law, indifferent to all rules of pure law, is indisputable. According to Stein, in pure law, normative provisions can be justified by their theoretical content; in positive law, they are generally disconnected from any theoretical foundation, and owe their content not to evidence but to what is purely arbitrary. Propositions of positive law constitute either a mandate or order, or a determination, but neither one can be said to be true or false as in the case of propositions about essences (Stein 2002: 553). Moreover, Stein states that “positive law exists only through legislation, which can confer rights to individuals or associations, even prior to their existence” (Stein 2002: 559). What Stein would assert is that legal concepts possess an objective being or essence that is independent of any human conception and prior to any law. In the same sense, Reinach states that legal concepts have a meta-legal-positive being: positive law can accept or deny this being, but it cannot affect its essence (Reinach 2010: 27). Positive law uses and presupposes the concepts and a priori relationships of law. In summary, legal entities such as claims, obligations, or property, have a being independent of any legislation or codification: this means that for legal formations a priori propositions, connections of senses – universal and necessary – are valid, regardless of whether the legislator translates them into positive law, since s/he can either recognize them, ignore them, or even act against them. In the end, the foundation of the pure theory of law, a transcendental presupposition that serves as a measure for the consistency of positive law, lies in the consideration of law as an “autonomous phenomenon,” free from external influences, including those derived from natural law. The pure science of law consists of propositions that can be synthesized a priori, which are situated beyond what is a priori and empirical, which is why “in the same way that we must rigorously highlight the autonomy of positive law with respect to a priori doctrine of the law, we must also emphasize its independence from positive law” (Álvarez Alonso 2009: 53). For Stein, positive law, a matter of the state’s legislative activity, characterized by changeability and absolute freedom to create its provisions, is totally autonomous from the “a priori doctrine of law,” just as pure law is independent from positive and natural law. Hence, we find the reason why Stein splits her work on the state into two separate parts, one that examines the structure of the entity and the other that provides a detailed analysis of “values” in relation to the state. However, she also points out that in the case where there is no relation between pure and positive law, a totally inconsistent law would exist (Stein 2002: 555). In order to draw out the legal value of Stein’s work, we must conceive of law as an a priori order that translates certain demands – an order of notions that are filled with content and stand as key institutions around which the positive norms hold a special and innovative relevance. The so-called fundamental concepts of law have a pre-normative legal being, which allows the state to be considered as a legal entity,

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that places the state beyond positive law. These concepts, however, recall “fundamental hypothetical norms” or what is traditionally called the transcendental presupposition that serves as a measure for the validity of the law. Validity, a Kelsenian concept, is connected to the very act of legislating, to the sphere of authority, to the concept of sovereignty; validity is not conditioned by the attainment of an external circumstances. For Stein, legal formations, that is, the conceptual products that are designated as legal, have an objective being and an independent essence; the concept of law is not a form of our mind but an ideal object, existing outside of it. Therefore, “the last legal component is not codified norms, but values. These values are neither random nor conjecturally derived from a personal will; rather, they pre-exist. Thus, the good legislator will be characterized by his or her ability to obtain those values and translate them into legal statements” (Contreras 2008:74).9 When legal statements have content, they are valid in and of themselves, but when they do not, their validity, their consistency, must be fixed by the corresponding person and accepted by those for whom it was established (Stein 2002: 584). In other words, there could be an annihilation of the pure law without violation of the positive law when the latter declares as null and void a claim that exists according to pure law (Stein 2002: 588).

1.3  The Relationship Between State and Law What is the relationship, then, between state and law from a phenomenological perspective? The essence of the state, according to Stein, cannot dispense with law. Acts of giving orders and making regulations are an undeniable part of the life of the state. Legal formulations and conventions regulate the entire organization of the state and all citizens’ behavior, as the state is itself the author of its own law (Stein 2002: 555). To be a state means to have the right to act within the scope of its own sovereign authority, that is to say, the right to freely prescribe orders and mandates, which is inescapably part of the life of the state. This means that, where there is a state there is also positive law and where there is a positive law there is also a state, which is the ultimate source of the law (Stein 2002: 566). In section 2 of her work on the state, “State and Law,” reflecting on the peculiarity of sovereignty in the constitution of the state, Stein analyzes the problem of relations between the two forms of law discussed above (Stein 2002: 551). She states that, although sovereignty is the conditio sine qua non of the state, it alone is incapable of “guaranteeing the existence of the state” (Stein 2002: 569). Such a guarantee of existence is only given by the motives that lead to the recognition of the state’s existence. For Stein, the existential foundation of the state comes from the outside: the guarantee of its existence does not lie in sovereignty, but “when the association of

 Translation mine.

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people placed in the form of the state has already existed previously as a community, when the law that it has rendered it a state is only the sanction of existing community relations or, at least, when the state confirms the directed tendency toward community life” (Stein 2002: 569–570). The foundation of the state, for Stein, “is an act that has no meaning except as an act of state,” not of an individual person or association of people (Stein 2002: 557). In the section called “Overview of the Structure of the State,” Stein states, “The governmental activity of the state is exercised by means of ordinances that cause the people over whom the state has authority to act; and dispositions determine what, in this realm, should be considered legal. This activity is authoritative and the state is only a state insofar it has its point of origin in such activity” (Stein 2002: 593). For Stein, “only when the legality of the state relies on the entity of the people, of a spiritual nature, does it subsist, but if they oppose the state, there is a danger that one or both of them will perish” (Stein 2002: 542). This entity, this spirit of the people, will always correspond to the ethos of the people that constitutes the authority of the state because to govern against that ethos is to cut off the roots of the existence of the state (Stein 2002: 595–596). In other words, from the viewpoint of the being of the state, we can affirm that in the state-law relationship, the ethos of the people constitutes the performative element of the state.10 Being a state11 means, then, having a law. State and law are co-nascent: where there is a state there is also a law, even if no legal formulation has been pronounced. Conversely, wherever there is a positive law, there must be a state, which has the characteristic of being the ultimate source of law (Stein 2002: 566). The people, made up of individuals linked to their peoplehood and who all come in personal contact with one another (Stein 2002: 539), is a community of rights and duties. It is the state that imposes, through its legislative activity, rights and duties on the subjects and, in this way, recognizes the identification between pure law and positive law, because “there are no subjective rights, if they are not based on pure law, that is, subjective rights have to be inserted in the content of the pure comportment of the law, otherwise it becomes necessary for one to be able to deduce analytically from the pure comportment of law that such rights exist” (Stein 2002: 583). For Stein, the idea of justice, for example, is not related to positive law, but to pure law: “[I]t is its transcendental, in it being a priori, in its essence.”12 Stein writes, “It depends on the state to recognize that what is just in itself ought to be recognized  For Stein the “essential structure of the state” as follows: “The state is a social formation in which free persons are integrated, so that one or more of them (and in the extreme case, all) rule over others in the name of the whole group…The realm of state authority holds not only the people integrated in it, but all the objects that play a role in the life of the state, to the extent that they are vulnerable through free acts…” (Stein 2002: 593). See also (Álvarez Alonso 2009: 63). 11  The state-person replaces for Stein the state as “unitary legal person” of a strictly legal creation, located above the law by a “total organic personality” subject to law. 12  (Stein 2002: 627). Kant distinguishes between two types of conditions that must be fulfilled in order for us to experience an object: empirical conditions and a priori or transcendental conditions, which do not depend on the circumstances or empirical particularities of the subject, but rather rest on the very structure of the mind. 10

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as law in force” (Stein 2002: 627). She adds, “according to whether positive law is a ‘just law’ or not, that is, whether or not it coincides with pure law, we can determine whether the state is ‘just’ or not” (Stein 2002: 629–630). In this sense, it can be said that the idea of justice is related to pure law and not to the state, and that this is not the sine qua non condition for the realization of justice, but a means. The state emerges as a guarantee of respecting the a priori aspects of the law. The genesis of the state lies in the community that needs an organization, not only because it needs to protect itself from a tendency toward self-disintegration, but also because its specificity as a community needs a stable legal system. The concreteness of this system and its institutions correspond to positive law, whose value lies in the development of community life represented by the interpersonal relations of empathy; the relation of recognition is the beginning of law as a rule in the relation between finite rational beings. The state, Stein argues, “must be demand that its law be a just law” (Stein 2002: 641).

1.4  The Rights-Person-State Relationship In the synthesis of the complex structure of the state and its unique components, legal subjectivity must be considered as a relational a priori in the arena of the idea of ​​spiritual community. Regardless of the law in force, the subject is capable of acts; the person, as such, is the holder of unconditional rights, and the historical form of law is given by its legality. We maintain that the person is the essential condition for proceeding from an idea of law to its real institution and application through the codification of the ius positum. Everyone, as an individual, is a person who, in Stein’s text on the state, is above all someone that emancipates him- or herself from the natural condition of birth and has a conscience, aspirations, wants, knowledge, intentions, meaning. Here, certain distinctions come forward. First, the person is only a person if, in accordance with the Steinian idea of the community, s/he is understood as plurality of people, and the relationship with the other is a constituent part of the person itself. Second, in the realm of community, the human being, in its being as person, is part of a whole, of an idem sentire defined by Stein as “community” (Gemeinschaft). In the development and the institution of law and community, therefore, there exists the interpersonal relationship that is predicated on the recognition of human beings as individuals and subjects, which means the detachment and emancipation from the natural biological relationship. Furthermore, we must ask: Is the state or the person the source of pure law? Is pure law equivalent to natural law? Although the existence of “natural human rights” is recognized in her book, Stein points out that “there is no natural right” (Stein 2002: 559), as the natural rights of people “would be no more than subjective rights that owe their existence to an objective right, that is, to a reality of pure law or a provision of positive law” (Stein 2002: 574–575). Both laws exist, but independently of the natural order; even for Stein, pure law has no relation with individuals,

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understood as the source of pure law, since such law exists independently of individuals. For Stein the phenomenologist, a disciple of Reinach, there is no natural right in itself (Reinach 2010). The being of law, based on an objective-value order, does not assume for its knowledge or application the help of divine revelation or faith. However, if we consider the Steinian idea of law centered on the concept of the person, one can deduce that the person is the beginning and end of the law, understood in the sense of source and reference of law in force. The subject of the effective legal act and holder of rights may in principle be the same person. The person, then, for Stein, is the source of the law as the act of promulgation of the law refers institutionally to the legislator as a person who legislates in front of and for other persons for whom the norms are intended.13 Therefore, since respect and establishment of positive law is a matter of the state, the author and the recipient of the norms is the person: the legislator and the citizen. The legal subject, the person who recognizes that right, achieved through the law itself, supports its own dignity, thereby entering into the objective dimension of the law that attributes a “legal reality,” which derives from the legal essence of the person. Person, then, expresses itself as an entity, liberty, responsibility, law, since the world of the person is constituted by institutions, situations, decisions, and acts attributable to law, to morality. The legal reality belongs to the way of being of the person who exists, who exercises his or her liberty, and who recognizes others in a common ground that is communication, as a community located in a cultural time and political space. Interpersonal relationships, as relations of recognition are directed to perceive the other as person, humankind, subject, being, in other words, as a bearer of rights and duties; it is precisely the intersubjective circularity of mutual recognition as people that constitutes the basis of universal and unconditional reciprocity through the institution of the legal system. The person, the subject of law, has his or her own dignity only through the law. However, regardless of the law in force, the subject is capable of legal acts. The human being, as such, possesses the ownership of unconditional rights; the historical forms of law – law in force – are given by the legality, that is, by normative production that refers back to pure law. Entering into the objective dimension of law, one can attribute to the individual a particular legal reality that acquires a precise configuration within the state, which initiates interpersonal relationships based on the just recognition of otherness. It is the institution of a community-based law that arises from the a priori nature of pure law, which allows for the projection of a common norm on which one can realize the process of recognition of the rights of all and others. In fact, it is important for the state that each of its individuals live as a person, always possessing a horizon of reference that is legal statehood; here, the state becomes not only important for the conduct of those who are at the service of the state, but also for the people that realize in their being the legal community. The legal institutions in the state, in relation to the people who belong to it, have the

13

 (Sahid 2011: 141–142)

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specific purpose of becoming “super parties,” which guarantee an interpersonal legal relationship based on the pure law historically narrated by positive law. The state, let us recall, through its structures, is not the source of justice, but an instrument that contributes to its realization and to the development of the person’s spiritual dimension. For Stein, all ethical values ​​are personal values. This leads us to consider the difference between legal and ethical norms, understood as a priori: the common points of both norms are found in the characteristic of the interpersonal relationship and in the behavior of individuals. From the field of ethics comes the claim that ethical norms become legal norms. The rule of law consists of making the state’s genesis reside in the spiritual community, which includes interpersonal relations of mutual recognition that pre-exist the state itself. To be a state is to be a subject of law; at the moment when the state ceases to be responsible for the legal order in force, the state ceases to exist (Stein 2002: 640). In fact, Stein’s entire concept of the state rests on a key pillar: “the liberty of individuals, the community and law.” The life of the state is fully included within the scope of the freedom of individuals in the community, understood as bearers of subjective right, a third meaning or sense of law we here analyze (Stein 2002: 574). In this context, law is a subjective right because it belongs to a subject. It is a right because it owes its existence to an “objective” right, that is, to a reality of pure law or a provision of positive law.14 There are no subjective rights, if they are not based on pure law, meaning that subjective rights have to be inserted within the content of the practice of pure of law (Stein 2002: 583). According to Stein, “A subject is capable, by the practice of law or by a legal provision, of performing certain acts ... independently of any existing or enforced law,” (Stein 2002: 575) for the subject alone has the “right of realizing such acts,” acts that are the contents of subjective right.15 Hence, one must assume a critical attitude to certain state-produced norms aimed at affirming positivism as a permanent and self-referential point of orientation. Stein’s theory also entails emphasizing and deepening the issue inherent in the recognition of unconditional rights arising from pure law, which pre-exist regardless of the actual law in force. There is in Stein’s political philosophy a redirection of positive law to unconditional rights. But, at the same time, her theory argues against state positivism when it differentiates between a simply legalistic state or, on the contrary, a rule of law that harmonizes the dimensions of positive law with the a priori of pure law.

 A subjective right can be possessed by virtue of pure law or positive law; this subjective right constitutes the material for both the relations of pure law and the provisions of positive law. (Stein 2002: 574–575). 15  Stein’s reflections lead us to consider that a person as such is the holder of rights, and therefore, s/he exercises her or his own rights within the very structure of the person: this becomes the basic assumption, in the sense of the horizon of the phenomenological genesis of the intersubjective and empathic community. The deeper reason for the enforceability of norms must be sought at the bottom of the stream of human consciousness; it is the moral conscience, as it belongs to a capable subject, that is the ultimate foundation of lawful regulation. 14

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For Stein’s phenomenological realism, a “right” does not mean anything but the pure rule of law concretely realized in positive law. Phenomenology, according to Stein, deploys a rule of law that does not appear as an ideology, even a moral one; hence, it can distinguish between legal and ethical norms.16 Translated from Spanish by Helmut Soto Valencia. Initial formatting by Rodrigo Vidal.

References Álvarez Alonso, Clara. 2009. Percepción fenomenológica del Estado: La significación jurídica de eine untersuchung über den staat de Edith Stein. RJUAM 19(1): 35–66. Calcagno, Antonio. 1997. Persona Politica: Unity and Difference in Edith Stein’s Political Philosophy. International Philosophical Quarterly 37(2, June): 203–215. Contreras, Sebastián. 2008. Fenomenología Jurídica y Derecho Natural. Iusnaturalismo clásico y doctrina apriórica del derecho. Eikasia: revista de filosofía 21 (November): 57–75. De Vecchi, Francesca. 2015. Edith Stein’s Social Ontology of the State, the Law and Social Acts: An Eidetic Approach. Studia Phaenomenologica 15: 303–330. Reinach, Adolf. 2010. Los fundamentos apriorísticos del derecho civil. Trans. and ed. Mariano Crespo. Granada: Comares. Sahid, Mobeen. 2011. Il ruolo della communità Nella vita sociale, politica e religiosa. Nella fenomenologia del diritto (The role of community in the social, political and religious life. Phenomenology of law). AGATHOS: An International Review of the Humanities and Social Sciences 2 (2): 139–145. http://www.agathos-international-review.com/issue2_2/15.%20 Articol%2010%20-%20MOBEEN%20SHAHID.pdf. Stein, Edith. 2002. Una investigación sobre el Estado. In Obras Completas, ed. J. Urkiza y F. J. Sancho, vol. 2, Escritos filosóficos. Etapa fenomenológica, 521–653. Burgos: Monte Carmelo. Marcelo Gidi SJ is a graduate of the Faculty of Law at the University of Chile. He is a lawyer and holds a graduate degree in Theology from the Pontifical Gregorian University. A licentiate and doctor of Canon Law from the Pontifical Gregorian University, he is professor (Straordinario) of the Faculty of Canon Law at the same university. He is also a Jesuit priest.  

 Morality cannot be established as a right. This is the quid of the difference between morality and law. The law is what is instituted, unlike what happens in morality. Following the thesis of the phenomenology of law, the whole Theory of Law can be presented as a theory of consciousness. That is why, in Christian Welzel’s view, all just acts must respond to the voice of that inner consciousness that governs our actions. In his view, law can at best be regarded as a precondition of morality, to the extent that it can de facto remove obstacles to moral motives and educate morality, but that this is not necessarily prescribed by law’s own structure.

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Legal Personhood in Positive Law and Edith Stein’s An Investigation Concerning the State María Eliana Martínez Fernández

Abstract  This essay explores the notion of legal personhood as it is constituted in Edith Stein’s understanding of the state. I argue that Stein’s concept of legal personhood, as it relates to sovereignty and positive law, bears certain similarities to central, contemporary Chilean legal concepts. I mine the philosophical implications of the comparison. Keywords  Political constitution · State · Sovereignty · Government · Natural person · Legal person

Edith Stein’s work, An Investigation Concerning the State (Stein 2005), was published in 1925 in the seventh volume of Edmund Husserl’s Yearbook for Philosophy and Phenomenological Research.1 The author divides her work into two sections. Part one is dedicated to the analysis of the ontic fabric of the state, while part two explores the state from the perspective of value. This article focuses on the first section of Stein’s work, in which she ponders the question of the origin and foundation of the state, ultimately engaging the notion of the legal person. We find this specific sort of personality also defined in Section I of the national Civil Code and the Constitution of the Republic of Chile, which serves as the legal foundation of Chilean State institutions. Part two of Stein’s investigation explores the idea of the state as a social fabric, its ontic structure, with an emphasis on the phenomenological concepts of sovereignty and legality.

1  Jahrbuch für Philosiphie und phänomenologische Forschung, Vol. VII, ed. E.  Husserl (Halle: Max Niemeyer, 1925).

M. E. Martínez Fernández (*) Faculty of Theology, Pontificia Universidad Católica de Chile, Santiago, Chile © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_5

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1  Chilean Positive Law 1.1  Personality in Chilean Law The Chilean Civil Code draws a distinction between natural and legal persons.2 The former are defined as persons, comprising all individuals of the human species, regardless of their age, gender, race, or condition.3 The latter, and all special regulations applicable to them, are addressed in the final title of Book One.4 In this regard, the term “legal entity” applies to a fictional entity – one able to exercise rights, to commit to civil obligations, and to be represented both judicially and extrajudicially.5 Natural entities are beyond the scope of this presentation. Regarding legal entities and following the law as stated in the Civil Code, it will just be pointed out that Chilean positive law divides them in two species: corporations and charitable public foundations.6

1.2  Chilean State Institutions The Constitución Política de la República de Chile, Chile’s national Constitution, establishes the foundation of its institutions and recognizes freedom and equality, in dignity and rights, for all people7. Later, and in the same vein, the Founding Charter prescribes that the state recognizes and protects various intermediary groups, who serve as the means for the organization and formation of society, protecting their autonomy to fulfill their specific objectives.8 Those persons who, by virtue of the Founding Charter, are granted liberty and equality before law are those defined and specified by civil law as natural persons. In turn, the intermediary groups, who are guaranteed autonomy by this document, can create fictive entities which, according to positive law, may be understood as legal persons. So, to summarize and to provide a first attempt to engage our subject, these precepts provide the means to deduce the following: persons born free are natural persons, while intermediary groups that may legally incorporate as legal persons are fictive persons (opposed to physical people) and, as such, are recognized as holders of the same legal capacity as natural persons with regard to exercising rights and committing to obligations.

 Código Civil de la República de Chile, Book One, Title I & 1, article 54.  Cód. Civ., Book One, Title I & 1, article 55. 4  Ibid., Book One, Title XXXIII. 5  Ibid., article 545, first section. 6  Ibid., article 545, second section. 7  Constitución Política de la República de Chile, chapter I, article 1, first section. 8  Ibid., first section. 2 3

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The Constitution neither defines the state nor does it conceptualize the state as a person. It restricts itself to embody its unitary nature and its framework as a functional and territorially decentralized administration.9 The Founding Charter does not stop there, however; it also refers to sovereignty, as it establishes its existence as an essence in the Nation to be exercised by the people and the authorities established by the same Constitution.10 The Charter recognizes the government as part of its institution and indicates that the administration of the state and government are under the charge of the President of the Republic, the Chief of State.11 Additionally, it prescribes that the highest authority of the Nation has the assistance of direct and immediate collaborators, namely, the Ministers of State.12

2  The Steinian Perspective of the State 2.1  State and Social Organization In An Investigation Concerning the State,13 Stein analyzes the state as a social structure and considers the question of which form of sociality ought to define the state’s organization. In the process of answering this question, she examines the possibility that states may be built on community life. Following this direction of thought, she dissects the specificity of a state community, understood as a community of individuals. From Stein’s perspective, a community – one in the range of existing ways of coexistence between subjects – is a type of sociality built on a spiritual foundation, characterized by the shared experience of the individuals that form part of it and in which no one member is self-absorbed in its own individual experience. Others are part of an individual’s life, which gives rise to a community that inspires in the individual a sense of belonging, a community that is the subject of its own life. In this community life, stable ways of life are formed, ones whose realization may be taken up by different individuals (Stein 2005: 528). Stein observes that the state community lies between two opposite sorts of community. First, there are close-knit or intimate forms of community, which are smaller and cannot contain other communities or be based on any other community. Examples of smaller communities include family and friendships. Second, there exist universal communities which consider all spiritual individuals, including particular communities, and are not subservient to any other community (Stein 2005: 531). While this form of community includes other communities and is, ­accordingly,  Ibid., chapter I, article 3, first and second sections.  Ibid., article 5, first section. 11  Ibid., article 24, first section. 12  Const. Chi., chapter I, article 33, first section. 13  See note 1. 9

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included by others, what distinguishes them is a limit of their being conditioned by other communities that could potentially endanger their essence. Drawing upon this notion of limit, Stein refers to Aristotle’s Nicomachean Ethics and defines the state as a set of people bound by a sense of life in a community, which forms a self-sufficient whole (Stein 2005: 531). Stein is interested in the Aristotelian notion of autarkia, understood as self-­ reliance or autonomy. She considers the concept equivalent to the modern notion of sovereignty. It is an inextricable property of a state for its actions and laws to originate in the state itself and in no other community below, above, or adjacent to it; all rights enforced in its jurisdictional domains stem from it; all group actions find in it their origin (Stein 2005: 532–533).

2.2  Sovereignty and State Community Regarding sovereignty, Stein notes that a possible feature of a state community is its heterogeneity, as she considers the open diversity of individuals an attribute of peoples and states. She comments that, while the extension of a state may be limited (e.g., the Roman Empire), and those limits may be considerably elastic (e.g., Italian city-states), their total number of citizens must be enough to ensure sufficient internal fullness and independence for its sovereignty. In the same vein, she considers that the minimum number of state-members should not be absolutely fixed, as it varies according to the state’s configuration, the relevance of the states that surround it, and also to the attributes of the territory it occupies, as nature and its circumstances have an impact on the amount of workers needed to satisfy the economic requirements of the state as well as on guaranteeing the state’s independence (Stein 2005: 544). Stein examines the specific way in which the relationship between individual and community resides in the state. There is no requirement for all individuals to be organized identically. There are “carriers” of life of the state who possess a specific consciousness of belonging, giving of themselves for the whole while acting with sense of duty to the state, both of which are indispensable for the existence of the state. People must live first as a member of the state; this must be a criterion for their behavior (Stein 2005: 547). Stein considers that there is no requirement for individuals that are not carriers of the state to have clear ideas about their belonging to the group in which they participate. It is not necessary for them to experience that belonging as a reality of their own or to take a positive attitude in this regard. The execution of the tasks required of them is sufficient (Stein 2005: 549). Stein asks about the importance of the relationship between the individual and the state, especially the relationship between individuals and a people. Her answer is that the state has neither a soul nor psychic production of its own. In contrast, a people is a community of a productive spiritual power that is the holder of a form of its own creativity, which is expressed in the works of that people’s culture. In light of this difference, it follows that a person may love his or her own people and that

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the state may become the subject of love reflexively, mainly due to its being the exterior representation of the people and not an object of love (Stein 2005: 550). Peoples are not, by force of necessity, the foundation for the existence of the state, but the state might have them as its base; in their absence, the state will appear incomplete and fleeting (Stein 2005: 551).

2.3  State and Law Stein claims that there are two types of law that typify the state: First, there is pure law, which exists beyond particular, historical individuals and organizations; pure laws are present in all times and in all peoples, they are eternal and pure laws are not rooted in a specific place and/or time. Second, there is positive law, which is contingent on legislation and is created or put into effect, arbitrarily or in diverse ways, based on what is convenient or suitable for a given group, time or place. The potential difference between both can be found in their content (Stein 2005: 551). Pure and positive law are related in the same way as essence is related to fact (Stein 2005: 552). Stein holds the view that, in order for law to be “achieved” and become manifest, there must be a person that “enforces” it and a group of people that requires such enforcement. Law applies once it is recognized by the people onto whom it is applied. The first right that must be stated and recognized for other provisions to be enforced is the right to legislate. The person that establishes such a law may do so on his/her own authority as it is in the domain of authority in which proclaimed law is applied or it can be a conferred right. A state, as described by Stein, is the totality of the sphere of authority and the state power “ruling” it. Legal acts refer to a subject that proposes them and point to a demand for something to be or become where it was not. In positive law, the recognition of a legal provision never implies the necessary support of a justifying theory, but merely the acceptance of this provision or legislative will (Stein 2005: 552–553).

2.4  The State: Natural or Legal Entity? Stein explores the question of the subject of legislative acts and the state as subject of law. She considers the entity as a subject capable of exercising spontaneous actions and specifies that, by spontaneous act, she means spiritual actions stemming from the exercise of free will. She proceeds to ponder the meaning of the term “collective person,” especially when understood as legislator. She claims that there is no need for actions exercised by the community to be decided by every single individual that forms part of it (Stein 2005: 555). In terms of the ontic structure of the state, Stein maintains that the state must be considered as the subject of acts performed by state power. She claims that the state

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requires a person or a group of people for it to possess a means of expression and a domain of people to be and be heard. Where there are no people acting on its “behalf,” the state may perform no action. Such acts are meaningful only as operations of the state, not as acts of a particular person or corporations not recognized as “state bodies.” The state framework is one of state power and a domain of authority; thus, it is essential for a state organ – that is, a structure that acts “on behalf” of the state – to represent the entirety of the state. Conversely, everything pertaining to the domain of authority is, clearly, a member of the state and is subsumed in it, yet this is not an organ that it is wholly present (Stein 2005: 556–557). Consequently, the state is neither an individual person nor an association of people; it cannot be manifested through an act of association performed by a group of people. The foundation of the state is an act whose meaning lies beyond a performance enacted by the state itself. The act of foundation may not be performed except by a person or a body of people that accepts becoming a state organ, for only a people or associations of people may perform actions. The “representatives of the state” are both individual people that perform actions as well as organs that act on behalf of the state. They may not proclaim themselves representatives. The state is what grants them such an attribute, but it is necessary that they themselves accept this representational function (Stein 2005: 557). The state, in order to assert itself and its right, must rely on free people and must not alienate such liberty from the people that belong to it (Stein 2005: 559).

2.5  State and Acts of Government According to Stein, the activity of the state is not limited to legislation. She attempts to reveal the exact component constitutive of the life of the state (Stein 2005: 569). Like Reinach, Stein observes in the life of the state two different sorts of social actions, namely, provisions/regulations and orders or mandates. Regulations are related to possible behavior, with no attempt to provoke specific, effective behavior in a particular person. Since they do not direct effective behavior in specific people, regulations must be communicated to them through particular actions, such as the publication of a law, which implies a legislative order to those under its sphere of authority, such that they can adjust their behavior under these stipulations (Stein 2005: 560). The execution of these provisions lies in the hands of the state and implies the analysis of the different instances in which such a provision may be applied by the organs that established or recognized it as well as its enforcement (Stein 2005: 563). In order to carry out such provisions, acts of government are necessary. This is the name given to orders of state. After pointing out that government pertains to state life, Stein indicates that the possible existence of a state whose activity is limited only to government, without appealing to positive law, is impossible (Stein 2005: 566). In the phenomenologist’s words, statehood implies the right of prescription, which is the source of governance. This is owed to the state to enable it to

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defend its acts, in the spirit of its own meaning, as a right. In other words, state and law are born one from the other; where there is state, there is also positive law, even if there is currently no pronouncement of any legal provisions or regulations. On the contrary, where there is positive law, there must exist a state that has the attribute of being the highest source of law, even if no state power is yet established where the condition of being the maximum authority on matters of law is defended (Stein 2005: 566). The philosopher’s use of the terms “thinking,” “consideration,” “experience,” “rejection,” “affliction,” etc., in relation to the state is merely a figure of speech. In order to provide a basis for the state’s actions, it is necessary to obtain information and adopt a stance; this activity is carried out by the people that participate in the domain of the state. They are the people that perceive, feel, or adopt or take on stances on its behalf, but it is not possible to assert that the state does it for them. Stein concludes that the life of the state is limited to the sphere of freedom (Stein 2005: 569). She clearly distinguishes between sovereignty, essence, and attributes of the life of the state. In her view, the state is inextricably bound and connected to the individual freedom of the people that co-form the base of the state. She claims that sovereignty, understood as the self-constitution of a vast community, and individual freedom are inseparably connected. Only formations that involve free people may declare themselves to be sovereign states (Stein 2005: 566). Stein emphasizes the idea of the constitutive limit of sovereignty: individual freedom is not undone by the will of state formation or the corporations represented by it, but, on the contrary, the condition of its practical realization must not be understood as a limit of sovereignty (Stein 2005: 566). The carrier of sovereignty is the state. The state, or the state power that embodies it, is sovereign, not those wielding power. Sovereignty presupposes that the defense of power has been satisfied by the recognition of those subject to it (Stein 2005: 570).

2.6  The State as a Legal Person Stein’s perspective on the state is that sovereignty is free will and that it finds an analogue in the free will of individual persons; the only difference is that the subject of governance is wholly socially. For Stein the phenomenologist, free will is inextricably linked to personhood. A person has free will inasmuch as it can carry out spontaneous acts and governs itself. Whenever a state is stripped of its sovereignty, of its free will, it loses its character of being a state (Stein 2005: 571). Stein indicates that the particular structure behind acts of free will (indissolubly linked to individuality), bound to the origins of state life (composed of a series of free will acts), imposes a requirement on the state to possess a single leader. Each act of free will requires an impetus, which always is a matter of individual personhood; thus, all acts of state must be initiated by an individual person (Stein 2005: 572). The philosopher asks about the meaning behind attributing juridical reality to state will. The answer to this question prompts her to analyze the concept of legal

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personhood, which is itself correlated to that of legal capacity, understood as the capacity of holding subjective laws, that is, the right of a subject that, in principle, owes its existence to an “objective” right, to a fact of pure law, or a provision of positive law and, furthermore, participates in legal units that constitute the substance of pure legal relationships, such as provisions of positive law (Stein 2005: 574). “Individuals” (the technical legal term to describe physical people) may be considered as recipients of subjective law, as free subjects, capable and protected by law to perform acts (Stein 2005: 575). Likewise, associations co-formed by people may enjoy subjective rights. Regarding non-personal formations, a phenomenon of representation applies. Here, each act performed by a person on the state’s behalf is considered an action performed by the state itself. Thus, non-personal formations become possible subjects of acts (Stein 2005: 576). The state, a non-personal formation, is the subject referred to by all subjective rights, as these find in positive law their absolute origin (Stein 2005: 577). With the term “legal person,” Stein refers to the recipients of subjective rights. The difference drawn between a physical person and a legal person is owed to the fact that social organizations or non-personal entities do not qualify as persons. The application of the term “person” to all recipients of rights implies an exercise of broadening the concept, reaching beyond the scope of what we describe as a person. The distinction between natural and legal person fails when physical people, individual persons, are excluded, for the person usually includes the sense of being an individual. For Stein, the distinction justifies the measure in which individual people in non-personal formations do not hold the capacity of becoming law entities; they do not become such entities until they are effectively granted subjective right (Stein 2005: 579). Thus, neither will nor purpose is constitutive of legal personhood – only subjective law has that effect (Stein 2005: 579). The difference between authentic and legal personhood reveals that the state, the authorities that represent it, and even its citizens, may be considered legal persons. Only those that confuse legal persons with actual, real persons find themselves amused by the idea that a person may represent a plurality of people. In absence of such a confusion, there is no difficulty in recognizing that an aggregation of individual persons and a unit built on such a plurality of individuals may hold rights (Stein 2005: 580).

2.7  Chilean Law The term “state” is used in positive Chilean law, the political constitution of Chile, and in Stein’s work on the state. In Chilean legal texts, there is no definition for this concept of the state. It is only characterized as unified and decentralized from the perspective of its functions and territory. In Stein’s work, by contrast, the state is conceptualized from the perspective of its ontic structure. Essentially, it is recognized as a social structure built over the basis of community life, understood as a set

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of people bound by a sense of life in a community, which ultimately forms a self-­ sufficient whole. When summarizing the ontic structure of the state, Stein notes, “The state is a social pattern into which free persons are inserted in such a way that one or several of them govern the others in the name of the whole pattern” (Stein 2005: 593). The Founding Charter of Chile also refers to sovereignty and establishes that it resides essentially in the Nation and that its exercise is done by the people and the authorities that the Constitution itself prescribes. Stein also dwells on the subject of sovereignty, stating, “A community receives the character of state through the possession of sovereignty, which means the freedom to create its institutions by and for itself and to perform all its actions on its own” (Stein 2005: 602). The Political Constitution of Chile recognizes the government, asserting that both it and the administration of the state are under the charge of the President of the Republic, the Chief of State.14 Stein’s view is that the government is the central organ that concentrates the will of the state, from which government emanates. Additionally, government is the last source of all rights enforced in the domain of the state. In her perspective, “The function of the civil authority is the management of the state, which includes arranging for state actions, law-making, which means setting up norms for social life within its sphere of authority, and seeing to it that the regulations and commands of the state are carried out” (Stein 2005: 609). Regarding the administration of the state, the political Constitution of Chile recognizes in the President of the Republic its highest authority and the role of Chief of State. In addition, it prescribes that the highest authority of the Nation has the assistance of direct and immediate collaborators, namely the Ministers of State. Stein remarks: […] not all individuals need be integrated into the whole in the same way. This is […] because certain elites are to be regarded as “carriers” of the life of the state in a specific sense. In them dwells a consciousness of affiliation, a devotion to the whole, and a responsibility for the great mass of citizens; without it, the substance of the state may be jeopardized (Stein 2005: 547).

The term “person” is used in Chilean positive law (Civil Code) similarly as Stein defines it in her analysis of the ontic structure of the state. In the Civil Code, a person is defined as any individual of the human species, regardless of their age, gender, race, or condition.15 Stein conceptualizes the entity as the subject capable of exercising spontaneous actions, where spontaneous act means spiritual, free action. The same regulatory body embodies the existence of legal persons and prescribes its definition as a fictive person, capable of exercising rights and being represented both judicially and extrajudicially. Stein addresses the concept of legal personhood in the attribution of juridical reality to state will. In her perspective, the concept of juridical personhood is correlated to the capacity to hold subjective rights.

14 15

 Const. Chi., chapter IV, article 24, first section.  Cod. Civ., Book One, Title I & 1, article 55.

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So, “individuals” (again, the legal term for physical people) and associations of persons may hold subjective rights. In regard to non-personal formations, a phenomenon of representation applies, which legally enables them to become subjects capable of action. With the term “legal person,” Stein refers to the recipients of subjective rights. The difference between a physical person and a legal person is owed to the fact that social organizations or non-personal entities do not qualify, following our reasoning, as persons. Additionally, “To use the term ‘person’ for everything that is a possessor of rights signifies an expansion of that concept beyond the range of what a person is, in the strict sense of the word” (Stein 2005: 578). Finally, Stein states, “The separation into physical persons and juridical persons fails if the ‘physical’ persons, meaning individual persons, who alone are real live persons in the full sense, are excluded from the range of juridical persons” (Stein 2005: 578). She justifies this distinction on the grounds that neither individual persons nor non-personal formations have the attribute of being juridical or legal persons, but they hold that potential, which is effectively achieved only once they start holding subjective rights. Thus, neither will nor purpose is constitutive of legal personhood, but only subjective law can determine legal personhood. Translated from Spanish by Jorge Jara.

Reference Stein, Edith. 2005. Una investigación sobre el Estado. In Obras Completas de Edith Stein, Vol. II: Escritos filosóficos Etapa fenomenológica (1915–1920), 521–653. Trans. Constantino Garrido and José Luís Caballero. Burgos: Monte Carmelo. María Eliana Martínez Fernández holds a bachelor’s degree in Juridical and Social Sciences from the Pontificia Universidad Católica de Chile (PUC) and a BA in Theology at the Universidad Católica de Chile with a degree in Dogmatic Theology. She is a member of the PUC’s Edith Stein Interdisciplinary Center. Her scholarly articles include “Edith Stein and the Formation of Womanhood” (2010); “Fecundity: Its Concept in Glory – The Theological Aesthetics of Hans Urs von Balthasar” (2016); “Steinean-Thomistic Epistles” (2012); and “Empathy and Religious Experience in Edith Stein’s Thought” (2016).  

Sovereignty and the Ethical Demands of the State Luis Mariano de la Maza

Abstract  This study explores the concept of sovereignty, which, according to Edith Stein, is an essential constituent of the state. The origin of the concept is examined through Jean Bodin’s theory and other contractarian thinkers. The article goes on to explore Jacques Maritain’s view of sovereignty, which is to be distinguished from earlier forms. I compare Stein’s and Maritain’s views on sovereignty, while highlighting her discussion of the relation between freedom and state members’ rights, which implies certain values and ethical consequences. Ultimately, I question the supposed neutrality of Stein’s analysis. Keywords  State · Sovereignty · Contractualism · Law · Ethics

1  Introduction An Investigation Concerning the State (Stein 2005),1 written by Edith Stein when she was around 30 years old, stems from a period of personal transformation occurring shortly after the First World War – a time in which she felt herself called to take on certain political commitments. This was also the time that Stein converted to Roman Catholicism. She sees her work on the state as a phenomenological study, which followed the method she learned under Edmund Husserl and his philosophical circle in Göttingen and Freiburg in Germany and which insists on a description of the essential structure of the state itself, without consideration of its empirical facticity or historical reality. It is possible to assume that there may be some tension between the interests and personal involvement of Stein with the social and political reality of her time in Germany and the philosophical intent to address the subject of

 Spanish page references are followed by German page references, as found in the Spanish translation of Stein’s text. 1

L. M. de la Maza (*) Institute of Philosophy, Pontificia Universidad Católica de Chile, Santiago, Chile e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_6

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the state in the most objective and neutral way possible. We will try to establish whether this objective is fully fulfilled or whether in her description of the state she slips or lets infiltrate, so to speak, preconceptions that obey historical and cultural interpretations that condition the essential structure of the state. We focus our analysis mainly on the characterization that Stein makes of the concept of sovereignty and its ethical implications. We will proceed in four steps. First, we will concisely discuss the concept of sovereignty, which, according to Stein, is the essential constituent of state as such. Second, we trace the origin of the concept of sovereignty in the theory of Jean Bodin and other contractarian theorists, who are harshly criticized by Jacques Maritain and whose conception of sovereignty will be compared briefly with Stein’s. Third, we will deepen the understanding of the relationship that Stein establishes between this concept of sovereignty, freedom, and the rights of the members of state. Fourth, we address the question of the compatibility of the foregoing conception with the value and ethical demands of the state. Finally, we return to Stein’s claim concerning the neutrality of her theoretical analysis.

2  The Essential Definition of the State There are two things that immediately attract readers’ attention in Stein’s conception of the state. First, she defines the state within the conceptual framework of community, ultimately rejecting contractarian theory, which has dominated European political thought since the sixteenth century. Second, she deploys the concept of sovereignty as a defining feature of the state, but instead of using the modern sense of the term, which stems from the first great theorist of sovereignty, Jean Bodin, she refers instead to the Aristotelian definition, understood as the self-sufficiency of the political community. Turning to the first observation, according to Stein, the base of state life lies in community, which is understood as the highest form of sociality. She takes up the well-known distinction of the German sociologist, Ferdinand Tönnies, between community and society as forms of human groups, as developed in his work Gemeinschaft und Gesellschaft (1887). This distinction, which was also taken up by Max Scheler, among others, considers that the community is a form of natural bonding that establishes organic and solidary relationships, as its members recognize themselves as people who share a common way of life. Society, by contrast, has its origin in the arbitrary decision of particular subjects who act according to prevailing instrumental relationships in light of certain goals. Stein places the state somewhere between family communities or those based on bonds of friendship, and wider communities, such as religious communities or, more widely, the universal human community (Stein 2005: 531/4–5). She argues that state is neither necessarily linked to a certain territory nor identifies with the people, since it can encompass several peoples (Stein 2005: 611–616/82–88) or break the unity of a people. There also may exist peoples without a state. By people, she means a community that is

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distinguished from family and a circle of friends (Stein 2005: 539/12–13) because it embraces an open multiplicity of individuals, which makes impossible personal contact between all those who are part of it; but a people also exists “if and only if a culture of its own is born of its spirit, determined by its specific character” (Stein 2005: 541/14). Finally, Stein distinguishes people from nation, which she characterizes as having the reflexive consciousness of the people and which presupposes a certain degree of development or maturity of the latter (Stein 2005, 543/16). When Stein wishes to determine what specifically defines the state, she does not resort to Thomas Hobbes or Jean-Jacques Rousseau, but cites the Nicomachean Ethics in which Aristotle presents the political community as a group of people who participate in a common life to form a whole that is self-sufficient (Aristotle 1985: V, 1134 a). What awakens Stein’s interest in this passage is the reference to self-rule or autonomy, as Aristotle points to the same thing that she understands as the specific essence of the state.2 Other Aristotelian texts that Stein brings up in this regard are the books of the Politics, which deal with the necessity of economic and cultural life as a condition of possibility for the existence of the self-sufficient political community (Aristotle 1982: VI and VII).3 And she immediately adds that “self-­ sufficiency” means “effective independence with respect to all external power; and this independence is indispensable such that the authority of the state is unassailable” (Stein 2005: 620/91–92). Stein does not admit that sovereignty is a mere attribute of state power, which may or may not correspond to it, as Jellinek maintains in his General Theory of State (Jellinek 2000: XIV, 2 c, 441–444). According to his conception, it is a characteristic without which it would simply not make sense to speak of a state. Its existence requires a power that is self-constituted, that possesses the means to dispose of its sphere of dominion, to impose its recognition, and to penalize the transgressions of its right. According to Stein, sovereignty is not only something that essentially defines the state, but it is also an exclusive characteristic of the state. There may be other communities that want to possess it or have possessed it, but they do not become denaturalized if they are denied or robbed of the freedom to form themselves, as is the case, for example, when the state takes that power away from the Church (Stein 2005: 536–537/9–8). This way of understanding sovereignty does not imply that the state is prevented from carrying out actions that are requested by individuals or associations that are subject to its authority. It can do so, provided that the decision is not imposed on the state, but made by the state itself, which under certain circumstances and for good reasons may even self-­ limit by virtue of its own will (Stein 2005: 533–534/7).

2  Stein sees a certain connection between the Aristotelian concept of autarchy and the modern concept of sovereignty, to which we will return later, although she recognizes that both do not coincide exactly (see Stein 2005: 531–532/5). 3  In this same context, Stein analyzes the articulation of state in estates (Stein 2005: 617–622/88– 93). She maintains that the army and public officials are estates that represent the form of state itself, while other professional bodies derive from the division of labor, rooted in the community that is in the material base of state, but not in its own structure, for state ensures its proper functioning only to ensure its material base.

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3  The Problem of Sovereignty To understand properly the Steinian conception of sovereignty, one must distinguish it from the theory formulated in the sixteenth century by Jean Bodin. In the Middle Ages, before the theory of Bodin, the concept of sovereignty had only been considered a personal attribute of the monarchs, who did not accept the Empire and the Papacy imposing their supremacy on their kingdoms and limiting their internal power over the fiefs (see Carré de Malberg 1998, n. 25–28). Bodin, by contrast, identifies the concept of sovereignty with the state, which he designates as a republic: “Republic is a rightful government of several families, and of what is common to them, with sovereign power” (Bodin 1985: I, 1). Sovereign power is, for Bodin, an essential condition of the state: “[I]n the same way that the ship is only wood, without the shape of a ship, when the keel that holds the sides, the bow, the stern and the bridge are removed, thus the republic, without the sovereign power that unites all the members and parts of this one and all the families and schools in a single body, ceases to be a republic” (Bodin 1985: I, 2). He defines sovereignty as “the absolute and perpetual power of a republic,” of whose exercise the prince is accountable to none other than God (Bodin 1985: I, 8). The contractual theories of the 17th and 18th centuries reflect this conception of the sovereignty of the state with different nuances. In his Leviathan, Hobbes argues that men must leave the state of nature in which they are in permanent danger of dying violently at the hands of other men and, for this reason, they must create a power so irresistible that it turns any action contrary to reason into a disadvantage. That irresistible power is the state (Hobbes 1989: II, 17). When Hobbes discusses the reason for leaving the state of nature, he refers to the fact that human beings are able to discover the most appropriate means to achieve desired ends and have rules about it. What leads to confusion and further discussion is that Hobbes calls these rules “natural laws” (Hobbes 1989: I, 13,14); he deploys a traditional terminology to name simple arguments of convenience that reason itself “suggests” for the safeguarding or defense of human beings (Hobbes 1989: I, 16). The agreement that establishes civil society is a pact in which the contracting parties are singular individuals linked to one other, individuals who reciprocally commit themselves to submit to a non-contracting third party. The political power the pact establishes is the sum of the supreme economic and coercive power of the third party, which is concentrated in a single person to whom individuals transfer their freedom (Hobbes 1989: II, 17,18). Rousseau’s social contract deals with the balance that must exist between self-­ interest and social obligation. Everyone must be able to find a satisfactory field for their activities in the social order: To find a form of association that defends and protects with all common strength the person and the goods of each associate, and by which, joining each one to all, does not obey, however, more than himself and remains so free as before. Such is the fundamental problem to which the social contract gives solution (Rousseau 1980: I, 6).

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For Rousseau, it is necessary to build a social order that conforms to “nature,” understood as the most elementary and simple facts and operations, those in which there is nothing superfluous, contrary to the civilized world. For a naturally free human being to abandon nature and constitute a political body, it is necessary that s/he find at least the equivalent of what s/he gave, that is, a form of association that allows her or him to be “as free as before,” even though this new freedom is no longer natural, but civil (Rousseau 1980: I, 8). The social pact is reduced, essentially, to the following: each member puts his/her person and all their power in common under the supreme direction of the general will, and each member is considered a party inseparable from the whole (Rousseau 1980: I, 6). An important difference between Hobbes and Rousseau is, according to the former, that the contracting parties submit to a ruler while, according to the latter, they submit to the general will. The original contract is a pact between individuals, a pact of all with all, through which the multitude becomes a people (Rousseau 1980: I, 5). The only sovereign, then, is the whole people. One of the most decisive criticisms of the theory of state sovereignty can be found in Maritain’s book entitled Man and State, the first version of which was published in Chicago in 1951 and the second version published in Paris in 1953. This book also starts, like Stein’s, from the distinction between community and society. Maritain argues that the community arises from the prevalently unconscious reaction of human nature to the impacts of pre-understood and pre-willed realities, while society springs, ultimately, from conscious goals proposed by human freedom that depend on the intelligence and the will. From this distinction, Maritain extracts the consequence that political society and the state are forms of society and that the nation is a community. The concept of people refers to the group of people who make up a political society or political body, as he also called it. He does not accept, however, the identification between political society and the state, since such an identity views the state only as an organic and instrumental part at the service of the whole, which is political society (Maritain 1983: I, 123–140). After analyzing the doctrine of Bodin and its extensions in Hobbes and Rousseau, Maritain concludes that the modern concept of sovereignty has two meanings: (1) a natural and inalienable right to independence and supreme power; (2) a right to an independence and a power that are supreme in an absolute and transcendent form, that is to say, separated or above the political whole. But in his opinion, neither state nor political society nor people can be sovereign in this double sense. He only accepts the first element of the concept of sovereignty in relation to political society and the people, but not to the state. Maritain agrees with Stein and other theorists of sovereignty that what she designates as a state and he as a political body or political society has the right, first, to full internal autonomy – that is to say with respect to itself – and, second, to the full external autonomy, or in relation to other political bodies. Maritain does not accept something that Stein takes from the modern concept of sovereignty, namely, the right to an absolute independence and power over the political whole (Maritain 1983: II, 52–57). The only legitimate area of application of the concept of sovereignty in this second sense would be, according to Maritain, that of religion: God is

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sovereign over Creation and the Pope as Vicar of Christ is sovereign over the Church (Maritain 1983: II, 56 ff.). The point of view defended by Stein does not correspond to the conception criticized by Maritain, but it also does not coincide with the political philosophy of the latter, which became evident 30  years later with the historical experience of the Second World War. The connection that Stein establishes between the concept of sovereignty and the Aristotelian concept of autarky excludes the absolute and transcendent character over the political whole, rejected by Maritain. Stein does not understand the state in the same particular and instrumental sense of the French philosopher, but in the sense of what he calls body or political society. Unlike Maritain, however, Stein does not say that sovereignty –understood in the restricted sense, which both thinkers accept for the political body and the people – is a right. She does not situate itself in an ethical or normative perspective, but rather in the terrain of what she considers a description of the essence of the state, that is, of its ontic structure. She also introduces a distinction that is not in Man and State, namely, the distinction between the sovereign state and the bearers of sovereignty in the state. Regarding the bearer of sovereignty, Stein considers erroneous theories that hold that the bearer is, in principle, the monarch as well as those views of the state that attribute sovereignty, in principle, to the people, understood as the group of individuals that make up the state and that would own sovereignty as an attribute that belongs to them in property or that they must renounce in favor of a monarch or a representative body. The sovereign is, according to Stein, the state or the power that embodies it, not those who represent it or hold that power. This is the reason she considers that no one form of political rule deserves to be given preference over another in principle. If the whole people is constituted in state power, sovereignty rests in it; but if a monarch is present, then sovereignty is concentrated in him or her. Sovereignty presupposes a claim to power recognized by those it affects. It does not correspond “originally” to any of the parties constituting the state. In this sense, sovereignty is also distinguished from Maritain’s preference for a democratic State.4 Stein affirms that sovereignty does not grant the right to violate laws. The state imposes on itself and the members that comprise it the obligation to submit to the laws that it has promulgated: To free the state from the obligation to respect the right that it has proclaimed, would destroy the idea of law and, with it, the idea of the state. Therefore, the legal provisions of the state not only give rise to the duties of citizens and the pretensions envisaged in the law, but also the requirement, based on the pure form of legislation, that these duties be treated according to the current law (Stein 2005: 623/94).

As we will see later, Stein believes that the authority of the state is not only threatened by the contempt for the right that the actions of those who hold sovereign

4  Maritain does not speak in this regard about “sovereignty of people,” but prefers to define democracy as Abraham Lincoln did: “The government of people, by people and for people.” (See Maritain 1983: 39).

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power could show, but also by demands of alleged rights contrary to the state claimed by individuals or citizen groups.

4  Sovereignty, Freedom, and Rights According to Stein, sovereignty plays a role in the structure of the state analogous to that of freedom in the structure of the individual person. Just as a person is free to the extent that s/he is capable of performing acts not caused by an alien power and is also capable of governing him or herself, so too is the sovereignty of the state understood as freedom and self-government exercised not by an individual but by a social whole (Stein 2005: 571/44). In this sense, Stein views the state as presupposing individual liberties and as having no right to deny them, contrary to the Hobbesian theory of sovereignty: Only a formation that includes free people can declare itself sovereign or manifest itself practically as sovereign. The constitutive limit of sovereignty […is] that the freedom of individuals is not suppressed by the will of that state formation, or of the corporations that represent it, but is, on the contrary, the condition of its practical realization.... (Stein 2005: 569/42).5

The foregoing citation does not imply citizens’ rights existing a priori and valid for all empirical states (Stein 2005: 623 ff. / 94 ff.). It seems here that the idea of the state demands something more than the mere compliance to its specific task of legislating, since it must also ensure the material realization of justice; however, Stein argues that the state is not a necessary condition for the realization of the value of justice, because it is not possible to exclude that positive law established by a state moves away from the pure right and is unjust. In this sense, then, “the kingdom of Satan can be as perfect a state as the kingdom of God” (Stein 2005:594/66). Therefore, the condition or the proper purpose of the state is not the realization of justice or human rights. Stein distinguishes between pure, positive and subjective law. Pure right is the same at all times and for all peoples, regardless of any arbitrary circumstances and regardless of whether it is recognized or not. Positive law is one that has been established and recognized as valid in a differentiated way in different peoples and in different historical and cultural circumstances. Subjective right grants citizens legal personality, that is, the right to own and use goods as they see fit. The existence of subjective right is neither natural nor original, but is derived from an objective right that can be pure or a positive law provision (Stein 2005: 574/47). Stein rejects the concept of natural right, but we must bear in mind that she refers to a narrow sense of this concept, associated with a contractarian vision of the natural origin of the state, which owes its existence to a hypothetical act of renunciation of individuals’

 See also Stein 2005: 559/32.

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wills, who give to the state a presumed right that does not come from the state itself, since the state still has no reality except from nature: We must reject it [the theory of the social contract] insofar as it affirms that the state— genetically understood—owes its origin to a contract. We must also reject the idea that, by recognizing the state, individuals divest themselves of a right that comes to them, not from the state, but “by nature,” and that the state owes its existence to that self-emptying action of the individuals (understood now not historically, but in its principle). There is no ‘natural right’ (Stein 2005: 559/31).

For Stein, natural law theory constructs the state from the isolated individual, adding a theory of human rights that presents them as opposed to the state; as a result, a democratic demand to restrict the sphere of power of the state arises, imposing itself on the state demanding new functions and conditions for its citizens, such as social security and political participation. In this regard, she considers that, although this theory contributed significantly to the development of modern states, at the same time, it also poses the threat of state decline and decomposition, insofar as its sovereignty is attacked (Stein 2005: 622–624/93–95). Stein claims that natural law “is nothing more than an equivocal interpretation of pure law” (Stein 2005: 586/58), which “exists independently of individuals and their organizations” (Stein 2005: 559/31ff.). This concept of pure right is taken from Reinach, who was her colleague and friend in the Göttingen Philosophical Society that formed around Husserl (Reinach 2010: 155–160/273–277). The natural law that Reinach and Stein criticize has the pretension of being a right endowed with immutable content, which is valid for all times and places regardless of the life conditions of those individuals upon whom the validity of the law depends. The main difference with the pure right is that the latter has no material content, but only a formal structure that lies at the base of everything that is presented as law; therefore, it has no reference to the regular processes of physical or human nature. Only in this way can it truly be an a priori right, understood as necessary and universal: “If you have spoken of ‘the natural rights’ of men, this expression cannot mean but: ‘It is a priori fair that human beings enjoy certain subjective rights.’” (Stein 2005: 575/47).

5  Value and the Ethical Demands of the State Stein distinguishes between two questions that at first glance could be confused, since both refer to the relationship of the state with values. One thing is to ask if the state can or should be the bearer of values, while another is to ask if the state as such has value. If the state is valuable in itself or if it possesses values, the possibility remains that concrete states, or at least some of them, are de facto bearers of values (Stein 2005: 627ff./98). Stein accepts that community life, in particular a community of people understood as a culture-creating personality, has value as such, but she maintains that this does not imply the justification on principle of the value of the state, since it is not

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essential for a community to take the form of a state (Stein 2005: 630/100). Although it is true that a community of people tends to a state organization since, in this way, it can protect itself from certain dangers that threaten its existence and since, above all, in its quality of active community and as a creator of culture, it needs a stable order to exercise its creative activity, the community corresponds to a positive legal order, which does not necessarily agree or correspond with pure right. By putting the positive legal order at the service of the community, the state contributes to realizing the value of the community, but it does not create the value itself, as the state only has a value derived from the community. Stein introduces here the question of whether the state is subject to ethical standards. In this respect, she distinguishes ethical norms from legal ones. Concerning ethical norms, she says that they refer to the way in which individuals express themselves through spiritual qualities, convictions, and emotional reactions, all of which are indifferent from legal norms that are only interested in free acts that have legal effects in the field of positive law (Stein 2005: 633/102). Stein finds in the field of ethics a distinction parallel to the one she has made between pure law and positive law. There are ethical values and ​​ duties of universal nature, and therefore they have a priori validity, without the need to be promulgated or recognized. Concomitant with them are also the dominant morals found in certain places and times, which could deviate in some cases from those a priori values and duties in the same way as positive law can move away from pure right. Stein proposes as an example of justice and duty that of helping people in need, whose validity does not depend on the fact that justice and duty are recognized because they may or may not be practiced effectively in a particular community and, in some cases, they may become the content of legal provisions that punish for their non-compliance under certain conditions (Stein 2005: 634–639/103–108). Although the state may be considered a subject of free acts, it is not understood in the same sense as an ethical and legal subject. Being a legal subject, that is, being in charge of the legal order, is inherent to the state as such. If this were not the case, the state would not exist as a state. Furthermore, if the state did not care about ethical standards, it could be said to be unfair or defective, but the state does not cease to exist. Therefore, the law can be considered at most as an a priori condition for morality insofar as de facto it is able to remove obstacles for moral grounds and also morally educate, but all of this is not necessary for its own structure. In this sense, Stein is opposed to the doctrine of Johann Gottlieb Fichte and Georg Hegel, who conceive of the state as essentially placed at the service of moral law, as a carrier of historical events whose purpose would be precisely the realization of moral compliance as the idea of ​​freedom (Stein 2005: 643/113). Though Stein accepts the description of history as a process of spiritual development, she dismisses the claim that what is developed in this process is freedom itself; rather, the bearer of freedom is developed, that is, the individual person or the community of people develop because, in her opinion, freedom in the strict sense is something that you have and can exercise in a good or bad way, but not develop (Stein 2005: 645/123ff). Despite what she said above, Stein declares that it is possible to make demands on the state in the name of ethics (Stein 2005: 641–3/111 ff). First, it must be

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required for the state, as far as possible, to carry out the content of its legal provisions or, at least, contribute to fulfilling certain values, among which justice stands out as that value whose realization has been specially assigned to it. In other words, the state can be required to have fair, just laws. Second, the state is required to adopt provisions or leave spaces of freedom for the development of the initiatives of individuals, associations, and communities that may carry values that ​​ are not specific to the state. In other words, the state can be required to have its power restrained so that the moral values ​​of people can flourish without impediment. But this does not mean, according to Stein, that the state is the instrument that makes possible the domain of the moral law in the world (Stein 2005: 643 ff/122). For Stein, the development of morality basically means the formation of sensitivity for all kinds of values ​​and a space of ever more freedom to actualize them. Finally, demands can also be made on the state regarding its behavior with other states and with extra-state associations. In this regard, Stein points out that not only is a state obliged to consider the values it ​​ must protect because it is their carrier, but also other values ​​that may be affected by the behavior the state adopts, although the discernment about the correctness of the decisions it takes, in most cases, exceeds the capacity of judgement of the people who have to make them. An example that reflects this difficulty is proposed by Stein with regard to the relationship between the state and religion, since both spheres make demands for obedience that are presented as absolute and, therefore, exclusionary: The absolute primacy of the religious sphere over all others, and the absolute obedience demanded by it for the commandment of God are incompatible, it seems, with the unconditional obedience that the state demands with respect to its orders (Stein 2005: 648/117).

For Stein, there is no solution to the conflict based on the particularity of both spheres. The phrase of Jesus, according to which it is necessary to give to Caesar what belongs to Caesar and to God what belongs to God (Mt 22, 21), means that the believer can recognize the state’s sovereignty, but under the condition that its norms do not contradict the religious values recognized by its members, including limitations pertaining to religious worship or obstacles to the exercise of priesthood. In this sense, Stein advises a measure of prudence: the state is self-limited to a certain degree in that it cannot convert the religious impulses of the governed into hostile forces, but can view them as allies for its purposes, ultimately avoiding the state’s self-restriction reaching an extreme situation in which the state loses its capacity for self-determination (Stein 2005, 651 ff/120ff).

6  Possible Conflict? If the Investigation Concerning State aspires to be a phenomenological description of the essential structure of the state, which brackets factual considerations related to the history of actually existing states, except to illustrate the difference between

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what has permanent validity and what does not, the description would also have to be independent of the current interpretations that historically have been offered for understanding the diverse constitutive aspects of the state. However, it can be inferred from Stein’s study that there is more than one element that brings into play certain preconceptions or prejudices, understood in the positive sense that Hans-­ Georg Gadamer’s hermeneutic philosophy recognizes and not in the sense of a disqualification that comes from an illustration. Among these preconceptions that cannot be described as evident intuitions in the sense demanded by descriptive phenomenology is, in our opinion, the valuation of a concept of unlimited sovereignty. Historical experience has shown that there are not only possible restrictions voluntarily accepted by the state itself (for example, when it is subject to international treaties), but de facto restrictions also arise when other external powers cause changes in the policies of a supposedly sovereign state through military intervention or economic pressure or when international courts propose to try crimes against humanity, which ultimately are not tried by the competent authorities of the state to whom the right of prosecuting its own citizens belongs. The issue of crimes against humanity or violations of human rights is connected to another aspect of Stein’s theory of the state, in which one can observe influences of theories that may not be the strict result of a purely contemplative study of the things themselves. It has been pointed out that the rejection of the traditional doctrine of natural law has at least two antecedents that obey legitimate interpretations, but not infallible ones. One is the doctrine expounded by Reinach, which stems from a concept of a priori legality that does not admit normative content. The other is a historical interpretation of natural law which, as we have seen, associates natural law with contractarian theory, according to which the emergence of the state presupposes that originally free individuals alienate their freedom so that the sovereign state may be constituted. But there are other traditions of thought, such as that represented by Maritain, according to which respect for human rights must be obligatory for all states, as enshrined in the Universal Declaration of Human Rights proclaimed by the United Nations in 1948, on which the same Maritain did exert an influence. Stein affirms that the realization of justice is not a necessary condition of the state, but at the same time she indicates that this realization of justice is an ethical requirement of the state. What is at stake here is the sharp distinction between the state’s being and its duty. The state may or may not be fair without losing its status as a state, maintaining its sovereign status. But, from the viewpoint of duty, justice can be demanded. It is worth asking if this way of making the distinction between the theoretical and the practical does not imply a subordination of the practical to the theoretical. Although this can be justified in the field of logic and ontology, when applied to the reality of the state – whose existence does not obey the restrictions of theoretical problems, but rather the practical needs related to assuring the reasonable coexistence of people and human groups – this can cause individuals or groups possessing a supposedly superior knowledge than the rest of the population to want to impose decisions that affect all people without leaving space for deliberation or citizens’ participation.

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But even when Stein attempts to demonstrate objective neutrality by refraining from taking sides over monarchical versus democratic forms of state rule, since she considers that both are compatible with the pure idea of the ​​ state, she unavoidably rejects a despotic interpretation of state sovereignty in which the bearer of sovereignty could violate the norms promulgated by himself or herself or threaten the freedom of the citizens who make up the state. In the end, this break in objective neutrality speaks very well of Stein, for it reveals not only a healthy ethical and political commitment to public life, but also a concern that goes beyond the analysis of a purely theoretical concept of the state: Stein can be seen as taking into account the conditions and the real consequences of the acts of the factual subjects that form the state.

References Aristóteles (Aristotle). 1982. Política. Introducción, traducción y notas de Manuela García Valdés. Madrid: Gredos. ———. 1985. Ética a Nicómaco. Edición bilingüe y traducción de María Araujo y Julián Marías. Introducción y notas de Julián Marías. Madrid: Centro de Estudios Constitucionales. Bodin, Jean. 1985. Los seis libros de la República. Selección, traducción y estudio preliminar de Pedro Bravo Gala. Madrid: Tecnos. Carré de Malberg, Raymond. 1998. Teoría General del Estado. Traducción de José Lión Depetre. México: Fondo de Cultura Económica/UNAM. Hobbes, Thomas. 1989. Leviatán. Traducción, prólogo y notas de Carlos Mellizo. Madrid: Alianza Editorial. Jellinek, Georg. 2000. Teoría general del Estado. Traducción y prólogo de Fernando de los Ríos. México: FCE. Maritain, Jacques.1983. El Hombre y el Estado. Trad. de Juan Miguel Palacios. Madrid: Encuentro. Reinach, Adolf. 2010. Los fundamentos a priori del derecho civil. Edición, traducción y estudio preliminar de Mariano Crespo. Comares: Granada. Rousseau, Jean Jacques. 1980: El Contrato Social. Traducción de Mauro Armiño. Madrid: Alianza Editorial. Stein, Edith. 2005. Obras completas. Traducidas bajo la dirección de J. Urquiza y Francisco Javier Sancho, 521–653. Burgos: Monte Carmelo, II: Escritos filosóficos. Etapa fenomenológica. Luis Mariano de la Maza holds a PhD in Philosophy with a certificate in the theory of history and fundamental theology from Ruhr-Universität Bochum in Germany. He is currently professor at the Pontificia Universidad Católica de Chile. He teaches and publishes on German idealism, phenomenology and hermeneutics, philosophical anthropology, and ethics. His publications include Knoten und Bund. Zum Verhältnis von Logik, Geschichte und Religion in Hegels Phänomenologie des Geistes (Bonn, Bouvier: 1998); Lógica, Metafísica, Fenomenología. La Fenomenología del Espíritu de Hegel como introducción a la Filosofía especulativa (Santiago de Chile, Ediciones UC, 2004); and the coedited volume Realidad humana e ideal de humanidad. Perspectivas antropológico-éticas (Santiago de Chile, Ediciones UC, 2013).  

Religion, Mysticism, and the State Juan Francisco Pinilla

Abstract  This paper explores the possible relationship between Stein’s early phenomenologicaI work on the state with her later Christian philosophy, especially her writings on figures like John of the Cross and Dionysus the Areopagite. Though Stein does not address spiritual theological questions in her political treatise, she raises the importance of the soul or psyche for the state insofar as all persons are constituted as lived body-soul-spirit unities: Persons are members of the state community and the state is conceived as a quasi-person. If we take seriously Stein’s later views of personhood, amplified by her theological discussion, the state, which is personal, can be said to come to bear some responsibility for the well-being of the spiritual soul of its people. Keywords  State · Religion · Mysticism · Spirituality · Edith Stein · Spiritual theology

1  Framing the Question We seek to propose a possible response within the frameworks of spiritual theology and Christian mysticism to some of the claims made by Edith Stein in her work, An Investigation Concerning the State (Stein 2007).1 The issue introduced here is far from obvious: What kind of relationship exists between the state and mysticism, supposing that it is a true relationship and not just a typical appropriation of one by the other? Indeed, is it possible to formulate concepts like the “mysticism of the state” and, furthermore, to specify what the state can say to the mystic and vice versa? Are the state and mysticism realities that reciprocally help, reinforce, or cancel out one another? How could we connect both realities, which are so apparently different from one another?  In Collected Works of Edith Stein 10 (hereafter cited as IS).

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J. F. Pinilla (*) Faculty of Theology, Pontificia Universidad Católica de Chile, Santiago, Chile e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_7

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Moreover, there are some expressions of the state that illustrate the anthropology that supports Stein’s experience, thereby facilitating a more active role for mysticism: “We customarily talk about the state as a person. That seems to indicate that we have to look for its place in the realm of mind” (Stein 2007: 3).2 There is also, however, a lack of soul in the state: “An additional reason, of course, is that the state is not anchored in the soul of the persons who belong to it” (Stein 2007: 192).3 The second chapter of Stein’s work on the state, “The State from the Perspective of Value,” provides us with a useful reference, especially as it concerns the relation between the state and religion. Though different, both spheres of power coexist and both are considered sovereign and absolute, which possibly leads to some tensions between the two spheres, especially in terms of values. In this section of her work, the issue of mysticism is not addressed, except in the religious sphere when we consider God as either the greatest representative or main enemy of the state. Furthermore, consider the precipitous ending of Stein’s text: “Therefore the individual who is living in the state can be holy or profane, and so can the ethnic community whose life it regulates; but the state itself cannot be so” (Stein 2002b: 653).4 As a result, we can see that the state and religion are more related than is obvious. Let us explore more directly the following question: Is religion a relevant issue for the life of a state, both in its transformations and its development?

2  Religion, and the Mysticism of John of the Cross Before we can explore the relationship between the state and religion, we need to understand Stein’s conception of mysticism, for it is one of the principal categories of Stein’s philosophy of religion. Mysticism is a large theme in her work and it would be impossible to give a full account here, but we can certainly focus on a relevant insight found in her last work, The Science of the Cross, which centers on the Spanish mystic, St. John of the Cross (Stein 2002a).5 It is important to emphasize here that Stein’s attention is focused more on the mystic himself rather than his doctrine. Among the sources that inform Stein’s philosophical and theological trajectory, one finds St. Augustine of Hippo and St. Thomas Aquinas. Stein’s own mysticism is influenced by the works of Dionysius the Areopagite, St. Teresa of Avila, and St. John of the Cross, “the holy Doctor.”6 Stein devoted significant study to the figures in order to grasp their insights while relating them to her own life.  IS, 3.  Ibid., 192. 4  Stein, “Una investigación sobre el Estado,” 653. Translation mine. 5  In Collected Works of Edith Stein 6. 6  “Since the church has raised the saint to be a Doctor of the Church, anyone who wishes to gain information in the sphere of Catholic doctrine on questions of mysticism may look to him. And far beyond the boundaries of the Catholic Church, he is also recognized as one of the leading spirits, 2 3

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In Ways to Know God (Stein 2000: 1650),7 one of Stein’s later works written 20 years after her study of the state, she writes: Our question now is: what makes the prophet [Isaiah] certain that he is standing before God? Seeing with the eyes or in the imagination does not necessarily have anything to do with this. When both are absent there may still be an inner certainty that it is God who is speaking. This certainty can rest on the “feeling” that God is present; one feels touched in his innermost being by him, by the One present. We call this the experience of God in the present; one feels touched in his innermost being by him, by the One present. We call this the experience of God in the most proper sense. It is the core of all mystical living experience: the person-to-person encounter with God (Stein 2000: 2071–2077).8

Further, she observes: And only when this happens may we speak of a personal experiential knowledge of God. We called this “feeling of God’s presence” the core of all mystical experience. However, it is only the beginning of the mystical life of prayer, the lowest stage (Stein 2000: 2109–2111).9

These few lines, which usually go unnoticed, summarize specific issues referring to mysticism as an expression of religion. On the one hand, the statement “the feeling of God’s presence” makes manifest objective and subjective features of mysticism in order to compose an “experiential knowledge of God”; furthermore, a determined type of knowledge is shown as achievable.10 On the other hand, a most remarkable feature of Stein’s own mysticism appears, namely, the recognition of a qualitative evolution in the mystical prayer life (Stein 2002a: 3743–3751),11 a topic discussed in her commentary on “The Interior Castle” of St. Teresa of Avila. Stein writes, “… the Christian perceives and experiences the active presence of God in the soul” (Bernard 2018: 554).12 Father Bernard comments: The mystical prayer is a gift from God that assumes the fundamental gift of the Holy Spirit; thanks to him, the seven gifts of the spirit are distributed in abundance and create a new state of consciousness. Thus, by “mystic”, in the strict sense of the word, we understand that for whom that state of consciousness is habitual (this observation essentially admits that in the Christian life, as the experience shows, the mystical “moments” are frequently; however, according to St. John of the Cross, similar occasions to “morsels of contemplation” are

a reliable signpost, which no one who earnestly wishes to advance in the mysterious realm of the interior life may bypass. And yet John of the Cross has not given a systematic delineation of mysticism” (Stein 2002a: 1163–66). 7  In Collected Works of Edith Stein, vol. 8, chap. 5. 8  Stein, Knowledge and Faith, 2072–77. 9  Ibid., 2109–11. 10  “By using the term knowledge to express the act of mystical consciousness, perhaps we won’t come to understand its most original aspect. In fact, the depth of mystical experience is not considerably related to the knowledge such as the vital-affective union with the Absolute. This union can be expressed in an ontological manner (expressing itself then in terms of identity and unity) or in a personalistic manner (it will refer then, particularly in Christianity, to union of love and even of spiritual marriage)” (Bernard 2018: 550). 11  Stein, The Science of the Cross, 3743–51. 12  Bernard, Spiritual Theology, 554.

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We also find the term “mystical experience” in The Science of the Cross, and it refers to experiences of consciousness that are apparently contrary to the divine presence in the soul: What has happened to her, however, is despite all coincidences something fundamentally other than the acquired contemplation and the surrender to God in mere faith, the experience of which is similar to that of acquired contemplation. The new form is a being seized by the God whose presence is felt or –in those experiences of the Dark Night when the soul is deprived of this sensible perception of his presence– the painful wound of love and the fervent longings that remain in the soul when God withdraws from her. Both are mystical experiences, based on that form of indwelling that is a person-to-person touch in the inmost region of the soul. Faith, on the contrary, and all that belongs to a life of faith rests on the indwelling by grace (Stein 2002a: 3889–3896).14

I would like to highlight an important claim: the presence of God that “is felt” or “in the Dark Night” is determined by “that form of indwelling that is a person-toperson touch in the inmost region of the soul.” Fundamental is the contact, the certainty of a living presence that transcends the limits of typical perception; it opens as a supreme uncreated light to the personal Trinitarian conception. The unconsciousness of the infinite reality in the experience precisely confirms the experience’s very transcendent authenticity. Stein’s later writings on religious, mystical experience reveal a profound intersubjectivity or sociality, a deep community between God and humans. And Stein defends community, a spiritual form of sociality, as the base of the state in her early work. But spiritual here is not understood in a transcendent, religious sense, but as the domain that designates the realms of the activity of human reason, freedom, and motivation.

3  Expanding Community to Include the Transcendent Stein understands the state to be a communal entity, and the main connection between the state and mysticism lies in the very structure of the human person, understood as capax of community. In her later work, the human person, created as a divine image, is re-imagined as a people in communion with God. This capacity for community is essentially a capacity for love, which is more than a mere potentiality: it is an operative reality, especially considering that it constitutes the human being as a person. Capacity refers to the possibility of being in action, an originating potentiality and not a mere and neutral possibility.

13 14

 Ibid., 558–59.  Stein, The Science of the Cross, 3889–96.

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At this point, it should be noted that mysticism is usually identified by Stein as an experience of personal communion with God, grasped as the Absolute, which allows one to transcend ordinary life experiences. Furthermore, mysticism is associated with a series of extraordinary graces.15 For this reason, the community perspective is not always noticed, which is not the case within social and political spheres. In mysticism, community is really a transcendent personal realization. According to believers, the communion with God as Absolute is a personal issue in the sense that it encompasses the totality of personal life, knowledge, and affectivity. Converse to the cataphatic order (with the consequent disorder of consciousness), communion with God emerges from a greater freedom, and it tends intensely toward God-communion in its ineffable and perichoretic interpersonal relation. Christian mysticism corroborates a personal encounter of the individual with the Triune God and it develops, given various conditions, constantly advancing toward the subsequent contemplation and assimilation of the will and being into the will and being of God. Hence, the Christian dynamic of human-divine communion tends to charity by nature; furthermore, the plenitude of the Christian life consists in the greatest perfection of charity, encompassing human relations and the cosmos.16 Alongside this concluding idea, I maintain that the mystical experience is an encounter of love, which is confirmed and supported by the mysterious communion of saints. In that regard, St. John of the Cross declares that the extraordinary granting of grace to some saints arises from the communion of saints.

 John of the Cross, “For who can describe that which He shows to loving souls in whom He dwells? Who can set forth in words that which He makes them feel? And, lastly, who can explain that for which they long? Assuredly no one can do it; not even they themselves who experience it.” Spiritual Canticle, prologue 1. He continues, “Notwithstanding the marvellous mysteries which holy doctors have discovered, and holy souls have understood in this life, many more remain behind. There are in Christ great depths to be fathomed, for He is a rich mine, with many recesses full of treasures, and however deeply we may descend we shall never reach the end, for in every recess new veins of new treasures abound in all directions.” (John of the Cross 2000: stanza 37.3). 16  The term “political charity” appears already used (and most probably for the first time in the field of the Magisterium of the Church) by Pius XI in his speech of 18 December 1927 to the Italian Catholic Federation of University Students (Federazione Universitaria Cattolica Italiana, FUCI). If Mussolini had accused the FUCI of going beyond the proselytism and incurring political activity, Pius XI will proclaim that politics, as it takes care of the interest of the whole society, constitutes “the field of the broadest charity: the political charity” and upon which there is no other point than the same religion. Cf. Lorenzo Cappelletti, “The International Imperialism of Money,” 30 Days, n° 4 (2009), http://www.30giorni.it/articoli_id_21060_l3.htm; Análisis Digital, “La Caridad política. De Pío XI al…papa Francisco,” blog entry by Teófilo González, July 5, 2014, http://www.analisisdigital.org/2014/07/05/la-caridad-politica-de-pio-xi-alpapa-franscisco-2/ 15

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4  Sovereignty Terms such as “state,” “community,” “people,” “nation,” “culture” all consider the human being as both the original source and the intense reality of the spirit. This is a constant affirmation of Stein’s treatise on the state. The philosopher also recognizes that it is sovereignty that defines the state, which implies the power and capacity on the part of the state to exercise it while concomitantly giving priority to issues related to freedom, the common good, and personal and social fulfillment. Nevertheless, even though the state considers the person and the community of the people as important principles, this does not mean that its fundamental constitution depends on it. If this were the case, one could argue that the state community could itself ground the possibility of anarchy. For this reason, it is necessary to understand the state as a self-giving, a self-bestowal of its own sovereignty. The state itself is first and foremost sovereign, and only when it is recognized as such can it deploy the community of law-givers and law-followers to enact and express its sovereign will. But this “personal” being of the state (Calcagno 2002), which emerges from itself and is approved by the responsible subjects, has a close relationship with the paradoxical giving of oneself found in Christian mysticism. The relationship between gift and freedom is unavoidable, especially in relation to the self-giving of the mystical experience in the graced human consciousness, for it is a free self-­ giving. There is no justification for the experience of a particularly high degree of mystical life, and at the same time, mysticism can express the grace found in the active-passive purgative dark night of the soul, which is affected by the same choice that invites grace to leave and rise constantly, to enter and go deeply beyond itself. The mystic comprehends that the only appropriate attitude is to prepare for the divine, transformative action. Likewise, in the state community, members freely choose to make open their lives to others such that one can live in the life of the other in solidarity.

5  Freedom, Autarchy, and Subversion State sovereignty is an expression of a unique form of freedom that is distinct from other forms of freedom. Sovereignty is a relational quality: it means having power over others, those living in one’s own or sometimes even another’s state. It is the free administration of power understood in terms of a community’s “life current or flow.” It is a power that limits and self-limits in order to let the community ordered as a state to function; it is a power that constantly acts through its representation by members of the community. What kind of sovereignty could religion (as expressed in Stein’s writings on mysticism) have? Mystical experience could be considered as having a communal sovereign, and disturbing experience of being controlled by an authority (Ales Bello

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2002: 650); we no longer have our own jurisdiction over our own spiritual acts, including the gifts given by the Holy Spirit. Concerning love, there is no law, thereby confirming the words of St. Paul: “But the fruit of the Spirit is: love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control, temperance; against such things there is no law” (Gal. 5:22–23). But mystical religious experience not only bespeaks the surrender of oneself to God but also union with God. Likewise, in state sovereignty one subjects oneself to the state law in order that one may live a deeper communal union of solidarity, which for Stein is not simply an objective societal relation in which the life and action of the collectivity are directed to some external goal or end. Stein’s religious writings create a possible opening to a transcendent experience within the realm of the state, thereby dilating the personal realm (Solon 2001: 218–220). If we concede that the state may include a space for religion, as even Stein’s early text indicates, it will have to be a personal space where the divine and the human can genuinely encounter one another, perhaps even in mystical experience. Also, if we recast the relation between the human and the divine in terms of Steinian state sovereignty, what also follows is a profound and wider sense of community, which implies not only a more intense form of lived sociality but also a deeper responsibility for the lives of human with one another and with God. Translated from Spanish by Pedro Pablo Garmendia. Formatting of the text by Rodrigo Vidal.

References Ales Bello, Angela. 2002. Edith Stein, Phenomenology, the State and Religious Commitment. Analecta Husserliana, vol. 80, 648–656. Dordrecht: Springer. Bernard, Charles André. 2018. Spiritual Theology: Toward the Fullness of Life in the Spirit. English version retrieved from http://www.sigueme.es/libros/teologia-espiritual.htm. Calcagno, Antonio. 2002. Edith Stein: Is the State Responsible for the Immortal Soul of the Person? Logos 5(1, Winter): 62–75. John of the Cross. 2000. A Spiritual Canticle of the Soul and the Bridgeroom Christ. Michigan: Christian Classics Ethereal Library. http://www.ccel.org/ccel/john_cross/canticle.html. Solon, Ari M. 2001. State, Law and Religion in Edith Stein's Thought. International Journal for the Semiotics of Law 14 (206): 215–221. Stein, Edith. 2000. Knowledge and Faith. Trans. Walter Redmond. In The Collected works of Edith Stein, ed. Dr. L. Gelber and Michael Linssen, vol. 8. Washington, DC: ICS Publications. Kindle Edition. ———. 2002a. The Science of the Cross. Translation by Josephine Koeppel. In The Collected works of Edith Stein, vol. 6,. Washington, DC: ICS Publications, 2002. Edition for Kindle. ———. 2002b. Una investigación sobre el Estado. In Obras Completas, ed. J.  Urkiza y F.  J. Sancho, vol. 2, Escritos filosóficos. Etapa fenomenológica, 521–653. Burgos: Monte Carmelo. ———. 2007. An Investigation Concerning the State. Trans. Marianne Sawicki. In The Collected works of Edith Stein, vol. 10. Washington, DC: ICS Publications.

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Juan Francisco Pinilla is associate professor in the Faculty of Theology at the Pontificia Universidad Católica de Chile. He holds a doctorate in Theology from the Pontifical Gregorian University in Rome (1993) and a master’s degree in Theology from Pontificia Universidad Católica de Chile (1989). He is the director of the UC Center for Interdisciplinary Studies of Edith Stein. He is part of the Editorial Board of the review Theology and Life of the Faculty of Theology. He is professor of Spiritual Theology and a specialist in Juan de la Cruz. He has published studies on Christian mysticism and the value of feeling for spiritual experience. In addition to his academic activities, he has been an episcopal vicar for Education and a parish priest in the Archdiocese of Santiago in Chile.  

The Challenges Posed by the Community of Law-Givers and Law-Followers in Edith Stein’s Idea of the State Antonio Calcagno

Abstract  Edith Stein’s investigation of the state raises many interesting and challenging questions, not only on account of its form but also in terms of its content. One of the central claims that Stein makes about the state concerns its autonomy: the state is defined by its sovereignty to self-legislate, but this power to self-legislate is framed within a community of law-givers and law-followers, and not in a society. The law (Recht) community consists of a “solidarity” between members of “one living in the experience of the other” (ineinandergreifen): members of the community live together the sense (Sinn) of drafting, discussing, implementing, executing, following, and even reforming the law that defines the status and essence of the state. I argue that the intimacy and intensity that typify Steinian community pose a challenge for her understanding of the state: Can the law practically function within the framework of such an intimate and intense form of sociality, which Stein calls community? Perhaps society (Gesellschaft), rather than community, would be a better fit for the sociality required for the law? Perhaps the law needs both community and society for it to work most effectively within the context of the state? Keywords  Sovereignty · Law · A priori right · Positive right · Edith Stein · Community

If one examines the entire corpus of Edith Stein’s writings, one finds a series of consistent themes that mark her philosophical interests, including personhood, being, intersubjectivity, psyche, consciousness, sociality and community. One could say that Stein spent her lifetime elaborating and re-elaborating her ideas, much like her teacher Edmund Husserl did as he constantly revised his idea of phenomenology. Scholars have demonstrated her philosophical contributions to these realms of philosophical inquiry. One theme or phenomenological “object” that remains largely understudied, however, is Stein’s understanding of the state, although this is A. Calcagno (*)

Department of Philosophy, King’s University College, London, ON, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_8

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changing, as is evidenced by the first international symposium on Stein’s work, An Investigation Concerning the State, Eine Untersuchung über den Staat,1 which was held at the Pontificia Universidad Católica de Chile from August 9–11, 2016.2 There are numerous reasons why Stein’s treatment of the state has not received as much attention as her other works on sociality, but one could isolate four important factors that have delayed scholarship on this important text. First, there is the legacy of history. Undoubtedly, political texts produced just prior to or in between the World Wars have become marred, justly and unjustly, by the violent legacy of the various forms of totalitarianism, colonialism, and imperialism that shaped the first half of the twentieth century. There is a reluctance on the part of scholars to examine texts that may echo, in one form or another, sentiments that somehow may be interpreted as justifying unpopular or even violent sentiments that extend from our contemporary views of World War I and World War II. Stein’s text is firmly situated within early phenomenology and can be read, and unjustly so I think, as perhaps extending pro-German ideologies of the First World War, especially some of her comments on the Volk – sentiments that we find in the early work of Max Scheler in his support for the German cause of World War I, a position which he later recanted. Second, from a phenomenological perspective, it is not always clear how Stein’s work on the state fits into her phenomenology proper. We certainly find eidetic analysis, but we also find certain omissions, including a sustained treatment of states based on societal contracts. Stein rejects contractarian theories of the state because they presuppose that all members of the state have agreed to the contract, but outside of this basic criticism, there is little else she says about contractarian models. Moreover, there is no sustained consideration of other models of statehood, for instance, communist theories of the state. She does tell us that the consideration of particular forms of rule does not necessarily impact the essential structure of the state, but even if we were to concede that sovereignty is key in any form of rule, I would say that it does matter how this sovereignty is organized and lived out. For example, the sovereignty of the tyrant is certainly different than democratic sovereignty. In her earlier phenomenological works, Stein painstakingly analyzes the positions of various potential critics of her own view, for example, on psychology, empathy, and even community. We do not find this kind of phenomenological critique in her treatment of the state, perhaps betraying her own political bias. Third, Stein’s ­understanding of the state is not only confined to her treatise on the state. We find 1  Originally published in 1925 as Eine Untersuchung über den Staat, in E. Husserl (ed.), Jarhrbuch für Philosophie und phänomenologische Forschung, vol. 7 (Halle: Niemeyer), 1–123. Republished by the same publisher in 1970, but added to the text was Stein’s earlier text, Beiträge zur philosophischen Begründung der Psychologie und der Geisteswissenschaften. The treatise on the state remained unchanged, though the pagination shifted to 285–407. A new critical edition of Stein’s text on the state is: Stein, E. (2006), Eine Untersuchung über den Staat, in Ilona ReidelSpangenberger (ed.), Edith Stein Gesamtausgabe, vol. 7 (Freiburg: Herder). English Translation: An Investigation Concerning the State, trans. Marianne Sawicki (Washington, D.C.: ICS Publications, 2000). 2  http://edithstein.uc.cl/Noticias/vii-simposio-sobre-el-estado-de-edith-stein-una-instancia-interdisciplinar-para-abordar-la-contingencia.html

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relevant discussion of statehood in her work Philosophy of Psychology and the Humanities (Stein 2000: 281, 284), Einführung in die Philosophie (Stein 2004: 173, 223), and in the Aufbau der menschlichen Person (Stein 1994: 165–172). Given that the state appears, albeit in minimal forms, in other Steinian texts, work has to be done to synthesise a more complete view of the Steinian state. Finally, for those inclined to the study of political theory, one is often struck by puzzling and, sometimes seemingly irreconcilable, claims (for example, the reduction of sovereign rule to the good-functioning of the law and the view that members of the state can actively participate in the life of the state, even if perhaps their interactions with the law are minimal). One of the central claims that Stein makes about the state concerns its autonomy: the state is defined by its sovereignty to self-legislate, but this power to self-legislate is framed within a community of law-givers and law-followers, and not within a society. The law (Recht) community consists of a “solidarity” between members and “one living in the experience of the other” (ineinandergreifen): members of the community live together the sense (Sinn) of drafting, discussing, implementing, executing, following, and even reforming the law that defines the status and essence of the state. I argue that the intimacy and intensity that typify Steinian community pose a challenge for her understanding of the state: Can the law practically function within the framework of such an intimate and intense form of sociality, which Stein calls community? Perhaps society (Gesellschaft), rather than community, would be a better fit for the sociality required for the law? Perhaps the law needs both community and society for it to work most effectively within the context of the state?

1  Stein’s Theory of Society and Community Edith Stein was very well versed in the psychology and sociology of her day. She read avidly and draws upon leading studies and figures to build her phenomenological account of social and political realities. In her complex treatment of sociality, Stein draws upon such figures as Max Scheler, Dietrich von Hildrebrand, Theodor Lipps, Georg Simmel, and Ferdinand Tönnies. She accepts as her starting point what the then-nascent science of sociology saw as the three primary forms of sociality: the masses, society (Gesellschaft) and community (Gemeinschaft). Certainly, these forms of social relations are deeply structured by material circumstances such as history, geography, economics, culture, religion, art, politics, etc. Stein was certainly aware of such influences and even writes about them. They are indeed constitutive of all forms of sociality in one way or another. As a phenomenologist, Stein has to provide an answer to the important question of not only what the social relation or bond is, but how we experience it. The conscious lived experience of sociality can be grasped: it has a sense (Sinn) or meaning, and this meaning allows us to understand part of what it is to experience a real social bond. It is in within this framework of phenomenology that Stein makes a most valuable contribution. So, what is it to live the sense of these three forms of sociality?

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The mass is typified as a kind of low-level awareness marked either by imitation or what Stein and others still call psychic contagion, psychische Ansteckung. To live an experience of being in a mass is to have a particular state of mind – one follows, without much awareness, what others are doing; one may not even be aware that one is feeling the same thing as others, and one has no conscious sense of the mind of the other. Stein gives the example of babies crying. A baby starts to cry for a particular reason (for example, it may be hungry or uncomfortable). Other babies, who seem perfectly content, begin to cry and then other babies join the crying as well. Their crying is not motivated by some specific reason, need, or discomfort, but is simply a collective response of imitation. The mass is sometimes called “herd behaviour” or a “herd mentality.” Society is a particular form of lived experience that has a specific meaning: a collectivity of individuals experiences one another working and living together in order to achieve some external goal. An outside object or end motivates the group to work together. Members of a society are conscious of this outside purpose that moves them and they work toward achieving the specified end. For example, the members of a bank work together and even socialise in order to bring about the end purpose of the bank, which is ultimately profit. Stein remarks, The peculiarity of society (sic), in contrast to community, is seen in the fact that in society (sic) each of the individuals is just an object for the others: they are precisely objects and not subjects living together as in community. However, this has to be taken cum grano salis, inasmuch as we are dealing not with mere objects but with objectivated subjects. The objectivation presupposes a rudimentary perception of subjects, like that which is characteristic of the communal orientation. Thus the society (sic) can be conceptualized as a rational reconstrusal of community. In societal (sic) life it takes a distinct conscious act of will to call into existence something that turns up “all by itself” in naïve common life. Community grows, society (sic) is established. Modes of community develop; modes of society (sic) are established (Stein 2007: 4).

Stein notes that a society is both a mental and personal union (Stein 2000: 255). In a society, new members can join or leave at will, and members are replaceable. Stein is very aware that societies are born, grow and develop, and eventually fade away once a purpose has been fulfilled (Stein 2000: 255). Furthermore, societies are characterised by a certain functionality. Stein maintains, The life of society (sic) subsists in the functionality required of its members by its purposes. For that, it’s non-essential that precisely these individuals perform the work in question. In principle, anybody is replaceable by someone else. On the other hand, life as a member of the association does not coincide with someone’s total life but forms only a small sector if it (Stein 2000: 256).

Because individuals configure themselves to fit and work within a specific society, societies consist of certain types. A type of society member also colours a specific type with his or her personality. Stein remarks, Insofar as the individuals fit the configurations of a society (sic) (fulfill their functions), they become representatives of certain types (worker, supervisor, head of the party, and so forth) …. [T]hese types are rooted in the composition of the society (sic) and not in the composition of the individual personality. Yet a certain personal composition is a presupposition for

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entry into such a “societal (sic) configuration”…. [A] society (sic) can harbor a plurality of personal types or “configurations” (Stein 2000: 256).

Against Scheler, Stein also asserts that societies have duration or being-at-the-same time (Stein 2000: 259) as they are in time and, hence, experience a beginning, development, and even demise as a collectivity in time. Finally, societies create certain relationships between members in light of the purpose that needs to be achieved. Hence, in certain societies, members are equal, work side by side with one another, or there are relations of subordination and superiority, and managerial-­ employee roles. Societies are rarely, if ever, pure societies, for some low-level form of community probably can be found in them. Stein gives the example of motivation: Finally, consider how the individuals carry out their societal (sic) functioning in the well-­ founded society (sic); how workers work hand in hand with one another; how the senior [worker] commands and the subordinate obeys, and so forth. We see a weaving of motivations of various kinds that could never play out if one were taking the other purely as an object and not as a subject. The co-operation that comprises the sense of communal living would end up at a standstill if it were purely societal (sic) living. If a society (sic) were nothing like a community, it would be a mechanism—an impeccably constructed one, perhaps—that could not function (Stein 2000: 259).

If we now move to the discussion of the lived experience of community (Gemeinschaftserlebnis), we have before us a very rich and complex phenomenon that I cannot make fully present here. To be able to live community, an individual requires a certain psychic and spiritual structure, including the capacity for sensation, affectivity, will, motivation, reason, and the capacity to perform categorial acts. It should be noted here that one of Stein’s original contributions to the phenomenological discussion of community is to highlight the role of psyche (understood as belonging to nature) in making possible and conditioning the working of consciousness and the lived experience of the state community. Community is both spiritual and personal, and is constituted by the building of a series of coherences of sense or meaning. Phenomenologically speaking, community is an intense social bond that is experienced in one living in and with the experience of the other, what Stein call an ineinandergreifen. The intensity of the bond is understood as a solidarity. Empathy allows one to understand the experience and the mind of another as persons, but a lived experience of community is a much more encompassing phenomenon of grasping the mental life of a large multiplicity of persons or a collectivity. Stein gives her famous example of the death of a much-loved troop leader (Stein 2000: 134). The loss can be experienced by individual troop members, but they experience not only their own personal grief, but also the collective grief and sense of loss of the whole troop. Stein observes, We customarily talk about the state as a person. That seems to indicate that we have to look for its place in the realm of mind [read spirit]. Yet we have been unable to detect any mental [read spiritual] functioning in the structure of the mass. On the contrary, we found community [to be] grounded specifically in what is mental and [to be] marked by the very thing that’s missing from the mass: the individuals are living in their common mutuality, “with one another” in a strict sense. Unlike individuals living in the mass, no one goes off into his

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A. Calcagno or her own [private] experiencing. Rather, each has the others given together as accompanying him in his living; each feels herself as a member of the community that, for its part, is subject of a life of its own. In the life of the community, stable usages build up whose fulfilment can be taken by different individuals in succession. Thus, we have here an “organization” distinct from the individuals themselves, and with these we seem to be getting closer to what the state is (Stein 2007: 3–4).

Stein admits that communities come in different forms (for example, families, states, and humanity) and that one can experience the bond of community in varying intensities. Not all members semper et ubique have to experience the sense of the unity Stein calls solidarity in order to be a community. She notes that an individual – for example, a leader – can bear the life of the community within him or herself. Stein posits three primary degrees of community: We regard as the highest mode of community the union of purely free persons who are united with their innermost “personal” life, or life of soul, and each of whom feels responsible for himself or herself and for the community. Beside them stand the communities in which only a portion of their members are free and self-supporting persons, determine the mind of the community, and bear responsibility for it (perhaps a nation in which a national consciousness is alive and only within certain circles). In the third place would be named the communities where although there is a common living out of a unitary mind, that mind is not determined by any persons living in that community. Two more cases are to be distinguished: that there are some who are no longer free persons who are still leading individuals, and the other, that it’s a matter of communities without their own leadership—thus communities that no longer may be cited as self-supporting personalities. To this [group] might belong a family that would live entirely from the mind of the nation to which it belonged, without giving its life any note of its own, or even [would live] in the style of its lineage, which earlier generations forged and which it “traditionally” carries on without appropriating it freely and without filling [the tradition] with the life of its own soul. Finally, to be mentioned as a fifth type would be the alliances whose members are led to a common behavior though a commonality of the external circumstances of life without having any unitary mind inherent in them (Stein 2000: 278).

In sum, Stein sees community an intimate bond between individuals and their lives as Society (sic) demands of its members [sic] only this, that they undertake a function which contributes to achieving its constitutive purpose. Society (sic) lays no claim upon their entire being inner being. But matters are otherwise with the genuine community. Within the community, and thus within the individuals who belong to it, there lives an inclination to reach out beyond themselves toward complete unification. Before it stands the image of a complete community that can’t be achieved by an earthly community—can’t in principle, not just accidentally. However, the possibility of complete community become insightfully given, on the basis of what can be achieved in the midst of the earthy community toward overcoming absolute loneliness. Consequently, an inner incompleteness clings to every community, and an inclination beyond itself (Stein 2000: 285–286).

Stein astutely points out that an authentic lived experience of community contains an overextending desire for complete unification that cannot be practically achieved within material and historical circumstances because communities will suffer from a feeling of incompleteness and the overextension of desire for communion.

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2  The State Unique to Stein’s treatment of the state is the introduction of her phenomenology of sociality which, in my view, undergirds the theory of a priori right she adopts from her teacher, Adolf Reinach. On one hand, Stein admits that states have been or may be constituted as society, for example, in contractarian theories. She also admits that states may be experienced as somewhere in between society and community (IS 4–6). As mentioned earlier, Stein does critique contractarian theories for presupposing a greater involvement and assent on the part of state members, especially minorities, but what is remarkable is that she will ultimately view the state as structured by a sociality of community. So, how does a state community come to manifest itself for Stein? Much of the scholarly literature on Stein’s treatment of the state focuses on the phenomenological essence of the state, which is sovereignty – an autarchy that is made real, practical, and concrete in a very robust framework of rule by law. While this viewpoint is correct, often what is not taken into account is the vital role of communal social relations, which ultimately personalise and help enact all aspects of the law Stein discusses in her treatise. Preceding her discussion of the essence of the state as sovereignty is a reflection on Aristotle. Stein writes, “Somewhere along the lines between these two extremes [i.e., the largest and more intimate forms of community] lies the state community. Other communities are included in it and, in turn, it is included in others. But while the communities mentioned so far would be unaffected, in their specific character, by the influence of their subordinate or superordinate communities, there’s a limit to determinability by other communities with the state. This limit may not be overstepped without destroying the character of the state. Aristotle will speak of a state wherever “a number of persons has joined together into a community of life so as to form a self-sufficient whole…” (Stein 2007: 8). Notice some key ideas that will come to condition Stein’s later analysis of the state. First, the state can exist in relation to and within other communities. Second, the state has limits and a character, and as such, is both determined and determining. Finally, the state is understood as a community, what Aristotle calls a koinonia, which also may be translated as partnership. The members of the community do form a “self-sufficient whole.” This notion of completion and self-­ sufficiency form the core of Stein’s notion of sovereignty. Stein describes the sovereignty of the state community in the following manner: It is an inalienable property of the state that its actions and its laws originate from itself and from any community standing under, beside, or above it; and that, in principle, all law prevailing in its territory can be traced back to it…and all acts of the whole must have their ultimate source in the state itself. And furthermore, it pertains to the state that there is within it a force representing the state as a whole, which is the originator of its organization and all its transformations, and is concerned about the observation of civil usages by all individuals who stand in any kind of connection to the state (Stein 2007: 10).

Force is never an end in itself: it must be directed to the whole and is representative of the whole. The state’s ability to rule means that the state has the power to be the

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originator of its own actions; it possesses the authority to command within its own territory and it can issue directives to individuals or groups residing within its territory (Stein 2007: 11). The state is free and can make free decisions, and it can never wholly cede its commanding authority to any other state or organization, for this would compromise its sovereignty (Stein 2007: 11). The state, however, can choose to limit its authority, but this is its choice. In international laws, for example, states can agree to sign on to a certain accord to follow certain laws or respect certain limits. What marks the state community apart from other communities are its sovereignty and the rule/force of law. Other communities may or may not be affected by state sovereignty and law, but the state cannot but be a state unless it is both sovereign and the originator of the rule/force by law. Stein observes: Communities that are not states could very well have the freedom to shape themselves (for example, as the church does), but if that freedom were withdrawn from them (maybe from the church by the state), this would not affect their specific character. We could also say: The linkages and relationships grounding themselves in the essence of these communities allow sanctioning by laws (i.e., positive law) but they don’t require it. And along with this indifference with regard to any kind of positive-law regulation at all, comes indifference with regard to the lawfulness of their origin, if such lawfulness is apparent: indifference about whether it is owing to the commonwealth itself whose life it regulates, or to a power standing outside (Stein 2007: 16).

Eduardo González Di Pierro (Di Pierro 2015) has shown how Stein’s notions of a priori right, positive law, commands, directives, and ordinances draw from the work of Reinach, always with some Steinian elaboration, of course. I cannot present here, because of space and time limits, Stein’s theory of law, but I do wish to signal that her elaboration of the law is connected intimately to the sovereignty of the state community described above. Before advancing to my argument, I wish to point out that Stein does not believe that the state has to be grounded in a specific ethnicity or people: the state can be founded quite apart from its various constitutive peoples. A people, however, can condition the character of the state. Also, not everyone living in the state need participate in its life in the same way or have the same state of mind, that is, members can experience the solidarity of the state community in various way and to varying degrees. The state need not demand complete absorption of the individual in order to be a state (Stein 2007: 36). Stein maintains, It is constitutive for community as such that at least a portion of its members consider the community not merely as an alien object that they come across occasionally in the course of their individual lives, but rather as a whole whose parts they are and whose life is their life. Particular communities (especially the closest, of which we already spoke so often) have the peculiarity of claiming the right to encompass the individual absolutely, with his or her entire personal substance, and to absorb the individual utterly. The state does not ask that. The state allows its carriers the broadest latitude for their personal lives, which have nothing to do with the state’s agenda. The state desires only to occupy first place in the lives of its carriers. Even this is to be understood in a very particular sense. The state does not desire that those who serve it and represent its vital organs would consider it the absolutely highest good. The statesman can be just as convinced as the saint that the salvation of the soul stands higher than the welfare of the state. The decisive thing is that in the last analysis

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he lives as a member of the state, that this is the steady landmark by which he reckons and calculates his behavior even in matters apart from the concerns of state (Stein 2007: 32–33).

In a state community, one lives as a member of a community in solidarity with other members. The state is not absolutized in any kind of fashion and the state does not supercede its individual members, as it does in G.W.F. Hegel’s theory of the state. The state is dependent on a community to live and uphold a certain form of solidarity around the autonomy and rule of law that limit and determine the very essence of state-life.

3  Argument Thus far, I have highlighted the particular form of sociality Stein calls community as foundational for both law and the life of the state. Sovereignty, as Aristotle observed, rests upon a particular form of koinonia. But is community necessarily the best form of sociality that can ground or bear (Träger) the sovereignty and rule of law Stein sees as central to statehood or the life of the state? In order to answer this question, we need to flesh out why Stein thinks community is the essential social form of the state. First, given her description of the life of the state, we glean that the state, at its core, is a spiritual entity; it appertains to the realm of freedom and motivation. This freedom plays itself out within personal relations and social acts. If the state is to be truly autonomous, as the originator of its own acts and laws, then it requires a social structure that bears such a requirement. If the state is merely a societal structure, freedom becomes a purpose, an end toward which one strives. The social acts of the state, then, become conditioned by the purpose of freedom, but the source and origin of the acts of freedom are dependent upon this primary, external goal. Furthermore, the actions of the members of the state community are determined externally and, therefore, the very essence of freedom itself as a subjectively constitutive becomes compromised: freedom becomes something in and of itself, and does not lie within the lives of persons themselves. If freedom becomes an end in itself, it is abstract, empty, and simply formal. Freedom, for Stein, however, is always is rooted in the being of persons, and the state community structure can best account for this very incarnate and personalised notion of freedom, which is quintessential for human beings. Second, as Stein frequently notes in her essay, states (understood as primarily spiritual realties) have lives marked by character, religion, history, art, political will, etc. A state community can have values. Phenomenologically speaking, values are the extension of the affects of psyche, but also belong to the realm of motivation and spirit: the things we care about, that we are moved by, that inform our free decisions, are values. State life creates and helps maintain and/or destroy certain values, such as patriotism or a love for national art and culture. Values are not simply ends. It is true that, while a state can strive to have as one of its ends the love of its members, the love and care for the state that constitutes something like patriotism cannot

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s­ imply be a goal: it needs to live within the life of state members. There is a qualitative difference between values created in, by, and for the state that are lived in solidarity as opposed to those simply lived as goals or ends. Values that belong to the life of the state are lived more intimately, personally, and deeply, resulting in greater care and, ultimately, greater responsibility for the lives of state members. When values of the state are understood as goals or objects to be obtained, members of the state comport themselves toward the state as an object, a thing. For Stein, this objective view changes our relation to one another: we no longer relate to one another, but to an external goal, resulting perhaps in an alienation of state members from one another in the name of a relation to an outside, externally articulated goal. Finally, I maintain that the unity and wholeness that Stein sees as extending from the autonomy of the state requires a communal form of sociality. It would be fair to say that Stein’s philosophical project, from her earlier to her later works, all meditate on the very possibility of unity and human togetherness in one form or another. She is a thinker of unity. Vital to the life of the state is a unity, which needs to be rooted in the lives of persons. If unity is simply a desired end as opposed to something we live in solidarity with one another, one wonders how the state can live itself out. The implications of a societal form of unity is that unity is not quite achieved – it is something we work toward. Union, guaranteed by a state community where members live in the lives of others, would mean that the unity itself has been achieved and it acts as a bond that keeps persons living together, flourishing together. A societal view of state unity implies that that the state is not quite a whole, that it is fragmented, and this has implications for autonomy. How can a unified state act, execute its will, and still maintain its law-making and law-following capacities when its members do not feel they belong to a whole? For Stein, the solidarity of state members is a cohesion, a belonging, that allows members to live a common spiritual reality that is not external or alien to them. Stein makes a strong case, especially if one considers the spiritual life of most states and how members comport themselves toward one another vis-à-vis this spiritual life. But her philosophical view of the underlying sociality required for statehood runs certain risks. First, though the state requires community, she notes that not all members need to have such an intimate and intense form of sociality. Yet, the law-makers and conscious law-followers, all live an experience of solidarity. This solidarity is set within a deep personal structure, especially in terms of character and personality, following Stein’s own philosophical anthropology. What, then, separates the personality of individual members and even the collective personality from the state character or personality? The framework of the law, here read as the expression of the state’s autonomy, can simply become the extension of the personality of the actual lawgivers and lawmakers appointed at any given time. The values of these lawgivers and lawmakers will come to influence and shape, perhaps deeply so, the life of the state community both positively and negatively. Carl Schmitt reminds us that the state of exception, which is understood as the ultimate condition of autonomy and rule, is highly dependent on the person who invokes such an exception. This person may share a very intimate form of communal sociality with others, which may motivate am exceptional suspension of the law. Theodor Adorno

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observes that a fascist authoritarian personality, which can extend to and affect the legal, personal community, can personalise situations and relations to such an extent that complex social realities become deeply personalised, creating a distorted image of the social-political world. Furthermore, he notes that personalisation may lead to an abstraction. Granted, personalisation in Adorno is understood in a different sense than Stein’s intimate account of personal community; nevertheless, such an intimacy can be abused. Adorno observes, Thus, stereotypy calls again for its very opposite: personalization. Here, the term assumes a very definite meaning: the tendency to describe objective social and economic processes, political programs, internal and external tensions in terms of some person identified with the case in question rather than taking the trouble to perform the impersonal intellectual operations required by the abstractness of the social processes themselves. Both stereotypy and personalization are inadequate to reality. Their interpretation may therefore be regarded as a first step in the direction of understanding the complex of “psychotic” thinking which appears to be a crucial characteristic of the fascist character…. Conversely, personalization dodges the real abstractness, that is to say, the “reification” of a social reality which is determined by property relations and in which the human beings themselves are, as it were, mere appendages. Stereotypy and personalization are two divergent parts of an actually non experienced world, parts which are not only irreconcilable with each other, but which also do not allow for any addition which would reconstruct the picture of the real (Adorno et al. 1950: 665–666).

Furthermore, Niccolò Machiavelli, in his discussion of miserable and failed tyrants like Agathocles, shows us how personality can come to influence the very character of the state. It seems that Stein has taken a very formalised notion of autonomy and has not fully reconciled it with the risks that run with the personality and character of a state community. One advantage of contractarian approaches to statehood is that they can better separate, at least formally, the personal from the stately. As an object, the state can be defined by the collective, and the definitions offered can often curb the excesses or shortcomings of personalities that come to live the solidarity that Stein sees as essential for the state to exist. Contractarian approaches, as Jean-Jacques Rousseau observes, declare and form certain objects, purposes, and ends, including the people, the general will, forms of government, and law. These depersonalised and de-spiritualised objects, once defined, can guide personalities and help shape character, even though they may not be lived as intimately or in an intimately unified or holistic manner, as Stein describes. Finally, and perhaps I am not so optimistic about human nature as Stein was, given that she was one of the last philosophical daughters of the Enlightenment, I wonder if the community required for state autonomy and lawmaking is too ideal a requirement. Do judges in supreme courts live in solidarity, one in the life of others, or do they share a commitment to a shared purpose or end, namely, justice? Stein knows that society and community often go hand in hand, but to posit such an intense form of sociality could be seen to conflict with the basic requirement that the law be articulated, executed, and practiced in the most objective, neutral manner possible, outside individual personalities or personal cores. To keep the law within a societal, more objective social structure may better fulfil this requirement of the law and its end to uphold justice and punish/curb injustice in that the law, at least in

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principle, becomes focused on an external end while not being inscribed within the framework of a community of persons, which bears the deep structures of personality and character. The law, in a communal structure, runs the deep risk of being tainted by personality and character, whereas an objectively defined societal structure allows the law to be determined in stricter, more objective and neutral terms. The Steinian desire for unity and wholeness, integration, compromises the possibility of a conflictual gap, perhaps a necessary one, between members of the state and the law – a gap that Charles-Louis de Montesquieu and John Locke, only to name a few, saw as vital for the good functioning of the state. Though worried about Stein’s sociality of the state, I am reluctant to reject it completely; rather, what I think we need to do is reposition her theory of law and autonomy, not within community, but within her earlier insight, namely, that often society and community can be found together. Ultimately, we have to think of how the Steinian account of autonomy and law can work between the socialities of society and community, which ultimately would allow one to have both the unity, wholeness, and solidarity Stein desires while offering an important distance and gaps that can guarantee the objectivity and neutrality the law requires to carry out justice as well as all the requirements of both a priori law and positive law.

References Adorno, Theodor W., Else Frenkel-Brunsivik, Daniel J. Levinson, and R. Nevitt Sanford. 1950. The Authoritarian Personality. New York: Harper and Brothers. Di Pierro, Eduardo González. 2015. The Influence of Adolf Reinach on Edith Stein’s Concept of the State: Similarities and Differences. In Edith Stein: Women, Social-Political Philosophy, Theology, Metaphysics and Public History: New Approaches and Applications, ed. Antonio Calcagno, 93–105. Dordrecht: Springer. Stein, Edith. 1994. Der Aufbau der menschlichen Person, in Edith Steins Werke. Edited by Lucy Gelber and Michael Linssen, ocd, vol. 16. Freiburg-im-Bresigau: Herder. ———. 2000. Philosophy of Psychology and the Humanities. Trans. Mary Catherine Baseheart and Marianne Sawicki. Washington, DC: ICS Publications. ———. 2004. Einführung in die Philosophie. Edited by Hannah Barbara Gerl-Falkovitz and Claudia M. Wulf. Freiburg-im-Breisgau: Herder. ———. 2007. An Investigation Concerning the State. Trans. Marianne Sawicki. Washington, DC: ICS Publications. Antonio Calcagno is professor of Philosophy at King’s University College, London, Canada. He is the author of Giordano Bruno and the Logic of Coincidence (1998), Badiou and Derrida: Politics, Events and Their Time (2007), The Philosophy of Edith Stein (2007), and Lived Experience from the Inside Out: Social and Political Philosophy in Edith Stein (2014). He is a member of the College of the Royal Society of Canada.  

Part II

Applications and Extensions of Stein’s Theory of the State

Bioethics and Edith Stein’s An Investigation Concerning the State Alberto Rojas Osorio

Abstract In An Investigation Concerning the State, Edith Stein does not explicitly address aspects or concepts pertinent to contemporary bioethics. But the relation between an individual and the community focuses on the nature of the coexistence between citizens, which is relevant for thinking about bioethics. The different aspects that arise from this topic can be linked to the question of respect for the dignity of people. In this paper, problems or dilemmas arising in medicine and community health are addressed as well as aspects pertaining to the concept of physical body awareness. Other relevant and current aspects, including liberty, responsibility, sociality, and subsidiarity are discussed, which are all themes treated in Stein’s work. Keywords  Bioethics · Bioethical principles · Dignity · Person · State · Edith Stein

It is very unlikely that Edith Stein knew the term bioethics at the time she wrote her work on the state. In this paper, however, I analyze a series of similarities between her thought as developed in An Investigation Concerning the State (Stein 2002) and certain defining principles of contemporary bioethics. In 1927, Fritz Jahr published an article called “Bio-Ethics: A Review of the Ethical Relationships of Humans to Animals and Plants” (Jahr 1927). For those interested in the historical development of bioethics, this publication is probably the first effort in biology to define the use of the term bioethics as “moral obligations towards human and non-human ways of life” (Jahr 1927), elevating the term as a new academic discipline, but also founding it as a principle. Nevertheless, it is quite remarkable that there is no substantial explanation of why this groundbreaking publication today has been forgotten.

A. Rojas Osorio (*) Facultad de Salud, Universidad Santo Tomás, Santiago, Chile © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_9

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Years later, in 1971, concerned about the dissimilar evolution of the relation – at times mutually exclusive – between science and humanism, the American doctor, Van Rensselaer Potter, developed a sharp  analysis of the problems of health and other social and ecological matters in his work, Bridge to the Future. Today, this work is considered a milestone in the development and growth of the discipline of bioethics. Since the publication of Rensselaer Potter’s study, the progressive interest in bioethics from the academic world and as a discipline within medical practice has been remarkable. Despite this interest, it is commonly held that the concept of bioethics was developed mainly due to its connection with various human health problems, which is not completely accurate. In fact, it is a much broader concept since it relates to a diversity of phenomena, such as environmental welfare, ecology, and other fields of study. This is why some people believe that, in practice, the problems related to human health are generally focused on the concept of medical or clinical ethics, a seemingly better defined and proper field of investigation. What immediately drew my attention while reading Stein’s work on the state is the bond established between the individual and the community, a social relation that I will try to address by means of the following questions: What ideas or contributions can Stein’s treatise on the state make to bioethics? Can bioethics find some key guiding insights in Stein’s work? Stein says: It is not the structure of the State but the structure of spiritual people that allows us to explain—as we have said before—that a specific state entity is built over the foundation of an existing community, and that, on the other hand, connects the people with a communal bond that embraces them (Stein 2002: 539).

The concept of an existing community, regardless of the number of its members, leads the reader of Stein’s work to uncover a central and decisive theme, namely, coexistence. Today, more than ever before, living together with others raises challenges for all bioethical concepts insofar as coexistence touches upon important problems emerging from the field of medicine. In particular, the question of respect for people’s dignity throughout their entire lives arises. Moreover, if we also add that every community “both people and nation, is of a spiritual nature” (Stein 2002: 539), then we have the basis for the backbone of an initial analysis characterized by the concepts of community, people, spirit, and life. If we accept that, for the purposes of this paper, one of the meanings of the word “bioethics” has to do with the types of human acts involved in social interactions, understood in terms of their origin, conservation, and end, then it becomes possible within a Steinian philosophical framework to propose that we can investigate one of the most basic and definitive principles of bioethics, which stems from natural law, namely, that we must do good and avoid the bad (bonum est faciendum, malum est vitandum). It can be observed that human social behaviors share certain common traits, including respect for life, doing good and avoiding evil. Situations such as caring for one’s own life and of that of others can be understood as closely related and relevant bioethical behaviors for citizens. In clinical situations, the communal soci-

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ality that Stein describes as fundamental for the foundation of the state also obtain. In other words, from bioethics, understood as an individual concept, a social perspective can be proposed, which Stein seems to glimpse in her work. Moreover, the personal behavior and the normative role of the state, highlights a tension between what people consider important in their health and well-being, and their management by the state, from a normative point of view. However, here, I do not refer to the good that inspires a fair normative act or agreement in society, or an act which may suggest positive law in certain aspects, but rather the kind of good that emerges as part of the human appetite, thus, of a voluntary and natural origin. This last point nicely relates to certain passages in Stein’s An Investigation Concerning the State. Miguel Ángel Fuentes explains, referring to a type of person who is: inclined to the preservation of his/her own self, that is, to preserve life and avoid death; as an animal, is inclined towards the union of man and woman as well as to the education of children, or in other words, to the conservation of the species; as a rational being, he/she recognizes a dual preference in him/herself: endowed with reason, has a natural tendency to the knowledge of the truth; and being a social creature by nature he/she spontaneously tends to life in society (Fuentes 1992).

In plain language, this means that life in society coincides with a moral attitude, an issue that Stein illustrates with precision: When we talk about a spiritual cosmos, we associate the idea of a totality based in the representation of a world of values that form a whole. Both achievements of personality (individual or supra-individual) and cultural formations, which are also reflections of personality, are measured by their relationship with the world of values (Stein 2002: 545).

These words convey something that, for the bioethicist Elio Sgreccia, represents the transcendental meaning of physical bodily life: the fundamental value of the person him/herself, “for it must be understood that bodily life does not exhaust all the richness of the person, who is also, and first of all, spirit” (Sgreccia 1994: 153). Here is precisely where the presence of another bioethical principle appears. We refer to the principle of the defense of physical life, one of the most decisive points in the contemporary bioethical debate. The physical body is the base on which all bioethics operates, with and through which “the person is performed,” permitting ​​ not only a fulfilling life in community with others, but also transcending the mere finite temporality that is in humans. When entering the field of time and space, returning to Sgreccia, “the person expresses and manifests, constructs and expresses other values, including freedom, sociality, and even his/her own future project” (Sgreccia 1994: 153). It is very unfortunate, but not unusual, that the relevance and validity of this principle is neither understood nor taken into account: the transcendence and meaning it has for human life is ignored. This is evident in some cases of euthanasia and various types of abuse of human life. Abortions, assisted suicide, experimentation with embryos, are examples that, on a painful level, illustrate what we are saying. These types of attitudes of contempt for life are often justified by pragmatic utilitarian criteria, which are sometimes used deceptively as an excuse, though they lack

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tried and tested content. Moreover, these attitudes generally disregard the sacredness of life. It is striking how society has lost the sense of its own organization of values and gambles with the deepest and noblest qualities of humans, without measuring the consequences of its actions, through arguments of opportunism and unmeasured haste. The epitome of what we are discussing can be seen in the practices of Nazi Germany with its – still inconceivable – genocidal practices, where this principles of non-harm and the preservation of life were brutally ignored. Sadly, Stein is concrete proof of the failure to uphold this principle. But the project of life does not belong to one single human being. A reading of Stein’s text on the state compels one to think in terms of community. In other words, the principle of the defense of life and the avoidance of harm should encompass the individual members that constitute the community. The concept of health, understood from the complex perspective that it today possesses, can include this defining principle. I maintain that a concept of community global health should consider the principle of the defense of the physical body or life as part of its conceptual base, not only when linked to a community such as a country, but also in the macro organization of people’s health by global medical associations like the World Health Organization and other organizations. This is why we fully agree with Stein when she states that “In the individual, that totality consists of a sensitivity concerning all levels of values” (Stein 2002: 546). We do not merely refer to personal values, but to a complex social network of values that cross the globe. Although the Steinian vision of the spiritual person and his/her values allows us to rethink the principle of the defense of physical life, she still suggests a level of openness on the question of human nature, especially when she treats the question everyone asks once they confront the mystery of life: In the first place, the broad community must conserve, evidently, everything that constitutes the community as such: it is necessary that a stream of life circulates, where all its members participate; there must be, from its members at least, a consciousness of community that intentionally encompasses all the open multiplicity of the associated individuals (Stein 2002: 541).

The terms “life stream” and “community consciousness” (Stein 2002: 539) are necessary for understanding another classical bioethical principle, namely, the relation between freedom and responsibility. Concretely, responsibility means that each individual of the community has an obligation to safeguard his/her own health. Sgreccia defines it as “the moral obligation to collaborate in the ordinary and necessary care to safeguard one’s own life and health as well as that of the other’s” (Sgreccia 1994: 157). Even if a community has many social guarantees and means to ensure the health of its members, the individual bears responsibility for the care of his/her own health. The welfare of the rest of the members of that community depends on individuals’ solidly unified contribution, a fact that is completely valid in our age. Stein states: “the people, understood in terms of ‘personality,’ endowed with their own creativity, demand an organization that ensures they can live according to their own legality” (Stein 2002: 541). The phrase may be interpreted as saying that

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the spiritual cosmos is immersed in a community that has its own destiny or luck with health issues, for better or worse, a community that also largely depend on adjustments and disciplines of care that can be achieved for its survival and well-­ being. Stein observes concering the need for community: “The individual person, being limited, cannot be productive in all areas, and because of this fact s/he is incapable of creating a total culture” (Stein 2002: 546). It is for this reason that, to fully achieve and comply with the principle of responsibility, the contribution of law is required as it must regulate, paraphrasing Sgreccia, the procedures or norms for not only applying such care, but also ensuring compliance, given that they will be mandatory in some cases. Here, although Stein does explicitly say it, it is impossible, given the nature of the principle of responsibility, to allow a member of the community to totally and absolutely refuse to take care of his health, especially when his/her life is in danger. However, in order to clarify some concepts that may exceed the personal freedom of each member of a community, it is necessary treat this topic in contemporary perspective. The freedom of a person cannot be such that it encompasses and even allows his/her total self-­ abandonment, which includes abandoning the community. Faced with the possibility of disregard for one’s own health, a prudent and humane medicine cannot set aside its ethos. Something completely different happens when the patient’s situation does not endanger his own life. In this case, one can consent not to carry out some heath measures and one assumes responsibility for the consequences of his/her decision, especially when one has received an adequate explanation from the health-­ care practitioner of the community. A current example that represents this case is an adult’s refusal to receive a certain vaccine within the context of a vaccination campaign, which benefits the community of individuals. In short, each person has the responsibility to preserve his or her health, and this affects the rest of the community. The state will be, in the Stein’s understanding, the one in charge of watching over the fulfillment of this or that health-care norm; however, I should mention that, for Stein, the concepts of state and people are not identical in meaning. Both concepts, at some points, lie in tension with one another. Stein remarks, The state has no soul and does not have psychic productivity. And, therefore, it seems admirable—and excessive in a certain sense, although indispensable—that one devotes him/ herself to the state…. Then, for us, it seems much more natural and understandable that someone loves his/her people, and that the state is loved in consequence as the external form of the people, and not that the state is loved by itself (Stein 2002: 550).

For the purposes of this reflection, the state “is capable of ensuring the free development of the people and of the communities that live under its rule” (Stein 2002: 550). Recognizing that there is a difference between an attitude of loving the state and loving the people, although it seems very interesting and worthy of further analysis, goes beyond the limits of this paper; nevertheless, we suspect that in this tension there may also be important repercussions for bioethics. Based on Stein’s treatment of the state as a subject of law, it is possible to reflect on another essential principle of bioethics. Stein points out that “the state needs a

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person or a body of people to express itself, and it needs a scope of people to be heard and to exist” (Stein 2002: 557). Later, she states that “only people or associations of people can perform acts” (Stein 2002: 557). The common thread is that a certain number of people are necessary for the objectives of any collective ­organization to be fulfilled. Furthermore, Stein suggests that the state, “in order to be able to establish itself and establish its right, must make use of free people, and cannot deprive those who belong to it their of freedom” (Stein 2002: 559). The relationship between people in the community allows us to focus on another bioethical principle, namely, subsidiarity.

1  The Principles of Sociality and Subsidiarity Since Stein’s approach is oriented toward a spiritual community, one can find in it two of the most relevant principles of bioethics, namely, sociality and subsidiarity. These principles are interrelated. Both show the common destiny of human community. They are necessarily united. In the case of sociality, the participatory characteristic of humans in society is expressed in all its magnitude: humans are both individual and social beings. Therefore, being social beings, humans not only depend on their own wellbeing, but also on the wellbeing of others, which is important and significant. This is relevant for the promotion of life and health. As long as everyone is well (or as well as possible) and there is respect for health guidelines, the benefit will necessarily have an individual impact. In this regard, think about the immense benefit that comes from a good and adequate health campaign, which benefits an entire community, or a successful plan against child malnutrition. Stein says the state should make use of people, but people who can carry out specific services without being a burden for the organization precisely because they participate in a responsible community and are capable of carrying out necessary, supportive acts. To better understand this principle, one can draw upon the classic case of granting or assisting others in the case of an emergency, where both health professionals and other members of the community combine efforts to benefit the welfare of the whole community. It must be emphasized that this principle is valid when it covers all members of the community, not when it is reserved for some and not others, for the principle loses its character in such restricted applications. Viewed from another perspective, this collective effort is one of the main drives for organizing and constructing hospitals that benefit the whole community. Concerning the principle of subsidiarity, perhaps its application in Stein’s text can be seen in terms of her discussion of duty, in particular, the duty to the community itself  – including authorities  – as it directs help and assistance to those places where it is considered most necessary. But this requires a particular attitude of solidarity with those individuals who are most in need. In this principle, one finds many of Stein’s ideas reflected, especially in the chapter that connects law and state. This principle can test the organization of the authority of a community, especially

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in the face of emergency situations or when facing epidemics or other important cases concerning collective health. Stein observes: Nothing undeniably constitutes part of the life of the state as the acts of giving orders and making regulations. What we have mentioned above: to promote, to declare, etc., are things that belong to it, and the state will eventually use them to facilitate the execution of such regulations or orders. When the state orders and prescribes, it does not think that it is proceeding arbitrarily, that is, the content of the orders is subjected to its approval, although it considers its right to give orders. To be a state means to have the right to enact within the scope of its authority, that is, to have the right to prescribe freely (Stein 2002: 566–567).

In contemporary bioethics, the administration of health resources is largely managed according to the principle of subsidiarity, focusing on those people in the community who, given their condition – not only their economic, but also their particular health situation – require greater support. Think of a health emergency involving measles, the management of the elderly population in winter campaigns, or certain high-cost programs and resources such as tuberculosis control, all of which require not only great economic effort, but also priority management. The result, when everything is well executed, is translated into concrete benefits for the community. Moreover, negligent planning is quickly evidenced, unfortunately. It becomes clear that neither of the two principles discussed above works separately one from the other. To the extent that the set of members of the Steinian community assume their role with due responsibility, from the legitimate exercise of personal freedom to the obedience that positive law demands, in the end, they receive the benefits that the laws and freedom foresee. A state, as Stein admirably understands it, is a rich source for what may be understood to be part of bioethics today. The state can exist and work both from the bedside of the ill, in its basic ethos, and still remain the most complex expression of justice in the distribution of health resources. Translated by Rodrigo Navarrete. Text formatted by Rodrigo Vidal.

References Fuentes, Miguel Ángel. 1992. Ética y técnica del misterio de la vida. Principios fundamentales de la bioética. Diálogo: 4. At: http://dialogoonline.iveargentina.org/archivos/185. Jahr, Fritz. 1927. Bio-Ethik. Eine Umschau über die ethischen Beziehungen des Menschen zu Tier und Pflanze’ Kosmos, ‘Handweise für Naturfreunde und Zentralblatt für das naturwissen-­ schaftliche Bildungs- und Sammelwesen. Kosmos, Stuttggart 24: 2–4. Potter, Van Rensselaer. 1971. Bioethics: Bridge to the Future. Englewood Cliffs: Prentice Hall. Sgreccia, Elio. 1994. Manuale di bioetica. Milan: Vita e Pensiero. Stein, Edith. 2002.Una investigación sobre el Estado. In Obras Completas, ed. J. Urkiza y F. J. Sancho, vol. 2, Escritos filosóficos. Etapa fenomenológica, 521–653. Burgos: Monte Carmelo. Alberto Rojas Osorio is a medical surgeon and a graduate in Medicine from the University of Chile. He holds a Master in Bioethics from the Pontificia Universidad Católica de Chile. He is also a senior professor, Universidad Santo Tomás, and a member of the Multidisciplinary Study  

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Group Edith Stein at the Pontificia Universidad Católica de Chile. With vast experience in the Chilean health-care system, he has served in medicine, pneumology, and emergency services at Carabineros Hospital, Barros Luco Trudeau Hospital, and the Naval Hospital Almirante Nef. He was also the medical advisor to Chilquinta and a member of the Committee of Ethics Assistance at the Naval Hospital. He has taught as an associate professor at the Andrés Bello National University School of Medicine and at the University of Valparaíso School of Medicine, the Center for Bioethics of the Pontificia Universidad Católica de Chile, and the Medical Service Internal of the Naval Hospital. He is currently dean of the Faculty of Health at the Universidad Santo Tomás in Santiago, Chile.

The Issue of the State’s Power and Its Abuse in the Literature of Gertrud von le Fort in Light of Edith Stein’s An Investigation Concerning the State Clemens Franken

Abstract  This article examines the spiritual similarity between Gertrud von le Fort and Edith Stein within the framework public-political issues. In her novels The Veil of Veronica, The Wreath of the Angels, but specially in The Last at the Scaffold, Le Fort thematizes the conflict between the overbearing, disrespectful and rampant voluntarism, typically embodied by violent men as evil agents that open the gates for malign forces to come, and female impotence exalted by divine omnipotence, represented by women, who, humble and obedient to God’s will, ultimately comes out as the victor. I argue that the slightly pro-aristocratic Gertrud von le Fort expresses in a literary manner the philosophical criticism of the slightly pro-democratic Edith Stein of monarchy as well as aristocracy and democracy.

Phenomenologist and Carmelite nun Edith Stein (1891–1942), and poet and narrative writer Gertrud von le Fort (1876–1971) are two German women belonging to the wave of Catholic spiritual and religious renewal of the interwar years. As I have shown before, they do not only share certain vital experiences, including their conversion to Catholicism in the 1920s and the “principles of religious-Christian responsibility, misery, and humanist sharing,”1 but also, considering their differences, a similar phenomenological way of approaching reality and of thinking. Anthropologically speaking, they share in their works a similar view on women, “an objective idea of the feminine soul,”2 as well as shared ideas of the individual and the community. Their spiritual closeness would eventually help them become

 Meyerhofer, Gertrud von le Fort, 96.  Przywara in Theresia a Matre Dei, 125.

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C. Franken (*) Pontificia Universidad Católica de Chile, Santiago, Chile e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_10

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friends; they showed their mutual appreciation for one another in an important exchange of five letters.3 What is not as well-known is that both women were interested in and concerned about public issues, history, and the political situation in Europe, especially in Germany. During World War I, both worked as auxiliary nurses, the only possibility for women to aid in diminishing the suffering of soldiers and thereby expressing their patriotic solidarity. In her youth, Edith Stein was also attracted to the growing feminist movement and various political parties, clearly expressing her concern for relevant matters of public interest.4 This is manifested in her treatise Individual and Community (1922) and An Investigation Concerning the State, published in 1925 and which represents, according to José Luis Caballero Bono, not only “a coherent continuation of the study of the communitarian dimension of the individual”5 already presented in the first treatise, but also the old Steinian passion for history, renewed by her teaching experience in Speyer, with the need for strengthening the idea of the state in the delicate situation of the Weimar Republic as well as a heightened feeling of belonging to the state community. The Prussian philosopher nourished her gratitude to the State, which had allowed her to educate herself, and she lived her commitment to the German war effort of World War I as a patriotic duty.6

Gertrud von le Fort, 15 years older, had a calmer and more protected life, undergoing more gradual personal transformations. Born into a family belonging to the lower Prussian and protestant aristocracy, she was raised in the countryside in Mecklenburg, northeast of Berlin. She was mostly formed by and instructed in the Bible, poetry, and history in the family’s manor house by her pious and educated parents. As she confesses in her Aufzeichnungen und Erinnerungen [Sketches and Memories], her father, a prominent colonel in the Prussian Army, sparked in her the respect and love for the past, as he tutored her in history, starting with that of their own family. According to him, the Le Fort family had participated in almost every historical event: with this conviction, [Le Fort goes on], my father allowed me to take my first steps on the ground of universal history! When talking about the period of religious wars, it turned out that Calvin had taken our family in, who after having fled from Savoy arrived in Geneva, where the German side of the family still possessed permanent rights of citizenship. I gazed with respect on the eloquent medals made in memory of some of my ancestors.7

The importance of these history lessons lied in the fact that her father inserted the historical events in which the Le Forts had participated within the European historical context, despite his own great love of Germany. As a colonel with a strong

 See Kranz, Gertrud von le Fort, 127. The letters are from 17th November 1933, 4th May 1934, 10th May 1934, 31st January 1935 and 27th February 1935. 4  See, Carolyn Beard, “Stein, die Suffragette”, in Edith Stein Jahrbuch (Würzburg: Echter Verlag, 2019), 85–93). 5  Caballero, Stein, 34. 6  Ibid., 33–34. 7  Le Fort, Aufzeichnungen und Erinnerungen, 13–14. 3

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e­ ducation in history, he respected adversarial nations. It is not surprising, then, that in 1908 Gertrud enrolled in many history courses, apart from theology, philosophy and art, at Heidelberg University, being “one of the first women to study theology at university,”8 for about 10 years. As a result, most of Le Fort’s literary works question current issues by setting them in a historical context. As examples I only mention The Wedding of Magdeburg, which is set the in the Thirty Years’ War, and the novella The Song at the Scaffold, which tells of the martyrdom of a group of Carmelite nuns during the French Revolution, and which broached, at a symbolic-­ allegorical level and in anticipation of future events, her negative view towards Nazism and Hitler’s regime. The latter is born, according to her own confessions, “from the deep horror of a time in Germany that was darkened by the forebodings of events to come” and represents “the agonizing angst of a whole era facing extinction.”9 Immediately after the end of World War I, her mother died, and with her death, she says, it was the end of “the life of a whole era […] or the world of the feudalist society,”10 military aristocracy to which her father belonged, and the patriarchal society that had secured her safety and happiness. “Now, the monarchy and her beloved military shine were destroyed. The country was shaken up by political turbulence. Spartacists were taking over estates. The poet herself was close to the upheaval. Her brother was involved in General Kapp’s coup in an attempt to restore monarchy, having to flee after its failure.”11 Rightly, the well-known German theologian Eugen Biser, an expert interpreter of Le Fort’s life’s work, states that “the poet, whenever she designs historical settings, almost exclusively chooses periods of decadence and of radical change”, as, for example, apart from the aforementioned Thirty Years’ War and French Revolution, from “the downfall of the late bourgeois world in The Veil of Veronica to a concealed or open criticism against the Nazi terror in [the stories] ‘The Judgement of the Sea’ in 1950, ‘The Innocent’ in 1953, and ‘The Alien Child’.”12 In these narratives of loss, farewell, and renunciation, Gertrud von le Fort’s language achieves, according to critics, the utmost degree of sensitivity, tenderness, and plasticity. This contrasts with daily life scenes and, especially, with the power and other by-products of success, as influence and fame—all of which seem to interest her less. According to Le Fort, the one who dominates the sphere of power is the male, with his desire for power or often uncontrollable voluntarism, which turns him into an agent of evil characterized by a lack of respect, love, and humility. According to Le Fort, the main cause for Germany’s destructive role during the last centuries is precisely this excessive, active voluntarism, whose ultimate personifications were, within the sphere of the state and politics, the Prussian King Frederick II and the German Emperor Wilhelm II with their militarist spirit, and, obviously, Adolf Hitler with his

 González de Cardedal, “Introducción”, 6.  Kämpchen, “Die Dichterin und ihre Zeit”, 75. 10  Ibid. 11  Ibid. 12  Biser, Überredung zur Liebe, 22. 8 9

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political and expansionist fanaticism and his obsession for making the Jewish people responsible for all the ills Germany was going through and his strong desire to extinguish them. Within the realm of philosophy, such an example would be Friedrich Nietzsche, for his vitalist philosophical voluntarism seeks a transvaluation of values and the destruction of the Western metaphysical tradition. Gertrud von le Fort, according to the renowned Germanist Wolfgang Frühwald, saw in National Socialism a messianism and a Salvationist doctrine of a dominant people.13 According to the renowned Jesuit Erich Przywara, her novels The Veil of Veronica (1928) and The Wreath of the Angels (1946)14 are the most accurate and best executed in terms of artistry, symbolically expressing the historical events of the interwar period in nationalist Germany, with its glory and demonomania (see letter of 13th May 1958). The male protagonist is Enzio, a young poet who is in love with Veronica, the main female character. In the first part, in the city of Rome in The Veil of Veronica, he is characterized “by his inability to perceive the singular and the particular, which does not interest him.”15 Then, during World War I, he begins to experience the German fatherland as becoming his destiny. Enzio chooses Germany, which becomes his ultimate life’s purpose and meaning. He no longer writes poems and becomes a National-Socialist reporter, writing, for example, pamphlets against the Treaty of Versailles, among others. In his view, what matters now is action instead of reflections, ponderings or poems, which he deems to have failed, as they did not escape Germany’s military defeat. Thus, his assumed commitment to Germany becomes a substitution for religion, making him forget and reject his earlier philosophical and metaphysical speculations. Enzio now believes, following Nietzsche, that will can achieve all, or even prevail above all, even truth. Consequently, in Heidelberg, in the setting of the second novel (The Wreath of the Angels), he shows an openly disrespectful and inconsiderate attitude towards those around him, especially Veronica, whose faith he strongly tries to vanquish by systematically and viciously fighting it. Thus, he turns into a representative of Nietzchean voluntarism, which, ultimately, is able to ‘tread over corpses.’ His fatal victim is his friend Starossow, whose faith is extinguished by Enzio by means of a terrible depersonalization process. He takes away the nucleus of his personality, turning him into a useful instrument for his ideological and political ends. At the time of his death, Gertrud von le Fort makes Starossow reproach his friend for having destroyed him as a person and for having turned him into a renegade. On the other hand, she includes the presence of celestial and diabolical forces, which, just as in the end of Goethe’s Faust, fight over Starossow’s soul. We find here and later, in Veronica’s mortal break down, the mysterium iniquitatis [mystery of sin] and, naturally, divine Grace. The latter prevails and the young couple can embrace hoping for an auspicious future without any fatal voluntarisms.

 See Frühwald, “Deutscher ‘renouveau catholique’”, 64.  No English translation exists. 15  Le Fort, The Veil of Veronica, 13. 13 14

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Enzio’s literary character embodies a variety of Edith Stein’s ideas, as expressed in An Investigation Concerning the State.16 First, Enzio is someone who devotes himself completely to the National-Socialist cause and the German state, which Edith Stein would deem, on the one hand, “in a certain sense incongruous” as, according to her, the “state has no soul and no soul-driven productivity.”17 On the other hand, she considers this consecration to be “admirable” and, even, “necessary.”18 Above all, she understands it with regards to the “people,” as it is a “commonality of productive soul energy […] [and] works of culture.”19 Until this point, Enzio is more or less saved, given that his devotion is both to the German people and the state. However, further along in the narrative and second in our analysis, Enzio looks like someone who has lost his freedom and, to put it in Steinian terms, he seems to be unable “to control himself” and his being “is stripped of personhood when his spontaneity is suspended and he is shackled to the will of another.”20 That other is, according to Gertrud von le Fort, clearly the devil, who makes Enzio his instrument and whose hardened and stubborn physical expressions are increasingly assimilated by the character. Third, Edith Stein later observes that “a certain spirit can take over the content of state acts […], that its ‘policy’ breathes a certain spirit, that is, seems motivated according to a fixed type.”21 Here, Edith Stein is undoubtedly talking about the “fighting among political parties [, which she believes to be] an attempt to seize control of the leadership of the state in order to model it as they see fit.”22 The experience of the fratricidal struggle among the countless parties in the Weimar Republic—who avoided the establishment of a stable government during the 1920s and effectively provoked Hitler’s rise to power—which promised order, political, economic and social stability, and a strong, aggressive, and relentless defense of German interests, makes Edith Stein suspicious of the destructive role of some political parties. Already in 1925, she perceives, almost prophetically, that “an outsider can also make the state subservient to his purposes and that outsider can be equally and easily God or Satan.”23 In the figure of the former poet and later Nazi reporter Enzio, Gertrud von le Fort creates a character that shows the terrible role of the National-Socialist party during the Weimar Republic and, naturally, during its 12 years in charge of the German government, with a voluntarist policy that was aggressive, inhuman, highly cruel, and ruthless, not only against the Jewish people, but also against communists, Catholic priests, and Protestant ministers, all of whom they tried to exterminate.

 In Collected Works of Edith Stein 10 (hereafter cited as IS).  IS, 40. 18  Ibid. 19  Ibid. 20  Ibid., 60. 21  Ibid., 103. 22  Ibid., 142. 23  Ibid., 103. 16 17

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Very much like Thomas Mann in Doctor Faustus, in The Wreath of the Angels, Le Fort tries to explain, right after World War II, what happened to the so-called land of poets and philosophers in recent decades. Mann and Le Fort cannot avoid suggesting, less and more explicitly respectively, the presence of demonic forces as the only way of explaining these events. This possible destructive function of political parties with extreme ideologies in democratic regimes is, surely, also the reason for which Edith Stein, in spite of her interest in political parties as a young woman, considers that “if you start from the idea of the state, none of [these] forms of state can claim to be ‘the best one.’”24 Given that “the state […] is sovereign”25 and stands “under no other command”26 and, therefore, “has authority to command within its territory”27 without great counterweights, what is most important for Stein is not whether the regime is monarchical, aristocratic or democratic, but the fact that those who have the power not abuse it. So, in the case of the monarchy, the monarch is “the number one servant of the state”28 and must not become “tyrannical.” Likewise, aristocracy presents “a select circle of carriers of the life of the state who stand in for the whole”29 and must not become an “oligarchy,” while democracy should not turn into an ochlocracy, i.e. “a mob rule.”30 While “with tyranny the bond of community between ruler and ruled is ripped to shreds [and] each regards the other as an object, which means there has been the closest imaginable approximation to a relationship of unadulturated association,”31 “oligarchy manifests a degeneration into a community of ‘exploiters’ and a community of ‘exploited,’ or even into two special-interest groups, each of which is held together by its opposition to the other.”32 In ochlocracy, finally, we would not find, or better yet, much less so, a true community as a basis for government, as it represents “the most severe atomization of civil community imaginable.”33 In other words, it can become the government of uncontrolled masses. The only true bastion against the abuse of the monarchical, aristocratic or democratic state power, according to Edith Stein, seems to be the existence of an authentic community among those ruling and the ruled, and not so much the form of government. This is to say that the correct behavior in service to the community is the most relevant ethical value for her, and not the ‘correct’ form of government. If the spirit of service to the community is lacking, the state as “institution standing in the service of values

 Ibid., 39.  Ibid., 58. 26  Ibid., 27. 27  Ibid. 28  Ibid., 39. 29  Ibid. 30  Ibid. 31  Ibid. 32  Ibid. 33  Ibid. 24 25

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of life,” which freely organizes “higher powers” and produces “mental goods,” can turn into one that does “more to destroy mental values than to help produce them.”34 In her short novel The Song at the Scaffold, published in 1931, Gertrud von le Fort, shows, artfully, with well-executed literary skill, and exactly that lack of true community and that presence of destruction achieved by the three aforementioned forms of abuse of the power of the state, as described by Edith Stein. According to Lilian Calm, [T]his work came as inspiration to the author at a very special moment: with the rise of Nazism, which was hostile to the Catholic church, she sought protection in a monastery. The Mother Superior lent her a book: it was the story of the Carmelites of Compiègne, who died under the guillotine in Gréve on 17th July, 1794. As well as reading it, Gertrud von le Fort imagined the story of a Carmelite nun that offered her own fear in sacrifice.35

To briefly summarize the plot, we can say this is the story of a young and extremely fearful woman called Blanche de la Force. Because of her fear of the world, she flees at the age of 16 to the Carmelite convent of Compiègne and with time discovers the religious meaning of her problem, understanding herself as a living sign of Jesus’ suffering and torment, taking on for herself, then, faithfully the cross of fear. When the hour of martyrdom approaches, provoked by the brutal and threatening state power (executed mainly by the Jacobites of the time), the fear of death overpowers her and Blanche desperately escapes from the convent. However, later, when she is hidden in the crowd while watching her seventeen Carmelite sisters walk up to the scaffold one after the other singing Veni creator, we see, according to the narrator, not the “victory of a heroine” but the “miracle of the weak”: Blanche walks up towards the scaffold as the last sister singing “in her small, weak, childlike voice she sang without a tremor, exulting as a bird! All alone across the great terrible square she sang the Veni creator of her Carmelite Sisters to the very end.”36 In this heart-rending manner, God turns Blanche’s fear of death into a disposition towards death. Saint Paul’s words are, thus, embodied through her: “My Grace is sufficient for you, for my power is made perfect in weakness” (2 Cor. 12:9). Le Fort, in her Aufzeichnungen und Erinnerungen, confirms her Teresian spirit by telling us that the Carmelite nuns of Compiègne embody “the utmost and fearless inclination to the ever more veiled Divine will”37 and, vicariously, offer a testimony of the giving capacity, love and suffering of the feminine soul. The woman obeys God’s will and thus compensates the infertility and destructive anger of a ‘male era’. An unbalanced world is able to regain balance because of woman’s sacrifice, ‘because of the sacrifice of obedience and pure love’. The ‘Veni creator’ sung by the Carmelite nuns condemned to death suspends time and chaos. ‘In fact, [according to the narrator of the revolutionary events], the regime of terror falls ten days later.’38

 Ibid., 110.  Calm, “Prólogo”, 9. 36  Le Fort, The Song, 75–76. 37  Doppler, “Zweimal ‘Begnadete Angst’”, 360. 38  Ibid. 34 35

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At the symbolic level, this Lefortian novel thematizes the clash between the arrogant, disrespectful, and uncontrolled voluntarism of the power of the state and the human-feminine impotence that is enriched by divine omnipotence. The first is represented in general by men acting as agents of evil that open the doors to malignant forces, whereas the second is represented by the humble and obedient-to-the-willof-­God woman, who, in spite of all, is victorious at the end, showing us the ideal model of Christian behavior. At the same time, in this novella Gertrud von le Fort expresses the Steinian philosophical critique of monarchy, aristocracy and democracy. “[T]he Kingdom of France, [she only says]…often ignored its exalted mission.”39 Her reference to aristocracy is more explicit, especially regarding the Marquis de la Force, Blanche’s father, who revered “the skeptical writings of Voltaire or Diderot” and fraternized with “certain liberal patriots at the Royal Palace. […], [i]t did not occur to this sophisticated aristocrat that the subtle spice of his conversation might eventually season the crude cookery of the mob.”40 Accordingly, this marquis considered the Church a thing of the past and “the prisons of religion […] as undesirable as those of the State.”41 Gertrud von le Fort here insinuates a superficiality in the thinking of French aristocrats in the eighteenth century. They do not know the people well, as, apparently, there is not much communion between them, and, above all, they are too naïve in anthropological terms, that is, they fail to realize that man’s nature does not only consist of “the indestructible nobility of natural man”—as the Enlightenment thinker Rousseau suggests, for example, speaking of the innate goodness of human nature when disregarding the original sin—but also that “chaos is natural too […], and so are the executioners of your heroines, and the brute in man—and even fear and terror.”42 Later, however, when liberal ideas and critiques against the monarchy and the Church come to be slogans of the raging mob, Blanche’s father changes his mind and ...was now all for a strong monarchy and absolute authority. He even surprised himself and his associates by recognizing the need for religion and, above all, for the Church. The very first processions of those who denied God had shocked him profoundly. (Indeed, atheism is cruder stuff in the coarse hands of the mob than on the subtle lips of aristocrats.) ‘These mob demonstrations are intolerable, he fumed in all his letters ….43

Later, the Marquis is taken prisoner and killed by the crowd in front of his daughter Blanche, who they also hurt in the following way: A detestable little fellow in a red cap stood in front of her. Of course, he was not the same one who had looked into her cell, and yet through some infernal intuition he seemed to know who she was. Or did her rigidly folded hands betray the nun? Or her short hair? The fellow was holding a cup in his hand and making over it a blasphemous gesture. (My friend,

 Le Fort, The Song, 45.  Ibid., 2. 41  Ibid., 3. 42  Ibid., 1. 43  Ibid., 55–56. 39 40

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you know of these things from the processions of the godless.) ‘Receive communion, citizeness!’ he shouted and put the cup forcibly to her lips. […] But already the mob was shrieking its fanatical “Vive la nation! Vive la nation!” It was over.44

In this long quotation Le Fort shows Steinian ochlocracy: the government run by the chaotic and uncontrolled crowds that get carried away by their lowest destructive instincts and open their doors to dark forces that make them do, in a bloodthirsty euphoria, anything without being able to regain control of themselves. We can conclude, then, that in relation to political thinking about the state, the spiritual closeness between Edith Stein and Gertrud von le Fort is expressed in the fact that Steinian philosophical reflections find a plausible literary expression and materialization in Lefortian literary texts. Both share a belief in the importance of the common union between the bearers of the state power, be it monarchical, aristocratic or democratic, and the people. But they also coincide in their view of the dangers of the abuse of power due to the disrespectful voluntarism executed by individuals, groups, parties, or the atomized and uncontrolled mob.45 Everyone is at the risk of suffering the domination and manipulation of infernal forces, which, according to Le Fort, are only overcome by an implored divine grace, especially, through the humble and obedient attitude of the female believer. Now, the fact that Edith Stein’s philosophical reflections concerning the state are developed and materialized by means of the poetic imagination of her spiritual next-­ of-­kin Gertrud von le Fort does not eliminate, however, the existing difference between a Steinian political position that is fundamentally bourgeois, neutral, and rather in favor of democracy, and a Lefortian stance that is profoundly conservative and slightly pro-aristocratic, which, though recognizing and critiquing the weaknesses of aristocrats, highlights above all and with greater fervor, the possible deviations of democracy visible in uncontrolled and massive phenomena. Translated from Spanish by Ana María Neira. Formatting of the text by Rodrigo Vidal.

References Biser, Eugen. 1980. Überredung zur Liebe. Die dichterische Daseinsdeutung Gertrud von le Forts. Regensburg: Habbel. Bono, Caballero, and José Luis. 2001. Stein (1891–1942). Madrid: Ediciones del Orto. Calm, Lilian. 1997. Prólogo to La última en el cadalso, by Gertrud von le Fort, 5–11. Trans. A. L. A. Santiago de Chile: Andrés Bello. Doppler, Alfred. 1959/1960. ‘Zweimal ‘Begnadete Angst’. ‘Die Letzte am Schafott’ – ‘Dialoge der Karmeliterinnen’. Stimmen der Zeit 166 (1960): 356–365.

 Ibid., 59.  Regarding the phenomenon of the masses, refer to publications by Le Bon and Ortega y Gasset that seem to confirm Stein’s and von le Fort’s apprehensions.

44 45

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Frühwald, Wolfgang. 1976. Deutscher ‘renouveau catholique’. Zur literarischen Einordnung des Werkes Gertrud von le Forts. In Dichtung ist eine Form de Liebe. Begegnung mit Gertrud von le Fort und ihrem Werk. Zum 100. Geburtstag am 11. Oktober 1976, ed. Hedwig Bach, 60–73. Munich: Ehrenwirth. González de Cardedal, Olegario. 1995. “Introducción” to Himnos a la Iglesia, by Gertrud von le Fort, 5–16. Trans. Valentín García Yebra. Madrid: Ediciones Encuentro. Kämpchen, Paul. 1976. Die Dichterin und ihre Zeit. In Dichtung ist eine Form de Liebe. Begegnung mit Gertrud von le Fort und ihrem Werk. Zum 100. Geburtstag am 11. Oktober 1976, ed. Hedwig Bach, 74–78. Munich: Ehrenwirth. Kranz, Gisbert, ed. 1976. Gertrud von le Fort. Leben und Werk in Daten, Bildern und Zeugnissen. Frankfurt am Main: Insel. Meyerhofer, Nicholas J. 1993. Gertrud von le Fort. Berlin: Morgenbuch. Stein, Edith. 2006. The Collected works of Edith Stein. Trans. Marianne Sawicki, vol. 10, An Investigation Concerning the State. Washington, DC: ICS Publications, Theresia a Matre Dei. 1969. Edith Stein. En busca de Dios. Trans. P. Rafael Velasco. Beteta: Verbo Divino. von Le Fort, Gertrud. 1932. The Veil of Veronica. Trans. Conrad M. R. Bonacina. London: Sheed. ———. 1958. Aufzeichnungen und Erinnerungen. Einsiedeln: Benziger. ———. 1993. The Song at the Scaffold. Trans. Olga Marx. Long Prairie: The Neumann Press. Clemens Franken holds a bachelor’s degree in Social Studies and Catholic Studies from the University of Münster, Germany (1966–1973), and a PhD in American Studies from the University of Santiago, Chile (2003), as well as an MPhil in General and Comparative Literature from RuhrUniversität Bochum, Germany (1982). He is professor of Literature and Linguistics at the Pontificia Universidad Católica de Chile and was the director of the Literature Department (1992–1994). He was also Director of Research and the Graduate School (2006–2011). He specializes in Latin American and Chilean detective fiction, European romanticism, literature, and theology. He is a Fondecyt researcher and a published author.  

The Justification of the Modern State in Edith Stein’s An Investigation Concerning the State: A Political Theological View Fredy Parra

Abstract  The article considers the justification of the modern State in Edith Stein’s work An Investigation Concerning the State. It first addresses the structure of the state by analyzing the equivocation of statehood and sovereignty, the relationship between state and law, the state’s self-restraint, and radical ambivalence. In Part Two, the article examines Stein’s justification of the state reality, and the link between state and human rights. Finally, post-Conciliar political theology is discussed in relation to Stein’s political philosophy, mindful of Stein’s questions concerning the ethical foundations of the state. Her ideas are brought into dialogue with those of Johann Baptist Metz, Joseph Ratzinger, and Jürgen Habermas, especially on the theme of the pre-political foundations of the democratic state. Keywords  State · Justification · Ethics · Human rights · Political theology

In his penetrating work, The Moral Experience, philosopher Humberto Giannini claims, To justify is to re-conduct, to reintegrate a clause, a behavior, maybe life itself, into a principle by which any of those realities could extract their own and individual dignity of being: the proposition, from that truth under which the proposition is worthy of being uttered; the conduct, from that value under which the conduct is worthy of its realization; life, from that sense under which a life is worth living. Correspondingly, “principle” is the quality… that bestows dignity to the being of individual entities and collects them from their dispersion and alienation (Giannini 1992: 111).

We will explore that value, or sense, or principle, if there is any, which bestows dignity to the state and justifies its existence, and according to which the state is worthy of being lived and experienced. F. Parra (*) Faculty of Theology, Pontificia Universidad Católica de Chile, Santiago, Chile e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_11

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In his classic work General Theory of the State, Georg Jellinek claims that “Institutions, in order to survive, need to rationally justify themselves before the consciousness of each generation” (Jellinek 2000: 197). In Chapter Seven of his extended work, he carefully reviews and analyzes the different doctrines of the justification of the state that have been developed throughout history, from classical thinking to the ideas of modern culture. These doctrines include religious-­theological justifications; force theory; legal theories, which include the influential social contract; ethical theories; and psychological theory (Jellinek 2000: 197–233). In Chapter Eight, Jellinek explores this analysis in depth with a systematic exposition of the doctrines regarding the state’s purpose and each specific goal that has been proposed for it (religious, legal, moral, usefulness and safety, happiness, freedom and common good) throughout humankind’s political history (Jellinek 2000: 234–263). Mindful of the foregoing question and its various responses throughout history, we turn to Edith Stein’s An Investigation Concerning the State in order to grasp her own thinking on this topic.

1  The Structure of the State Following careful analysis, Stein summarizes the structure of the state as follows: The state is a social formation of free people, in which one or several of them (and, in the extreme case, all of them) rule over every other person on behalf of the whole (…) The state practices its governmental activity by ordinances, through which it enforces behavior in the people it rules over, and by regulations that set the standard for what is considered legal. This activity is purely authoritative and the state is a state only as long as that trace is the point of origin: The state cannot be subjected to any other authority; it instead has to be its own ruler (Stein 2005: 593).

2  Identity of Statehood and Sovereignty For Stein, a state1 without the idea of sovereignty and its respective consequences is inconceivable. Her emphasis on sovereignty as an essential characteristic of the state leads her to disagree with Jellinek (Jellinek 2000: 441–444), whom she frequently cites in An Investigation Concerning the State. Sovereignty and power are closely intertwined. If the essence of the state is power, power must be understood as “the ability to maintain the autonomy” (Stein 2005: 533) of such a state. The state is seen as an entity of power that upholds sovereignty; that is, it is recognized as possessing the ability to decide freely on everything concerning its territorial

1  Stein cites Aristotle (Nicomachean Ethics, Book V, 1134, a), who sees statehood as “wherever ‘a group of people has formed a life community to create a whole that is sufficient unto itself’” (Stein 2005: 531).

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­competences (Martell 2012: 204). Certainly, we are looking at a power greater than any other power in its field of action. Sovereignty implies freedom, that is, “a community owes its character of statehood to sovereignty, i.e., to its freedom to create its own institutions and to execute every act from itself” (Stein 2005: 602; 571). In other words, “the state must be its own master” (Stein 2005: 532). There is, Stein claims, an “equivalence of statehood with sovereignty. By a relationship of equivalence we mean that the state is the only community that is allowed to be characterized essentially by sovereignty” (Stein 2005: 537). The state is sovereign because it is the sole owner of the power over itself –sovereignty is inherent to the state. State sovereignty, within the boundaries of a given territory, implies autonomous, exclusive, and prevailing power, expressing its supremacy over any other instance of power. Stein goes on to state that “Sovereignty is the condicio sine qua non of the state” (Stein 2005: 569); therefore, the state is the author of all normativity, law, and all its prescriptions. That which gives birth to the law and norms is sovereignty. And if the state is sovereign, “it is the author of itself” (Stein 2005: 555). In short, “to be a state means: to have the right to rule within its own field of authority, that is, to possess the right to freely prescribe …. State and law are born from each other” (Stein 2005: 566).

3  Self-Limitation of the State and Freedom Certainly, there might exist regulations, orders, and rules that are not dictated by the state, but are tolerated by it (Stein 2005: 534) or are recognized by virtue of the right to legislate of other internal bodies, as is the case of specific associations of public law. The state also recognizes the law of nations and vows to respect international laws; however, according to Stein, this is “a self-limitation, but not a suppression of its autonomy.”2 Indeed, the concept of sovereignty cannot be understood without the freedom of the people that belong to the state and relate to it by recognizing its authority. This is true to the degree that “the life of the state withers through its authoritative activity” (Stein 2005: 593), and its realization cannot threaten freedom. The promotion and realization of individuals’ effective freedom is a condition of possibility of an authentic sovereignty, as Stein states, “Only a formation that comprises free individuals can declare itself sovereign or can manifest as sovereign in praxis… ‘unlimited state power’ does not exist in essence” (Stein 2005: 569). In sum, the sovereignty and liberty of the state do not imply state omnipotence and this is how the thesis of the self-limitation of the state is justified.

2  (Stein 2005: 534). At this point, Stein cites Jellinek once again when she observes that “legal theory teaches that the sovereign state is superior to any other organized power and that is not subject to any power. But the ruler is subject to the powerful forces of social life, which do not behave as a conscious rule of volition” (Stein 2005: 604–605).

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4  The Radical Ambivalence of the State Stein insists, repeatedly and through different means, on the characterization of the state’s fundamental structure as radically ambivalent. Indeed, everything Stein says indicates that the concrete reality of the state is built on ambiguity – with possible achievements and failures, where nothing guarantees or enforces ethical fulfillments, but which does not prevent them either. She explicitly points out that her previous analysis, in which she described the fundamental features of the state’s structure, “does not tell us a thing about the content of the authoritative activity and what the state organizes and rules” (Stein 2005: 593). Without a doubt, the most troublesome issue is “the scope of what is allowed by the sense of the state,” that is, “what political theories often introduce as the ‘purpose’ or ‘mission’ of the state (e.g., to build an ‘ethical realm,’ to safeguard the free development of the nation, to worry about social wellbeing, etc.).” She continues: “Nothing forces the state, according to its own sense, to put itself at the service of the moral law, to be an ‘ethical realm’” (Stein 2005: 594). Simultaneously, nothing prevents the state from taking an interest, for example, in the education of its youth such that they can better assimilate with the state’s community or from worrying about the material well-­ being of its citizens (Stein 2005: 595). Stein subsequently notes: “Satan’s kingdom can be a state as easily as can the kingdom of God. The only problem is to identify how the first or the latter ‘spirit’ is able to seize the content of the state’s regulations and to imprint its characteristic signature on the concrete state formation as a whole…” (Stein 2005: 594). The state is capable of good and evil, of unleashing negativity or positivity through its historical development and, for this very reason, it generates constant uncertainty.

5  On the “Justification” of the State The justification of the state is impossible unless we inquire into its value. Stein notes that “it is one thing to wonder if a concretely established state can or should be the bearer of values, and it is another thing to wonder about the value ‘of the state’” (Stein 627–628). She claims that “the second question is properly the question of principle” (Stein 2005: 628). Once the full reach of her question is established, she proceeds to analyze a possible justification of the state rooted in three criteria: “utility,” “justice,” and “community.” Concerning the first criterion, utility, she explains that the state might be “useful” to the extent that it protects individuals, who can satisfy their needs better within the state’s sphere of influence. She concludes that the utility of a concrete state will depend on the corresponding conditions of individuals and the state itself: “Through this way, therefore, we cannot propose a justification in principle of what the state is” (Stein 2005: 629). Secondly, regarding justice, she believes that:

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… at first, it would be conceivable that no infraction to the pure law would be committed, even if there was not a state to promote this. The state is not necessary for the realization of the law, but only to the extent that individuals do not lack knowledge of the legal regulations or the will to adjust their behavior toward them. The state, then, is not a condicio sine qua non for the realization of justice (Stein 2005: 630)

The task of justice does not belong to the idea of state itself, so it is not a “justification in principle” (Stein 2005: 630). Finally, regarding community, Stein indicates that “community itself and, beyond it, the people’s community as a personality that creates culture, deserves its own value. The state, which offers its legal order to the service of the community, does not create such value, but contributes to its realization, and to the extent that it does, (the state) does not manifest its own value, but only a derivative value” (Stein 2005: 631). Stein wonders about a possible religious justification of the state. For reasons similar to those previously stated, she concludes that the idea of the state does not imply, but also does not exclude, a mission delivered by God. She affirms: when we say that the God assigns the state a specific mission throughout the history of humankind, such a phenomenon is not excluded by the idea of the state (…) Regarding whether a state has such mission and how it fulfills it, this is simply a matter of facts, and a theory about the principles of the state holds no answers. Such theory can only prove that nothing is foreshadowed in the idea of the state, nor does it manifest something that excludes the state. (Stein 2005: 596)

In any case, we can conclude from her reflection that theological or religious justifications are not part of the concept of state in a proper sense. Her proposal is even clearer when compared with the ideas of Friedrich Julius Stahl, a renowned representative of that time’s theological-religious vision of the state.3 Stein specifies: … therefore, we must reject the foundation of the state’s doctrine in the ‘idea of a moral kingdom’, as Friedrich Julius Stahl considers necessary in his classic work on conservative politics. That idea cannot be introduced into the state but from the outside. There might be good reasons for doing so, and there might be political consequences that are thoroughly justified. But it is a mistake to think of those reasons as derived from the idea of the state (Stein 2005: 596–597).

In sum, inquiring into a possible justification of the state through utility, justice, and community, Stein concludes that it is impossible to find such justification. The state possesses no value of its own, except in a derivative sense. In any case – and this is equally important for all three criteria – the idea of the state does not imply, but also does not exclude that such values could manifest themselves in certain practices through the state’s action and ruling. The same argument invalidates a religious justification of the state. The need to suitably articulate values for the state, however, is still present. The state “is incapable of recognizing what actions ‘should be’ and what actions 3  In his detailed revision of the doctrines on the justification of the state, Jellinek underscores the leading figure of Stahl as a crucial model of the theological-religious vision of the state and notes that “The State is for him an ethical-spiritual realm that rests upon the divine order and ruling” (Jellinek 2000: 202). On Stahl, see (Jellinek 2000: 199–203).

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‘shouldn’t be.’ Only the people deployed by the state as its organs of government are capable of such actions” (Stein 2005: 640). The people’s diversity, when related to the state apparatus, can contribute to the development of “morally significant actions (…), that is, .they can contribute to the state’s enforcement of what is fair and to the prohibition of what is unfair” (Stein 2005: 641). But Stein asks again: What can be demanded from the state in the name of ethics? She answers: The state, as long as it is within its realm of possibilities, must help establish values or, at the very least, must contribute to the realization of such values. First, we will explore the value whose realization has been specially assigned to the state, namely, justice. In this sense, we must demand from the state that its law be a “fair law” (Stein 2005: 641).

6  State and Human Rights Thinking about the influence of political theory on the real configuration of the state, Stein reviews contractarian and natural law theories of the state as well as and the problem of our understanding of individual rights and the challenge they present to state sovereignty. The contractarian theory of the state claims that the state is a contract between parties and is “directed to the creation of the modern constitutional state” (Stein 2005: 622). The natural law theory, Stein notes, used to accompany the contractarian view: the state is part of nature and the contract establishes what is a natural association between human beings. In both theories, the state is ... built up from isolated individuals. The two views propose a theory of the “rights of man and of the citizen,” a theory whose advocates demand, on the one hand, a restriction of the state’s sphere of influence, which they partially achieved, and, on the other hand, an imposition of new functions of the state in favor of the citizenry (such as social security, etc.) Herein also lies one of the very roots of democratic recognition that demands everyone’s involvement in state life – recognition that had a major influence on the development of modern states (Stein 2005: 622–623).

To what extent can such theories influence the configuration of the state? (Stein 2005: 623) Stein discovers that, in fact, they can have either a negative or positive influence. For example, she notes that “if we oppose individual ‘rights’ to the state, this translates into an attack on the sovereignty of the state; and, to the extent that one tries to impose the recognition of such individual rights, one is working for the destruction of the state” (Stein 2005: 623). She recognizes that, in this case, we find rights founded on pre- or meta-legal normative grounds. The foundation of these rights does not lie in law itself, but in ethical experience. According to Stein: “These ‘rights’ are founded substantially in rules that are not legal but ethical (…) (and) are not compatible with the power of the state, unless the state itself makes them part of the contents of its own law and limits itself in respect to them. Concerning this self-limitation, born out of respect for ethical rules that are different from juridical laws, we distinguish between this self-limitation and the one described above demanded by the very idea of law itself. Concerning the self-limitations of the law, we must,” claims Stein, “agree with

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Jellinek when he writes: “‘Such self-limitation is not arbitrary, that is, it is not the state who decides to practice it or not’” (Stein 2005: 623). As is well known, at the beginning of the twentieth century, a discussion of whether the law also compels the sovereign power of the state arose. Indeed, the work of Jellinek bears witness to those debates in political science. Given the necessity for social stability, reciprocity, and basic trust in a suitable coexistence and sociopolitical development, respect for the non-violability of the legal order is essential. And the fact that the state forces and limits itself acts as a guarantee for every citizen subject to law in any territory. “The state,” Stein notes, “when it legislates, not only imposes the obligation of individuals and their associations to submit before the law, but also the state itself must submit to its own legislative organs. No right must be violated… To release the state from complying with the law it has proclaimed would destroy the idea of law and, with it, the idea of the state” (Stein 2005: 623).4 Hence, it is clear that, for Stein, state sovereignty is not a synonym for unlimited and absolute power. The sovereign state has the capacity to legally determine itself, to self-limit and to obligate itself and, so, it can simultaneously guarantee the recognition and protection of individual rights and, ultimately, build a society and a rule of law.

7  Post-Conciliar Political Theology and the State Stein’s central ethical question about the modern state persists and its validity remains intact despite the diverse circumstances that have affected Christian sociopolitical thought throughout the complex twentieth century, which was hit by two World Wars and saw the rise of totalitarian systems and which can be characterized by the consolidation of global liberal capitalism found in today’s society. Space does not permit a review of the initial challenge of Leo XIII and his Rerum novarum, the encyclical which opened a new era of the history of the Catholic Church’s social thought and which, later, continued to influence the social action theologies of Gustave Thils and Marie-Dominique Chenu and the nouvelle théologie of the 1930s and 1950s. In short, theology gradually acquired a greater consciousness of its historical, social, and political relevance. The Vatican Council confirms this attention to history and its positivity through the proposal of a theology that corresponds to current times, which simultaneously helped awaken European political theology (e.g., Johann Baptist Metz (Metz 1971, 1979, 2002) and Jürgen Moltmann (Moltmann 1987, 1992) and, following the Episcopal Conference in Medellín, Colombia, Latin American theologies of liberation (Parra and Miranda 2006). The great transformations of the West, from the collapse of the last real socialisms to the globalization of the market, have opened space for a new playing out of political and state action during the last decades. There are core issues that lie

 On this crucial aspect of the self-limitation of the state, see (Jellinek 2000: 351ff; 435–437).

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beneath the dissatisfaction of groups and people. The representational and interpretative frameworks that bestowed sense to the sociopolitical and economic complexity of the state have radically changed. The most significant cultural trends at the center of the modern West – simultaneously created by globalization, the mediatization of the press, the growing processes of individualization, the need for immediate satisfaction in the midst of a culture of consumption – together with the absence of goals and utopian narratives, have given way to a supremacy of immediatism. This prevents us from lucidly appropriating our historical age; we are unable to acquire a sense of perspective and a long-term vision. There is uncertainty and perplexity (Parra 2011). Recently, Zygmunt Bauman and Carlo Bordoni noted how the many and complex features of a state in crisis persist even today (Bauman and Bordoni 2016). Over the last decades, Metz, the founder of Catholic post-conciliar political theology, has written on several occasions about the problematic situation of the state in the midst of current market globalization and of the many changes that have affected modern society. He notes, for example, that alongside these features, market globalization “could drive us to a global social crisis beyond the possible controls of democracy, which would trigger the loss of supremacy of politics to economics” (Metz 2002: 199). A decisive part of the experienced perplexity (and uncertainty) extends from the difficulties of adequately raising the question of the ethical and/or religious foundations of politics or, more simply, of the meta- or pre-­ political foundations of political action itself and, concretely, of the modern state. As we know, modernity has radically put into question the relationship between politics and religion, especially monotheism. Monotheism has been subject to strong political criticism as it is considered a “source of legitimation for a concept of pre-democratic sovereignty, at odds with the division of powers and originating in an obsolete patriarchy, which is the inspiration for political fundamentalism” (Metz 2002: 198). Furthermore, the foundations of politics and the state have been undermined by the processes of deinstitutionalization, growing individualization, and the presentism typical of the postmodern situation. Indeed, the inability to acquire permanent habits has also weakened the possibility of keeping mid- and long-term options and commitments, etc. All of this has affected stability and the visions of politics and the state. According to Metz, we are in a “phase of reflexivity.” Similarly, the English sociologist, Anthony Giddens, points out that we live in a culture that imposes a “generalized reflexivity,” in which most, if not every, aspect of social (and also individual) life is subject to continuous evaluation and revision; individually and collectively, vital projects are corrected and chosen according to the always emergent and changing forms of new knowledge, evaluation, and unlimited information (Giddens 1993: 44–51, 1994: 33). In this context, “at the limits of modernity,” claims Metz, “the political democracy of the rule of law is being called upon for a new conscious awakening of its own reality. And the first thing we find in this current state of reflexivity is that, in the terrain of modernity, this democratic trace is left without ground. It seems that for this kind of reflexivity, there is no center at all, no stable core” (Metz 2002: 199). Aside from the uncertainty and disaffection with politics (and the state), and p­ erhaps

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even because of them, there is, according to Metz, a void in modern politics related to the privatization of religion imposed by modernity itself. His interest is precisely to recover a core, a stable foundation, which cannot but come from the JewishChristian tradition, the same that has been discredited by modern Enlightenment tradition from its beginnings. In an era marked by the generalized reflexivity referred to by Giddens and also by a “constitutive pluralism” (Metz 2002: 224), of cultures, ideologies and social, corporative, and individual projects, of religions, of ways to see the world, he asks the inevitable question of how to harmonize pluralism(s), namely, the private with the necessity of universalism. In this sociocultural context, Metz wonders: “Does a criterion of truth that obliges everyone and facilitates understanding still exist? Or is everything subject to the arbitrariness of the ‘postmodern’ market?” (Metz 2002: 224) and “How can the universalism of human rights be reconciled, for example, with the idea that there are undeniable and inalienable cultural differences in humanity?” (Metz 2002: 224–225) Furthermore, “What would be this ‘universal,’ this – as it was called for some time – common good that is most often categorically denied today…?” (Metz 2002: 225) Metz claims that if such a “moral universal” exists, it can only be found through the experience and questions that rise from the “suffering of others.” Metz details that, according to Jewish and Christian Biblical traditions, “the criterion that fixes scope and measure is always the suffering of others,” (Metz 2002: 227) and this is what founds the “authority of the sufferers.” Consequently, the political theologian states that “to give the word to the suffering of others is a necessary condition for any future politics of peace, for every new way of social solidarity” (Metz 2002: 228). In short, the practice of and search for justice “can only achieve a universal horizon through its ‘negative mediation,’ its opposition to unfair suffering” (Metz 2002, 230), an opposition born out of respect for those who suffer unjustly (and those who had suffered unjustly, the not-present, the defeated of history, in brief, the absent…) And in this “moral universal,” the authority of those who suffer unjustly is what Metz proposes as a truth criterion prior to any democratic agreement of the rule of law. Metz claims: That is why the democracy of the rule of law not only presupposes the political authority of some lawfully elected representatives of the people; it always relates, in addition, with some moral authority prior to its founding processes of discourse and agreements, which I call here, summarizing to the extreme, the authority of the sufferers (Metz 2002: 218)

Later, he would add the qualifier, “of those who suffer unjustly” (Metz 2002: 219). The quest for the pre-political foundations (and justification) of the state boldly reappears in the classic discussion between Habermas and Ratzinger, which took place in Bavaria on January 19, 2004. At that time, the then-Cardinal Prefect of the Congregation for the Doctrine of Faith engaged in an interesting debate on faith and reason with one of the greatest philosophical representatives of modern Enlightenment thought and critical theory. Both agreed on very relevant proposals, which still remain valid. In the midst of contemporary crisis, in his talk “Pre-political Foundations of a Democratic State?” Habermas proposes the need for a dialogue between Enlightenment secular thought and religious traditions, whose ethical principles, translated into the language of reason, can and must greatly contribute to the construction of current democratic society while lending vital support for the

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meaning and justification of the state. Ratzinger, in his intervention during the debate, “What Holds the World Together: The Moral and Pre-Political Foundations of the State,” notes that “it is a concrete task of politics to place power under the shield of law, thus regulating power’s just use. It is the strength of the law and not the law of the strong, what must prevail” (Ratzinger and Habermas 2006: 53). In 1993, he wrote that the task of the state is to “create a balance between freedom and the good that allows each human being to lead a dignified, human life. We may also add that it guarantees the law as a condition for freedom and the common good” (Ratzinger 1995: 90). In the Habermas debate, Ratzinger adds: … that the law must not be the instrument of power of the few, but the expression of everyone’s common interest, seems to be, at least at first, a problem already solved through the instruments of the democratic formulation of agreements, as everyone participates in the birth of law and, therefore, the law belongs to everyone and should, and must, be observed. Indeed, the guaranteed participation in the formation of the law and the administration of power is the essential reason in favor of democracy as the best form of political organization (Ratzinger and Habermas 2006: 54).

Additionally, he proposes the existence of an earlier ethos, a pre-political one, we could say, understood as a foundation of law in the democratic state, namely, human rights founded upon the nature of human beings. In the Bavarian debate, Ratzinger says human rights … are not understandable unless we first accept that the human being, simply understood, by his belonging to the human species, is the subject of rights and thus his very existence involves bearing values and rules, which must be discovered, not invented. Perhaps today we should complement the doctrine of human rights with a doctrine focused on man’s duties and boundaries, as this would help to raise again and in different terms the question of the existence of natural reason and, consequently, of a law of reason to apply to all men and women in their respective places in the world (Ratzinger and Habermas 2006: 66–68).

Even if we acknowledge the positivity of reason, it is undeniable that reason has evidently shown its limits with the social and ecological imbalances that we know and keep on suffering from, losing its credibility and universality. It is not necessary to detail how fundamentalisms and religious fanaticisms have also dramatically and fatally shown their faces today, demonstrating the limits of religion and faith. For the theologian Ratzinger, during a time that shows illness from both reason and faith, it becomes unavoidable to create “a necessary correlation between reason and faith, of reason and religion, which are called to purify and regenerate; they need each other and we must recognize it …” (Ratzinger and Habermas 2006: 62–63). And reason emerges “as a kind of organ of control that religion must accept as purifier and regulator again and again,” as it is necessary that, alongside recognizing its limitations, “reason learns to listen to mankind’s great religious traditions. If it fully emancipates and renounces such a disposition of learning, if it renounces the correlation, it becomes destructive” (Ratzinger and Habermas 2006: 66–68). The search for comprehensive development for everyone constitutes, here and now, an important sign of our time. Benedict XVI addresses this crucial sociopolitical and economical issue in all of its complexity in his last encyclical, dedicated to

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the social question, Caritas in veritate, written 42 years after Paul VI’s “Populorum progressio,” a post-conciliar document that reflects on human development in all of its dimensions. When facing the profound socioecological crisis so clearly denounced and analyzed by Pope Francis in his “Laudato si,” “new duties are presented: to ensure the survival of humanity, to overcome the misery that prevents the fulfillment of the great majorities, to protect nature, to guarantee the habitability of the globe, to manage carefully the planet, and to assume our responsibility for the future generations” (Parra 2011: 81). The current situation, as it was shown, implies reflexivity, but also sensitivity and active hope as “Sociopolitical systems, democracies, in particular, not only require being conscious of freedom, but also a consciousness of what they are not: the consciousness of past history and its absurd victims” (Metz 2002: 207). It is vital, then, to bring to memory “the authority of those who suffer,” according to Metz (Metz 2002: 219). It is about freedom, but also about the freedom of others, that is, about justice and solidarity. Our contemporary socioecological crisis is not only about intra-generational solidarity and justice but also about inter-generational values (Benedicto XVI 2009: 159–160). Translated from Spanish by Rodrigo Navarrete.

References Bauman, Z., and C. Bordoni. 2016. Estado de crisis. Buenos Aires: Ed. Paidós. Benedicto XVI. 2009. Carta Encíclica Caritas in veritate. Vatican City. Giannini, H. 1992. La experiencia moral. Santiago: Ed. Universitaria. Giddens, A. 1993. Consecuencias de la modernidad. Madrid: Ed. Alianza. ———. 1994. Modernidad e identidad del yo. El yo y la sociedad en la época. contemporánea. Barcelona: Ed. Península. Jellinek, G. 2000. Teoría general del Estado. México: Fondo de Cultura Económica. Martell, Timothy. 2012. Edith Stein’s Political Ontology. Symposium: Canadian Journal of Continental Philosophy/Revue canadienne de philosophie continentale 16 (2): 201–217. Metz, J.B. 1971. Teología del mundo. Salamanca: Sígueme. ———. 1979. La fe, en la historia y en la sociedad. Madrid: Ed. Cristiandad. ———. 2002. Dios y tiempo. In Nueva teología política. Madrid: Ed. Trotta. Moltmann, J. 1987. Teología política – Ética política. Salamanca: Ed. Sígueme. ———. 1992. La justicia crea futuro. Política de paz y ética de la creación en un. mundo amenazado. Santander: Ed. Sal Terrae. Parra, F. 2011. Esperanza en la historia. Idea cristiana del tiempo. Santiago: Ed. Universidad Alberto Hurtado. Parra, F., and P. Miranda. 2006. Pensamiento social de la Iglesia y ciencias sociales. Horizontes teológicos para un diálogo, vol. LVII. Santiago: Anales de la Facultad de Teología, Pontificia Universidad Católica de Chile. Ratzinger, J. 1995. Verdad, valores, poder. Piedras de toque de la sociedad pluralista. Madrid: Ed. Rialp. Ratzinger, J., and J. Habermas. 2006. Dialéctica de la secularización. Sobre la razón y la religión. Madrid: Ed. Encuentro. Stein, E. 2005. Una investigación sobre el Estado, en Obras Completas II. Escritos filosóficos, Burgos: Ed. Monte Carmelo.

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Fredy Parra holds a doctorate in Theology from the Pontifical Jesuit Faculty of Theology and Philosophy in Belo Horizonte, Brazil. He is professor of the Faculty of Theology at Pontificia Universidad Católica de Chile and director of the Theological Centre Manuel Larraín. He works in the area of systematic theology with a focus on creation and eschatology. He has published Modernity, Utopia and History in Latin America (1995); The Kingdom Which Is to Come: History and Hope in the Work of Manuel Lacunza (2011); and Hope in History: The Christian Idea of Time (2011) and is coauthor of Social Thought of the Church and the Social Sciences: Theological Horizons for a Dialogue (2006). He is the author of various articles related to his fields of study.  

Forms of the State: An Approach to the Work of Edith Stein Based on Its Aristotelian Influences María Esther Gómez de Pedro

Abstract  According to its ontic structure, the state must respect certain limits imposed by community life that  extend from the political actions carried out by those who exercise sovereignty, which, in part, coincide with the bearers of the state. These limits are established by the community’s consciousness with respect to its ethos and its culture. These three limitations would fall within the aim of political life, according to Aristotle. But in addition to sovereignty, Aristotle maintains that justice is also necessary for the organization of the state. Justice is an end of the state and, therefore, conditions its ontic structure. Stein’s legal view of the state also tackles the question of justice. This paper argues that we find in Aristotle a possible rapprochement with Stein’s theory of the state. Keywords  State · Bearers of state life · Forms of state · Legitimacy · Value

Edith Stein addresses many topics in her book An Investigation Concerning the State, a sample of which includes the essays of this volume. This article offers a reading of Stein’s study of the state by placing it into dialogue with Aristotle’s Politics. In the first part of her work on the state, Stein carries out a systematic study of what is essential to the being of the state and does so by following the phenomenological method, which focuses on the analysis of observable phenomena inside or around the state, thereby enabling her to distinguish primary, constitutive aspects from secondary ones.

M. E. Gómez de Pedro (*) Universidad Santo Tomás, Santiago, Chile e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_12

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1  The Role of Community Let us proceed to frame the context of Stein’s reference to the Aristotelian typology of political regimes, which is found in the very first pages of her text. She clearly distinguishes the community from the state. It is important to highlight here what is concluded when she states that “every community – people as well as a nation – has a spiritual nature” (Stein 2006: 543). A community forms the base of the state and is something inherent to it; a community can be either in the form of people or nation, but it may also be constituted by a multiplicity of different persons who, first, gather and, second, consciously reflect on the sense of the state as a communal, spiritual entity. Stein also notes that the state can theoretically be either a community or a society. Both communal and societal forms of sociality may coincide and be closely connected in the state. But a state without a community supporting it could have a very weak social bond and, therefore, be extremely unlikely to survive. She explains that, since an awareness of the stronger and more intimate sense of belonging to a community is part of the structure of the state, this awareness causes a reciprocal social bond to emerge among its members as active parts of the community while fostering a genuine expression of culture through the state’s own people. The state is also essentially defined by its ability to organize and legislate itself – that is, its sovereignty. The community and the cultural cosmos emerging from the state become the base for the soundness and continuity of the state because it is a living community that unites and provides a ground for the conscious state structure of Loyalität or external legality (Stein 2006: 542). The sovereign, legal, and loyal community that lies at the base of the state determines the conditions for the state to express and legitimize its sovereignty. These conditions, to my mind, are not only formal but also material. They include an ethos of respect for people that does not inhibit living in community while respecting and securing a community’s own culture. Analogically speaking, the state is like a building that must secure its foundations and take care of them to stay upright. This analogy is one of the central points of my own view of Stein’s work. At this point, it is important to remember why respect for the cultural ethos of a people is central. One of the justifications lies in the fact that its existence improves or completes the world of values, which neither individuals nor small communities can totally embrace. For this reason, Stein affirms, “When speaking of a spiritual cosmos, we associate with it the idea of wholeness, based on the presentation of a world of values forming a whole” (Stein 2006: 545). The connection with values is essential for personality (individual or supra-individual) and cultural formations that are its reflection. In fact, cultural realms express and help improve an individual’s multiple dispositions and dimensions. The greater the perfection of the different realms or spheres, the greater the unity. This is how cultural pieces of work reveal the importance and originality of the domain of values characterizing it. The diversity of these pieces expresses, therefore, what is proper to the culture and to the “personalities” animating it. Since these may be constituted by a people or ­associations,

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mindful of the fact that a people cannot embrace the whole range of values expressed in a culture, it is essential that a supra-individual personality prescribe the limits of a community of people. So, the community, as a “cultural substrate displaying its activities in all directions[,] must be large enough” (Stein 2006: 546) to meet the demand for an equilibrium of keeping open a collaborative dialogue rooted in the personal contributions of community members. Refraining from collaborating in this cultural mission by creating an irreconcilable gap between individuals would delegitimize the state. Certainly, the state is conditioned by these tacit conditions, but the move from individual existence to the state must also be explored. For this reason, Stein thinks it is necessary to examine the possible relations between individuals and the state (Stein 2006: 547–548). To understand the state community, the relations between the individual and the community must be identified. The first element to emerge in this respect is the lack of homogeneity of these relations, either with regard to the roles played in relation to the state, which are obligatorily diverse, or the selection of those who play certain specific roles in the state (e.g., special representatives or delegates of the state): certain individuals, as representatives of the state, are “specific bearers of the state life” (Stein 2006: 547). Members of the mass, by contrast, cannot be bearers of the life of the state, for they lack the intimate social bond of community. Representatives or delegates of the state acquire special relevance, not only for reasons of security but also for the very essence of the state. This is so crucial that the state “cannot do without these bearers” (Stein 2006: 547), which is, indeed, an especially relevant statement. Relations between the bearers of state life and the state, however, parallelly correspond to the way an individual relates to his/ her community. The most proper communal relation consists of members feeling part of a whole (i.e., an awareness of belonging or solidarity, according to Stein): they feel responsible for one another and dedicate an important part of their lives to one another without being completely absorbed by one another. Stein notes that, in this sense, the state provides a wide space for personal life, something crucial for its subsistence, thereby making it compatible with personal religious beliefs. The bearers of the life of the state are important because the more the bearers are involved in the life of the state, the more it consolidates and reaffirms its security. Inversely, the greater the amount of citizens with active social lives that do not act as bearers of the life of the state, the less the security of the state. This is the second way in which individuals and the community relate to one another (like someone who uses something, but who, in turn, is not used by it). In this case, the most dangerous situation for the state is caused by cutting its vital communal nerve, which results from the effect of taking on “state positions and organizations” as if they were “the spoils of private interests” (Stein 2006: 548). Stein points out that this severing of the bond of community coincides with Aristotle’s analysis of greed or the inordinate wish for power. In sum, then, both the continuity and cutting of the state communal bond depend on the relation established between individuals and the state community when members assume their corresponding positions and organizations. This relation may be of two types: as a real contribution or as a ­submission to personal interests that vitiate or strangle the stream of life of the state community.

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2  Parallels Between Forms of State In light of the foregoing twofold possibility arising from the way an individual relates to the state community, Plato’s and Aristotle’s doctrines about the forms of the state may be clarified, both in their positive materialization and their degradation or denaturalization: Monarchy may lapse into despotism; aristocracy degenerates into oligarchy; democracy becomes ochlocracy (Stein 2006: 548–549). Stein notes that the common criterion of these descriptions is the way in which the necessary mission of bearing the life of the state is or is not lived by those who have taken it on. She remarks that in absolute monarchy, the monarch is the bearer of the state life and who, for this reason, is the first servant of the state. S/he assumes responsibility for the whole of the life of the state; here, it is not necessary for another individual to maintain the same relation to the entire state. The monarch may call upon many others to serve the state, but the chosen ones do not particularly become bearers of the state. The opposite pole of the monarch is the despot, who considers the state – or what is left of it  – as spoils that he/she exploits for his/her personal interests. While the monarch concentrates community awareness and keeps state unity, the despot breaks down the community links between subjects and the sovereign as each considers the other an object; this is like saying that we are quite close to a mere societal relation and, for this reason, the voluntary disappearance of wholeness may occur at any moment. Solidarity with the sovereign may bring subjects together in a community, but this community does not become a state community because it does not fit the form of the state. Similarly, aristocracy possesses a selected circle of bearers of the life of the state who devote themselves to the whole while its opposite, oligarchy, breaks the state down into two opposing entities: “exploiters” and “the exploited,” or into two associations of interest, none of which has unity unless they oppose one another. Finally, in democracy all citizens are theoretically bearers of the life of the state, which properly delineates or determines the concept of a citizen. The state finds its most extended foundation in it, but also its corresponding caricature – ochlocracy – which represents the most intense possible atomization of the “state community” (Stein 2006: 548–549). Stein remarks that from a “neutral” understanding of the state itself, none of these regimes may be considered “the best.” Indeed, each has advantages and disadvantages, depending on people’s living conditions. Monarchy, or rule by one individual who absolutely incarnates state life, demands that power be concentrated in just one individual and that the monarch does not sell her- or himself out for self-­ interest. In extremely large societies, this concentration in just one individual becomes practically impossible and, therefore, it is necessary to switch to another form of government, though self-interested gains will always be a temptation. Real democracy seems to better safeguard the links and commitments between citizens and the state; however, this demands the training and commitment of all citizens in such a way that it becomes very unlikely for them to achieve what is expected from them, given that the danger of degeneration is so great.

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To conclude this section, we should note that concerning the relations of the remaining group that exist in the state but do not strictly form part of the community – that is, those who do not bear the state community – Stein points out that they should not be asked for a commitment or awareness of belonging. Rather, they should simply avoid taking on stances and attitudes that may place the very existence of the state in danger.

3  A Parallel I would like to refer briefly first to the concepts used by Stein and those appearing in Aristotle’s Politics in order to discuss some of Stein’s theses. She uses the concepts of absolute monarchy versus despotism, aristocracy versus oligarchy, and democracy versus ochlocracy. Aristotle does use the concept of monarchy, but he does not characterize it as absolute. This is how it is translated in the Spanish editions of Gredos (Aristotle 1998a) and Alianza (Aristotle 1998b), whereas Losada (Aristotle 2005) uses “reign.” All these editions use the concept of tyranny as the degraded version of monarchy and aristocracy (rule by the best or most excellent ones). Unlike Stein, Aristotle does not call the fair government of the many democracy in his Politics1; rather, he describes it with “the name common to all regimes: republic.” In fact, for Aristotle, democracy is the degradation of the republic. We agree with the meaning ascribed by Alejandro Vigo, who points out that Aristotle uses this term in a negative sense, close to the sense we usually give to the word “demagogy” (Vigo 2006). Stein, however, uses the term democracy to denote the positive version of government by many. Though the two authors differ on their views on democracy, one could also see a similarity by drawing upon Stein’s notion of community. In fact, I argue that a real coincidence exists between the thinkers, for the conditions the community imposes on the state are such that the state may have continuity and security.

4  Aristotle: Politics and Ethics In the Politics, Aristotle deals with practical science applied to the ordering of social life to reach the end proper to it, which is nothing other than happiness. As St. Thomas Aquinas reminds us at the beginning of his Commentary on Aristotle’s Politics (Vigo 2006: 1–5), art imitates nature and, so, we need to use reason to know not only what things theoretically are, but also how they must be ordered to reach their own end. Hence, politics is a practical science concerning the city and the way it organizes itself to reach its ultimate and perfect end. In other words, the ­speculative

 In all consulted versions.

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knowledge of what a city is, along with the parts and ordering that make it up, organizes itself as a practical science to achieve its own end. Logically, this concept of organization will serve as the criterion for distinguishing good from bad politics. First, we begin with a consideration of causes and ends. Philosophy is the science of causes, and the final cause is the most important among them since all others are ordered according to it. It must always be oriented to the consideration of ends, the same as nature and everything natural. In addition, since the end is the good in each thing considered as a whole, it is essential for politics to consider ordering society toward this end. Politics cannot renounce this end without renouncing its own essence. This final cause and end constitute a teleological philosophical view in that this view primarily considers the end or telos. So, the concern about the way in which each part must properly be oriented to its end is present throughout this view. Furthermore, it establishes a necessary link between politics and ethics (Vigo 2006: 213), particularly the virtues of prudence and justice, together with common good, understood as its own end. The classification of types or forms of rule proceeds in this manner only for Aristotle; however, this perspective leaves enough room for other types of considerations that may be complementary, such as sovereignty,2 which is essential for Stein’s idea of the state. For Aristotle, this requirement for politics is particularly justified by human beings’ natural sociability, which makes them need to live with others to reach their end. This characteristic makes us different from animals, who are rather gregarious beings without language, which humans do have, thereby becoming “political animals.”3 The meaning of “political” is different and points to something more specific and rich than “social” because it refers to the existence of an intention for rationally and freely ordering the social, thus orienting it to a common end. Since “every city (polis)4 is a certain community and every community is built to reach some kind of good […] above all, it tends to the supreme good, the sovereign among all, which includes all the others. This is the so-called city and civic community.”5 Hence, the exercise of sovereignty is justified. It cannot be otherwise since sovereignty directs its work to reach the end of the city. So, “every activity of the politician and legislator refers to the city. The political regime is a certain ordering of the city inhabitants.”6 This end, toward which political activity must be ordered, is the good life.7 In fact, moved by their natural tendency, humans group together not only to survive, which would be the minimum demand for coming together, but also for living

 For example, see Aristotle’s Politics, Book III, chapter 8.  Ibid., I, 1. 4  In Greece, the notion of the city (polis) has a meaning quite different from the current one. It involves the so-called city-states characterized by autonomy and self-subsistence. 5  Aristotle, Politics, I, 1. 6  Ibid, III, 1. 7  I deal with this issue in my doctoral thesis published in 2002. (Gómez de Pedro: 33–41). 2 3

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properly, according to their rational being. Aristotle observes, “[…] nevertheless, usefulness also unites humans as far as each of us is motivated to participate in well-­ being. This is actually the main end of both, everybody together and in isolation. But they also group together for mere living and to make up the political community.”8 Delving deeper into these two concepts, according to Aristotle, “mere living” would be the form of life meeting basic needs, while living well supposes that vital necessities have been looked after in order to be able to aspire to cultivate the most elevated form of human life. This cultivation involves making perfect every human potential so as to achieve excellence, a goal attained by the habit of perfection or virtue or areté. This excellence was the ideal of the wise man, who could fully and perfectly develop everything he was able: his intellectual, volitional, physical-­ manual, and other potential capacities. In this way, it is clear that virtues mark and define the good life. According to this view, the practice of virtue is not reached in isolation. For this reason and so that they can help one another to achieve personal growth, people group together, carry out different actions, create links, and, what is more fundamental, friendships. Aristotle claims “All this is the result of friendship because choosing common life entails friendship. […] A city is a community of families and villages for a perfect and self-sufficient life and, as we say, a good and happy life.”9 The reference Aristotle makes to the centrality of friendship is essential for his view. This is so true that he also includes the different types of friendships within his idea of the polis. The most appropriate and true friendship is between equal people but, in addition and as far as there are shared goals, it can also exist between unequal individuals, if they are linked by a common object. Therefore, friendship does not only exist inside families, but also between parents and children, leaders and subjects, and politicians and citizens. Stein’s reference to the existence of one or several communities serving as the base of every state supports this Aristotelian consideration, albeit in a different way. Therefore, we can say that her view seems to fit perfectly Aristotle’s consideration of the means necessary to reach the proper goal of political life, namely, the correct ordering of social life proper to politics, which Aristotle addresses in his types of political rule. The primary classification criterion for the form of rule is the contribution to objective justice, that is, whether the government looks for the common good or interest of the city as the criterion for action and, in terms of the second criterion, the number of individuals fulfilling this end. The first criterion is the truly important one because it renders a government good and actual. This criterion enables one to speak about fair and unfair regimes. The former looks for the common good over the private good, its governors always deciding and acting based on that common good. So, it is evident that all regimes aiming toward the common good are correct, according to absolute justice, while those who focus only on rulers’ personal interest are faulty.10

 Aristotle, Politics, III, 6, 3–4.  Ibid, III, 9. 10  Ibid, III, 6, 11. 8 9

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The explanation of despotism given by Aquinas may help clarify Aristotle’s position because it delves much deeper into the matter: The political forms tending only to a ruler’s benefits are vitiated and degraded as compared with correct political forms since they do not involve justice in an absolute sense, but only in a relative sense. This is because the city is despotically governed when citizens are used as servants, that is, for the ruler’s own benefit, something that lies against justice because the city is the community of free men (Aquinas 2001: 214).

In Stein’s understanding, then, the Aristotelian ruler would be a privileged bearer of the life of the state (although s/he would not be limited only to this role). The consideration of how many fulfil this role is not important for Stein. Their way of relating to the life of the state will result in a type of just or unjust regime. At this point, Aristotle states that, unlike free work done in shifts by public magistrates or tradesmen, “now, due to the advantages drawn from public positions and power, men want to lead permanently, as if power always provided health to rulers in an unhealthy condition. Under these circumstances, they will undoubtedly seek after positions.”11 In his commentary, Aquinas explains this point more vividly by noting that rulers are unjust “due to the benefits provided by the common good that rulers usurp for themselves and those things resulting from the right to govern, men always want to govern” (Aquinas 2001: 214). Usurping has stronger connotations and, therefore, it is closer to the expression used by Stein, that is, “seizing the spoils” of rule. However, in both philosophers’ thought, there is disorder in usurping and abusing the proper end of a political society or, in other words, the proper communal bearing of state life.

5  Aristotle: Types of Rule Aristotle remarks, The ruler will be just one, or a few, or the majority; when one, a minority, or a majority govern for the common good, these regimes will necessarily be correct; however, those taking the lead to favor the private interest of one, or a minority, or the mass are deviations. […] Of all one-person governments, monarchy usually refers to those looking for common interest; aristocracy refers to the government of a few, but more than one, because either the best rule or the best is proposed for the city and those belonging to it. When the biggest part governs looking for common interest, it receives the name common to all regimes: republic. […] Deviations from the regimes mentioned above are: the tyranny of monarchy, the oligarchy of aristocracy, and the democracy of the republic. Tyranny is a monarchy tending to the monarch’s interest; oligarchy tends to the interest of the rich; and democracy tends to the interest of the poor. However, none of them focuses on the community’s benefit.12 11 12

 Ibid., III, 6, 10.  Ibid., III, 6, 2–5.

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The explanation of partial justice for oligarchy and democracy is interesting. The main point, endorsed by Aquinas, is that the richness of material goods is considered a criterion of equality, though this criterion excludes those who are not equal, but also, above all, does not fully grasp an individual’s inner richness. Concerning the particular construction of political life, richness is not what most contributes to it, but rather what better contributes to its own goal which is not, as stated above, mere living, but living well. This places the virtuous human being at the center of political life; s/he is understood as the most suitable for contributing to political life, that is, to bear the life of the state. In this respect, Aquinas comments: […] As the goal of the city is to live happily in a practical order and living with happiness is acting according to the best civic virtue, which is prudence, and political participation consists in doing political actions, it is evident that those who more fully participate contribute more fully to civic life. The latter are more responsible for what is proper to the city than those who are equal, according to freedom and family lineage, […] and those who exceed others in riches, but who are exceeded by others in virtues. […] What is just  – he concludes – is considered according to the benefits of the end, as in a reign and in correct political forms in general (Aquinas 2001: 226–227).

6  Some Concluding Reflections According to the ontic structure of the state, as Stein develops it, the state should respect certain limits imposed by community life, especially regarding the measures and political actions executed by those exercising sovereignty – the bearers of the life of the state. These limits are established by community awareness and respect for a community’s ethos and culture. Indeed, the foregoing claim is based on understanding the state, but not only in its formal dimension. If Aristotle is correct about the importance of justice, and if we see a convergence of Aristotle’s theory of justice with Stein’s ontic theory of state sovereignty, then perhaps the two thinkers can be seen as somewhat similar. This similarity is reflected in Aquinas’ identification of the four causes defining the city. What is proper to the city is participation in a good life and that it consists of houses and different families pursuing the perfect life, which is considered sufficient in and of itself as an end: In saying “participation in a good life,” Aristotle refers to the formal cause. In saying that “it consists of houses,” he indicates the proximal material cause. In adding “different families,” he points out the remote material causes. In saying “owing to perfect life and sufficient in itself,” he refers to the final goal (Aquinas 2001: 225–226).

These formal and material dimensions are, to my mind, equally relevant for a formal consideration of the state. Translated from Spanish by Ana Tejeda.

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References Aquinas, Thomas. 2001. Comentario a la Política de Aristóteles. Spanish translation by Ana Mallea. Pamplona: EUNSA. Aristotle. 1998a. Política. Translated into Spanish by Manuela García Valdés. Madrid: Gredos. ———. 1998b. Política. Translated into Spanish by Carlos García Gual. Madrid: Alianza Editorial. ———. 2005. Política. Translated into Spanish by M. Isabel Santa Cruz and M. Inés Crespo. In Colección Griegos y Latinos. Buenos Aires: Ediciones Losada. Gómez de Pedro, M. Esther. 2002. El Estado del Bienestar Presupuestos ético y políticos. Madrid: FUE. Stein, Edith. 2006. Una investigación sobre el Estado. In Obras Completas, vol. 2: Escritos filosóficos, trans. Constantino Ruiz Garrido and José Luis Caballero Bono. Burgos: Monte Carmelo. Vigo, Alejandro. 2006. Aristóteles. Una introducción. Santiago de Chile: Instituto de Estudios de la Sociedad. María Esther Gómez de Pedro holds a BA in Philosophy and a PhD in Philosophy from the University of Barcelona, Spain. She was professor of Philosophy and Social Doctrine of the Church at the Universidad CEU San Pablo in Madrid, Spain; associate professor at the Universidad Santo Tomás in Santiago, Chile; academic researcher at the Center for Thomistic Studies; and national director of the Formación e Identidad at Universidad Santo Tomás. She is a member of the Neuer Schülerkreis von Joseph Ratzinger/Benedict XVI in Germany. She was also the executive director of the congress “Catholic and Public Life” in Chile. Her publications include El Estado del Bienestar. Presupuestos éticos y políticos (2002); El Estado del Bienestar. A camino entre la felicidad y el Estado moderno (2013); Libertad en Ratzinger: riesgo tarea (2014); Fundamentación tomista de la Ética Profesional (Manual introductoria al pensamiento ético de Santo Tomás de Aquino) (2014); and Auftrag und Risiko. Zum Freiheitsbegriff im Denken von Joseph Ratzinger (2015). She is also the author of several articles and newspaper publications.  

The Current Process of the Constituent Assembly and the Relevance of Edith Stein’s An Investigation Concerning the State Soledad Alvear

Abstract  My approach to Edith Stein’s work on the state brings together law and political theory. The constituent assembly process of the Chilean State appears as one of the many challenges of the current government (2018–2022). The complexity of this process calls for different readings and approaches to the topic. I approach the issue by deploying certain fundamental ideas found in Stein’s work An Investigation Concerning the State: the text’s method as an attitude, “To the thing themselves!”; the relevance of the acting forces involved in the configuration of the state; the role of communities; and the idea that the state, without the recognition of its citizens, is not really a state. My article harmoniously synthesizes philosophical, legal, and historical principles in order to reveal certain hermeneutical elements pertinent to the present Chilean political moment. Keywords  Constituent assembly · Chile · Edith Stein · History · Political contingency · Phenomenology

1  The Question of Human Dignity The enemies of human dignity advance every time we neglect ourselves. Today, as always, we are facing dangers that should not be underestimated, since they are able to redefine our human experience on earth in a negative sense, especially considering the development of science as a supposedly morally neutral enterprise. Humanity moves forward (somewhere? where to?), overcoming old difficulties and facing new ones. For instance, today it seems unlikely for the great world powers to

S. Alvear (*) Universidad de Chile, Santiago, Chile e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Reyes-Gacitúa, A. Calcagno (eds.), Edith Stein’s An Investigation Concerning the State: Sociality, Nationhood, Ethics, Contributions to Phenomenology 110, https://doi.org/10.1007/978-3-030-33781-0_13

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actually engage in nuclear warfare, which used to be a permanent threat during the Cold War. Nevertheless, we trust these forces to protect their arsenals from the immense and real threat of terrorism, which inarguably appears as one of the declared enemies of human dignity in our time. Moreover, the defense against terrorism goes hand in hand with other threats to human dignity, mainly the development of technologies – and legislation – that allow governments to monitor each of our steps, assisted by our dehumanizing attachment to social networks, to the voluntary exposure of the most unusual details of our daily private lives. On this perspective, the philosopher who inspires this study was exposed to other threats and issues that defined her time; however, one of the recurrent topics in the work of Edith Stein is, in fact, the freedom and dignity of human beings (Álvarez Alonso 2009: 47). In this sense, however complex and dense, An Investigation Concerning the State (Stein 2002) is a work that is not detached from Stein’s later philosophical work. Its relevance could very well come from the fact that it was written in the late 1920s after her reading of the autobiography of Teresa de Ávila. As Alasdair MacIntyre has correctly pointed out: “From each particular investigation there is a narrative to be written, and being able to understand that research is inseparable, implicitly or explicitly, from being able to identify that narrative” (MacIntyre 2003: 50). According to María Isabel Casiva, for MacIntyre: “…the richness of the philosophical work by Edith Stein can only be valued inside the plot of her own narrative; a converted Jewish philosopher, martyred in Auschwitz” (Casiva 2010: 34–37). There is an inseparable unity between the way a philosopher thinks and the way he/she lives, especially when it comes to someone like Stein. Stein saw some of the main threats to human dignity before we could even identify them. She was annihilated by a totalitarian state – a state that, if I understand Stein well, was not really, conceptually a state, since it lacked some of the essential requirements to be considered as such. Indeed, as previously mentioned: The entire Steinian construct rests on a cardinal pillar, the freedom of individuals, the community and the law, but it is individual freedom that acts as an effective barrier against the “will of state formation” or against power (Álvarez Alonso 2009: 57–58).

In the words of Stein: First, we have stressed that the respect and also the establishment of positive law is a matter of legislative power. We have also discovered that in order to be valid, this right must not only be fixed but must also be accepted by those for whom it was established. The right is related to both sides; and, it imposes a double bind by itself. He/she who establishes the right is obliged thereby to respect the rule of law that he/she establishes. […] He/she who is affected by a right and recognizes it, demands to be treated according to that right (Stein 2002: 584).

This claim is true. It is important, then, to discuss the state and, in particular, the Political Constitution Chile, because, at least since the beginning of modernity, the state plays a most important role when it comes to pursuing the ideal of the respect and promotion of human dignity. Therefore, the possibility of redefining our basic norms can be an opportunity not only to strengthen our institutionalism and democracy and to reexamine the securing of invaluable rights and the recognition of duties

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that are fundamental for the support of the political community, but also to ­discuss once again which form of state organization better guarantees and protects the dignity of the people.

2  The Current Process of the Constituent Assembly in Chile 2.1  The German Case and Its Connection to Edith Stein I wish to start with an example. One of the most respected constitutions in the world is the Basic Law for the Federal Republic of Germany, which was conceived after a constituent assembly. I believe some of Stein’s ideas are present in this legal corpus, which she never got to know. I believe Stein would surely share the same conviction of the famous first article, which prescribes the following: Article 1 [Protection of human dignity, correlation of public authorities to fundamental rights] (1) Human dignity is inviolable. Respecting and protecting it is the obligation of all public powers. (2) The German people, therefore, recognize human rights as uninfringeable and inalienable foundations of every human community, of peace and of justice in the world. (3) The following fundamental rights bind the legislative, executive and judicial powers as directly applicable law.1 This is one of the most celebrated articles of constitutional German Basic Law. It could be said that the entire German constitutional system is articulated on the basis of this norm. Academia has certainly written a lot about it. For the German Federal Constitutional Court, this is pure gold. For example, soon after the World Trade Center terrorist attacks of September 11, 2001, the German Parliament passed a law that allowed its armed forces to shoot down a hijacked plane in order to prevent the effects of its use as a weapon, as happened in New York City. The law was declared unconstitutional by the German Federal Constitutional Court, considering that it violated the human dignity of the innocent passengers on the plane.

1  In addition, the Basic Law contemplates an “eternity clause,” which prevents the modification of the Basic Law with respect to the dignity of the human being and other important points: Article 79, paragraph 3 of the Basic Law: “No modification of the law is allowed. The present Basic Law that affects the organization of the Federation in Lánder, or the principle of the participation of the Lánder in the legislation, or the principles enunciated in articles 1 and 20.”

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2.2  The Chilean Process The institutions and political system associated with the German Basic Law have not only been widely appreciated among academics and jurists, but, most importantly, they have also been positively valued by German citizens.2 Indeed, a constitution needs prestige and popular appreciation and ours, apparently, is widely underappreciated. Regarding this state of affairs, some have said: Certainly, the Constitution is not well appreciated, but its reform does not appear among the priorities of the citizens. It is a debate that is over-ideologized by stakeholders who are not representative of the population, but who nonetheless promote these changes. This is a possible view. Surveys do show that constitutional change is not a top priority for the people. Yet, truth be told, when asked directly about our constitutional order, there is a substantial rejection of it. And this is serious. The reaction to this reality is quite diverse. Some political sectors, for example, insist on defending the current Constitution, based mainly on the argument that, during the time it was validly enforced, Chile had lived through its greatest period of progress and stability. Without going further into the analysis of whether this progress is indeed due to the Constitution, it cannot be denied that the last decades have produced unprecedented progress for the country. But such an answer is insufficient because, if this progress is indeed the case, whence does this strong demand to modify our constitutional order come? Faced with this question, the prominent constitutionalist, Jorge Correa Sutil, indicates that there are two possible arguments on which the force of the supporters of a radical constitutional change rely. I share this view. The first is the validity and use of the Constitution during dictatorship, between the years 1980 and 1989. In this sense, Correa Sutil asks: “How much of the bad press about the 1980 Constitution comes from the fact that so many times it was invoked to exclude, exile, disqualify and imprison those who were dissidents?” (Correa Sutil 2015: 3). As a second argument, Correa Sutil states that the 1980 Constitution: […] has little appreciation because in it remains a structure that, fearing popular sovereignty, holds a kind of disdain for political equality, and it is unlikely that citizens appreciate rules that despise them. In addition to the conservative liberal ideal –Correa continues– the 1980 Constitution carries a tradition based on the fear of democracy, which impregnated the essence of the Constitution and still survives in some of its clauses […] (Correa Sutil 2015: 4).

2  See Marika Adamosvská, “Los alemanes se aferran a la democracia pero critican su funcionamiento,” Deutsche Welle, May 20, 2009. At: http://www.dw.com/es/los-alemanes-se-aferran-a-lademocracia-pero-critican-su-funcionamiento/a-4267711. Accessed December 3, 2018.

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2.2.1  The Process of the Constituent Assembly? Clearly, the crisis we face today is nowhere close to what the Germans experienced after World War II; however, we are also living a decisive moment in history, and in that sense, Correa’s analysis is accurate. I cannot say – as the title of this paper suggests – that we are indeed living through a process of “constituent assembly,” since we still cannot determine if the Constitution will be modified through this or another mechanism. We could say, perhaps, that we are in a constituent process, directed by the government that wishes the process to end in a constituent moment. The self-­ appointed councils have just been held and now we are moving on to provincial and regional meetings. Therefore, rather than talking about a “current process of constituent assembly,” I would prefer if we simply spoke of a constituent process. Furthermore, strictly speaking, we are not even in a constituent process; instead, we are just going through a preparatory phase of that process. But let us leave this aside for now and talk about the constituent process. 2.2.2  The Current Constituent Process Now, where does this “constituent process” take place? Where is the stage of self-­ appointed meetings, of regional and provincial encounters, of academic activity revolving around matters such as public opinion? In what context do social and political actors discuss the role of the “Council of Observers,” etc.? I think you have probably guessed an answer. We are living in a moment in which Chilean institutions are going through an important crisis, revealing significant wavering in the confidence and credibility of our democracy. I do not wish here to dwell on something that has been discussed at length, but which is nonetheless important: our democracy, our institutions and our politics are being tried and we must make important improvements. We must take this crisis seriously. Despite this somewhat hectic context, it is crucial to carry out this process in a peaceful way. The Constitution is not the place to express all our dreams and desires from a maximalist point of view. It is not the place, for example, to declare that our pension funds will belong to a PAYGO system or immovably become the subject of individual capitalization but, rather, here we have the opportunity to agree on the minimum rules of coexistence  – the configuration of our most important institutions, our guarantees, rights and fundamental duties. This is to say that a Constitution is not a field for fraudulently winning political battles, as our current Constitution actually does; however, I am not looking for political vindication – I do not intend for the new Constitution to bring political victories to my “side.” I think that, for this process to be successful, a spirit of equanimity must prevail to seek that all political sectors of society be represented, without exception. From this agreed and common base, the political game should be carried out later, so that when the pension system is defined, for example, it has the legitimacy of having been resolved through procedures and institutions validated by everyone. This way, when the time to decide comes, the law of the majority shall rule, but now in a more equitable manner.

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Hence, I believe this debate should be approached peacefully. The state must adopt a transversal attitude of looking for a common ground and understanding of what things a constitution must have, and what things must ought to be left out, which is, in Stein’s language, the essential structure of the state that we want to build. Only in this way can Stein’s An Investigation Concerning the State be put into use in our time. Hopefully, this will be the case, since it has some relevant points to make.

3  T  he Relevance of Edith Stein’s An Investigation Concerning the State 3.1  Previous Considerations We have proposed a brief analysis of the present state of the constituent process, or if we wish to be more accurate, of the preparatory stage of the constituent process. Undoubtedly, as I have indicated, An Investigation Concerning the State can provide important, key points useful for this stage. “To things themselves!” was the motto of the phenomenologists when they spoke of their philosophical method. Without turns, without detours, without ambiguities. This is how Stein’s text puts it (a dense text indeed!). Each phrase is a true verse, containing a new idea; therefore, it is not an easy text to approach. It holds plenty of content and concepts. Nothing is said at random or as mere adornment, providing a number of relevant notions for our context here. Not all can be exposed within the limited scope of this paper. For this reason, I choose some central ideas relevant to the current constituent process: (a) The rescuing of the text’s method as an attitude: “To things themselves!”; (b) People are fundamental in the configuration of the state; (c) The important role of the communities in relation to the state; (d) The state, without the recognition of its citizens, is not really a state.

3.2  Ideas That Can Contribute to the Process (a) Keep the text’s method as an attitude: “To things themselves!” As I pointed out, the first contribution one could draw from the text is the phenomenological method: “To things themselves!”, which completely animates Stein’s work. In her book The Structure of the Human Person, Stein describes this method: The most elementary principle of the phenomenological method is to fix our attention on the things themselves. Do not question theories about things; leave out as much as possible, everything that has been heard and read and the images one has formed, and rather, approach things with a view free of prejudice, nurturing them from immediate intuition (Stein 2002: 590).

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Indeed, An Investigation Concerning the State is written without prejudice. There is no animosity in its content. It is an enormous rational effort to try to reach the “being” of the state, the essence of the state. Openness to dialogue and shared evaluations and assessments of the situation are crucial for the aforementioned attitude. In contrast, in the current process, I have seen a lot of digging in one’s heels. As I pointed out earlier, on the one hand, I believe that most right-wing sectors hold a defensive and even reactionary attitude toward change. On the other hand, some left-wing sectors want to –using a football expression – “bring it home.” They believe they can do what the 1980 Constitution did, but this time in their favor: settle political debates constitutionally, taking advantage of a possible majority for this view. This attitude impoverishes the debate and can lead this nascent process to failure. It is not a matter of “beating” the opponent. This is different from a common political election, from the voting of any law in Congress. The result must be seen as legitimate by all or we will have returned to the point from which we left after a long journey. A lost opportunity will ensue. So, to answer the question, what do we want to change in our constitution? It is good to have something of that phenomenological attitude. To do so, we must be able to calmly discuss some of the previously formulated questions: What is a constitution? What is it for? What must it not lack? What could be left out? What is the “being” of a constitution, its essence? Perhaps in this way we could manage to better channel the debate, along with restricting or adapting certain expectations, which are not only excessive, but also wrong. The Constitution is not the place to put all our dreams and aspirations, which are somewhat dissimilar and even contradictory in a modern and pluralistic society like ours. The Constitution is the place to consecrate our basic political institutions, our shared minimum list of duties and rights, a new opportunity to reorganize the structure of the state. However basic this may sound, we do not have it today. The current list lacks the “common ground,” which is, in this case, as or more important than the list itself. Let us focus on that common ground, which is already an ambitious yet worthy challenge. (b) People are fundamental in the configuration of the state The second idea I wish to draw from An Investigation Concerning the State is the following: people are central in the configuration and functioning of the state. Stein is, as you know, a personalist; however, she will adopt this position more intensely by incorporating Thomism into her philosophy and turning toward the Catholic faith. While the text we discuss here belongs more to political science than philosophy, in it we can identify clear signs of personalism. In this sense, as Juan Manuel Burgos has pointed out, the key element that defines all personalist philosophy is: …that the concept of person constitutes the central element of anthropology, which means not only that it is used or mentioned—something common to many other philosophies—but that the entire structure of anthropology depends intrinsically on the concept of the person.3

 See Juan Manuel Burgos, “¿Qué es el personalismo?” At: http://www.personalismo.org/filosofiapersonalista/. Accessed December 3, 2018. 3

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Indeed, for Stein, unlike other thinkers and relevant jurists of her time, like Hans Kelsen or Carl Schmitt, what legitimizes the state and political power is the person, and the communities in which it participates. Let us recall article 1.1. of the German Basic Law: human dignity is inviolable. Stein’s personalism is also expressed in her concept of sovereignty.4 On the one hand, Stein says that sovereignty is the conditio sine qua non of the existence of the state: there is no state without sovereignty. Here Stein contradicts several theories of her time that postulated the possibility of non-sovereign states. But perhaps Stein’s greatest contribution in this area is the following: she prophesied the rise of the totalitarian regimes that would come shortly after her writing of the text: Only a formation that is bestowed to free people can be declared as sovereign, […] [this is the] constitutive limit of sovereignty, namely, that the freedom of individuals is not suppressed by the will of that state formation or of the corporations that represent it, but, on the contrary, that personal freedom is the condition of the state’s practical sovereignty (Stein 2002: 569).

In short: the freedom of the people is not only a limit of the sovereignty of the state, but a condition for its existence. On the other hand, I think there are also some republican notions in Stein. She understands that the state, understood as an abstract entity, has no meaning, and that, in the end, its very existence is related to the activity of the people. Stein says: Although the construction, preservation or destruction of a state and its development do not depend purely and simply on the will of an individual and individuals in general, the state is still bound, in terms of its existence and its nature, to the activity of individuals, that is, it depends on the disposition of such individuals to constitute the organs of the state, mainly, the people’s recognition of it (Stein 2002: 627).

Stein makes an observation no longer referring to totalitarian regimes, but to the dangers of liberal democracy, and the phenomenon of disaffection and lack of compliance with minimum duties on which the possibility of real respect and the protection of rights depend. Charles Taylor, much later than Stein, lucidly describes the verification of this problem in our day by pointing out that: A democracy could not work, if the objectives were all purely individual or, in other words, if the common ends were no more than the convergence of various individual ends. There must be at least one common goal firmly established: the existence of the state itself and its laws must be something that is defended in community. […] In light of this, the unquestionable phenomenon of citizen alienation in very extensive democracies, in which people define their objectives in a purely individual way and conceive their relationship with society as instrumental, can be understood as a manifestation of parasitism, in a decisive sense. Many people can live in their own democratic society in this loose and distant way only because there is still an extensive reserve of general identification with society and its laws (Taylor 2012: 138).

From the citation above, we can draw some conclusions that can be useful for the current constituent process. Let us divide them into two complementary points. 4  “In the structure of the state, sovereignty plays a role that is analogous to freedom in the structure of the individual person” (Stein 2002: 571).

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First, the state exists because of the people. This seems to be a very well-known and shared view, but I do not think it is really that way and this is why I emphasize it in Stein’s work. This does not only mean that the state must protect fundamental rights, but also that the state must treat its citizens with dignity, must strive to deliver efficient and good-quality services, and must accordingly act. Therefore, this marks an axis, a guide for action when discussing the formation of the state in our political Constitution. Second, and as a necessary, related element, the proper functioning of the state requires the fulfillment of certain duties by its citizens. The requirement of compliance with those duties is also a way to respect the dignity of people. (c) The role of the communities and their relationship with the state Perhaps some of you will say that I am going too far, and that I am trying to appropriate Stein for my own political purposes. But the truth is that Stein is not only a personalist, but also a community personalist. For Stein, after the person – and as a logical derivation of its social nature – come the communities in which the person participates. The state must be at the service of its communities. Community carries value. Moreover, Stein thinks, it is not essential for the community – for the community of a people, a specific form of community – to possess the form of a state (Stein 2002: 630). The state organization, says Stein, is not necessary unless individuals show tendencies that endanger the life of the community. Now, Stein is clear that, at a certain level of development, people tend toward state organization. She remarks: …The community of the people, as a culture-creating personality, tends towards a state organization; not only because it needs—like any community—to be protected against certain tendencies that endanger the community, but also because its particularity of acting and creative community makes necessary a stable order for that action and that creation (Stein 2002: 631).

In this sense, Stein relates the creation of the state with population growth: …When the community […] is no longer significant to everyone […] certain institutions are necessary, to allow at least certain organisms […] to obtain a comprehensive vision of the needs and forces of the community and to ensure the stability of an order for the realization of a common will and action (Stein 2002: 631).

Without a doubt, this is a fundamental contribution. It is the community of the people that must be protected. The state is at the service of that community so that it can develop its spiritual goals. The state does not make people valuable. On the other hand, it is the people who can give perfection to the creative value of culture. The state only cooperates with that objective. In the words of Stein: Now, not only does the human individual have a vital force of its own, but so too does the community, from which individuals extract their motivations and causal influences that they need for themselves. Thus, in the family community there is a whole set of biological, ­psychic and biographical links acting in each of its members on the basis of the experiential and radiant nucleus constituted by conjugal love. In the nation, however, there is no nucleus for the radiating of community life, but the reserves that citizens are fed have been deposited through an immemorial life lived in common throughout generations and through the

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traces and symbols that sustain it. Likewise, we could mention the scientific community, the ecclesial community, the artistic and cultural associations […] as operative sources of preconscious solidarity (Stein 2002: 630).

To the community as such and beyond, to the community of the people as a creative personality of culture, they have a value of their own. The state, which puts its legal order at the service of the community, does not create that value, but only contributes to its realization and, to that extent, it does not have a value of its own, but simply derives value (Stein 2002: 631). Here, I would like to refer to a particular form of community: the Catholic university community and the current context it faces in the educational field. The Catholic community is, as you know, a creator of culture, a properly Christian culture. One of the fruits of that creation is the Catholic university. Stein’s words are of particular interest now that the reform of higher education is being discussed. There are reasons to suspect that, consciously or unconsciously, the Catholic university is not properly valued – not only any given particular Catholic university, but also the general idea of the Catholic university. The truth is that statehood does not make a university valuable, which does not mean that state universities cannot be valuable. Today, it is necessary to remember not only that the state should support the Catholic university – as long as it meets some requirements which, in fact, are fulfilled in our country – as a creation of the culture of the Catholic community, a community that is more than relevant in Chile, and that this is not against the neutrality of the state or the concept of the university in general. Moreover, we should also remember that, if someone knows what a university is, it is the Catholic Church, for it invented the western idea of the university. To propose, however, that there is an insurmountable tension between the Catholic university and the freedom of teaching is not true. This does not mean that Catholic universities cannot make mistakes, and indeed they have. There is always the risk that ecclesiastical leaders try to intervene in the autonomy of confessional university communities. Nevertheless, we should remember that, throughout history, academic freedom has suffered greater threats from the state than from the Church. That is to say, one must not forget that the state university does not guarantee academic freedom, as in the case of the Free University of Berlin, but this will depend on how the state is organized. The contribution of Stein’s An Investigation Concerning the State is that our Chilean Constitution must value and protect the development of those cultural efforts, which are not opposed to the Rule of Law, of the communities that sustain the existence of the state as, for example, the cultural efforts of the Catholic community or other religious communities. These efforts are not a threat to the state but, instead, are part of the foundations that justify its essence and part of the heritage of the nation by virtue of its history and tradition. (d) The State without the recognition of its citizens is not actually a state For Stein, a key element for the existence of a sovereign state is that it must be recognized by its citizens (Stein 2002: 607). The existence of the state – of a state in

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“form,” in the language of Filip Portales –cannot be verified, in order for its commands and regulations to have the real force of law, without those to whom this claim is directed. In fact, it is: …[t]hrough this recognition that the requirement that these acts be carried out by the entire community and recognized by them as binding is satisfied.… The regulations exist to be fulfilled… It is up to the one who gives the order to ensure that the order can be received (Stein 2002: 558–561).

I have presented a brief analysis of some relevant contributions that Stein’s An Investigation Concerning the State can make to the current constituent “moment” of Chile’s existence. As you can see, this contribution can be summarized in two formulations: a certain attitude to face the constitutional debate, and the shared awareness of the centrality of people and their communities in the formation of the state. The centrality of people, in a social and democratic state rooted in law like the one we want to build here in Chile, is demonstrated, among other things, factually: for a constitution to play the role of effectively protecting fundamental rights and to be more than a sheet of paper and some ink, the effective recognition of the state’s citizens is required. The state will only be sovereign – that is, it will only really be a state, one that counts – through its acceptance by its free citizens. This is perhaps Stein’s main contribution: the sovereignty of the state depends on the real consideration of the human dignity of the people who constitute it, and this community of free people legitimizes it. Currently, the loss of prestige of our legal code undermines the sovereignty of our state and does not do justice to the treatment we deserve as free and worthy citizens. Therefore, I believe that Chile’s reform is necessary. I hope some of Stein’s teachings are taken into account. As far as I can, I will at least try to defend them when and where necessary. Translated from Spanish by Rodrigo Navarrete. Text formatted by Rodrigo Vidal.

References Álvarez Alonso, Clara. 2009. Percepción fenomenológica del Estado: La significación jurídica de eine untersuchung über den staat de Edith Stein. RJUAM 19(1): 35–66. Casiva, María Isabel. 2010. Alasdair MacIntyre and Edith Stein: Beyond a philosophical prologue. Revista Iberoamericana de Personalismo Comunitario 15: 34–37. Correa Sutil, Jorge. 2015. Presentación de Jorge Correa Sutil en lanzamiento del libro ‘¿Nueva Constitución o Reforma? Nuestra Propuesta: Evolución Constitucional.’ At: http://lyd.org/wpcontent/uploads/2015/04/Presentaci%C3%B3n-de-Jorge-Correa-Sutil.pdf. MacIntyre, Alasdair. 2003. First principles, ultimate goals and contemporary philosophical issues. Madrid: International University Editions. Stein, Edith. 2002. Una investigación sobre el Estado. In Obras Completas, ed. J. Urkiza y F. J. Sancho, vol. 2, Escritos filosóficos. Etapa fenomenológica, 521–653. Burgos: Monte Carmelo. Taylor, Charles. 2012. Republican Democracy. Santiago de Chile: LOM.

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Soledad Alvear is a well-known lawyer and Chilean politician. She has held important portfolios, including Secretaries of Justice, Exterior (Foreign) Relations, and the National Service of Women. Among her principal achievements are free-trade agreements with several countries, the Procedural Penal Reform, and the Law of Filiation. On May 8, 2006, she took up office as the first chairwoman of the Christian Democratic Party. She was Senator of Chile for 8 years. In 2013, she left public life and now dedicates a great part of her time to academic life.