1. HANS KELSEN1. In Geneva, Kelsen had taught in French. Now, at almost sixty years of age, he was forced, in a very short time, to learn to lecture in English. 2. The Pure Theory of Law is a broadly structured theory that cannot be described within this framework. Thus, it seems reasonable to concentrate on those characteristics through which the Pure Theory of Law differs markedly from other legal theories. 3. To avoid misunderstandings, it should be pointed out that Kelsen did not at all dispute the possibility of legal sociology. On the contrary, he made a considerable contribution to it, specifically his Society and Nature (Chicago: University of Chicago Press, 1943). However, the Pure Theory of Law opposes those trends in legal sociology that dispute the possibility of normative jurisprudence. See Hans Kelsen und die Rechtssoziologie, ed. Stanley Paulson (Aalen: Scientia Verlag, 1992) and, on the debate with “legal realism,” Hans Kelsen, Reine Rechtslehre, 2nd ed. (Vienna: Deuticke, 1960), 213. 4. On the following, see Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer, vol. 4 (Berlin, Leipzig: de Gruyter, 1928). 5. To understand the background in intellectual history of the devaluation of the formal, we should recall the following: All “modern” scientific and artistic efforts of this period were stereotypically accused of two things—decomposing traditional values and overestimating the intellectual and analytical (a reactionary work by the philosopher Ludwig Klages, popular in its time, was characteristically titled Der Geist als Widersacher der Seele [The Intellect as Adversar y of the Soul]). Romantic categories such as soul, totality, essence, people [Volk], feeling, etc., were mustered—often with anti-Semitic accents—against modern currents. Kelsen's legal theory shared the fate of psychoanalysis, twelve-tone music, and neopositivism, to name just a few examples from Vienna. The fact that such critiques are difficult in a discipline as formal as legal doctrine explains the rigid nature of some constructions by Kelsen's opponents, and perhaps also their often truly hostile attitudes. 6. This is no different from the situation in the natural sciences, where analogous
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distinctions must be made. See Edgar Zilsel, Die sozialen Ursprünge der neuzeitlichen Wissenschaft (Frankfurt am Main: Suhrkamp, 1976). 7. This attitude does not flow from critical legal positivism, which, as explained above, has no answer to the question of the attitude a person should take in relation to positive law. Thus the option of resistance to positive law remains and is seen that much more clearly when the positive law is worthless. However, one who opposes creating law along democratic paths is, according to Kelsen, no longer a democrat. On the continuing discussion of this position, and especially the further development of Kelsen's concept of democracy during his American years, see Horst Dreier, Rechtslehre, Staatssoziologie und Demokratietheorie bei Hans Kelsen, 2nd ed. (Baden-Baden: Nomos Verlagsgesellschaft, 1990), 249. 8. The occasional claim that the Pure Theory of Law holds the content of legal norms to be irrelevant is such an ignorant accusation that I will not even begin to deal with it. A glance at my General Theory of the State [Allgemeine Rechtslehre] or Merkl's General Administrative Law [Allgemeines Verwaltungsrecht] will easily convince the reader of the contrary. The Pure Theory of Law works not only with concepts of legal essence but also with concepts of legal content. 9. See Fritz Schreier, Die Interpretation der Gesetze und Rechtsgeschäfte (Leipzig and Vienna: Deuticke, 1927). 10. David Koigen, Die Kultur der Demokratie ( Jena: Diederichs, 1912), 4. 11. This is, to be sure, not an unprejudiced presentation of the problem. When we ask about the essence of democracy, we may not assume from the beginning that it is the best form of state. This seems to be the problem with the otherwise excellent presentation by Gustav Fredrik Steffen in his Das Problem der Demokratie, 3rd ed. ( Jena: Diederichs, 1917), who, in his efforts to prove democracy to be the best form of state, denies some of its essential characteristics merely because he finds them unfavorable, perhaps with very good reason. Of course, the reverse is just as questionable. One may not consider constitutional monarchy the best form of state if one is to provide an objective “political description” of democracy, as is the case with Wilhelm Hasbach in his Die moderne Demokratie ( Jena: Fischer, 1912). 12. Du contrat social, bk. I, chap. 6. 13. Du contrat social, bk. III, chap. 15. 14. Neither does customary law resolve the contrast between social “ought” and individual “is,” though it might seem to; but it reduces it to a minimum by commanding: Behave as your fellows usually tend to behave. Wrongs, violations of the order are thus a priori mere exceptions to the rule of “is.” Thus, customary law proves its democratic character, in contrast to statutes, especially when these—as in ancient times—appear as the commands of a divinity, a priest representing the divine, or a heroic king descended from the gods. As the theory and practice of customary law assert themselves, especially in times of political absolutism, they operate—as a contrary principle and counterbalance—in the direction of a balance of power. 15. For the extent to which the change in ideology characterized here, from liberalism or anarchism to an étatist idea of democracy, is connected with the position in the state of the social groups that support this ideology, especially with the relationship of the bourgeoisie and the proletariat to state power, see my Allgemeine Staatslehre (Berlin: Springer, 1925), 32 ff.
― 350 ― 16. Rousseau's volonté générale—the anthropomorphic expression of the objective state order that is valid independently of the will of the individuals, the volonté des tous—is completely irreconcilable with the theory of the social contract, which is a function of the subjective volonté des tous. But this contradiction between subjective and objective constructions, or, if you will, this movement from a subjective starting point to an objective end result is no less characteristic of Rousseau than of Kant and Fichte. 17. According to Rousseau, Du contrat social, bk. IV, chap. 2. 18. On the dualism of ideology and reality typical of all social entities, see my paper in the Verhandlungen des Fünften deutschen Soziologentages (Tübingen: Mohr, 1926), 38 ff. 19. See my Der soziologische und der juristische Staatsbegriff, 2nd ed. (Tübingen: Mohr, 1928), 4 ff. 20. “From a democratic point of view, there is no people's will as something whole and comprehensible. The people is composed of the expressions of the will of the many. When the many come together in legal, regulated relationships and administer justice, the majority of their wills becomes a people's will. The ideologists of democracy do not realize that a special people's will, in addition to the will to protect the autonomy of each individual, is inherent in the creative legal force.” David Koigen, Die Kultur der Demokratie ( Jena: Diederichs, 1912), 142. The thought seems to arise here that the unity of the people is only possible as an organization, that is, as a legal order. That is why Koigen occasionally asks, “Maybe the concepts of people and law are even identical?” Koigen, Die Kultur der Demokratie, 7. 21. See my Allgemeine Staatslehre, 149 ff. 22. Also sprach Zarathustra, pt. I. 23. See my Allgemeine Staatslehre, 159 ff. 24. See Boris Mirkine-Guetzévich, “Die Rationalisierung der Macht im neuen Verfassungsrecht,” Zeitschrift für öffentliches Recht 8, no. 2 (1920): 259 ff. 25. Given this thoroughly collectivizing tendency of parties, in which the individual disappears even more than within the state as a whole, whose order grants him subjective rights and thus a position as a legal subject, it must be considered a misjudgment of the essence of parties to see them as the result of an “atomistic-individualistic conception of the state,” as does Heinrich Triepel, in his Die Staatsverfassung und die politischen Parteien (Berlin: Liebmann, 1927), 31. Individualism is of course against parties. So, for example, Rousseau, as Triepel himself is forced to admit. Triepel, Die Staatsverfassung, 10. 26. A typical representative of this dogma is Triepel, whose work, cited above, essentially presents this view. “How,” he says, “could the legal order make formation of the will of the state formally dependent upon the will of organizations in society which, in their existence, extent, and character, represent the most unpredictable of all mass contexts, which suddenly emerge and disappear, or change their principles, which sometimes after a few decades retain none of their basic elements but their names, which in certain states are formed according to completely incommensurable, at times politically entirely peripheral principles. … ” Even with the best will in the world, we cannot claim that this characterization of political parties corresponds with actual conditions in the great democracies, such as, for example, the United States and England, with their relatively solid entities—there the Democratic
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and Republican parties, here the Conservative, Liberal, and Labour parties. Triepel himself says that here “the party system has become rigid in a two-party system.” But neither does the picture Triepel paints match the realities in Germany and Austria, nor even in France. His description of the parties continues: “which are based by nature on self-interest and thus naturally resist inclusion in an organic state community, which do not even always accept the state as such, whose main activity consists in fighting one another.” We will return to “self-interest” as the basis of parties in another context. Here let us remark only that if the parties' “self-interest” makes them unsuited for inclusion in a state community, it is not so much the existence of the party as that of the state that appears problematic; for the nature of the human being whose community this state wishes to be is most likely not less, and in fact apparently far more, “self-interested.” But the self-interest of the parties can arise only from the human beings who form them. There are hardly likely to be “parties” that negate the state as such. Organized in a party, anarchism aims in reality, like all non-conservative parties, if one leaves aside its ideology, to alter the state order. Triepel concludes: “[I]n general, the idea of the party state contains a contradiction that is difficult to resolve.” He describes as the predominant opinion in Europe—and one may take this as the form in which Triepel expresses his own—that the modern party is “the symptom of a sickness,” a “decline” (p. 29). This is thus essentially the same view that, in Triepel's own words, was held by the “German citizen of the Biedermeier period.” They “viewed the parties as a threat to peace in the state; they were not averse to seeing the parties as a moral aberration” (p. 10). This was not so much a result of the fact that the citizens of the time—as Triepel believes—were “not democrats, but liberal men” (the liberals of that period were also democrats) but because the ideology of the monarchy, created not least by state law scholarship, had had an effect upon these “citizens of the Biedermeier period”! 27. If one, to defend a political postulate, wishes to deduce from the essence of the state or the legal order of the state that the political parties are incompatible with them, one must of course come to a contradiction with reality—not only with the social process, but with positive law and the given state. Triepel poses himself the question—which he calls a “fateful question”—“whether the modern state, and especially the German, has taken on the nature of a party state …, that is, a state which has built the political parties so firmly into its organization that the state's will and actions in important matters are always based upon the wills and actions of party communities” (p. 7). The question is aimed at reality—whether in a sociological or a legal sense; but the answer is aimed at a value, a political value that does not correspond with reality. For when Triepel shows that state and party are in essential contrast, he hopes to prove that the modern state is not a party state, because such a state, according to Triepel's doctrine of the essences of the state and the party, cannot exist at all! “In the sphere of legislation and government, in the area of state ‘integration,’ which is in the end what we are interested in, the party is an extra-constitutional phenomenon; its decisions, seen from the standpoint of law, are nonbinding and irrelevant expressions of a social body alien to the state organism. Thus, when it is said that the modern state is ‘based upon’ the parties, this is a legally untenable statement” (pp. 24, 25). But Triepel himself is forced to admit that, “under the pressure of circumstance,” the initial anti-party attitude of the legal order of the state—the legal order of the monarchic state—has changed (pp. 15–16), and he himself lists
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an impressive wealth of provisions of positive law in which the political parties are constituted as factors in forming the will of the state—particularly in the electoral process. It cannot seriously be maintained that this development could not go further. That some of its manifestations are “peculiar” and “grotesque” (p. 22) is a subjective value judgment. It cannot change the reality of positive law. So what might be the sense of Triepel's categorical statement that the parties are an “extra-constitutional phenomenon”? Especially since he admits that, with regard to the efficacy of the party system, actual conditions have progressed much more than the legal order expresses, that these manifestations are “not arbitrary or accidental,” but the result of an “entirely natural process” (p. 27)—which, however, does not prevent him later from calling them again “symptoms of illness” and “degenerations.” He even says, “we would be hiding our heads in the sand if we were to deny that the reality of political life does in all ways not conform to the picture painted by positive law. In truth and deed, it is after all the political parties at whose mercy the government of the state is” (p. 26). And he finally admits “that here (in Germany) too, the party state has become a fact” (p. 27). The party state, which is, according to Triepel, a “contradiction” in terms? In regard to which he says that it is a “legally untenable statement” to declare that the state is based on the parties, which he dismisses as “extra-constitutional” phenomena, as legally nonexistent (pp. 24, 25)? Has Germany perhaps ceased to be a “state,” have the parties ceased to be parties, because Germany is a party state?
Triepel has at times accused my Pure Theory of Law of formalism, and has offered instead a theory of the law of the state that is “directed more toward real life,” that attempts to “relate the norms of constitutional law as closely as possible to the political forces that create and develop them, and which are in turn mastered by state law” (Heinrich Triepel, “Staatsrecht und Politik: Rede beim Antritte des Rektorats der Friedrich-Wilhelms-Universität zu Berlin am 15. Oktober 1926,” in Heinrich Triepel, ed., Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol. 1 [Berlin and Leipzig: de Gruyter, 1926], 17, 18). I fear that Triepel's theory of the law of the state—at least with regard to the problem of political parties—is stuck far more deeply in a formalism detached from real life than the Pure Theory of Law. For the latter tries only to be a theory of positive law, and would certainly continue to accept its validity if it took on a content that the theorist considered harmful. This is precisely the reason the Pure Theory of Law is careful with its “purity”; it would rather be accused of formalism—incidentally, an accusation entirely undeserved and not justified by Triepel—than of directing itself only toward a “real life” it finds politically sympathetic, and relating the norms of the law of the state as closely as possible only to those “political forces” that it finds subjectively valuable.
But that is the typical method of traditional scholarship on the law of the state! It deduces from the essence or concept of the state that which it finds politically desirable, and proves that those things it politically rejects contradict the essence or concept of the state. Is that the true meaning of “conceptual jurisprudence” [ Begriffsjurisprudenz]? Those employing such methods must understandably oppose the separation of constitutional law and politics; but they should not be surprised if political opponents use them to prove exactly the opposite. 28. Triepel, who rejects political parties as a constitutive element of the state because they are based on “self-interest,” says that “state-instituted, self-administered professional bodies” could be considered as a fundament of the state on condition
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that “they rest on such great simplicity and such complete equality of interests of their members that there were no conflicts in their ranks that could be used by the political parties to invade them” (p. 30). That the parties rest upon “self-interest” means only that they are communities of interest. The corporative groups thus represent nothing different from the political parties; for they are also merely communities of interest. They will be equal to face the political parties—that is the point of Triepel's depiction—only if the community of interest that they represent becomes more rigid.
If one rejects the party state—and this means, in reality, modern democracy—so fundamentally, one has a duty, as a scholar of the law of the state of Triepel's stature, to say what one wishes to place in its stead. And he does. “The atomistic-individual-istic conception of the state” that Triepel erroneously takes for the root of the party system, must be “given up, and replaced by an organic one.” What should the essence of this “organic one” consist of ? The change is said to occur only slowly. But the party state's days are numbered. Other community-forming forces are already at work. “These will gradually, in a natural development”—but according to Triepel, the party state also arose through an “entirely natural process”—“lead to a new organization of the people, forming a lively ‘unity in diversity’ out of a soulless mass.” The idea that the people in a democracy—Triepel speaks only of a party state—represents a “soulless mass” does nothing to explain how we should imagine the “organic” in the state of the future; “unity in diversity” is most likely only another word that means just as little. Triepel says, “Many will call such predictions a romantic illusion.” That need not be feared, for this “prediction” contains absolutely nothing. Thus, based on what he has revealed so far of the new state-to-be, with which his sympathies obviously lie, it is difficult to understand his assurance that the forces at work are “not phantoms or figures from a fairy tale, but very corporeal beings about to grow out of the mechanized society of the present into organic forms.” That the democratic society is “mechanized” is still not a response to the question of how the “organic” state will look. We learn no more than that it will be an “organism”: “If we succeed in harnessing the forces of a personally and territorially richly organized new self-government of an economic and intellectual type”—“self-government” is quite a democratic institution—“struggling with elementary power from the bosom of the people, and press it into serving the state, which will not be destroyed, but held together by them, that is, the state will not be dismantled, but on the contrary built up from below; then it will become a true organism, ‘where everything weaves together into a whole, each acting and living in the other’.” At the end, Triepel expresses the wish that “a happy race may see with its own eyes what we today can only imagine in our spirit as a beautiful image of the future” (p. 31). May he excuse me, but behind his words there is—aside from his aversion to democracy— nothing to be seen. But the document is entirely characteristic of the “organic” view of the state that opposes the democratic conception. 29. This was demonstrated by Robert Michels in his Zur Soziologie des Parteiwesens, 2nd ed. (Leipzig: Klinkhardt, 1911). 30. Michels, Zur Soziologie des Parteiwesens, bk. III, chap. 4. 31. On the following, see my Das Problem des Parlamentarismus (Vienna and Leipzig: Braunmüller, 1926) and the literature cited therein. 32. On the fiction of representation, see my Allgemeine Staatslehre, 310 ff.
― 354 ― 33. See my Hauptprobleme der Staatsrechtslehre, 2nd ed. (Tübingen: Mohr, 1923), 97 ff., and Allgemeine Staatslehre, 65 ff. 34. See Adolf Merkl, Allgemeines Verwaltungsrecht (Vienna and Berlin: Springer, 1927), 85, 157 ff. 35. Ultimately, all efforts aiming at an organization of the state by estates, or at a dictatorship, amount merely to such a reform of parliamentarism, however much their programs may postulate its destruction. In connection with a remark by Karl Marx—that the Paris Commune of 1871 was supposed to be not a parliamentary but rather a working body, and that the universal right to vote, instead of deciding once every three or six years which member of the ruling class would reprimand or trample [veroder zertreten] the people in parliament, should rather enable the people in intervening directly in the administration (Karl Marx, Bürgerkrieg in Frankreich, 3rd ed. [Berlin: Expedition des “Vorwärts,” 1891], 47)—Lenin demanded the elimination of parliamentarism in his writings that are fundamental to neocommunist theory (Vladimir Ilyich Lenin, Staat und Revolution: Die Lehre des Marxismus vom Staat und die Aufgaben des Proletariats in der Revolution [Berlin and Wilmersdorf: Verlag die Aktion, 1918], 40 ff.). He believed that with this he had hit upon true democracy, yet he had not even hit upon parliamentarism. The system of representation established by the Bolsheviks in the constitution of Soviet Russia—for practical reasons they neither could nor would eliminate representation entirely—not only did not overcome democracy, but returned to it instead. The short duration of mandates, the possibility of recalling at any time those deputized by the people to the various soviets, the complete dependency on the voters, the intimate contact with the primary material of the people's will—this is the most genuine democracy. The demand for constant and vital connection between the representatives and their voters assumes that the latter will stay together to exercise effective control over their delegates. Periodic assemblies of voters cannot achieve this goal. Here, however, the single economic enterprise, the factory, the workshop, the regiment, become electoral bodies in which the voters assemble daily in closest community because they assemble in work units, when every single enterprise votes for the local soviet, the local soviets for the provincial soviets, and these for the highest parliament—the all-Russian Congress of Workers', Peasants', and Soldiers' Councils—which then assigns its legislative and executive functions to a central executive committee consisting of two hundred members. This not only presents the possibility of a permanent people's will but also provides the best possible guarantee that the people's will is formed not according to the coincidences happening within an assembly of voters, but through an intrinsic principle that becomes evident—if at all—in the ongoing, intimate contact that the community formed within an enterprise inculcates. The fact that in the single enterprise the workers participate in management, or take over the management themselves, signifies nothing other than the democratization of the economy. Its feasibility or expediency is not dealt with here. It should simply be emphasized that with this demand socialism is merely bringing to bear a democratic principle of organization.
The democratic thrust of the organization of voters in enterprises, so characteristic of the Soviet constitution, may not, as the history of the Soviet constitution teaches, have been intentional from the start. But most social institutions attain a meaning in the course of their development other than that originally connected with them.
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Furthermore, this principle of organization is in no way consistently realized, nor can it be. Even if only active workers are eligible to vote—as is the case in the Soviet con-stitution—there are, after all, numerous workers who are not employed in enterprises: intellectual workers, artisans, and especially small farmers. Thus the constitution of soviets must, on the one hand, bring into play other organizations, such as unions, as a supplement, and abandon enterprises as the organizational unit for voters in agriculture. Here, a purely territorial unit—the village—is the basis of the electoral process. Manifold disadvantages naturally arise from this mixing of systems of organization, which will not be considered further here. Nor the more important question whether the politicization of economic production connected with use of the enterprise as a permanent electoral body might not pose a danger to production. The experience of Russia confirms this fear only too well. Yet, this very shortcoming is especially characteristic of direct democracy, which was indeed only possible in ancient city-states because the classes of those eligible to participate in politics and of those actually doing economic work, namely, the slaves, were fundamentally separate.
Given the practical unfeasibility of direct democracy in economically and culturally advanced large states, efforts to bring the people's will into the closest, most constant relationship possible with the inevitable popular representatives, and to get at least an approximation of immediacy, lead not to the elimination or even reduction, but rather to the reverse: to an unsuspected hypertrophy of parliamentarism. Russia's soviet constitution, set in conscious, intentional opposition to the representative democracy of the bourgeoisie, demonstrates this clearly. In place of a single parliament arising from general popular election, there emerges a whole pyramid of countless parliaments, which are called “soviets” or councils but are simply representative bodies. Hand in hand with this extension of parliamentarism goes its intensification. From mere “gossip mills” the parliaments ought, in the spirit of neocommunism, to become actual working bodies. This means, however, that they ought not to be limited to passing laws or establishing general norms and universal principles but should take on the tasks of the executive and bring the process of making law to the final stage of concretization, to the individual act of state, to the particular contract. To this tendency can also be traced the fact that more narrowly defined local and special parliaments radiate out from the supreme central parliament into its territorially and substantively detailed spheres of action, down into the single enterprise. This is nothing other than an attempt to democratize administration as well as legislation. The bureaucratically—that is, autocratically—appointed civil servant, empowered to impose his will with binding force upon the subject within the occasionally quite broad scope of the law, is replaced by the subject he formerly administered. The object of administration becomes its subject—not directly, but through elected representatives. Democratization of the executive starts with parliamentarization. Compare my Sozialismus und Staat: Eine Untersuchung der politischen Theorie des Marxismus, 2nd ed. (Leipzig: Hirschfeld, 1923).
Fascism, too, began with a passionate struggle against democracy and parliamentarism. Today, it refers to its plebiscitary, that is, apparently, direct and radical— democratic—character and has so far by no means eliminated parliament, but has changed the electoral process to ensure the fascist party a majority in parliament. On this, see Robert Michels, Sozialismus und Faszismus in Italien (Leipzig: Buske,
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1925), 298 ff. Onp. 301, he points out that fascism's anti-parliamentary current is based in Vilfredo Pareto, whose “political testament” (“Testamento politico: Pochi punti d'un futuro ordinamento costituzionale,” in Giornale Economico 1, no. 18 [1940]), states that “for government, the concurrence of the masses is necessary, but not their participation. The base in a parliamentary majority is insufficient, as every majority is vulnerable to the danger of fragmentation and defection. Nor is it advisable to govern with naked force. The basis of government must be rooted not only in power but in the approval of public opinion; for this purpose, parliament and referendum generally serve a quite useful function. Therefore, even Pareto is not entirely of a mind to support the elimination of parliament. Because the institution of the popular representative body happens to exist, he believes it should be retained. The task of the statesman is entirely limited to finding ways and means of preventing the dangers of parliamentarism to the best of his ability.” What, however, are the means that Pareto suggests? Referendum and freedom of the press. These are radical democratic elements; thus, this anti-democratic, anti-parliamentary theory, with its aristocratic bearing, ends up, once it must make practical political suggestions, at precisely the same point as the theory it opposes. And when Pareto—in Michels's characterization, p. 302—states, “popular rule is not worth much, but it is always worth more than the rule of the popular representative body; the issue must therefore be one of leaving parliamentarism as a decorative element in order to spare the democratic ideologies that are alive among the people, but at the same time of rendering it harmless,” this is not Machiavellian—as Michels believes—but simply disingenuous, for this political theory knows no better form of state than parliamentarism limited by referendum. That this form of state is felt to be an evil, though relatively the lesser, apparently corresponds to the thoroughly liberal basic attitude typical of Pareto. 36. See my Allgemeine Staatslehre, 154 ff. 37. See Max Adler, Die Staatsauffassung des Marxismus (Vienna: Brand, 1922), 116 ff., and my Sozialismus und Staat, 123 ff. 38. Otto Bauer, Die österreichische Revolution (Vienna: Wiener Volksbuchhandlung, 1923), 16. See also my review of this work in Kampf (1924): 50, and Otto Bauer's response titled “Das Gleichgewicht der Klassenkräfte,” 57 ff.; also Max Adler, Politische oder soziale Demokratie (Berlin: E. Laub'sche Verlagsbuchhandlung, 1926), 112 ff. 40. The connection between a metaphysical world view and a belief in autocracy can be traced easily in the history of ideas. In his excellent work “Demokratie und Weltanschauung,” Zeitschrift für öffentliches Recht 2 (1920): 701 ff., Adolf Menzel has already shown how, in ancient philosophy, all renowned metaphysicians advocated autocratic policies—for example, Heraclitus and Plato (who in this regard must be considered not so much the idealist as the metaphysicist, which need not coincide); while the Sophists linked the struggle for democracy with their natural-philosophy empiricism and relativism. Aristotle maintained a middle ground between the two in both epistemological and ethical directions. Medieval scholasticism's colossal system of metaphysical doctrine cannot be systemically separated from its autocratic politics. For if the organization of human society is conceived as a universal monarchy, with the emperor or the pope at its head, this happens entirely because this organization is constructed as an analogy to divine world rule. See my Die Staatslehre des
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Dante Alighieri (Vienna and Leipzig: Deuticke, 1905). Spinoza, whose pantheism must be seen as a turn from metaphysics to empirical cognition of nature, is a democrat; the metaphysician Leibniz, with his preestablished, God-given harmony, is, consistently, in favor of autocracy.
Kant takes a unique position. His system is usually termed “idealism,” and opposed to positivism. But this is certainly incorrect. Precisely Kant's idealism is, by virtue of its thoroughly critical character, itself positivist. Transcendental philosophy can be understood correctly only as an epistemology. Thought through to its logical conclusion, it must lead, also in the field of values, to a rejection of all metaphysical absolutes, to a relativist position. As much as the anti-metaphysical, and thus positivist, character of Kant's natural philosophy is emphasized, it is traditional to place Kant's ethics and political reasoning in sharpest contrast to a relativist-skeptical philosophy; and this view can undoubtedly be supported by Kant's own words. Kant's ethical-political system is entirely metaphysically oriented, and his practical philosophy, with its conservative-monarchic theory of law and the state, is thus directed entirely to absolute values. (On this, see my “Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus,” Vorträge der Kant-Gesellschaft, no. 31 (Berlin-Charlottenburg: Heise, 1928): 75 f.)
His critical system of pure reason, however, makes cognition an eternal, nevercompleted process, relegating truth to infinity, and thus declaring it essentially as unreachable, as does skepticism. As cognition can never entirely seize hold of its object, in Kantian philosophy the question of the object of cognition is replaced by the question of the method of cognition; the two questions are in fact made practically identical. Kantianism has been attacked for this methodologism, this preference for questions regarding method. Are there not obvious parallels to a political conception that, instead of asking for the right content of the social order, poses the question about the way, the method of creating this order? |
