Article 48

This is an old essay of mine, slightly revised for topicality:

Article 48

An experiment in "philosophical detection"

I begin with a pertinent quote from anti-totalitarian philosopher Jacques Maritain:

The problem of truth and human fellowship is important for democratic societies; it seems to me to be particularly important for this country (the USA-E.B.), where men and women coming from a great diversity of national stocks and religious or philosophical creeds have to live together. If each one of them endeavored to impose his own convictions and the truth in which he believes on all his co-citizens, would not living together become impossible? That is obviously right. Well, it is easy, too easy, to go a step further, and to ask: if each one sticks to his own convictions, will not each one endeavor to impose his own convictions on all others? So that, as a result, living together will become impossible if any citizen whatever sticks to his own convictions and believes in a given truth?

Thus it is not unusual to meet people who think that NOT TO BELIEVE IN ANY TRUTH, or NOT TO ADHERE FIRMLY TO ANY ASSERTION AS UNSHAKABLY TRUE IN ITSELF (Maritain's emphasis), is a primary condition required of democratic citizens in order to be tolerant of one another and to live in peace with one another. May I say that these people are in fact the most intolerant people, for if perchance they were to believe in something as unshakably true, they would feel compelled, by the same stroke, to impose by force and coercion their own belief on their co-citizens. The only remedy they have found to get rid of their abiding tendency to fanaticism is to cut themselves off from truth. That is a suicidal method. It is a suicidal conception of democracy: not only would a democratic society which lived on universal skepticism condemn itself to death by starvation; but it would also enter a process of self-annihilation, from the very fact that no democratic society can live without a common practical belief in those truths which are freedom, justice, law, and the other tenets of democracy; and that any belief in these things as objectively and unshakably true, as well as in any other kind of truth, would be brought to naught by the presumed law of universal skepticism. (Maritain, p. 17-18)

Wheeeuu! Although Prof. Maritain is not summing up against our own idiotarians (since the former has been dead for some 25 years) in the above passage, he is attacking the "know-nothing{?}" skepticism that is at the base of the fallacious appeal to relativism that lies at the heart of the moral equivalency idiots.

More specifically, he is arguing gainst (in this selection) the philosophical/political skepticism of one Hans Kelsen (1881-1973), sometime professor of the philosophy of law at Vienna (1911-30), Cologne (1930-33), Prague (1933-8) and UCAL-Berkely.

Kelsen's argument, briefly put, is that belief in absolute values logically leads one to an anti-democratic totalitarianism in which there exists one supreme authority which dictates perfectly-understood and comprehended (by the solitary advocate of such values alone) value claims to the necessarily subordinate masses. Kelsen claims that the "...metaphysics (of ethical absolutism-E.B.) shows an irresistible tendency towards monotheistic religion; whereas philosophical relativism, as anti-metaphysical empiricism insists upon the unintelligibility of the absolute as a sphere beyond experience, and consequently has an outspoken inclination to skepticism." (Kelsen, p. 907)

Kelsen continues:

The parallelism which exists between philosophical and political absolutism is evident. The relationship between the object of knowledge, the absolute, and the subject of knowledge, the individual human being, is quite similar to that between an absolute government and its subjects. Just as the unlimited power of this government is beyond any influence on the part of its subjects, who are bound to obey laws without participating in their creation (note the idiotarian "Create-a-world" theme in action 50+ years ago-E.B.), the absolute is beyond our experience, and the object of knowledge-in the theory of political absolutism independent of the subject of knowledge, totally determined in his cognition by heteronomous laws. Philosophical absolutism may very well be characterized as epistemological totalitarianism. According to this view, the constitution of the universe has certainly not a democratic character. (Kelsen, p. 909)

I'm sure that Kelsen, like Alfonso of Spain, would have some very sapient suggestions for the Big Bang on the improvement of various initial conditions which have their outworking in our modern cosmos, and when the Milky Way sets up its World-Wide Website (www.milkyway.ilovedemocracy.com) to take votes on our future as galactic citizens, Fisk and Co. will be leading the way foreword. Or not, considering their inconsistent skepticism...

Kelsen's premises are a virtual hedge thicket of bad philosophical assumptions. First, he equates philosophical objectivism with absolutism, then claims that his skepticism is "epistemological," and not "metaphysical," thus linking his legal positivism with logical positivism with disastrous results for the former. Although his role call of freedom loving heros contains the Sophists [p. 911] (couldn't ya guess?), the Founding Fathers as believers in ethical and political absolutes are conspicuous by their absence. Furthermore, if we really -don't- know that freedom and democracy are political goods, then their very existence becomes contingent. In a bland fog of skepticism, all the choices, like all the cats, are grey.

But, the question may arise, why are you pounding this poor, hapless academic? Keekok Lee (Dep. of Philosophy, University of Manchester) provides some excellent reasons why:

But, according to Kelsen, influenced by neo-Kantianism and at one with the Weberian perspective, moral norms are irrational (or in the idiotarian locution "unscientific"-E.B.) and arbitrary. There are no objective, rational principles or guidelines for determining their correctness or otherwise. Even should a consensus exist, it would be entirely a contingent matter. Given that in principle there are as many conceptions of a good or just law as there may be individual citizens, the notion of 'good' or 'bad,' 'just' or 'unjust' laws is an empty one. The only non-empty notion is that of legal validity; it constitutes the sole ground for civil obedience. This means that moral disapproval of a law is not a justification for disobeying it.

That is why Kelsen's account of legal positivism has been charged with providing the philosophical foundation for law during the Nazi regime in Germany. Paradoxically, Kelsen's attempt to banish political and ideological commitments from his so-called pure theory of law has led to the very allegation of lending (unwitting) intellectual support to Nazi law itself in spite of his own personal total opposition to it. (Ring a bell with "the Persian Gulf war" and "Serbia" anyone?-E.B.) Kelsen thought that, by making the law ideologically neutral, he would make the law safe for liberal values; but, ironically, he made it possible for it to serve the ideology of those in power. (Lee, p. 123)

Does Lee think that the charge is merited? Read on:

In other words, Kelsen's political and jurisprudential thoughts may be said to follow from his meta-ethical stance, each reinforcing the other. Democracy as simple majoritarian rule is an attempt to enforce political or social order, just as legal validity as the sole grounds for civil obedience is an attempt to secure order in a context of value irrationalism. While anarchy is considered by all forms of legal positivism to be the greatest social evil and order the greatest social good, the Kelsenian variety alone focuses on procuring order, not good or just order, as goodness and justice are ultimately empty of content-what is good or just is whatever is deemed to be good or just by the individual.

All forms of legal positivism uphold the tenet that law and the physical sanction go together. But in the Kelsenian variety, law and order come into focus in a much harsher light. The fear of violating valid legislation and the fear of the physical sanction entailed by such violation coalesce. It is ironic then that Kelsenian legal theory should turn out to be more Hobbesian in character than Hobbes's own variety of legal positivistic thought. (Lee, ibid)

After all, Kelsen's example of skeptical democracy in action is Pontius Pilate asking, "What is truth?" (Kelsen, p. 914)

So we see that in addition to all the other disabilities that Weimar suffered under, its philosophical basis (i.e. the legal positivism of Kelsen's school) provided a foundation of sand. This is the real meaning of "Article 48," the section of the Weimar Constitution that allowed the president to rule by decree and abrogate civil liberties in times of "crises." Devised as a way of preserving the state by treating individual rights as government privileges, to be revoked when the state itself is threatened, it proved in the end to be the death of the Weimar state when the revolutionaries took office by legal means and used its powers to dissolve the Republic. This is the fate the Idiotarians, with their opposition to the fundamental right of self-defense detailed in the 2nd amendment, to say nothing of their "Constitution as living document" nonsense, advocate for our Constitution, whether they will it or not.

I think the following sums up the truth of the matter:

Be it a question of science, metaphysics, or religion, the man who says: "What is truth?" as Pilate did, is not a tolerant man, but a betrayer of the human race. There is real and genuine tolerance only when a man is firmly and absolutely convinced of a truth, or of what he holds to be a truth, and when he at the same time recognizes the right of those who deny this truth to exist, and to contradict him, and to speak their own mind, not because they are free from truth but because they seek truth in their own way, and because he respects in them human nature and human dignity and those very resources and living springs of the intellect and of conscience which make them potentially capable of attaining the truth he loves, if someday they happen to see it. (Maritain, p.24)

That is the only solution that offers true, classical liberal, dignity.

E. Brown

Works Cited:

Kelsen, Hans. "Absolutism and Relativism in Philosophy and Politics." THE
AMERICAN POLITICAL SCIENCE REVIEW, Vol. XLII, Oct. 1948 pp. 906-914.

Lee, Keekok. "Hans Kelsen." in THE ROUTLEDGE DICTIONARY OF TWENTIETH-
CENTURY POLITICAL THINKERS. 2nd ed. eds Robert Benewick and Philip
Green (London & New York: Routledge) 1998. p. 122-23.

Maritain, Jacques. "Truth and Human Fellowship." in ON THE USE OF
PHILOSOPHY: THREE ESSAYS. (New York: Atheneum) 1965, pp. 16-43.