Vittorio Possenti

 

Aquinas and Modern Juridical Nihilism

(And Four other Figures: Camus, Kelsen, Nietzsche, and Orwell)

 

 

Vittorio Possenti

(University of Venice, Pontifical Academy of Saint Thomas)

 

Oxford, February 4, 2010

 

 

1. Law through the nihilistic lens

 

The legal world has long been invested by the skeptical position according to which there is no truth, justice and rationality of the law, in which everything comes from will and its intrinsic mobility. There is no natural right (jus naturale) which is valid in itself, but everything is revocable and changeable: the fact that there is no natural right means that any law or rule is conventional and therefore arbitrary. According to Leo Strauss, the rejection of today’s natural right leads to nihilism, indeed making it one with itself.¹ The present post-metaphysical turn of so many philosophical schools is a disquieting sign.

Law splinters into a thousand streams, subordinates itself to the technique and formalism of procedures, which as such are blind to the contents and can accommodate everything: law is intended as an empty space that can be filled by any instance. Kelsen’s expression that “the law can have any content” is a tragic manifestation of this juridical nihilism, for it ultimately entrusts political and legal existence to power and strength, ceding to a formal legality and pushing away justice.² In nihilism, winning powers and strongest facts are passed into law, indifferent to the lives of men and their relationships.

Juridical nihilism is and has been in place for a long time, and it seems necessary to become aware of its nucleus and to clarify the features that make up its face. Those who believe that it constitutes a deviation and a disease will have to open the delicate chapter of therapy. The influx of various modern and postmodern nihilistic legal theories sets an increasing challenge on the formation and content of the real law.

It is necessary to differentiate between lex naturalis and jus naturale on the one side, and lex and jus on the other, and additionally, the constant difficulty in settling this problem in the English language, in which ‘law’ is generally used to express both ‘lex’ and ‘jus’. Inspired by Strauss, who titled his famous book Natural Right and History, I have decided also to use the term ‘right’ to translate jus naturale as natural right and diritto/droit/derecho/recht as right. This concept of right, intended as something which is by nature due to the person as such (and this is his right), is central in ethics and the philosophy of law, and constitutes a genetic and systematic notion of these sciences.

Human beings are not simply part of a totality, but each human being is a ‘whole’ or an ‘I’. So ‘right’ as something that is due to the human being as such, which other moral agents are in all conscience obliged to recognize and not deprive him of, is the suum that appertains to the person as ‘his due’. With this determination of right we have shaped the concept of ‘right of nature’ (jus naturale), and opened the door to human rights, which are nothing more than the explication of the suum appertaining to the person.

From this concept of right springs forth an immediate connection with justice, which is known as giving to each his own (unicuique suum tribuere) and since this suum is the right of each, the object of justice is right.³ Therefore, there is a ‘genetic’ antecedence of right in respect to justice, and human rights must be regarded as a fundamental expression of justice.

If law is trapped in juridical nihilism, what use could an appeal to Saint Thomas have? In the days of Aquinas, philosophy and theology could not have been interested in nihilism, as it is a problem which only emerged in nineteenth and twentieth century European thought. It would seem at first glance that an appeal to Aquinas in order to clear the fog of (legal) nihilism would be risky. However, even if Aquinas did not address juridical nihilism we can find in him, and in the tradition of the philosophy of being, lights and criteria on how to approach this issue. Indeed, in the middle Ages law as a topic was developed and repeatedly elaborated by Aquinas, reaching a peak in the famous treatise De lege in the Prima Secundae. I do not suggest to set out his position once again, but rather to draw inspiration from it in order to address the issue of juridical nihilism. I only wish to recall the very pillar of Aquinas’ concept of law, i.e. that law is aliquid pertinens ad rationem (something pertaining to reason, I-II, q. 90, a. 1): this position is expressed at the very beginning of the entire treatise De Lege. To the question utrum lex sit aliquid rationis Aquinas answer positively and this will be his omnipresent assumption.

Aquinas offers indispensable keys to understanding and surpassing juridical nihilism: therefore he will be a constant presence in my paper, although often silent and incognito. Along with Aquinas four modern figures will also be present: Nietzsche, Kelsen, Camus and Orwell, as ‘witnesses’ in favor or against the defendant (juridical nihilism).

The first step is to establish the main concepts and the theoretical framework in which the term ‘juridical nihilism’ is summarized: a difficult task, for nihilism tout court is one of the few major problems discussed in Western philosophy over the last century and a half, following multiple paths.

 

2. Nietzsche and Orwell

 

In approaching the subject one of Nietzsche’s aphorisms and Orwell’s stories provide valuable insights. Aphorisms and stories penetrate reality with precious agility, which at first glance places us in what is essential, if we know how to listen. The reference to Nietzsche seems obvious: he is the anti-Thomas in almost every way. But why Orwell? What does he have to do with it? The fact is that Orwell, as we shall see, is a Thomist, a follower of Aquinas, happily unaware of being so.

According to Nietzsche, when law is not tradition it is imposition or command.⁴ That law must be imposed by power is his first and last word: when law is not valid according to tradition, it only applies if imposed by force. In juridical nihilism law is violently detached from practical reason, becoming a mere production of will that does not recognize any natural right: only positive law, positum by will, exists.

In 1984, in a dramatic and violent conversation with his jailer O’Brien, Winston Smith represents the last man in Europe to fight the Party and Big Brother, in order to keep a shred of humanity. In this long interrogation Orwell disseminated illuminating considerations that recall dilemmas that are still unavoidable today. I have brought some of them together, leaving the floor to O’Brien who wants to make Winston Smith a totally controlled being:

 

- ‘You must get rid of those nineteenth-century ideas about the laws of Nature. We make the laws of Nature.’

- ‘Reality is not external. Reality exists in the human mind, and nowhere else… Nothing exists except through human consciousness… Outside man there is nothing.’’

- ‘We control life, Winston, at all its levels. You are imagining that there is something called human nature which will be outraged by what we do and will turn against us. But we create human nature.’⁵

 

Let us read these sentences carefully, committing them to memory. Intended for a different purpose and a different context, they convey a representation of nihilism’s origins all the more remarkable as unintended.

 

3. The challenge of nihilism

 

To understand juridical nihilism, one must dwell upon the concept of nihilism. It would be a very dangerous path and a random (but not so rare) search to enter into the workings of juridical nihilism immediately, without first having approached the question ‘what is nihilism?’, and starting to shape its concept. If juridical nihilism exists, it is not born completely independently, but has to do with the broader and more crucial notion of tout court nihilism, born out of a general context of crisis. We must not restrict but expand the research area beforehand, thereby avoiding the risk of being satisfied with easy and superficial solutions. On this point I’ll provide an essential thread of an elaboration at length developed elsewhere.⁶

Nihilism is a category that indicates a serious crisis of thought, ethics, law, and generally of the main junctions of civilization. Deeply connected to human existence, nihilism is not something that happens to the being, as if it were to become nothing, but something that happens to man, his knowledge, his will and his freedom: it is a mistake and a diversion from which one can recover, provided, however, that one does not give into the widespread skeptical propensity that philosophical problems have a rich history, but no solution. That is, the idea that we can trace their conceptual sequence, presenting various formulated responses, without ever reaching a conclusion: philosophy would simply be reduced to the history of philosophy. If we accept this assumption, we would never come out of nihilism.

Despite its many faces, nihilism is a more unified phenomenon than one would think, provided that one is able to identify its dominant form, that of the theoretical nihilism which as main root nourishes its other variations. The representation of theoretical nihilism largely corresponds with Nietzsche’s idea that the concepts of unity, truth and aim are no longer valid and should be marginalized from philosophy. In nihilism the being is no longer interpretable neither with the concepts of aim nor unity, nor truth. For these notions are not perceived to be part of the method of real knowledge (philosophical realism), but only as useful points of view in the maintenance and strengthening of human power, their revealing or telling value is canceled and declared void. This includes:

 

- as for aim, that the eternal becoming of the world aims at nothing; it has no end in sight;

- as for unity, that there is no unitary and meaningful organization of the whole, nor a fortiori a supreme form of government and administration;

- as for truth, that there is no ‘real world’, no supra-sensible reality that goes beyond and above the eternity of a becoming that constitutes the only reality.⁷

 

Nietzsche’s conclusion is sharp: “Briefly: the categories ‘aim’, ‘unity’, ‘being’, which we used to project some value into the world are now by us extracted again from the world; so that it looks valueless…”⁸

Transposing these Nietzschean findings into the universe of the philosophy of being, I would say that within (theoretical) nihilism four main features emerge: 1) the victory of oblivion of being and 2) of antirealism; 3) the negation of intellectual intuition and 4) the crisis of the idea of truth as the conformity of thought and being because of a profound dualism or impassable gulf placed between them. To avoid any misunderstanding, I must add that Nietzsche helps in identifying the nature of nihilism, not in overcoming it, for which it is necessary to admit the possibility of a philosophy based on a real knowledge of being. Indeed, the aforementioned rising characters of nihilism (oblivion of being, anti-realism, interdict on intellectual intuition, crisis of the idea of truth) are extremely evident and diffused in Nietzsche.

I am unable to show here that these features are strongly linked to each other. I can only suggest that anti-realism and oblivion of being adequately synthesize them. In this way we arrive at the truth of Albert Camus’ illuminating quote: “A nihilist is not one who believes in nothing, but one who does not believe in what exists.”⁹

In ‘what exists’ the value intended as the original face of good is included, the Value which comes before the action and orientates it, as Camus claims in L’homme revolté. The formulae ‘philosophy of values’ and ‘tyranny of values’ (as in Carl Schmitt’s work) are very ambiguous and should be clarified, because they risk neglecting value as the manifestation of good and being. Axiology is actually always ontology, and value is rooted in being with its permanence and certainty.¹⁰

The recourse to the theme of oblivion is rich and fertile to reveal the phenomenon of nihilism. There are different nihilisms that are attributable to specific forms of oblivion, namely:

 

a) theoretical nihilism, which emerges from the oblivion of being, and the crisis of the idea of truth, which entails relativism and skepticism;

b) moral nihilism, which is connected to oblivion of good and of agape. It brings a philosophy of neutral intended as anti-personal thought reducing the subject to function;

c) theological nihilism, which is bound to the modern oblivion of transcendence and to the human being’s despair regarding his own existence. This nihilism leaves man sibi commissus;

d) technological nihilism, which is linked to oblivion of essences and to the idea of a universal possibility to transform everything;

e) juridical nihilism, which is rooted in the oblivion of justice and natural law. Consequently, all law is positive, placed by a will aimed at decision (political ‘decisionism’).

 

4. Juridical nihilism

 

Juridical nihilism can be traced back to three nuclei: 1) the denial of any form of natural law; 2) the reduction of law to a mere product of a will, fitted with force; and 3) the denial of the contribution of reason to law. Then the basic question is: are law, right (jus) and justice grounded in reason and human nature? Or are we only dealing with laws, rules, and arbitrary codes in the sense that their existence and value are reduced to being put forward by the will in power at any specific moment in history? Juridical nihilism develops when answering negatively to the first question, and affirmatively to the second one: in this way a new understanding of law and right is introduced.

The outcome of the nihilistic turn is positive law without natural law, a law without any internal measure being valid in itself. Thus, law is linked to strength, power and will, and it becomes a product of a technical process without involvement of practical reason. The consequence of juridical nihilism is that political law has no rational basis, depending only on will and opinion, both of which are variable and changing.

 

4.1 The denial of natural law

 

The denial of natural law has occurred both in the name of history by historicism, and in the name of dualism between facts and values according to a positivist school’s perspective. In the first case it is argued that within the endless flow of events and the process of becoming it is not possible to find any fixed point, nor any universal rule. However, historicism becomes a meta-historical doctrine that informs us about the character of the real, finally arguing that we know only that that happens empirically. A purely historical legal ‘foundation’, as it happens with historicism, is unable to confront the prevalence of the powerful force, which imposes each time its position and affirms its own will with the most effective tools.

In the second case, the positivism maintains that philosophy can know facts, but is caught up in the coils of subjectivity when attempting to know values. They are present, but are subjective and ultimately irrational: they form a polytheistic Olympus in which everyone can choose according to his impulses and preferences. The fact is that historicism and fact-value dualism proceed from a radical antirealist philosophy, according to which genuine knowledge of reality is only offered to us by the empirical sciences, while theology and metaphysics are ‘dead’, displaced by science once and for all.

Neither historicism nor fact-value dualism is capable of establishing the original meaning of justice and law in the same way that realism does.

 

4.2 Kelsen, Nietzsche, the Almighty Legislator, and Camus’ opposition

In natural law tradition, right and wrong are not conventional or only created by positive law, but they have worth before it, while with absolute legal positivism or juridical nihilism, right and wrong only begin to be valid after the pronouncement (decree) of positive law.¹¹ The latter is intended only as an expression of will and has no raison d’être other than the decision of the legislator which is only regulated by himself and therefore can have any content or accommodate any choice. Juridical nihilism excludes the fact that law and justice are bearers of a measure of rationality or at least reasonableness.

Nihilism enters the legal domain with Kelsen’s normativism, which transforms law from the expression of practical reason to imperative pronouncements by the sovereignty. However, the preamble of this turn is to be found in Nietzsche, who, to the best of my knowledge, does not use the term ‘juridical nihilism’. It is therefore more significant that he clearly indicates its real content: “But the most decisive element, that which supreme power makes and implements against the excessive power of adverse and obstinate feelings – as it always does, as soon as it is somehow strong enough for this – it is the pronouncement of the law, the imperative clarification of what should generally be worthy of being allowed and legitimate as opposed to that which is worthy of being prohibited and illegitimate… Conforming to this, only starting with the pronouncement of the law there is ‘right’ and ‘wrong’… Speaking of right and wrong in itself is senseless… A legal order thought of as sovereign and general, not as a tool in the complex struggle for power, but as a tool to be used against any struggle in general… would be a principle that is hostile to life, a disintegration of man, an attack on the future of man, an index of fatigue, a side street to nowhere.”¹²

In this way Nietzsche explains the aphorism of Human, All Too Human: when law is not tradition it is imposition. The new philosophers of whom he speaks proceed with their will to create values: their will to truth is will to power. Good is therefore what conforms to the options of the legislator, and evil is the opposite: law is a purely human product, which makes no reference either to a divine reason as canon for the human legislator, nor to the essence of the human in which there are values that must be safe guarded by law. In Nietzsche there is the victory of the stronger will to power, the collapse of any right and human rights, the triumph of the paradigm of force over that of justice: nihilism or legal anti-humanism, in fact, reincorporates justice and law in the area of power and effectiveness. In the expression ‘Force de loi’, the emphasis is only on force.

The triumph of absolute legal positivism manifests itself in juridical nihilism, separating the problem of law and the problem of justice and identifying positive law (loi) and right (droit), arguing that nothing can be done against the law, but everything can be done with the law, given that this can have any content. The idea of God Almighty is reflected in the Omnipotent Legislator: the legislator is the supreme power who establishes right and wrong, with a decision that emerges from nothing, a normative nothing that is transformed into being by the act of will.

Camus is oriented differently. Yes, he expressed the law of effectiveness/loi de l’efficacité (“in the absence of a higher value to guide action, we head in the direction of immediate effectiveness. Nothing being true or false, good or evil, the norm will consist in showing itself the most effective, i.e. the strongest”), but opted against that formula and against European nihilism. In L’homme revolté Camus clearly writes that without a value that transfigures history, value is subject to the law of the effectiveness and power. Camus argues that value is pre-existing to the act, and that this contradicts pure historicist philosophy, and that only a philosophy of eternity can justify non-violence. He added that there is still the “suspicion that there is a human nature as the Greeks thought, contrary to postulates of contemporary thought.”¹³

 

4. 3. The language of Will and the risk for human rights

 

From the moment that law is identified with positive law, every real order, pre-existing to the legislative decision and that this should respect, not establishing it but restoring it, is set as zero. The delivery of the right to will, that does not itself recognize external criteria, results in nihilistic law expressing the language of the will with its infinity open to every possibility and every choice that occur in the incessant legal production, where rules exist only because men want them to exist. Since human will wants and does not want, desires and shies away, loves and hates, it is not stable, everything is revocable and changeable. What has been given can with equal right be taken away: and where there is no true sense, there may be infinite senses. The chosen sense will not be true and good, but only selected, or desired, and eventually imposed by means of violence. Augustine’s famous words loudly resonate on this matter: Remota justitia, quid sunt regna nisi magna latrocinia?¹⁴

In fact part of current legal rationality presents itself as largely historical and earthly, unable to turn toward an ideal measure of justice, a ‘Platonic heaven’ of stable truth, a law of nature that in essence is valid everywhere. Every absolute disappears under the blows of the will to power, God is dismissed, and law remains a matter that is decided only by men. Political decision is a decision imposed by will, as much as positive law is an imposed law, which does not refer to, nor imitate, a superior law, but it is alone and rests only on the will of man. The goals set by individual subjective wills do not have the character of necessity or at least stability: they can go in all directions and be open to multiple solutions. As at one time they had been brought to existence by a will provided with power, they can also later disappear.

Everything becomes revocable: the human rights themselves are only revocable edicts of tolerance: in the same way that they were put in place, they can also be removed. In nihilism it is not possible to successfully uphold the ideal of human rights. They are rooted in the human being’s natural law, stating what is due to man as such, what is correct to recognize to him. Therefore human rights are at risk if justice and law leave the area of rationality for that of will.

Leaving politics and law to the will of humans struggling amongst themselves for changeable purposes of predominance, the constellation of juridical nihilism leads to explicit anti-humanism. Something extremely profound that has to do with the immortal sentiment of justice, rebels in us in the face of the contempt of juridical nihilism towards Good, man and his rights. This rebellion goes a long way and leads - elaborate in the form of the concept - to the expulsion of danger. The ‘eternal’ rebirth of natural law after each crisis is a sign of vitality.

 

5. Finally Thomas

 

Certainly Orwell did not package his words with juridical nihilism in mind. Yet they reveal the directions in which it is realized: anti-realism or denial of the principle of reality that makes the exterior and the others a projection of the ego; the assumption that there are no laws of reality, neither physical nor moral, from which the denial of natural moral law is derived; the idea that there is no human nature, but that this is created from prevailing power, yesterday by Big Brother, now perhaps by biotechnologies. It is for this reason that I described Orwell as an unwitting Thomist.

He prepares us to question Aquinas, who in reality has always been present, but silent. Everything about his thought is predisposed to contrast juridical nihilism and head towards a law worthy of man: his native realism, his philosophy based on actus essendi and on truth as adaequatio, as well as the fundamental idea that will, as a faculty of the soul, is a vis appetitiva rationalis (rational appetitive force) and not a dark and irrational abyss. We will call upon his doctrines for two questions: a) the idea of law as rationis ordinatio and the concept of practical reason; b) the difference between making and acting, between production techniques and norms of action.

 

5.1. Law as rationis ordinatio and the function of practical reason.

 

Juridical nihilism rests on the simple and radical idea that in praxis there is no room for rationality. This entails the cancellation of practical reason, and the attribution, in the best case, of the guiding control to formal procedures that make up a fragile screen against the victory of nihilism. Reason would not be able to discern an order of being and introduce a rational act of ordering in the action.

On the contrary, the joint act of reason and will is required to get away from juridical nihilism: it is an act of ordering, not only a command. There is a fundamental difference between ordo/ordinatio as an act of rational ordering and ordo as a command.

In order to make this idea clear, it is necessary to recall the determination of law that Aquinas offers as a gold coin in a box which today few bother to open and understand: “Lex nihil aliud est quam quaedam rationis ordinatio ad bonum commune ab eo qui curam communitatis habet, promulgate” (law is nothing but an order of reason towards common good, promulgated by whom has the responsibility of the community¹⁵). The rationis ordinatio is realized in its various levels, starting from the divine ordinative and measuring reason up to the human one that is both measured and measuring. Juridical nihilism appears when Aquinas’ determination of law as ordinatio rationis in view of the common good is completely abandoned in its two especially revealing features: 1) the act of the ordering of reason is destroyed and replaced by a mere command which proceeds only from will; 2) the reference to common good fades, for common goods are no longer determinable.

The concept of rationis ordination, in addition, expresses that of practical reason, present in Aquinas and throughout classical philosophy.¹⁶ Practical reason, for Aquinas, is reason, i.e. it is a function of knowledge, not of will. Practical reason’s own act is the praecipere, i.e. not only to determine what is to be done abstractly, but also to ask that it be actually done: “Imperare est actus rationis, praesupposito tamen actu voluntatis “(to command is an act of reason, which implies the will’s act, I-II, q. 17, a. 1). Kelsen abandons the very idea of practical reason since it postulates that the agendum cannot be known but only irrationally chosen: ultimately, Kelsenian juridical nihilism rests on this assumption. Jürgen Habermas lies on an intermediate path: reformulating the concept of practical reason into that of communicative and procedural reason, Habermas not changed the label, but he transformed the idea of right, focusing only on positive law and leaving aside natural law, as he explains in Faktizität und Geltung (Suhrkamp 1992). According to Habermas, communicative reason does not directly produce any norms and laws, but only procedures, while “the only post metaphysical source of legitimacy is evidently formed by democratic procedure from which law is generated.” Habermas himself does not hide the serious risk inherent in the outlined position: “If the function of law consists in stabilizing normatively generalized behavioral expectations, how can this function still be fulfilled by a law that can be arbitrarily changed and whose validity is due solely to the decision of a political legislator?”¹⁷

 

5.2. Is the life belt of the form and technical procedures enough to overcome juridical nihilism?

 

It is sometimes considered sufficient to focus on the procedures by which norms are created in order to have a satisfactory law. Trusting in procedures does not mean relying on material content, but on the rules of the production of norms: one has to decide on how to decide, not on what is to be decided. The law declines to a legal technique intended to be neutral, but which in fact lends itself to any outcome. The validity of law, not having its own rational content of justice and truth, depends on the choice of the strongest will. Law becomes technique in a radical sense: not only in the sense that creation and development of law requires formalities and procedures/technicalities, typical of legal science, but mainly in the sense that it presents itself as a product, something that emerges as a result of a specific technique, that makes and brings something into being.

In becoming a technique, law takes on the character and purposes of the technique, which is the production. The laws and norms are produced by ‘legislative shops’ churning out, in a continuous cycle, a huge amount of product-laws. Some manufacture dishwashers and televisions. Some laws or rules. In both cases through technical specifications that pertain to the general spirit of technique and producing.

The assimilation of law to technique embodies a profound misunderstanding that lies in confusing ‘things’ which must remain sharply distinguished, for they correspond to different domains of life: techniques as specific instruments of production in the broader meaning are one thing, rules of conduct and standards/norms are another and a different thing. The difference between one and the other is an unbridgeable gap equal to that which runs between to make and to act: action is immanent, production transitive. Man turns to technique in order to produce, while he turns to rules or to norms in order to act.¹⁸ The reduction of the norm to technique declares precisely that the action is destroyed as such and reduced to making. That legal norms are mutually coordinated and may be deducted from a formal-logical technique does not change their character of rules which ultimately proceed from reason, and are addressed to human action, without which they would be meaningless. Stopping only at technical formality is a manifestation of a nihilism that goes beyond the nature of law, and eliminates its character of human science, devoted to the good of the person.

 

6. Conclusions

 

Authority in political and social action should be inspired by a right/jus which does not depend on the powers in force, and that acts as a measure of the positive law system. To achieve this result, one should overcome the disconnection between reason and freedom in a way that human freedom be illuminated by the truth about man. In nihilism law is like a story that lacks the preface and conclusion, and everything is consumed in the empty horizon of the intermezzo. One no longer knows where law comes from and what its aim is. The Lost Law: we have lost jus and law and do not know how to recover them. The Law Regained is the exit from nihilism, but in order to do this we must earn again the light of reason and wisdom.

In post-modernity juridical nihilism is a permanent danger. Of course rare is the risk of nihilism comparable with that of Nazism, but within the frame of a relativistic stance or, on the contrary, of a stance of hybris, juridical nihilism can become stronger along various paths. One of them consists in the radical interpretation of human rights either as absolutely groundless, or as a mere rights of liberty and auto determination, intended as absolute and infinite. The outcome of this operation is the destruction of all other rights, chiefly the right to life which is not a right of freedom.

The human need for justice, order and harmony is great, and Aquinas helps us to rediscover and restore them. His task, like that of Catholicism, is to combat nihilism which destroys orders and traditional norms that act as ‘social binding’, and oppose the advance of secularization, of which nihilism is a result. Secularization, to which the unconstrained exercise of scientific rationality contributes, aims at beheading both God and the idea of a justice valid in itself: a de-theologized law which answers only to itself, foreign to any influence that is not method and formalism.

The simple truth is that juridical nihilism does not work because it fails to protect us from the great evils of oppression, injustice and outright war; or rather it leaves us completely undefended in front of them. The profound wisdom of Aquinas is a permanent protection against this outcome.