Creon’s Reasons

In Sophocles’ Antigone, the two main characters, Antigone and Creon, are widely seen as representing the two extreme poles of a plurality of oppositions: mostly between natural law and positive law, or between divine and human law. But there has been no shortage of those who, like Hegel, have seen in them the opposition between a masculine and feminine conception (principle), whereby man (i.e., Creon) “has his substantial and real life in the State, in Science, and the like, and moreover in struggle and travail with the external world and with himself,”, while “pietas, in one of the most sublime expositions concerning it—in the Sophoclean Antigone—is declared above all as the law of the female; that is to say, as the law of subjective sentimental substantiality, of inwardness that does not yet achieve its own perfect realization, as the law of the ancient gods, of the subterranean realm, as the eternal law of which no one can say when it appeared, and which is present in opposition against the manifest law, the law of the State.” Hence, on the one hand, one can glimpse, in these remarks of Hegel, a contrast more than between norms (laws) that between institutions (family and state); on the other hand, and more clearly, that between a “traditional” and customary law and between a “statute” and rational one.”

Many other oppositions are traceable, because they are clearly set forth, in the two characters of the tragedy. In particular, Creon identifies himself with the polis and makes the friend/enemy category (of the polis) the distinctive criterion for the legitimization of the decree prohibiting the burial of Polynices, derogatory-modifying the divine (and customary) law of burying the dead. Hence (at least) both the opposition between the political and the legal (understood in Freund’s sense) and the prevalence and decisiveness of the political, which alone guarantees the salvation of all; and to whose necessity (other opposition), every bond of affection, even between blood relatives, must yield, as must every friendly relationship. Says Creon in entering the scene, “I hold in no account those who esteem a loved one more important than their own country. For I – and let Zeus, who always sees all things, know this – would not know how to keep silent when I saw misfortune instead of salvation moving against the citizens; and I would never make a friend of an enemy of the homeland; for I know that it is our salvation, and that we only procure friends when we keep its course straight. With such principles I will make our city great” . The law promulgated by the ruler must thus be “rational with respect to the purpose,” which is, in the case, the purpose essential to the polis, to safeguard it, including by honoring the good citizens and not the others, the enemies.

Which constitutes another essential difference from the divine law, observed by Antigone, to which obedience is due, not because of the expediency of it but because of the authority that instituted it and the custom of respecting it . Indeed, Creon’s conception vindicates even more the character of the law as a human creation, the result of man’s will and ingenuity, which can violate the divine law, as such immutable, to which Antigone appeals. This appears underscored by the chorus in the first stasymus, which is a song about the excellence of human ingenuity and its ability to overcome the difficulties of nature; however, the chorus reminds us of the human faculty (and limitation) of being able to choose between good and evil, and man “Possessing, beyond hope, the inventiveness of art, which is wisdom, sometimes moves toward evil, sometimes toward good. If the laws of the earth he inserts therein, and justice sworn to the gods, he elevates his country; but without a country is he who through fearfulness joins with evil: let him who acts thus not inhabit my hearth nor think like me.” . The exhortation to insert “the laws of the land” has the clear meaning of having to harmonize human law (and command) with divine (and natural) law in order for the work of edification-and preservation-of the polis to succeed.

Almost all such oppositions point to Creon as the archetype of a “modern” (as opposed to Antigone’s) politics and law: the former because it prevails over all normative constraints (summa in cives ac legibusque soluta potestas); the latter because it is rational, voluntary, statute-full, expedient and derogable in relation to necessity. Such concordance, however, has not, so to speak, done much good to the image of Creon, mostly equated with that of the tyrant. Yet Creon is not tyrant in the sense in which, often, that term is connoted: in fact, Creon’s decisions and goals are not diverted from self-interest, but inspired by that of the homeland (al bonum commune). Already in “Oedipus at Colonus” when he performs the heinous act of kidnapping Antigone to force Oedipus to return to Thebes, he does so because the oracle has guaranteed salvation to whichever of the contenders for the throne of Thebes will have the old king near him. And similar is Creon’s position in Antigone: where, in essence, he places the salvation of the homeland — and “punishment” — for traitors — above divine law. There is, in Creon, no conflict between the interest of the ruler and that of the community (or the governed), with which many types of tyranny are connoted: but between divine law and political institution. Polynices’ “condemnation” and departure from traditional law is necessary, in Creon’s view, for the good of the polis and political expediency.

From another – and close – aspect, Creon’s problem is the treatment (of the rules) – to be applied to the enemy, different from those to be observed for friends (in the political sense). It is the problem of the friend/enemy, which generates the diversity and distinction between internal and external law, still persisting in public law, and a prerequisite of the norm of the laws of the XII tables adversus hostem aeterna auctoritas. Thus, it is the membership (and boundary) of the political community that determines the applicable law. If Polynices, despite being a friend (as a member of the polis), acted as an enemy, the conflict between the two systems is particularly acute, because it also becomes a possible cause of dissolution of the political unity. Thus, Creon motivates his edict, granting that Eteocles: “who died fighting in defense of this city, making a great display of valor with the spear, should receive burial and have all the lustral offerings which go underground to the deceased heroes. But his brother, Polynices I mean, returned from exile wanting to completely destroy with fire his homeland and the gods of his race, wanting to be satisfied with the blood of his own and to bring others into slavery: and as far as he is concerned it was ordered to the city that let no one honor him with tomb and mourning, but let his corpse be left unburied, food for birds and dogs, shameful to behold.” On the other hand, in the dialogue of the second episode between Creon and Antigone, while the latter insists on the quality of Polyneices’ brother, he replies that “but the enemy is never dear, not even when he is dead”. Being an enemy prevails over both philia and adelphia. Connected to the problem of the distinction between internal and external law, between law applicable to the enemy or to the friend, is that Creon absolutizes both the enemy and the command and the function of authority. The enemy is entitled not to chivalric treatment, but even to a condemnation “in the afterlife”, therefore, the decree of the polis and of those who represent it prevails over traditional and “divine” law.

At the same time the enemy is, in Creon’s words, only a public and not a private enemy, hostis and not inimicus. While in the Republic the definition of justice that Polemarchus rejects (and Socrates rejects) is that it is “the art of bringing advantage to friends and harm to enemies”, but in the context of the discussion the meaning of this distinction is not political, that is, it refers to the public, but to both public and private relationships,” in Creon’s words the enemy, to whom he reserves the worst treatment, is that of the polis. It can be said that the enmity is so absolute that it continues after the victory and even the death of the enemy.

At the same time, Creon absolutizes command, as is clear from the governing “manifesto” he displays in his own entrance.

And this is not only and not so much because of the “decisionist” trait and all directed to the salvation of the polis as the first duty of the ruler (and citizens), whereby he considers, to that end, even traditional (and divine) law amendable and derogable; but even more so because of how he emphasizes command over consent.

From the first lines it appears that the people (made up of the choir and the corypheus) little or no share the monarch’s decision, without thereby shaking him from his certainties. But it is quite evident in the comparison between Creon and his son Haemon. Haemon maintains that the father, to whom he pays respect and filial devotion from the very beginning, must take into account popular opinion, which criticizes Creon’s actions and “cries this girl saying that she is the most undeserving of all women to die like this unworthily for most glorious deeds”, for which he prays to the father “do not carry within you only this idea, that what you say is right, and nothing else”. When Creon replies that Antigone is rebellious, Haemon insists. In a rapid series of jokes there is the expression of his position: “Not so the people unanimously say, here in Thebes… Can’t you see that you spoke in a childish way? There is no such thing as a city that belongs to just one man…. Of course, you would rule well alone on a desert land.” But Creon is adamant: to Haemon’s arguments, all based on the public, and specifically on the balance between “leader” and “follower”, command and consensus, Creon rejects Haemon in private, reproaching him for recommending pardon for Antigone only because it is his betrothed, and therefore to be a slave to a woman (with this he insists on the “political” relationship between male and female principle (attitude), which is underlined by Hegel). Haemon, according to Creon, speaks and acts for private purposes, by feeling and not by reason.

Even faith in human reason is in fact characteristic of Creon, as it appears from various passages of the tragedy, in particular in the first episode and in the first stasis. Creon rejects Coryphaeus’ idea that there was divine intervention in the burial of Polyneices: “you say something unbearable, stating that the gods worry about this corpse”. And he attributes the act to a conspiracy of opponents, who bribed the guards. An entirely earthly and rational explanation that excludes divine (or “magical”) intervention in human affairs. The dialogue with the guard is followed by the singing of the choir in the first stasis, a splendid praise of human ingenuity, which has subjugated and used land, animals and plants with its own creativity; it has organized community existence with laws and yet, in the face of these marvelous results, the (claimed) human faculty of choosing (and discerning with reason) for good or for evil remains. Which is an equally positive and “rational” observation of Creon’s theses. And which contains the (possible) prevalence of a reason oriented towards evil, disrespectful of laws and divine justice. The contrast, often repeated in the history (and theory) of law and the State, between the ordering capacity of human reason and conscious decision and natural and “divine” order (which is opposed to that judged to be the fruit of hubris) is here formulated, on the one hand in Creon’s statements, on the other in Antigone’s protests. It is a fact, moreover, that the Enlightenment legislateur and the connected trust in human reason was modeled by Rousseau and Mebly on the Greek models of reformers-ordinators, recurring in Greece from the 6th to the 4th century BC, who with their reforms had innovated and reformed the traditional (and “natural”) order of the polis; and Antigone seems to presuppose this historical process. Of which Sophocles glimpses the limits, and the end of Creon, despiser of the gods and divine and traditional laws, (who loses his family) warns not to exceed. A very similar theme would have recurred, after the Enlightenment and the Revolution, in the criticisms of established (and voluntary) law formulated (already in the Napoleonic period) and then during the Restoration and throughout the 19th century, common both to counter-thinkers and revolutionaries, than to the German jurists of the historical school, to the first sociologists and to socialists like Lassalle, despite their different positions and arguments.

In fact, in the reproaches made against Creon there is another one, equally close to the previous one and significant: that he has inverted (and violated) the relationship between law and order. The latter is understood as a natural rather than human order. In this sense, the choir’s song in the second stasimus of Oedipus Rex is particularly significant: “May I have the destiny of maintaining holy purity of words and actions, over which sublime laws are entrusted, procreated in the celestial ether, and Olympus only he is their father; no mortal nature of men generated them, nor will oblivion ever quell them: a powerful god is in them, and does not age. Excessiveness breeds tyrants. But if someone proceeds superbly in actions or speeches, without fearing Dike and without respecting the seats of the gods, bad luck befall him for his unfortunate pride”; but even more so is Tiresias’ prophecy to Creon, which can be interpreted as the “indictment” for the monarch’s sins: “And you know well that you will not yet make many quick turns of the sun without repaying yourself , in exchange for the dead, a dead man from your own bowels: in exchange for those up here whom you threw underground, placing a living person unworthily in the tomb; while you keep here a corpse devoid of the infernal gods, without funeral honors, nefarious. This is not in your power, nor in the hands of the supreme gods, rather they suffer this violence from you.”

Creon puts the living underground, and the dead outside, denying their natural destination, violating divine law. Such an act is contrary to order and law, not being in the power of Creon (nor man), nor of the gods. One glimpses in this the telluric foundation and conception of human existence; it is the earth that has the function of sustaining (and sustaining) the living, as well as laying to rest the dead: Virgil’s justissima tellus. Law—the human decree—cannot violate this order; in modern terms, one might say, with Schmitt, that human law presupposes order and not the other way around; and its function is thus only limitedly ordering.

And the pride that makes tyrants and hubris consists in disregarding human limitations in changing the natural order. In this, too, Creon is archetypal of what would be practiced and theorized, still, particularly, in the last centuries of the modern age.

Compared to Creon, Antigone represents the other “horn” of these oppositions. Antigone shows a conception of law, of the relationship between divine law and human decrees, which is summarized in the dialogue with Creon, in the second episode “It was not Zeus who proclaimed that prohibition, nor Dike, who dwells with the underworld gods, established such laws for the men. And I did not think that your edicts had such force, that a mortal could transgress the unwritten and unshakable laws of the gods. In fact these are not of today or yesterday, but always live, and no one knows when they appeared;” in these verses the peculiar characteristics of divine law are indicated: divine authority, “hierarchical” superiority over human norms, non-voluntariness, the mystery of its “genesis”. Over twenty centuries later many of these characteristics were underlined by De Maistre as typical of “traditional” norms, in particular of constitutions. In the last century it was Max Weber, with the—adaptable—definition of the type of legitimate traditional power, who summarized them best “when it rests on the daily belief in the sacred character of traditions that have always been valid, and in the legitimacy of those who are called to hold a authority”. Antigone thereby affirms as the foundation of obedience to the law essentially the subjective judgment of the recipient who conforms to rules imposed by divine authority: a relationship between man and divinity, without the interference (or mediation) of human authority (and politics), to the statutes of which, if in conflict with divine law, obedience is not due. Which is the archetype of (most of) the political theses of revolutionary thought, in modernity mostly united under the right of resistance. But which already appeared to be in contrast with the ethos of the polis. Suffice it to remember that about fifty years after the performance of Antigone (the date of writing of the Crito is doubtful) Socrates voluntarily chose not to escape and die, out of respect for the citizen owed to the organization of its own polis. In the (imagined) dialogue with the Laws it is clear that the laws are one with the polis. From the beginning they present themselves as the laws and the whole of the city (oi nomoi kai tò koinòn tes poleos, repeated definition) and urge him not to subvert it, escaping the death sentence, even if unjust. In fact, “do you think that that City can still exist and not be completely subverted, in which the sentences issued have no force, but, by the action of private citizens, are stripped of their authority and destroyed?” Socrates’ “rebellion” therefore affects the very capacity for existence of the polis; the relationship between it and its laws and the citizen is asymmetrical and not equal: “And if this is the case, do you perhaps believe that there is equal right between you and us, and, if we intend to do something against you, do you believe that you also have the right to do the same things against us?” because more than all it is: “the homeland is worthy of honor, and which is more venerable and more holy, and which is held in the highest degree of esteem both by the gods and by sensible men; that one must venerate it,” “and also suffer if it commands us to suffer, remaining silent, whether we are beaten, whether we are chained, or whether it sends us into war to be wounded and killed, this must be done, therefore this consists in justice: that one must not desert, nor retreat, nor abandon one’s post, but, in war and in court and in every other place, one must do what the Homeland and the City command.”

In the discourse of laws, Antigone’s relationship between man and divinity is replaced by that between man and polis; and one clearly glimpses not only the individual/personal character of the former and the suprapersonal/collective character of the latter, but also in germ the main connotations of the concept of institution: those of power (aimed) at order, according to a directive idea. Connotations formulated as a Greek of the classical age of the polis might have done, but which can be likened, even with differences, to as expressed by Hauriou. The superiority in connecting and consolidating the social group of the latter over the former is given by the resolution of the problem of quis judicabit, by confirming or reserving to the institution the powers to decide what is law, what is to be applied as such and executed as such, and by whom, what, if left to the conscience of the individual, becomes, in politics, insoluble (in theory, no: it is enough to imagine a society of wiser men endowed with the congruous intellectual capacities and the necessary moral uprightness).

In Antigone’s discourse, the relationship between politics and law is, consequently, reversed: whereby the one does not dominate this, but rather is subservient to it; whereby the remembered saying salus rei publicae suprema lex does not apply, but rather fiat justitia, pereat mundus in which justitia is what appears so to the citizen. In this, too, Creon’s “modernity” compared to Antigone is evident: while his choice is public in character, because, as Freund argues, the public is first and foremost, an affirmation of unity, the latter leads to a dissolutory choice and outcome, essentially traceable to the private.

And indeed, Hegel’s insight that sees in Creon and Antigone the opposition between male and female element, which then becomes between family and polis can be interpreted as a moment of an evolution-transformation, in which the political and thus decisive character has shifted from the family (understood as a human institution based on relations of consanguinity) to a larger social group: with relative “expropriation,” of the powers of command, of distinction between public and private, friend and foe, in favor of the higher institution.

In every such process (so in the transition from feudal to absolute monarchies) a common and recurring connotation is the deprivation of political and largely, and more generally, public powers to those under-ordained; as well as opposition to any encroachment of the “dispossessed” into the functions reserved for political power; which without those could not guarantee unity.

Depoliticization, is also, and primarily, a privatization: while the “dispossessed” only represent themselves by being (reduced to) private, public power represents (and guarantees) political unity.

The modernity of Creon’s position therefore follows from his ability to ensure political-social unity and order. To which the exercise of command is essential: the human relationship between man and man, the one commanding, the other obeying. All considerations that would emerge and formulated, clearly and distinctly, by Thomas Hobbes. For the Mulmesbary philosopher, the established social relationship requires (a covenant between men legitimizing) the power (of command) vested in only one or a few; the latter have the power to order and enforce their commands. To whom obedience is due, as long as protection is assured; it is the relationship between protection and obedience that legitimizes political power and thus makes and keeps society orderly.

At the same time, power, command, obedience, (compulsion) are relations between man and man, not between man and norm, nor between man and deity.

In order to have Creon punished, in fact, Sophocles brings in (though not in the form of a theatrical character) supernatural power: absolute human power can only be opposed by an even stronger power, which, however, cannot be human. Obviously since supernatural intervention is excluded in a modern and thus secularized view of politics and the state, the only “vision” that can be proposed is that of Creon.

In this regard, what confines Antigone’s position in the non-juridical (in Creon’s sense) are two things above all: the first is the individualistic character: the decision as to what should apply as a rule applicable to the case is left to the judgment of the individual: with this comes the loss of both the necessary heteronomy of the juridical, articulating itself both in the moment of the position of the command and in that of its application/execution.

If, in the species, divine law can be conceived as heteronomous, surely what matters most, namely its application/enforcement, is not. Antigone’s position is relatable to a moral, rather than a legal, reality (or norm). That it is confirmed by the fact that Antigone’s divine law can be applied and executed apart (both in theory and in practice) from any relation to men and the human community: which in the present case appears only in the guise of a prohibition to what Antigone realizes (and carries out). Only that law (and state) presuppose order, command, power, all relations between men and with men, as mentioned above. Which excludes that, in the case, there can be an intervention of application/enforcement of divine law, with sanctions to the transgressor; since this, like the rest presupposes human power (precisely what Antigone disputes or considers irrelevant).

In a sense, it is not even assimilable to a Christian view. While Christianity recognizes a divine law, it has nevertheless conferred the character of a divine institution on human authority as well, while connoting Antigone’s position are the divine institution of the law, but the wholly human character of authority and, alongside, the reservation of the decision to the person. In Christian theology, conversely, human authority is also regarded as a divine institution, as follows both from the well-known passage in St. Paul’s “Epistle to the Romans” (13:1) and from the well-known Gospel phrases whereby jurists such as Hauriou and Carré de Malberg have distinguished between the doctrine of divine supernatural law and divine providential law essentially taking up the main theses on the point of modern Christian political theology.

This made the appeal to divine law, in a Christian society, not a matter of personal judgment, but surrounded by conditions and requirements. The treatment of tyrannicide and sedition is an example of this: almost all theologians, both Catholic and Protestant, legitimize one and/or the other if there is a prevailing public will oriented toward dethroning the tyrant, because tota respublica superior est rege, and all, moreover, under certain conditions, different if the tyrant is such absque titulo or quoad regimen ; and, what constitutes the essential difference, the “contestation” of authority is always made in function of and in view of a different authority, that is, in an institutional context; and having a public character rather than private claims/ demands, as, to a large extent, those of Antigone appear.

While Creon’s position is within (and in function of) a human social group, with its patterns of order, assumptions and relationships and related concreteness, Antigone’s, as mentioned, is a relationship of consciousness to divinity (law, norm), that is, to an ideal and (if not) abstract dimension and entity.

Creon’s theses are rational because they explain the reality-and the possibility of existence-of a human community; Antigone’s cannot constitute anything politically concrete and structured.

Returning to the relationship between politics and law (in the sense in which the latter is seen by Antigone), the opposition between the one and the other is particularly evident in the affair of Polynices, which resembles, in some respects, Antigone’s choice: for Polynices claims to himself vis-à-vis Eteocles the sovereignty of Thebes, because so agreed with his brother. It is thus the claim of a subjective right (jurists would say) for the realization of which Polynices promotes a coalition of Argivian kings in order to conquer Thebes, drive out Eteocles and rule the city. Since, however, the Argives, like all conquerors, do not resemble Farinata degli Uberti, this choice means working for the defeat of the homeland and the ruin of their fellow citizens, so accurately described by the chorus of the Seven at Thebes. Polynices too – indeed far more than Antigone – puts his own right before the salvation and preservation of his homeland. Justice guides him: he has had a woman chiseled into his shield, leading a warrior; this woman “Declares herself Justice, in the writing, and proclaims, ‘I will lead this man lord back to Thebes and to the homelands.’” Faced with this, with the news brought to him by the messenger in The Seven against Thebes, Eteocles’ indignation is great, such that he is compelled to fight Polynices in person, even though he is aware that he is facing death.

It was Eteocles himself who, in so many verses of Aeschylus’ tragedy had called the citizens of Thebes to the defense of the homeland “Now to those of you not yet laughing at the flower of youth, to those who withered in time, to your task each, succor this city, the altars of the patriarchal gods, to whom no honor is extinguished, and the children and the sweetest nurse, Mother Earth, who to you tender ones unsteady on the benign soil, accepted all the burden of raising you, nurtured faithful citizens at the juncture to bear the shield in her defense” and also, designating Melanippus to defend the first gate of Thebes he says, ‘Will resolve the event Ares with dice, but justice of blood he thrusts shield to his mother against hostile spears,’ as Megareus to defend the Neitae gate, “but he will pay by dying his tribute to the land nurturer, or, having captured those two and the city feigned on the shield, adorn his father’s atrium with spoils;” and denying that justice is guide to Polynices “And if Jupiter’s virgin daughter Justice were in deeds and thoughts with him, the wish perhaps was fulfilled. But neither when he fled from his mother’s dark womb, or the nurse raised him, nor boy, nor then that thickened in locks the lint on his chin, did Justice ever deign him a greeting. Nor do I think now assists him in the breakneck of his country, Justice, to deny his own name, friend to an evildoer.”

In the Eteocles-Polynices pair we find the opposition between right founded on a claim of the individual and—conversely—on belonging to a community, as in a more nuanced way between right and politics. Even if founded, Polynices’ right cannot be asserted against the (own) polis; it is the polis that constitutes and guarantees order and thus prevails over individual rights: nor are claims valid against it unless recognized within (and by) the system.

Eteocles’ position at a more dramatic and political juncture corresponds to that of Socrates, who sacrifices to the order of the polis his own chance to have his life saved. And the order of the polis is a concrete order: paralleled in the speeches of Eteocles and Socrates is the call of the homeland as mother, which nurtures and nurtures and thus enables the ordered existence of citizens.

The events of Polynices closely recall those of another hero, Roman and not Greek: Coriolanus. He, too, was exiled for a decision he felt was unjust, and for this, returned at the head of an enemy army to lay siege to Rome. Dissuading Coriolanus here too is a woman, his mother Volumnia. Who by speech—of high dramatic power in Plutarch’s account—more endowed with masculine than feminine spirituality (to follow Hegel), actually accomplishes the synthesis of the (spirituality) of the family and the polis. Volumnia speaks as the (physical) mother, but her words are also those of the political mother: she is aware that if Coriolanus follows her exhortation, he will be killed. But in the decision between the homeland and her son’s life (i.e., between public and private) she has no hesitations or doubts: she sacrifices private feelings to the salvation of Rome: and she exhorts her son to do the same: “Why are you silent, O son? Is it perhaps that it is noble to abandon yourself completely to wrath and rancor while it is dishonorable to yield to the mother who addresses such a grave prayer to you?… And to no one like you would it be fitting to observe the duties of gratitude, to you who so harshly avenge ingratitude. And yet, though you have amply avenged yourself for the fatherland, to your mother you have shown no sign of gratitude.”

Coriolanus makes the choice advocated by his mother: save Rome and be killed by the Volscians. The Roman’s behavior is the opposite of Polynices’: the existence and salvation of the homeland are worth more than individual rights, however well-founded, and the spirit of revenge. More generally: the events of Polynices and Coriolanus prove how often, it is the (subjective) right that is the occasion (justification and pretext) for war; it is, contrary to what happens in Antigone, the family and political relationship are not in conflict, but synergistic in Volumnia’s discourse the mother is at once she and the polis, but the opposition family and polis (and evident in episodes of the earliest Rome, such as the purification of the third Horace for the killing of his sister, betrothed to one of the Curiatians he killed) has been resolved in a synthesis that sees the polis “encompassing” and “overcoming” the family; and the right of the polis prevails over the family.

Given that Creon does not fit into the “classical” type of tyrant, that is, the ruler with little or no solicitude for the bonum commune (which is the first criterion for identifying tyranny, as mentioned above), what does his hubris consist of, which made him one of the figure-symbols of the tyrannical abuse of power in the eyes of a Greek (and others).

Explaining this is Sophocles himself in the second stasimus of Oedipus Rex, when the Chorus states, “disproportion (hubris) begets tyrants,” ubris psyténei tyrannon (see above).

Perhaps the translation of hubris into “immoderation” instead of the more literal “pride” or “arrogance” is the key to understanding Creon’s error. One could for the purpose turn to that typically Greek conception of kosmos as the order of creation, as opposed to khaos, and more specifically, to the Apollonian spirit, which, as specified by Spengler organizes the world into precisely delimited, harmonious and therefore ordered forms.

In such an organized space, limit and measure are, particularly the former, essential concepts; so that the disproportion (i.e., the erroneous—or intentional—failure to observe calculation/evaluation) of the limit constitutes a vulnus to (political and metaphysical) order. Therefore, Creon errs: because he has not taken into account that order (of which divine law is an expression) has been violated by the decree on Polynices; and even more so that it is not in man’s power to violate that order. The disproportion consists in having violated the limit to human power: a limit that is first metaphysical than political.

Next to that what remains of Antigone’s position after millennia of “statute” law and “rational” politics (though, I hope, interspersed-even for centuries-with returns of “traditional” law and politics influenced by “values” that are anything but rationally justifiable).

It is precisely the limit: if Antigone’s position appears “old,” in the end it is not irrational. It is not if one thinks carefully, to rationally evaluate (with respect to purpose) Creon’s decree; what is the point, having won the war (different if the war were to be won) of “condemning” the defeated and dead enemy? Is it rational with respect to the need to protect the safety of the polis? After all, Creon’s decree appears to be the forerunner of the practice, widespread in the last century, whereby war ends on the battlefields, only to continue immediately afterwards in a trial, in which the vanquished are publicly judged – with the forms, sometimes, but always without the spirit and minimum prerequisites of justice—by the victors. A practice contrary to Christian political theology, and to the “classical” international law that owes so much to that.


Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.


Featured: Antigone Condemned to Death by Creon, by Giuseppe Diotti; painted in 1845.


Providential Divine Right and Doctrine of the Bourgeois State

It is traditional in the doctrine of French law, of a state formed by eight centuries of monarchy, to begin the treatment of public powers from the theological justification of power itself. This is followed by the exposition of the theory of divine right and the distinction between “doctrine du droit divin surnaturel” and “doctrine du droit divin providential,” attributing the affirmation of the former to the Kings of France (Barthélemy – Duez) and particularly to Louis XIV and Louis XV, or Bossuet (Hauriou); while for the latter the attribution is concordant to de Maistre and de Bonald. The distinction between the two conceptions is set forth as follows by Hauriou:

“Theological doctrine had two successive forms in France: 1) The doctrine of supernatural divine right (Bossuet), which consists in maintaining that God Himself chooses rulers and invests them with their powers: this conception is compatible only with absolute monarchy; 2) The doctrine of divine providential law (de Maistre and de Bonald), according to which power, in its fundamental principle is part of the providential order of the world, but is at the disposal of the rulers through human means; this doctrine equally adequately allows for both the justification of minority power, exercised by an elite, and majority power, exercised by the majority of the people (vox populi vox Dei).”

Hauriou goes on to point out the advantages of this second theory: 1) to signify that the instinct of power is in human nature, and in that sense, pre-social; 2) to place the origin of power above both the social collectivity, the right of the rulers, and anyone: that is, to lead to no absolutism; it is most conducive to freedom; 3) coming from God, power is by nature oriented toward reason, justice and the common good.

Most importantly, as becomes evident from the systematic context of these considerations, it allows for reconnecting pouvoir de fait and pouvoir de droit, that is, for “opening” law to the changes of history. In a more specific sense, to ground constituent (human) power above the constitution itself. Barthélemy and Duez argue, likewise, that the doctrine of divine providential law is not necessarily aristocratic or monarchical, because any man or class can be chosen by Providence to execute its designs: thus it is not contrary to democracy. Both Barthélemy and Carré de Malberg regard the doctrine of divine providential right as already formulated by St. Thomas and followed by most Catholic theologians.

This conception, however, is not considered by all jurists to be an “antecedent” to modern democracy. Jellinek, in writing about modern democracy—and republics—traces them back to Reformation conceptions, particularly Calvinist. Otto von Gierke believes that it was “the Reformation that revived theocratic thought with new energy. Through all the differences in their conceptions, Luther, Melanchthon, Zwingli and Calvin agreed in insisting on the Christian function and thus the divine right of rulers. Indeed, since on the one hand they more or less decisively subject the dominion of the Church to the state and on the other hand they legitimize the existence of the state on the basis of the fulfillment of its religious duties, they give St. Paul’s principle omnis potestas a Deo a hitherto unknown scope.”

However, von Gierke does not neglect the doctrine of Second Scholasticism, and writes that the most ardent opponents of the Reformation, “particularly the Dominicans and the Jesuits wielded all their spiritual weapons in favor of a purely temporal construction of the State and the right of sovereignty” (also to support the thesis of potestas indirecta implying a limited subordination of the State to the Church).” Leaving out of account, however, the relations with the Church, they actually developed a doctrine of the state devoid of any dogmatic presuppositions, on purely philosophical foundations: This is true not only of the authentic monarchians of this group: Even the leading theorists of this tendency agree that the state union has its roots in natural law, that by virtue of this it is incumbent on the associated collectivity to have sovereignty over its members, and that all rights of the rulers come from the will of the collectivity to which natural law attributes the faculty and obligation to transmit its powers.”

Carl Schmitt argues: “According to the medieval conception, only God has a potestas constituens, as far as this can be spoken of—the phrase, “all power (or authority) comes from God” (“Non est enim potestas nisi a Deo,” Rom. 13:1) means the constituent power of God. The political literature of the Reformation era also adheres to this, especially the theory of the Calvinist monarcomacs,” and continues that with Sieyés’ doctrine of pouvoir constituant; it is the nation that is the subject of constituent power; despite the development of absolutism in the 17th century, the absolute prince is not yet defined as the subject of constituent power, but only because the idea of a free total decision, made by men, on the form and species of their political existence very slowly could develop into political action: The consequences of theological-Christian conceptions of God’s constituent power in the 18th century, despite the Enlightenment, were still too strong and vital.”

It remains to be seen to what extent the theory of pouvoir constituent—and by extension, of national sovereignty—is the result not only of the Enlightenment, the conceptions of Rousseau and the Jacobins, but of Christian political theology and more specifically, of the theory of divine “providential” law.

That Sieyés’s conception was the secularization of political theology, with the Almighty Nation in place of the Almighty God is clear; it is less so whether such a conception was tributary to the reflections of seventeenth-century philosophers—particularly Hobbes and Spinoza (and, later, Rousseau)—or to Catholic and Reformed theology, particularly of the sixteenth and seventeenth centuries, or to jurists who were theorists of natural law. Indeed, the connotations of such a conception, which serve to distinguish it, are, in addition to those indicated by Hauriou, others, present in the thought of the revolutionary abbot.

Sieyés argues that the “Nation exists before everything; it is the origin of everything: its will always conforms to the law; it is the law itself: Before it and above it there is only natural law” and continues, “In every part of it, the Constitution is not the work of the constituted power, but of the constituent power: No kind of delegated power can change anything about the conditions of its own delegation. It is in this sense and in no other that constitutional laws are fundamental. The former, those constitutive of legislative power, are founded by the national will before any Constitution. They form its first step.” He repeatedly insists on the concept of will, “which is outside all form,” and that “a Nation can neither alienate nor interdict to itself the faculty of will; and whatever its will may be, it cannot lose the right to change it should its interest demand it;” thus, “When even it is granted it, a Nation must not bury itself in the fetters of a positive form: It would be tantamount to risking the irrevocable loss of its freedom, for it would only take a single occasion favorable to tyranny, to bind the people, under the pretext of the Constitution, to a form that would prevent them from freely expressing their will, and thus freeing themselves from the shackles of despotism.” It is clear that in this way, the community’s “right” to give itself the institutional form it prefers without the morphopoietic will of the Nation being subject to any legal constraint is founded.

In effect, such a conception of Sieyés means that there is no right to the power of anyone by divine investiture, but only the potestas of the community to give itself the form it prefers: the shaping of the form, and thus the right and choice of who exercises power is left to human will and work. To some extent, it “updates” the thinking of Christian theology, and Thomist theology in particular, on tyranny, based on the principle that “tota respublica superior est rege.”

Similarly, in Sieyés, the human tendency to associate is natural: man is a political animal, as Christian theology has always repeated, so he is naturally inclined to associate the political instinct—of order and power—is therefore natural and, even, pre-social, as Hauriou argues. And theologians in various ways have argued both the character of natural law and the reasonableness of the aggregation of men in society; mostly explaining it by human weakness, man not having natural weapons such as fangs, claws and having to defend himself from beasts, as well as from other men; hence the need to constitute a common power and enforce the law. Not unlike the representations of the theologians is what Sieyés wrote: “There is, in truth, a great inequality of means among men. Nature creates them strong or weak; to some it grants intelligence, while to others it rejects it. It follows that there will be among them inequality of labor, inequality of results, inequality of consumption or enjoyment; but it does not follow that there can be inequality of rights,” whereby “the right of the weak over the strong is the same as that of the strong over the weak. When the strong succeeds in oppressing the weak, it produces an effect without producing an obligation. Far from imposing a new duty on the weak, it revives in them the natural and imperishable duty to resist the oppressor,” and “So a society founded on mutual utility is in harmony with the natural means offered to man to achieve his end; in this sense this union is a good, and not a sacrifice, and the social order becomes an extension, a complement of the natural order.” Association in society is reasonable because the welfare state does not tend to degrade, to demean men, but, on the contrary, to ennoble them, to perfect them.

Thus “society does not weaken, does not reduce the particular means which each individual brings to the association for his personal benefit; on the contrary, it increases them; it multiplies them, by developing moral and physical faculties; it increases them still through the fundamental concurrence of labor and public relief,” and, “Man, by entering society, does not therefore sacrifice a part of his freedom: even when there was no social bond, no one had the right to harm another.” And, “Far from limiting individual freedom, the welfare state amplifies and secures its enjoyment; it removes a multitude of obstacles and dangers to which it was exposed, when it was secured solely by private force, and entrusts it to the omnipotent control of the whole association. Thus, since in the social state man increases his moral and physical means, while at the same time removing himself from the restlessness that accompanies their use, it is not erroneous to say that freedom is completer and more absolute in the social order than it can be in the so-called state of nature.” Contrary to Rousseau’s assertion, therefore, the judgment on the welfare state is positive, as Christian theology has always maintained. There is nothing of the heartfelt beginning of the Contrat social: “Man was born free and is everywhere in chains,” nor of Rousseau’s explanation of the welfare state in the Discours sur l’origine de l’inégalité parmi les hommes, as a solution that favors the richest, who secure with public power their positions.

Bossuet explains the well-known passage from St. Paul’s Epistle to the Romans as follows: princes act as God’s ministers and His lieutenants on earth; their throne is not that of a man, but that of God Himself; the person of the king is sacred, even if he is not Christian like Cyrus , because he always represents the Divine majesty. Authority is in the image of God: the prince is the material image of (God’s) immortal authority. In the prince, man may die but authority never dies; the only principle that can ensure the stability of states is that every subject must respect the exercise of public powers and judgments. On the other hand, according to Bossuet only to the prince belongs the power to command legitimately and to him alone the exercise of coercion. If this were not so, the state (the community) would fall back into anarchy; from which it emerged precisely because it constituted (became) a people under a sovereign.

Indeed, as can be seen, the conception of the pouvoir constituant bears a close affinity with the conception of divine providential law with which it shares the main points of contact: That then the theory is itself, as mentioned, the secularization of Christian theology, with the Nation being given the connotations of God is even more evident: the absence of (legal) limits—the omnipotence of the will of the nation; its ability to “create” order, bestowing by the constitution on the one hand an order (a form) that “surpasses” chaos, and on the other hand the very capacity for political action (and existence); the resolution of the distinction/antithesis between being and ought-to-be.

But it is no less true that, in his defense of the “goodness” of the association of men, Sieyés took up what Christian theology has always maintained: in fact, already St. Augustine linked order, peace, and civitas, emphasizing the concord, which, in “temporal” things there was between the earthly city and the heavenly city. On the other hand, the conception of divine providential law was expounded in other respects, more articulated than those mentioned so far, by St. Robert Bellarmine. The latter, in also refuting the theses of the Anabaptists, adduces five proofs, three of them “logical” (deductive-rational) and two “historical.” Of particular interest is the distinction between authority (willed by God is therefore good in itself, being part of the order of creation) and those who exercise it, namely the ruler (who, as a human being is always subject to sin and error): “To what the Anabaptists say to the contrary, I affirm first of all that it is not true that kings and princes are generally evil: for we are not dealing here with a particular state, but with political power in general; and in this sense, Abraham was king and prince also.” He continues: “the examples of evil kings do not prove that political power is evil in itself; for bad people often make use of good things; but the examples of good kings prove that political power is good, because good people do not make use of bad things. Further, bad princes are often of more benefit than harm, as was the case with Saul, Solomon and others. Besides, it is even more useful for a state to have a bad prince than to have none; for where there is none, the state cannot preserve itself for long: Solomon himself said so (Prov. 11:14): “Where there is no governor, the people shall fall: but there is safety where there is much counsel.” Better a bad ruler than the anarchy of non-government.

On political power: “In this regard, however, some observations are to be made. The first is this: political power in general, i.e., not considered in its particular forms of monarchy, aristocracy or democracy, comes immediately from God alone, since it is a necessary consequence of the nature of man;” and originally resides in the multitude: “For since this power is of divine right, this right did not give power to any particular man; it therefore gave it to the whole multitude.” And, “natural law itself transfers political power from the multitude to one or more individuals. For the multitude cannot exercise this power itself, and therefore it is obliged to transfer it to one or a few individuals. Therefore, the power of princes, considered in general, is itself of natural and divine right, and mankind, even if all men agreed in this, could not establish the contrary, that is, that there were no princes and leaders.” However, “the particular forms of political regime are ‘de jure gentium‘ and not of natural law, since it is clear that it depends on the free will of the multitude to determine that it governs a king or some consuls or other magistrates; and, if there is a legitimate cause, the multitude can change a monarchical regime into an aristocratic or democratic one and vice versa, as we know happened in Rome.” The conclusion is “from what has been said it follows that political power, considered in particular, certainly comes from God, by means, however, of human deliberation and election, like everything “de jure gentium.”

This “jus gentium” is like a consequence deduced from natural law through human intervention. Clear in such theses of Bellarmine are the presuppositions of as many of the cornerstones of modern political and constitutionalist thought; the distinction between authority (good and necessary because it is ordained by God) and those who exercise it (human and therefore sinful, like those who are governed). This is the foundation of the conception developed in the bourgeois state whereby, precisely because rulers are not angels, checks are needed on them, as written in the Federalist Papers. Which led to the exceptional increase in the organization of liberal democracies, of the legal (and political) system of “brakes and counterweights;” and, likewise, to the impossibility of legal controls over the ruler (subject only to limitations of an ethical, religious and ontological nature i.e., of “natural law” not positive law, in any case not susceptible to coercion). This confirms at once the necessity of political power (by divine right) and the accidentality of the forms in which it is ordered and the subjects chosen to exercise it. It reaffirms the distinction between “ownership” of political power to the whole multitude, obliged to transfer it to one or more, by “natural right” (i.e., by objective necessity) and thus affirms the necessary character of representation; while the forms in which it is organized, which are not of natural right (see above) depend on the free will of the multitude, which can always change them precisely because they are not of natural right but de jure gentium. And it can all be done by decision (by an “act”) which also anticipates the conception of modern constitutionalism that sees the constitution (mostly) as deliberation of the constituent power.

The latter theses have also transited into law and, even more, into the (political and) legal doctrine of the liberal democratic state. To recall one, the most important—in the Declaration of the Rights of Man and of the Citizen, Article 3 thus proclaims “Le principe de toute souveraineté réside essentiellement dans la nation. Nul corps, nul individu, ne peut exercer d’autorité qui n’en émane expressément.” This statement in which the “multitude” is replaced by the Nation, always contrasted with the pouvoirs constituées, was repeated in similar forms in all subsequent French constitutions (except, of course, in that of 1814).

Hauriou argues that law does not escape the rule that, behind every physics, there is a metaphysics. Which normally does not manifest itself; rather it is carefully concealed by a layer of law, and so it remains, if one stops at the appearance (as is normal in a normal situation, that is, almost always). But “when the legal covering fails, as in de facto power, one falls back to the metaphysical or theological background.” Which happens when a radical revolutionary change is produced. For modern France this has been repeated—Hauriou wrote in 1929—at least four times since the revolution of 1789. De facto power tends to become—and mostly succeeds in doing so—a power of law: but to do this a law is completely unnecessary: “Un gouvernement provisoire n’a jamais fait voter une loi pour déclarer qu’il devenait légitime.” In such affairs, the régle de droit finds no use; indeed much of the law created by such governments, even if not ratified, is often validated by jurisprudence: this is because, Hauriou writes, government is necessary, a de facto government is better than no government, and power is a natural thing and of divine origin. He concludes, “Tel est l’enseignement de la morale théologique; tel est celui de la sagesse et telle est la pratique.”

One wonders why the conception of divine providential law is so conspicuously present in the theory of law and the bourgeois state. The answers could be several and competing: that indeed modern philosophy, especially that of the seventeenth and eighteenth centuries is largely tributary to the natural law and theology of Second Scholasticism, and that through this “secularization” it came to the French constituents and thence to European constitutionalism; or because it was a Catholic nation such as France that made the revolution, and in it there had great importance a priest such as Abbé Sieyès, educated by the Jesuits. But the argument that seems most important—and preferable—is that such a conception, as Hauriou has well seen, allows the relationship between fact and law, being and ought-to-be, power and order, transformation and preservation, freedom and necessity, to be explained in a manner that is both realistic and rational. In fact, the different conception of supernatural divine law carries in itself defects similar to those Hauriou identified in the theories of law, contemporary to it, of Duguit and Kelsen, which he lumped together as static systems.

Such systems “willingly present themselves as objective, and indeed they are so because they eliminate the work of man, which is the source of the subjective; but they are above all static because of their erroneous conception of the social order, and under this static aspect we shall examine them because it makes manifest their incompatibility with life.” In Kelsen’s system, the legal and state order is considered the expression of a categorical imperative of practical reason; moreover, it is an “idealistic monism,” where state and law are confused. And, indeed, it is the static profile that prevails over the dynamic one. Thus, while such a theory succeeds in avoiding the conception of domination power, it does not avoid the domination of a categorical imperative involving a necessitating social order.

But the yoke of such a philosophy “serait pour le droit pire que celui de la théologie. La théologie catholique pose le primat de la liberté humaine: l’ordre divin se propose à l’homme par la grace.” Instead, in Kelsen’s system the order of “idealist pantheism” imposes itself as a constricting necessity. Hence, he concludes that in France he will have no luck “parce que ses tendances sont inconciliables avec celles du droit. Seule une philosophie de la liberté créatrice est compatible avec lui.” As for Duguit’s system, this takes as its starting point “la notion positiviste d’un ordre des choses sociales conçu comme le prolongement de l’ordre des choses physiques. De cet ordre des choses découlent des norms.” His great concern is to suppress power as the source of law. But this implies the static nature of the system, for the negation “du pouvoir subjectif de création du droit, le mouvement juridique, qui résulte surtout des forces subjectives, est arreté.” And, except for the cases of exceptions in the system. le droit ne peut se développer que dans la mesure des normes établies ou par l’établissement de nouvelles normes, mais c’est là une formation coutumière d’une extreme lenteur. Le système tend donc vers l’immobilité coutumière.” And he concludes from this that Duguit’s system is, like Kelsen’s “impropre à la vie.”

Indeed, in analyzing the consequences of the doctrine of supernatural divine right, one sees that, obviously for different reasons, it has the same drawbacks as those of Kelsen and Duguit. First of being static, since it crystallizes power relations and the rules for accessing them: he who has the power, has the right to command and to demand the obedience owed to him; any innovation is, not coming from he who holds the power, against divine right. Second, to put law before fact, which is precisely the opposite of what happens, for example in international law, where it is the fact of a state’s control (of population and territory), and not the legality of the settlement, that makes a revolutionary government an international interlocutor. If this were not the case, if one were to rely on the criterion of “supernatural divine right” (or pure “normative” assessment), Italy would have to be represented by a Savoy, Germany by a Hohenzollern and Russia by a Romanov. With the effect of pitting law against reality (and life); and making (also) the one unfit to address the latter. There is, moreover, a radical antithesis between Bellarmine’s distinction between authority and ruler (sinner) and that “vous étes des dieux” addressed by Bossuet to monarchs: which Hauriou rightly considers compatible only with absolute monarchy.

But the fortune of the conception of divine providential law is not only that it is “dynamic,” that is, realistic, but also that it explains the relationship between force and law, again in realistic terms. By deeming necessary the living in society and under a government but not its forms, it is open to innovation and the nomogenetic character of force, aimed at ensuring communal existence The rate of innovation this introduces serves to ensure its adaptation to the changing conditions of history, that is, its vitality. The realism of the conception under consideration is given essentially by the relationship outlined between natural law and jus gentium; in other words, between necessity and human freedom.

Recognizing that among the laws of nature is that of associating under a political government, Christian theology had identified one of the “constants,” defined by Miglio as the regularities of politics; as such unchangeable by the human will. Which, conversely, the “absolute” utopias believe they can modify, believing they have found “the solution to the enigma of History,” as the young Marx wrote; from history punctually belied, with the almost simultaneous collapse of almost all the regimes of real socialism, which were the realizations of that utopian vision.

But the belief that one can alter “regularities,” which is particularly clear in the case, like communism, of realized utopias—and promptly confined to the archives of history—is not exclusive to those, being present albeit to a more limited extent in other ideological conceptions, from certain types of pacifism to liberal fringes (not to liberalism, which retains a realist approach, as is evident from the “problematic” conception of man, derived from both Christian theology and political thought).

This immutability of the “constants” is contrasted with—and complements—the mutability of political forms, which are left to the power-and therefore the freedom-of human communities: this conception founds political freedom in the primary sense of the free “conformation” of the social and political order: in this is the specification, within the community of St. Thomas’ definition “Liber est qui sui causa est”: not to be limited except by divine (and natural) law, from which no one is dispensed. In this way, this conception grants to human communities all possible freedom, without any legal constraint except self-imposed by them.

Moreover, returning to the character of dynamism, it is worth mentioning that Hauriou, like other great jurists, does not link the concept of social order to “conformity” between norms and behavior, that is, to something static, but to something quite different, namely, to the “slow and uniform” movement of the human community. He returns to this concept several times, specifying that it is the movement “of an ordered whole and is the result of organization and results from what order is essentially organization;” and to clarify the concept he resorts to a biological comparison. Just as living organisms retain form (which changes, but slowly), while subject to extremely rapid turnover of cells and tissues, so do social groups behave like living organisms, provided they are organized, and last for centuries retaining a similar form, even though the “cells,” i.e., humans, are completely changed. And for such reasons, that is, (also) because of the ability to adapt to political and social life, he judged that the doctrine of divine providential law, by placing the origin of power above the social collectivity and anyone else, does not lead to any absolutism, and is therefore the most conducive to freedom. Not only to individuals, but also to that of the community to give itself the form it prefers.

We had begun by asking why in French doctrine at the turn of the nineteenth and twentieth centuries the doctrines of divine right, and in particular the “providential” doctrine, are carefully considered. Within the limits of this paper, we have identified a few reasons, mostly from those already indicated by Hauriou himself, relating to the essence of the social and political) order and relationship.

There is also another reason, implicit in the doyen’s thinking: it is that Hauriou was a staunch supporter of Western civilization (and thought), to which he devotes some of the most interesting pages, even for those who read them today. “Western civilization,” he writes, “by its strength, its activity and its ideas, dominates the world, but it has not completely assimilated it. At the same time, it is undergoing one of its internal crises; many doubt the value of its cornerstones. Although the sedentary civilization will probably survive in partially different forms, the European peoples are in danger of disappearing in a blizzard, after much suffering. At this juncture it is not the external, but the internal enemy that is the most dangerous; therefore,” Hauriou continues, “Western civilization should not be doubted, for what it achieved “en fait d’oeuvres de beauté et de vérité intellectuelle, est devenu classique, c’est-à-dire a réalisé l’idéal humain.” Communism itself, then newly realized in Russia, seems to him incompatible with sedentary and individualistic society, and, rather than an “extreme” phase of modernity, it seems to him a return to the legal forms typical of nomadic societies.

In contrast to the attention French scholarship pays to the conception under consideration, it is rare to read similar considerations elsewhere, especially in Italy. For example, consulting the entry “Democracy” in the classic “Dictionary of Politics,” one can read everything from Herodotus to Rousseau, from the democracies of the ancients to socialist democracies (and beyond): however, any mention of this one, which has probably influenced the form of the contemporary state no less than the others and whose traces are (largely) present in our Constitutional Charter, is missing; and, which is equally relevant, the consequences of this one are, today more than yesterday, and despite all efforts to the contrary, common sense.


Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.


Featured: The Ascension, in the Drogo Sacramentary, Folio 71; ca. 845-855.


Arché and Montesquieu’s Principles

E principio oriuntur omnia ( Cicero, De re publica).

1.

In the Esprit des lois Montesquieu wrote “Having examined what are the laws of every government, let us now see those which are relative to its principle. Between the nature of government and its principle there is this difference: that it is its nature that makes it so, and its principle that makes it act. The one is its particular structure, the other the human passions that make it move.” The importance that the President à mortier attached to the “principle of government” was anticipated in Book I, when in illustrating the foundations of the laws of each people he writes, “They must be in harmony with the nature and principle of the government established, or intended to be established, whether forming it, as political laws do; or maintaining it, as civil laws do.”

To find the principle of each government, Montesquieu starts from the nature of it, and in particular who “exercises supreme power, and, secondly, how he can accomplish it,” and concludes the chapter thus, “I need nothing more to find the three principles of the above governments; they flow naturally from them. I will begin with the republican government and first speak of the democratic” of which he points to virtue as the principle. Immediately afterwards he explains why “A monarchical government or a despotic one does not need much probity to maintain or sustain itself. The force of the laws in the one, the arm of the prince always raised in the other, regulate or govern everything. But in a popular state an extra spring is needed, which is none other than virtue… for in a monarchy, where he who enforces the laws judges himself above them, virtue is needed to a lesser extent than in a popular government, where he who enforces the laws feels that he himself is subject to them, and will bear the burden of them.”

And, in the republics themselves, democracies need far more of it than aristocratic governments: “Greek politicians who lived in a popular government recognized virtue as the only force capable of sustaining it;” while “virtue is also necessary in aristocratic government, although it is not required there as absolutely… By nature of the constitution, it is therefore necessary for that body (the aristocracy, ed.) to possess virtue.” And this lesser virtue (because it is limited to the governing body) is moderation: “Moderation is therefore the soul of these governments; but that… which is founded on virtue, not on cowardice or laziness of mind.”

By contrast, in monarchy “the state lives independently of love of country, of the desire for true glory… of all those heroic virtues we find among the ancients… Laws take the place of these virtues, which are now useless… I am not at all unaware that virtuous princes are not rare, but I do say that it is very difficult that in a monarchy the people are so.” Thus, in monarchies the principle, the “gear” that makes the state work, is honor, because “ambition is dangerous, in a republic, but it has good effects in a monarchy: it gives it life, and it has the advantage of not being dangerous.” Finally, in a despotic government, “As in a republic, virtue is needed, and in a monarchy honor, so in despotic government fear is needed: virtue is not needed there, and honor would be dangerous. The prince’s immense power passes entirely into the hands of those in whom he confides… when in a despotic government the prince forgets for a moment to raise his hand, when he cannot annihilate in the twinkling of an eye those who hold the first places, all is lost… It is necessary therefore that the people be judged by the laws, and the great by the whim of the prince; that the head of the last among the subjects be secure, and that of the pashas always in danger.”

2.

In conclusion according to Montesquieu:

The principle (of the “form”) of government is the driving force that makes it act.

This principle is, to varying degrees, virtue; this must be possessed by those who govern: in democracies, by all citizens, in aristocracies by the optimates, in monarchies by the king. He does not write it, but even in despotic states the despot must have a glimmer of virtue (perhaps different). Honor and fear are feelings that belong to the subjects. In particular to the collaborators of the sovereigns.

The principle is necessary, because a body politic is composed of men, is a vital institution and cannot disregard what is likely to make men act and thus the institution. Laws are necessary, but not sufficient for the existence and vitality of the whole.
The principle is what “unifies” rulers and ruled: it affects the command/obedience relationship, and is at once a factor of integration and legitimacy.

Like the “classical” political thinkers, Montesquieu sees institutions made up of men, where some command and others obey: it is far from the French thinker to believe that a beautiful constitution, complete with moving enunciations of principles, and myriad implementing laws (equally moving) are enough to make a viable state. Laws are not enough: to constitute and preserve it requires the gear that makes them live. Indeed, between the laws and the principle (the gear), there must be consistency: it would be clueless to constitute a democratic government without a modicum of virtue, and even more so a despotic government without fear.
Virtue plays an extremely important role in this context, primarily because it recurs—even if not equally necessary for all—in the three non-despotic forms of government; and in this, Montesquieu harks back to ancient political thought, for which it was natural to link the fate and fortune of the polis to the virtue of the citizens; and not to the mere “goodness” of the laws. If, as Montesquieu writes in the opening of the Esprit des lois, “Laws… are the necessary relations arising from the nature of things; and, in this sense, all beings have their own laws: the gods, the animals, man,” from the very beginning of the work he fixes—so to speak—the relationship between existent and normative: in which the former determines the latter far more than the latter can do on the former.

In this sense, the principles of government are the indispensable gear for the community: which, not living by rules alone, even the best possible ones, must be based on a (general) principle that determines it to act. Because on the historical level—and not only—to exist means to act: and acting calls for mobilizing the human will(s); the Thomist rule, omne agens agit propter finem, applies, which, more than a century after Montesquieu, a great jurist like Jhering would identify in the connection between purpose and interest.

3.

Shortly after Montesquieu’s death, the figure of the legislateur, of the one (those) who gives (give) certain rules to the community, began to be emphasized; and of the same rules—fixed in laws—which, rather than being discovered by studying the “nature of things,” are the product (prevalent or exclusive) of the human will. It is this that gives laws to things, and not vice versa. The relationship between the existing and the normative begins to tilt in favor of the latter. Modern constitutions that are the fruit of human reason (of equity, justice, but in effect of will) are the most obvious fruit of this. That constitution which is not such if, as Thomas Paine wrote, you cannot put it in your pocket, written, the result of public deliberation, following (mostly) free and rational discussion. For a long time, however, the main links that anchored the normative to the existent, particularly to will and virtue in citizens, were not lost. Indeed, the French Revolution, and the Jacobins in particular, made virtue a necessary and primary element of the new political regime: a sign that the links to the real were still robust.

Later, as Ernst Forsthoff writes, “the doctrine of the state took a path that distanced it from human qualities, and consequently also from virtue. In Georg Jellinek’s work, which well represents the period at the turn of the century, this is no longer mentioned.”

Hence the later one “became a doctrine of the state without virtue.” Probably, indeed to follow Forsthoff surely, the whole thing was a consequence of legal positivism (broadly understood), whereby the doctrine of the state is the doctrine of its institutional and functional system, and prescinds from human qualities. In this we can also see a prevalence of “technical,” and, in particular “technical-normative” aspects; Carl Schmitt wrote that already clear in Machiavelli’s thought was the technical aspect of conquering and preserving power; but this technique did not prescind from either human qualities or human relations. Whereas contemporary normativistic “technique” implies doing without—or reducing to the minimum—the one and the other.

However, as Forsthoff writes, the success of positivism was such “that German law, neither before nor since, has ever again reached or maintained, in jurisdiction and administration, such a high level;” and this was possible in good part, thanks to the qualities (to the “virtues”) of the German professional bureaucracy, the result, in particular, of the alliance “between a historically based Enlightenment and the legacy of the Reformation,” whereby “this legal system, apparently stripped of all ethical reference and stuck to the purely technical plane, still had its own ethics, in that it was based on specific human virtues, without which it could not be understood.” Thus, to think that a state can stand on the strength of the goodness of laws alone is to make a partially true (and therefore partially false) statement. No “good constitution” can function well if it is not adapted to the objective situation and the existing real forces, in which the moral qualities (virtues) of those who govern, or rather exercise public functions (starting with voting), are included to a decisive extent.

4.

Forsthoff’s findings should also be updated according to what is thought—mostly—about in these years, in the late postwar period, which has become a (third) postwar (cold) period.

Nowadays, anyone who speaks of virtue would move to laughter (or a smile), and not only because of the unedifying spectacle offered by the ruling elites, but, even more, because no one thinks of virtue as a factor in sustaining the community, and democracy in the first place, anymore. He would be answered that good laws are enough, and he would be considered an oddball. But to the writer, and given the consideration accorded by Western thought to the necessary relationship between virtue and good institution, it seems bizarre to argue otherwise; and the first retort that comes to mind is the Tacitian corruptissima res publica, plurimae leges, on the other hand amply confirmed in Italy over the last half century. Secondly, if so many thinkers, from Plato to Aristotle, from Cicero to Machiavelli, from Montesquieu to Mably (to name a tiny fraction) have held the contrary, it is not clear why one would share the idea that a state needs only good laws and, above all, does not need a certain amount of virtue (and especially what experience of what political unity corroborates it).

To a large extent this is the outcome of the extreme phase of the functionalization and technicalization of law, the most coherent conception of which is legal neopositivism. A prerequisite (and general condition) of which is to conceive of the world as a universe of norms, where there are no persons (or subjects of law), but centers of imputation of legal relations; there are no hierarchies of men, but gradations of norms; not subjective rights, but norms to be applied; not the sovereign, but the Grundnorm, and so on in a consistent de-humanization (and de-concretization) of the worldview. The only human element remains the “knowledge of the jurist;” in which this conception is revealed as the ideology of a particular social group, of the officials of the decadent phase of the bourgeois rule of law.

In such a conception, everything that is “extra-normative” is not legal (and therefore irrelevant): at most it comes down to the appeal to “constitutional values.”

This seems to have the function of satisfying (at a minimum) the need to ground collective existence on something that is nonnormative anyway, and thus to “gain the ground of a recognized legitimacy” by going beyond mere legality. That is, it constitutes the exception to the mostly shared view (by jurists).

5.

In fact, the “classical” conception (within which to place Montesquieu’s theory of principles) was the answer to the question: when is order vital (in the first place) and just?

The answer—given more than two millennia of political reflection—combines “existential” and “factual” factors with others of a more properly “normative” and legal nature, with the former prevailing over the latter. Personal qualities, beliefs, legitimacy, authority constitute (but do not exhaust) its essential cornerstones.

If, on the other hand, one asks for an answer to the question of how one should correctly (validly) interpret a legal norm, and more generally how the jurist’s knowledge is to be attuned to the normative system—that is, a different question—and one with reduced content, the answer normativists give, by expunging from the horizon of the (practical) jurist any “factual” element, has its correctness. For which, however, as noted, particularly because of the formal character of such a theory of law (and the like), there exists (and does occur) the risk that “by reducing law to logical propositions disregarding their content, some piece of it too important to be neglected, or bracketed, is lost along the way, so to speak, just as a physical theory is exposed to the risk of neglecting some aspect of reality too important not to need to be explained. On the other hand, who can assure me that my model of knowledge of reality is truly coextensive with the reality I want to explain? In other words, who can assure me that my reasoning really explains everything I need to explain? Science risks being a set of propositions that, paradoxically, does not photograph the world, but itself; that is, the scientist risks seeing nothing but his own reasoning, and not the reality he wants to explain. “Truth” thus means only consistency to the starting assumptions, which, moreover, are unproven, and dissolves reference to reality, to explain which the “pure” scientist began to do science. We are facing a real implosion of the system.”

And this is precisely the point: by narrowing the problem of the order to that of the proper application of norms, one expunges from the legal horizon the main and determining elements, and in any case much of what is necessarily part of it. That is, both the aspect of the unity, action and cohesion of the social group, and that of the application of law (through organized coercion and legitimate violence); so normativism has been regarded by many as a legal gnoseology, and it is, because, consistently, it eliminates from the legal horizon everything that is “factual.”

Conversely, and in the line of classical political thought, we find (among others) the institutionalist jurists, who obviously take into consideration (maximally) the order and all those existential factors that condition and determine its form and action, with particular regard to the concrete situation.

Hauriou, who in Précis de droit constitutionnel repeatedly criticizes Kelsen, beginning with the error, which he stigmatizes, of assimilating “objective order to static order” and subordinating “strictly the dynamic to the static.” Whereas “what men call stability is not stillness, but the coordinated (d’ensemble) slow and uniform movement that lets a certain general form of things subsist.” To make sense of and understand it, Kelsen’s essentially static system, in which there is no place for human freedom, is wholly unsuitable.

Santi Romano with the constant attention he gave from his youth until shortly before his death to the problems of change, legitimation and crisis of the legal systems is, likewise, exemplary of a dynamic and vitalistic conception of law. Going back to Montequieu, he was very clear that a human community lives in history, in space and (also) in time: the same can be said of Hauriou and Romano, who have a sense of “two-dimensional” law.

Instead, a static system is, as it were, to paraphrase Marcuse, a one-dimensional right, since it takes no account of time—and consequently of history (as of so many other things).

In this sense Hauriou’s critique of “static” systems that convert into a contemplation of rules is penetrating.

6.

That being said, it is necessary to see what the concept of virtue was for Montesquieu and whether it is still necessary today:

“Virtue in a republic is a very simple thing. It is the love of the republic: it is a feeling and not a series of notions.”

However, given the equivocity of the term, Montesquieu since the avertissement to the Esprit des lois has been keen to define it, outlining its public and political and not private (i.e. “non-political”) character by specifying:

“What I call virtue in the republic is love of country… It is neither a moral nor a Christian virtue; it is political virtue; it is the gear that makes republican government act (mouvoir).”

Consistent with what Plato (Callicles’ thesis in the Gorgias) and Aristotle already held, political virtue is connoted by the citizen (civis), i.e., the public man, not the bonus paterfamilias, i.e., the private man: an essential distinction, maintained by philosophical thought and particularly Christian theology, from Luther to Bellarmine. And which, consistent with the general confusion of public and private, nowadays is often no longer understood, to the point that, to hear some crude demagogue, any good man (as long as privately honest) would suffice to lead a state. Which (not new, but often repeated) aroused Croce’s sarcasm, as of “the ideal that sings in the soul of all imbeciles.” Surely there is no need for that kind of private virtue: not that it spoils; but surely the state can exist and act even if sexual mores are relaxed and business mores not exactly adamantine.

Instead of the other, what Montesquieu called political virtue is felt to be needed, in proportion to how much it has been reduced for over fifty years.

How one feels the need for Montesquieu’s lesson on the principles of government as sentiments and as gears to make the state institution act. The contrary, much-repeated thesis that good rules (laws) are sufficient is flawed by (at least) three errors:

The first of which is the reduction of law to legal gnoseology, as a technique of applying norms to the concrete case. Appropriate to this conception is the criticism above that “some too important piece of it” is thus lost. Whereas law is essentially a system for regulating action. It is the orientation that gives human actions the decisive aspect for understanding the essence of law.

Second, and consequently, that rules are not enough: these can regulate, permit, command actions, but without ever neglecting that the “object” of them is human action.

And above all, finally, that in order to sustain the original legal phenomenon, that is, the institution, it is necessary to leverage (also) the feeling that makes “government act.”

A state that does not act, that does not leverage sentiment (i.e., principle) is a gangrenous institution: to exist, in history, means to act. Acting does not mean (only) enforcing rules, but above all having what in different terms of similar concepts has been called virtue, love of country, sense of state. Without which—or lacking which—the state falls or decays.

Of course, one can reply like Don Abbondio that virtue is like courage: if one does not have it, one cannot give it. But one must reply that a first step to (attempt to) have it is to think that it is necessary. That is, the opposite of current idols.


Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.


Featured: Allegory of Virtue and Vice, by Veronese; painted ca. 1581.


The Archimedean Point: The Political and the Legal Sphere

The distinction between “political” and “legal” is particularly difficult because the scope, purpose, and assumptions of one and the other are the same, or similar, or, at least in part, coincident.

If, for example, one asks “what is the purpose of politics?” the prevailing answer is the “common good,” understood as security (and protection) from (internal and external) threats, as (internal) concord, and as well-being. If one asks the same question for the law, the prevailing answer will be to justly and surely regulate social relations; which coincides, in part, with the “common good” understood as concord in the community, given the need for rules on the one hand, and for them to be shared and accepted (predominantly) by the members on the other.

If, likewise, we start from the ambit, while the “social” character of politics is taken for granted, that of the law, it has given some problems: this does not detract from the fact that for a legal norm or command to exist there must always be a society, though of only two people. A norm that, like the moral norm, is only internal and has the individual and God (or conscience) as subjects, is not juridical. Further, it is juridical only if it is concretely enforceable (and violable); and—at least to some extent—enforced.

Which leads to the other problem of the effectiveness of the law, which necessitates the use of coercion, that is, force, itself a (typical) means of politics. And thus, it could go on for a long time.

On the other hand, there are the differences and irreducibility of one to the other.

An example for the enduring relevance (and rightly so) of an essential difference is the one made by Max Weber about the different attitude of the politician and the official: “To take a stand, to be passionate—ira et stadium—is the politician’s element, and above all the element of the political leader. His conduct is subject to quite a different, indeed, exactly the opposite, principle of responsibility from that of the civil servant. The honor of the civil servant is vested in his ability to execute conscientiously the order of the superior authorities, exactly as if the order agreed with his own conviction. This holds even if the order appears wrong to him and if, despite the civil servant’s remonstrances, the authority insists on the order. Without this moral discipline and self-denial, in the highest sense, the whole apparatus would fall to pieces. The honor of the political leader, of the leading statesman, however, lies precisely in an exclusive personal responsibility for what he does, a responsibility he cannot and must not reject or transfer. It is in the nature of officials of high moral standing to be poor politicians, and above all, in the political sense of the word, to be irresponsible politicians. In this sense, they are politicians of low moral standing…”

In this passage the distinction is formulated between the political attitude and function (which is to give commands) and that of the official (of the bureaucracy) which is to execute them. That being said, in order to understand and demarcate the different spheres of the political and the legal, it is necessary to identify the points of contact, as well as the differences between them.

As for those, the first is given by the character and social sphere in which they are necessarily carried out. As mentioned, the rule ubi societas ibi ius applies, as does the specular ubi ius ibi societas. The assumption of the sociality of the legal, as well as the political, is evident. As has been written, even on Robinson Crusoe’s island, the law came into being only with the presence of Friday: before that it would have been absurd. For politics (and the political) no one, to our knowledge, has ever questioned the presupposition of the social rapport (relation), since politics is always the activity of human groups.

Another common character is that of the preservation of society; a given also, for the most part, taken for granted for politics, somewhat less so for the “legal.” In reality if the law carries within itself, more prominently than politics, the idea of justice (with the extreme consequence, expressed in the saying, fiat justitia pereat mundus) it is also true that for a legal command (norm) to be (mostly) enforceable (hence effective) it is necessary for it to be shared, at least in prevalence, in society: a certain degree of concord must support it. More generally, it must be remembered how one of the prevailing conceptions of the law is that it is a social technique: a good “technique” must achieve the specific and assigned purpose of preserving society. Only commands on which a large proportion of associates agree are likely to be executed with a minimum of force and a maximum of consensus. And the same argument, mutatis mutandis, applies to welfare: the “good” technique must achieve goals of “good” (i.e., effective and positive) management.

As for the points of difference, the main one is the autonomous character of the political, which is contrasted with the heteronomous character of the legal. It is necessary to clarify these concepts, and the relationship between the autonomy of the political and the heteronomy of the legal.

First, the autonomy of politics (and the political) should be understood not only in the traditional sense, as independence from moral (and legal) precepts, but also in the literal sense, of that which gives goals, rules, to itself; that is, in the positive sense, before the negative sense, of possibility/ability of before freedom from. Valid for politics (and the political) is Spinoza’s consideration that the limits and rules to be observed by the state are those of nature and not of civil laws, and that being autonomous consists for man in being “able to reject all violence, to demand in his own judgment compensation for the harm he has suffered, and, in a word, to live at his own pleasure (Political Treatise, II.9);” and for states, being “together are to be considered as a man in the state of nature” (Political Treatise, VII, 22.), the situation is the same. Hence the character of politics is to be autonomous, in the sense of giving law: either to subjects, (in and with) peace, or, to (possible) enemies in (and with) war. The connection that the Roman spirit had identified between hostis and auctoritas and expressed in the Twelve Tables—adversus hostem aeterna auctoritas—can be explained thus.

Thus, character of politics (and the politician) is not to recognize laws (commands) other than those that (the community) chooses to give itself; if one obeys the commands of others, it means one is in a pathological situation. Like that of a protected state versus the protecting power.

Conversely, the “juridical” is unthinkable except within a framework of heteronomy: Autonomous is, in man, or can be, the conscience (moral or religious); but the command, the juridical norm, never. The most that can be done to increase the degree of “autonomy” is to participate in the formation of public norms (commands), as advocated by Hobbes and Rousseau. But even in a democracy as close to the “ideal type” of democracy as possible, the subject who commands (i.e., the assembly of citizens) is distinct from the “commanded”—thus as Hobbes wrote—there “passeth no covenant, between the sovereign and any subject” (De corpore politico, XXI, 2).

Thus, if autonomy is connoted by the political—understood as an attribute of collective unity (obviously not of the individual)—heteronomy is of the legal.

In this sense Kant’s principle that “the sovereign has only rights against his subjects and no duites (that he can be coerced to fulfill), (The Metaphysics and Morals, p. 95),” fully expresses both the heteronomy of the juridical and the autonomy of the political, obviously in relation to the modern state. Having only rights and no duties means both being able to give commands (laws) and (in an emergency) not having to comply with any (not even those autonomously assumed). Moreover, that coactive in parentheses indicates precisely legal obligation and duty, i.e., enforceable by resorting to force (that the sovereign has duties of other kinds—not legal—is conceivable and argued, with reason, by many). Thus, on the one hand the law, even that produced by private autonomy, rests in every case on a political decision and will (even to allow and support autonomy; that is, it is a rare example of heteronomous autonomy); on the other hand, the political, that is, the essential character of sovereign power is to be free from all legal conditioning and limitations.

The “heteronomous” character of the law, with regard to legal decision, also results from the structure of the same, which is based on the authorization/application of commands (norms) that have already been decided (elsewhere); so that a measure or judgment can be reviewed and qualified as valid (or invalid) on the basis of a check of conformity with respect to the norm or commands that support them. This is so whether these have normative content (as is, for the most part, the case in the modern state) or consist of mere commands (i.e., lacking generality and/or abstractness). A policy decision is, conversely, not reviewable with respect to a norm. While a ruling is good (valid) if the Judge has correctly applied existing law, the policy measure is good insofar as it is congruous in resolving a situation, at the limit breaking the law, including constitutional norms. While the above saying, fiat justitia pereat mundus (meaning by justitia the applicable law) applies to the Judge, the other salus populi suprema lex applies to politics (Hobbes writes that law, duty and profit of the Sovereign “are one and the same thing, contained in the sentence, Salus populi suprema lex,” De corpore politico, XXVIII, p. 177). And the salvation of the state is not properly a matter of the law, let alone of norms.

The same thesis was espoused by Thomasius and Kant regarding the distinction between the law and morality. For the former, all law consists of external and not internal commands; Kant then argues that “The pure agreement and disagreement of an action with the law, he says, without regard to the motive of the action itself, is called legality (conformity to the law) while when the idea of duty, derived from the law, is at the same time motive of the action one has morality (moral doctrine). Duties imposed by legal legislation can only be external duties, because this legislation does not require that the idea of duty, which is wholly internal, be in itself a determining motive of the agent’s will, and since it needs motives appropriate to its laws, it can only admit external motives. Moral legislation, on the other hand, although it erects internal actions to duties as well, does not exclude external actions for this reason, but refers in general to everything that is duty.” Hence it follows that “to the right is thus immediately connected, according to the principle of contradiction, the power to compel the one who undermines it,” and “a narrow right can therefore only be called that which is completely external;” whereby “it right rests solely on the principle of the possibility of an external compulsion which may consist with the freedom of everyone according to general laws.”

From this it follows that the rules (laws) of politics, that is, those against which the appropriateness of political behavior (and political institutions) is assessed, have as a common feature precisely that of not being juridical; that is, of not being able to appreciate (and coerce) those behaviors with respect to rules of law (particularly positive law, or to, depending on the meaning one gives to the latter, natural law). One may or may not agree with Hobbes’ view that “natural law is, to define it, a dictate of right reason as to what is to be done or not done in order to preserve, as long as possible, life and limbs,” from which it follows that the relevant behaviors are true or false, and not like those, evaluated from the legal aspect (as well as the rules) lawful or unlawful, valid or invalid; or that of Spinoza, according to whom the state must observe only the rules, not of civil law, but of natural law; but it is certain that on the “effected” plane, this appears to be true.
On the other hand, if one starts precisely from the “presuppositions” of the political, as defined by Freund, it is not clear how the choice between peace and war could be formulated in terms and on the basis of legal presuppositions (preventive and general), nor whether an action should be commanded and by whom, or whether an activity should be public or private.

The first, moreover, does not depend (except partially) on one’s own will, because choosing to be an enemy of a given political unit is another unit’s decision; as for the other two assumptions to claim to codify what must be public or who must be obeyed (including the form of state) is to want to plaster history. Even if in the Enlightenment and among the revolutionaries of 1789 the conception of the legislature (and of the law, including constitutional law) destined to last was widespread, nevertheless the conviction that one generation cannot bind (eternally) future ones was equally widespread; and, on the other hand, saving them from the “legal” drift was the concept of constituent power which, in any case, stands above (and before) the Constitution itself, by the same amendable, even integrally.

The other presupposition of “legal” is, according to Freund, the relationship between permitted and forbidden. Like that between social and individual it is not exclusive to the law but common to many other areas of human activity, especially morality. However, it is the condition of (thinkability and) existence of a command, since commanding something presupposes the freedom to choose and thus the prohibition of something else. Neither in a society in which everything is permitted, nor in one in which impossible things are commanded (ad impossibilia nemo tenetur) is an executable command (in general) conceivable, and therefore neither is a legal rule. Certainly, a society whose Grundnorm consists in “everything is permitted” is conceivable, but this, as well as never seen in history, would not need the law, understood as an apparatus of coercion (hence institution), since it would not be possible to compel anything. Such a society, without institutions and prohibitions, is ultimately the exact representation of the Hobbesian state of nature.

It follows from the above that the essential character of the rules of politics is precisely that they are not legal, that is, susceptible to external command and coercion. It could be argued that politics has no rules (laws); but this consideration is not supportable. In fact, politics has the rules it wants to observe (this is the first face of the autonomy of the politician); the other consists of those rules that determine its end (the Hobbesian salus rei publicae suprema lex); or the “technical” rules for the protection of the community and the exercise of power. Philosophy and political thought have elaborated many of them. From the one (De Benoist) of reducing the number of enemies, which has had the most varied formulations and expressions throughout history (from the Roman divide-and-rule to the “never war on two fronts” of the Germanic HQ of the last century). Machiavelli, but also Hobbes and Spinoza have indicated several—whose common (prevailing) connotation is to depend on the purpose of political activity. That is, on the protection of communal existence and the order it ensures, to which they are instrumental as means to the end.

The other character of the “political” and its rules is to be “superordinate” to the “legal” (and its norms). This is not only because of sovereignty—a key concept because it is the junction point between politics and the law—and which has (also) the function of guaranteeing/protecting order through the exercise/discipline of coercion; and not only because the purpose of politics, in the case of emergency (and sometimes not only in that) prevails over that of the law (justice, or rather equity), so that, as Jhering wrote “force will sacrifice law to save life,” i.e., according to Santi Romano, necessity is the source of law; but also because in following legal (or, in a different respect, moral) rules rather than those of “reason of state,” a community prepares, as Machiavelli wrote for The Prince “more quickly ruin than its preservation.”

If, for example, the Western powers had militarily come to the aid of Finland, which was attacked in 1939 by the Soviet Union (as demanded by much of the public), they would have had international law on their side (the Geneva Protocol of 1924 condemned war of aggression, and the war on Finland was such) but would have made a very bad political choice—both because, in addition to the war with Hitler, they would have found themselves in another one with Stalin, and because they would have consolidated the recent (and tenuous) alliance between their enemies. Quoting Odilon Barrot, since sometimes la legalité nous tue, in order not to die one must “break” or “derogate” from legality.

On the other hand, it is precisely the positive law, with its large casuistry of derogations and exceptions to constitutional and ordinary law that demonstrates the character and structure of this relationship: constitutional ruptures, states of exception, states of necessity, derogations and extenuating circumstances to criminal legislation.

Hence, Santi Romano correctly held, in the passage quoted above, that even in case it is forbidden to make use of exceptional powers, necessity legitimizes the violation of existing right (or rather law).

In other words, in every order (that is viable) there is a “general clause” (even if unwritten, even if prohibited) by virtue of which the protection of (collective) existence prevails over legality. Coinciding, according to Santi Romano, the concept of institution with that of order, this clause is juridical, because it is constitutive-conservative of collective existence. Together with sovereignty—and from an objective standpoint—it is the connecting point between the end of the political and the purpose of the law. It follows from this that the political institution (in modernity, and par excellence, the state) has the task of bringing together the demands of politics and law, sein and sollen. Precisely in institutionalist (legal) thought, and in the concept of institution, this is felt most sharply; according to Hauriou “power is a free energy of the will that takes on the enterprise of governing a human group through the creation of order and law.” Thus, in the beginning, there is power; this creates order through institution; power (and government) in fact is thus transformed into power (and government) in the law. The relationship between power, order through the law (i.e., the institution) and coutumier consent means that the institution must take into account both power and consent and order, and thus the “two” poles, political and legal.

The relationship of “superordination” or “decisiveness” between politics and the law, and of the prevalence-precedence of the former over the latter, to which Hauriou’s thesis on power and order has brought us closer, is particularly evident in the moment of foundation (or re-foundation) of the institution, and, in particular, of the institution-state.

Santi Romano has been very attentive to this, both in his early and later writings; the same problem is, however, usually neglected by jurists, partly with the extenuating circumstance that the jurist interprets the law that is, and does not investigate the genetic moment of the institution. But the very latter shows the essence and modes of the relationship: Sieyès’s theory of constituent power comforts him (and is its clearest expression). Sieyès bases it on three distinguishing features of such power: the first negative, of being freed from all forms, “une nation est indèpendente de toute forme.” In contrast to constituted powers, which are bound by legality (“il n’est legal qu’autant qu’il est fidèle aux lois qui lui ont été imposées“), the national will (i.e., constituent power) “au contraire n’a besoin que de sa réalité pour être toujours lègale, elle est l’origine de toute lègalité.”

The nation is not subject to a constitution, and cannot (nor should) be; not only is it independent of all forms, but it needs no legal justification (support). In it, reality and legality coincide: the latter is the development-emanation of the former. Lastly, “De quelque manière qu’une nation veuille, il suffit qu’elle veuille: toutes les formes sont bonnes, et sa volonté est toujours la loi supreme;” whereby it is it that determines (and institutes) the form(s) in which the institution will be organized and articulated. The politician thus does not have a given form, but is the creator of (his own) form. The fact that this form(s) is viable (i.e., effective, capable of causing command to be exercised with success and consensus) is due to the degree to which it is accepted by the consociates, which is expressed in essentially political (and “factual”) categories (and concepts), such as authority and legitimacy. Thus the “political” and the political will (both of the “creator” of the order and of the governed) is the Archimedean point of the (state) legal order: by taking away, modifying, or replacing that, it changes this; whereas the reverse is not true; for the change of one, or several (even most) norms, nor that of institutions, changes the constitution (understood in the Schmittian sense of fundamental decisions about the modes and forms of political existence), much less constituent power.

In this regard, it should be recalled how many jurists have noted that there are original and derivative institutions. The former are “those in which a legal order is embodied which is not posited by other institutions and which is therefore, as to its source, independent. Conversely, there are derived institutions, whose order is, that is, established by another institution, which thus asserts, in this respect, its superiority over the first, which thus remains subordinate to it;” just as the state has, according to Rudolf Smend, the character that “its functioning is not maintained by an engine or judge external to its structure, is not supported by a heteronomous cause or guarantee, but is integrated, through objective legislativeness with respect to value, exclusively in a system of integration gravitating on itself.” whereby “in a sense quite different from the constitution of an association, the written constitution of a state can therefore only stimulate and limit that constitutional life which gravitates on itself and which cannot be guaranteed heteronomously.” In sum, the political (and original) character of the state institution means that it is the political—and sovereign—power inherent in it that guarantees unity, stability and enforcement of law; for others, it is a power external to the institution (i.e., mostly another institution), precisely because it lacks sovereignty.

One could with a bold comparison, adapt to the law Gödel’s incompleteness theorem, for which there are points that the system cannot decide or prove independently. Conversely, the political, as Sieyès wrote in the passage quoted above, has no need for legitimacy or to conform to a legal norm or procedure.

The point of junction (and friction) between the juridical and the political is provided by public law, by which is meant what—in other Romance languages, as well as in Italian in Romagnosi’s time—is also called “political law.” In its higher branches, but sometimes also in its lower ones, several points of junction (and conflict) between the needs of politics and legal principles and institutions can be discerned.

The very positive law (positive rights) of modern states concurs in proving how the political (and politics) are irreducible to the juridical; in particular, if one understands this essentially as a rule, as a norm applicable exactly by a judge or official. The forms of this irreducibility are various. We recall the main ones:

1) First, there is no need to have law in order to create law. This is implicit in Sieyès’ assertion that the Nation, by the mere fact of its existence is all that it wants to be; that is, that it needs no legal legitimation. This, as well as by others, is taken up (and in a sense, expanded) in the well-known thesis of Santi Romano, whereby even without legislative authorization for the use of “exceptional and extraordinary powers, these may be assumed and exercised by virtue of necessity. As is customary, indeed all the more so given its greater energy, necessity is an autonomous source of the law, superior to the law.”

2) Even without wishing to recall the protective-conservative function of political authority, which is particularly clear and evident in the ” state of exception,” not even in relationships and situations not connoted by emergency, but, in a sense, normal, the scope of the “political” coincides with the “normative.” In fact, particularly relevant acts are removed from judicial review, even in liberal democracies, where control is, conversely and usually, penetrating and general. Thus, in Italian law, political acts; in French law, actes de gouvernement are not appealable before the judge. In this regard, it has been argued that “political activity cannot be defined solely as a free activity, but a free activity because it is political,” and that acts expressing the function of government are “institutionally subtracted from any judicial review. They are subtracted by nature, not because there is Article 31 T.U. on the Council of State.”

Even in the presence of Article 113 of the Italian Constitution (which prescribes the general reviewability of administrative acts), the category of political acts has “survived” the Republican Constitution; hence, the argument that such acts are not justiciable by “nature” is reinforced.

3) Representative powers (and sometimes not only those) are immune from criminal jurisdiction. The first modern European constitution, that is, the French constitution of 1791, already provided for this (Title III, ch. I, art. 3) prescribing that courts could not interfere in the exercise of legislative power or suspend the implementation of laws: similar prescriptions, and those on the immunity of parliamentarians (of heads of state and ministers) from arrests and trials were carried over into practically all subsequent European constitutions, of first liberal and (later) democratic-liberal states; as were the exceptions to ordinary powers and forms in the case of political trials.

The decisive argument for explaining immunities (and exceptions) for certain “supreme” organs of the state is the one expounded, in the wake of a tradition of thought about (or of) the state going back to Bodin and Hobbes, by Vittorio Emanuele Orlando, in a 1933 essay. In fact, he wrote: “That among the organs whereby the State manifests its will and implements it, there is one that towers above all others, superiorem non recognoscens, and that precisely because it cannot admit a superior (for then supreme power would be transported to this other), it must be removed from all jurisdiction and becomes, for that very reason, inviolable and unaccountable, is well known” (italics are ours).

The above brief excursus I hope has served to clarify of what is political and what is legal. The interpenetration of which—in the constituted forms—creates multiple types of interaction and relations, of which positive law is the testimony; and from which the distinctive criteria are recorded.

The fact remains that the law is by nature heteronomous, and form and procedure are essential (and “given” to it; whereas the political is autonomous, is morpho-poietic, and (ultimately) does not need to observe legal procedures or legitimations to impose its will.

When one tries to forget—or belittle—such characters, there are two reasons: either one tries to use the law as a support in a political battle ( as, for example, the Leninist use of legality), cloaking oneself in the “added value” of the law, aimed—as an extra weapon—against the enemy; or one confuses legality and legitimacy, forms and procedures, subordination and coordination, being and ought-to-be, command and obedience, public and private, in a chaos, which the lack of a visible and recognized (“public”) Archimedean point makes enduring (as much as harmful). Which may be the ideological form of a polycratic moderatism, in which the moderation of words covers the particularized ends of an (irresolute and) tendentially anarchic congeries of private powers, though not always in object, mentality and function.


Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.


Featured: Study for Divine Law, by Violet Oakley; painted ca. 1917.


Some Insights from Carl Schmitt for the 21st Century

In order to interpret the present political situation, Carl Schmitt’s thought is still topical; regardless of the many insights that can be drawn from it, at the present time some theses advocated by the Plettenberg thinker in the late 1920s and early 1960s, well before the contemporary “epoch,” following the collapse of communism, the “rise” of globalization (and the death of the jurist), are particularly interesting.

First, it is appropriate to explain the extraordinary increase, a few years after the collapse of communism, of populo-sovereign-identitarian parties, by recalling what he wrote in his speech, “Das Zeitalter der Neutralisierung und Entpolitisierungen” (“The Era of Neutralizations and Depoliticizations“), (of 1929).

Schmitt argues in this text that European spiritual life has developed over the last four centuries (i.e., in modernity) by changing centers of reference (from the theological to the metaphysical, from this to the moral-humanitarian and finally to the economic): “If a domain of thought becomes central, then the problems of other domains are solved in terms of the central domain—they are considered secondary problems, whose solution follows as a matter of course only if the problems of the central domain are solved. In a theological age, everything runs smoothly if theological questions are in order; everything else is “provided” by definition. The same is true of other ages” (86).

This center of reference is decisive and prevalent” “Above all the state also derives its reality and power from the respective central domain, because the decisive disputes of friend-enemy groupings are also determined by it” (87).

He continues: “As long as religious-theological matters were the central focus, the maxim cujus regio ejus religio3 had a political meaning. When religious-theoretical matters ceased to dominate the central domain, this maxim also lost its practical import. In the meantime, however, it moved from the cultural stage of the nation and the principle of nationality (cujus regio ejus natio) to the economic domain, where it came to mean: one and the same state cannot accommodate two contradictory economic systems, i.e., capitalism and communism are mutually exclusive (87-88).

After the collapse of communism, the last exculpatory of the “political” (i.e., that between the bourgeoisie and the proletariat) disappeared. Fukuyama wrote that after the victory of liberal democracies, the end of history had come. This prediction is wrong because it presupposes the exhaustion of all reason for conflict; which is impossible because the element of conflict and struggle (Machiavelli and Duverger among many) is a presupposition of the political that is connatural to it (Freund). To think that man, zoon politikon, can exist without a political dimension presupposes changing his nature, which is what the young Marx thought he could do and has instead turned out to be impossible.

Rather, the bourgeois/proletarian justification has been replaced by a different one. The transition between one friend/foe justification and the next, Schmitt wrote, has a decisive political effect: “The succession of stages—from the theological, over the metaphysical and the moral to the economic—simultaneously signifies a series of progressive neutralizations of domains whose centers have shifted” (89). In this process, “The former central domain became neutralized in that it ceased to be the central domain,” but at the same time and progressively “in the dialectic of such a development one creates a new domain of struggle precisely through the shifting of the central domain. In the new domain, at first considered neutral, the antitheses of men and interests unfold with a new intensity and become increasingly sharper. Europeans always have wandered from a conflictual to a neutral domain, and always the newly won neutral domain has become immediately another arena of struggle, once again necessitating the search for a new neutral domain” (90; italics mine). Which appears to be precisely what has happened in the last 30 years. After a (brief) phase in which “post-communist” globalization was thought of as a stable and “peaceful” era, given the planetary hegemony of the U.S., the first cracks, evenly distributed in two categories, were glimpsed: humanitarian wars and, even more, the emergence of antagonists—enemies—of the globalized order. Both converged in supporting the thesis that history—and conflicts—were far from over. As for the “humanitarian” wars, mostly denominated as such in English and qualified as international police operations, definitions aside, they remained wars nonetheless; nor even very appreciable according to the intentions expressed, since already four centuries ago Francisco Suarez warned against such wars. As regards the enemy of the “new order,” at first Islamic fundamentalism, the whole thing proved that an order, however desirable, cannot disregard the fact that some group of men do not appreciate it, and to such an intense degree that they go so far (always) as to fight it politically, and in extreme cases, with arms.

It was so evident that the “new order” was dialectically generating new hostilities, new enemies and new conflicts.

It remained, and in part remains, unclear on what spiritual center of reference the opposition, internal to the Euro-Atlantic West, between populists and globalists is based. What is clear, however—and can serve to identify the center of reference—is that sovereign-populist-identitarians on the one hand and globalists on the other refer to opposing pairs of values/ideas that we list below (without claiming to be exhaustive), of which the first column refers to sovereign-populism, the second to globalization:

NATION/HUMANITY
EXISTING/NORMATIVE
COMMUNITY/SOCIETY
NATIONAL INTEREST/GLOBAL INTEREST

It is barely worth mentioning a few examples. For existing/normative, I would refer to what I wrote about the Hungarian Constitution. As for the community/society opposition, it is less obvious but begins to emerge from the constitutional declarations of “sovereigntist” countries (see the Polish and Hungarian Constitutions).

That the term a quo and ad quem of these is the nation and not humanity is quite obvious and needs no explanation.

When it comes to the national interest, it is also evident as a government objective, apart from the recent events of Diciotti and Interior Minister Salvini, which have brought it back to the center of the political debate. And it could be referred to as a “re-establishment” because it has always been the compass of the modern state (and ancient political syntheses).

To find a phrase that sums up the position of the sovereigntists in a few words, one can just go back to Sieyès’ statement: “The Nation is all that it can be by the mere fact of existing.” A statement that would surely shock a globalist.

And continuing the abbot’s quotations, among many: “The nations of the earth are to be regarded as individuals devoid of all social ties, that is, as they say, in the state of nature. The exercise of their will is free and independent of all civil forms…However a nation wills, it is sufficient that it wills; all forms are good, and its will is always supreme law…a nation can neither alienate nor interdict to itself the faculty of will; and whatever its will may be, it cannot lose the right to change it should its interest demand it.”

The second conception to be considered in assessing the contemporary political situation is the one that emerges, among Schmitt’s writings, from Land and Sea (Land und Meer). The foundation of this text is that human existence is determined by the space in which it lives, its perception of it and the opportunities space offers. Therefore, this determines or co-determines political, economic and social relations—in particular, law. Maurice Hauriou wrote that the law known, elaborated, and applied by jurists is that of sedentary societies, based on the relationship with the land (and thus, also with territory as an element of the political institution, particularly—but not only—of the modern state). While the French jurist contrasted sedentary societies with nomadic ones and explained much of the institutions of the former with the relationship with the land and with an existence oriented to regular production, Schmitt deepened the diversity between maritime existence and land existence, and in particular that “universal history is a history of the struggle of the power of the sea against the power of the land.”

What was new in modern history, Schmitt argued, was that Britain, in the 16th century, decided on a maritime existence, far more than maritime powers such as Athens or Venice and to some extent, even Carthage had done in other eras. Hence the English commercial (and industrial) expansion. Hegel also emphasizes certain different types of activities, and tying the development of industry and trade to the sea (Elements of the Philosophy of Right, §247).

This fact was considered by Schmitt to be decisive for both international law and the Westphalian European political order. The resulting balance, he derived from that of land and sea (continental powers and maritime power) and between European states. None of which were capable of hegemonizing the others, because they would not have the strength to impose themselves on a coalition of them, somewhat as Machiavelli noted for the Italian states (and the balance among them) of his era. In this sense, the sovereignty of the states, built around the legal equality of the states—disregarding the factual equality, made some sense, precisely because the factual equality among them—or at least among the major ones—was not so far off; and, on the other hand, the disparity could be compensated for by a shrewd policy of alliances (and conversely of neutrality).

This all came into crisis with the 20th century; Schmitt argued that “in international law, generic and universalistic ideas are the typical weapons of interventionism;” and that “A legal conception coordinated with an empire spread over the whole earth (i.e., the British empire) naturally tends toward universalistic arguments.” He continues: “Such a conception does not concern a determined and united space nor its internal order, but in the first instance the security of communications between the scattered portions of the empire” (Völkerrechtliche Formen des modernen Imperialismus).

In the paper, “Great Space against Universalism,” (“Großraum gegen Universalismus“) the Plettenberg jurist reiterated, with reference to the Monroe doctrine, the contradictory nature of the universalist interpretation to the original enunciation of that doctrine. Schmitt writes, “It is essential that the Monroe doctrine remain authentic and not falsified, as long as the idea of a concretely determined great space, in which powers foreign to space cannot meddle, is fixed. The opposite of such a fundamental principle, conceived from concrete space, is a universalistic world principle, embracing the whole earth and humanity. This naturally leads to intrusions of everyone into everything. While the idea of space contains a point of view of delimitation and division and for this reason enunciates an ordering juridical principle, the universalistic claim of world intromission destroys all rational delimitation and distinction” (italics mine).

Schmitt continues: “In effect, the original American Monroe doctrine has nothing to do with the fundamental principles and methods of modern liberal-capitalist imperialism. As a true doctrine of space it stands, on the contrary, in pronounced opposition to a transformation of the earth into an abstract world market of capital without regard to space… That such a falsification of the Monroe doctrine into an imperialistic principle of world trade was possible will remain for all time a striking example of the intoxicating influence of empty buzzwords.” As for the interpretation given it by Woodrow Wilson: “he did not mean roughly a conforming transference of the spatial, non-interventionist thinking contained in the true Monroe doctrine to other spaces, but on the contrary a spatial and unlimited extension of liberal democratic principles to the whole earth and to all mankind. In this way he sought a justification for his unprecedented interference in non-European space” (italics mine).

Scmitt continues that the two Roosevelts and Wilson made “a specifically American spatial thinking a world ideology above states and peoples; they attempted to use the Monroe Doctrine as an instrument of Anglo-Saxon capital’s domination of the world market.”

This has resulted in converting “a spatially conceived principle of non-interference into a general system of delocalized meddling” and thus has become an ideological tool of democracy and “the conceptions associated with it, particularly ‘free’ world trade and ‘free’ world markets, in place of the original and true Monroe principle.” Combining for the purpose status quo and pacta sunt servanda, “that is, a simple contractual positivism,” with the ideological principles of liberal-capitalism.

The overall result is that the Monroe Doctrine, as interpreted in the years between the two world wars, gives the measure “of the contrast between a clear spatial order resting on the fundamental principle of non-intervention by foreign powers in space against a universalist ideology, which turns the whole earth into the battleground of its interventions and stands in the way of any natural growth of living peoples” (italics mine).

The situation today is different: the evolution of the international order with the UN (and the UN Charter), the prohibition of the use of force (see Art. 2, 4 of the UN Charter), the powers of the Security Council, the doctrine of “responsibility to protect,” peacekeeping operations, and especially the “defense of human rights” (and more) have complicated the situation.

What can the lessons of Carl Schmitt and, in particular, the doctrine of “large spaces” be used for?

It seems to be possible to answer that two conceptions (explicit and implicit to the same) and yet intersecting can be usefully applied. The first of which is political realism in relation to the concept of sovereignty. As the German jurist writes, the problem of sovereignty, arguably the main one, is to reconcile the political aspect with the legal aspect. For if the distinctive feature of sovereignty is legal absoluteness (not being conditioned by law but being “above” it), it must be combined with factual limits (with the familiar problematic issue of how much absoluteness applies internally and how much absoluteness can apply externally, i.e., with respect to subjects of international law (states and “order in fieri” distinguished by Bodin early on). As Schmitt writes “In political reality there is no supreme power, that is, greater than all, irresistible and functioning with the security of the law of nature… The reconciliation of supreme power in fact and in law constitutes the basic problem of the concept of sovereignty. Hence all difficulties arise” (italics mine). For another is the sovereignty of the U.S.A. or China, another that of San Marino or Liechtenstein. Transposed to the contemporary situation, this means that while one censures—rightly—violations of “human rights” or genocide (e.g., of the Kurds in Iraq) and goes off to wage a “just war” on the Rwandans or Saddam, one is careful not to wage war on Putin over the Donbass or Crimea, nor on China over Hong-Kong. It should be noted that while Hong-Kong is under Chinese sovereignty—and at least the classical territorial character of this may apply—this is not the case for the aforementioned territories in Eastern Europe, both of which—prior to annexations and occupations—were part of Ukraine; which has thus suffered a violation of (its own) sovereignty—as opposed to China. At this point, given the “double standards, double measures,” one wonders whether the criterion of “big space” does not apply as a concrete criterion of behavior and decision: while Russia was (in fact) granted intervention in a republic formerly part of the USSR, i.e., its own “big space,” the same was not exercised to protect populations, human rights, and in the case of Ukraine, territorial integrity. Hence the realism intrinsic to the Schmittian conception (registers) and rules much more than the idealism of such. (Idealism, which in practice, is often the fusion of interests and patronage).

The second conception that appears to underlie the concept of “great space” is one that links Max Weber’s concept of power (and of authority) and “law” understood here as “order.” Weber writes in defining it, that “power designates any possibility of asserting within a social relation, even in the face of opposition, one’s will.” Shortly thereafter, he writes: “The State should be understood to mean an institutional enterprise of a political character in which, and to the extent that, the administrative apparatus successfully advances a claim to a monopoly of legitimate physical coercion, with a view to the implementation of orders” (Economy and Society).

In current usage, until a few decades ago, states were called powers, at least those capable of exercising command internally and thus protecting their independence, even without (or with minimal) external political hegemony. In factual terms, it is the ability to assert one’s will that determines being a power. Which by applying Spinoza’s formula, tantum juris quantum potentiae, determines the factual limits of powers and thus of the legal capacity to exercise them. As the Dutch philosopher wrote, “If therefore the power by which natural things exist and operate is the same power as God, it is easy to understand what natural law is…. By natural right I therefore mean the same laws or rules of nature, according to which everything happens, that is, the same power of nature; therefore, the natural law of the whole of nature, and consequently of each individual, extends as far as its power” (Theologico-Political Treatise; italics mine). And within the “great space” it is relatively easy for the hegemonic power to exercise it. Likewise, for the most part, it has an interest in doing so because of the connections and relationships that join it to its neighbors or satellites. Respecting them is the condition for a state of peace to be easily achieved. Far more than trying to impose a unity of the world, without that unity being achieved in peace by the only historically possible way: by maintaining the pluriverse, conforming to the arrangement of interests, powers and borders; that is, by limiting and determining it with objective criteria that can be easily perceived and applied. For as Schmitt wrote, the unity of the world is not the unity of the ecumene, but “of the unitary organization of human power, the purpose of which would be to plan, direct and dominate the earth and the whole of humanity. It is the great question whether humanity is already ripe to endure a single center of political power” (Concept of the Political).

That there is a religion, a theology supporting such a hypothetical center, which has the capacity to resist elementary objections and criticism, Schmitt does not believe so. Certainly not the ideology of progress, since technical and moral progress “do not walk together” (neither among the rulers nor the ruled). Nor can rationalism bring us comfort, if only, I would add, because De Maistre’s judgment that man “by the fact of being simultaneously moral and corrupt, just in intelligence and perverse in will, must necessarily be governed” (so that reason is not enough) still applies; moreover, technical progress has the drawback of increasing the power of government. As Goethe wrote, “it is dangerous to man that what makes him more powerful, without making him better.

Nor do we see it today in that (attempt/project) of world unity in which still find ourselves, even though it now seems to be drawing to a close. Behind the unity of a world, dominated by the victorious power in the bourgeois/proletarian opposition, it must be acknowledged that the Plettenberg thinker saw the political future well: a new friend-enemy opposition, a constant land/sea dichotomy, a peace through the balance of (and between) large spaces. That is, everything opposite of what mainstream propaganda spreads.


Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.


Order and Norms in the Concept of the Just War

Introduction

The war in Iraq raised again a number of questions about the legitimacy of the use of force, many of them occasioned by propaganda needs, others by sincere doubts. That conflict essentially fulfilled two of the conditions identified by Late Scholasticism for justum bellum: that it took place between justi hostes, although the participation of the Kurdish peshmerga obscured this requirement; and debitus modus given that the Anglo-Americans sought to spare the civilian population and, in general, human lives, and, perhaps surprisingly (given the motivation for the war), Saddam himself avoided using the “means of mass destruction”—that is, specifically, gas—which he almost certainly had, given that it does not require particularly sophisticated technology to manufacture such means.

Doubts remain, however, about justa causa, while only the future can unravel those about recta intentio. The debate is thus marked by a prevalence of (aprioristic) camp choices, the appeal to idola (fori et theatri)—especially in a Left in search of itself after the collapse of 1989—and by clichés, in addition to the usual forcings and mystifications—distributed between the two camps—of propaganda.

Within this framework of unreasonableness, or false reasonableness (which is prejudice added to hypocrisy), it is useful to revisit the conceptions of Christian thinkers, particularly late Scholasticism and the principles of classical international law that owes so much to their thinking, whose main merit is to have limited and humanized war, as European history of the modern age proves, by combining humanitarian ideals and political realism.

I

War and law are not alternatives—both in the sense that where there is war, there is law, and, in the inverse that in law, both abstractly and concretely understood, there is inherently present the idea (and the real possibility) of war, or at least of conflict. The most varied expressions testify to this relationship: from justum bellum, which combines war with justice, to ne cives ad arma ruant, to vim vi repellere licet, the connection between the two spheres has generated a series of brocards, which constitute the (extreme) synthesis of the reflections of so many thinkers, converging in the view that war is not necessarily unlawful (anti-legal) in its subjects, reasons, purposes, modes and (above all) results, and conversely, that law is not irenic in its assumptions and (above all) consequences, because a legal claim can be polemogenetic.

Indeed, war is usually nomogenetic, perhaps even more so than law is polemogenetic. To St. Augustine we owe the assertion—bordering on the paradoxical—that even a gang of evildoers makes war in order to achieve peace, or rather an order: whereby the end of war is peace (City of God, 19.XII and 19.XIII), a judgment, which is approachable to the (most famous) of Clausewitz’s definitions of war—of being the continuation of politics by other means, in which, by qualifying it as a means, and of politics, he excludes that it can be an end in itself.

St. Thomas and the theologian-jurists (epigones of Aquinas) of Late Scholasticism are credited with distinguishing bellum justum (et injustum)—(The distinction is earlier and goes back (at least) to St. Augustine. See, Roberto De Mattei, Guerra Santa guerra giusta, pp. 15ff. However, the theory and concept are those of St. Thomas and the Thomists who elaborated and characterized it), and with identifying three conditions or requirements (four according to others, including Saint Robert Bellarmine) for it to be so, thereby limiting (the consequential damage) to war, to the later theorists of international law to have continued on that path, never quite abandoned, though modified by many to a greater or lesser extent.

The contrary thesis, that war and law are incompatible and mutually exclusive, appears to be the result at once of confusion and aspiration (and, often, is only an instrumentalization). Thus, the alternative correctly posed by de Maistre between decision and conflict: “ou il n’y a pas sentence, il y a combat” (for war and sovereign decision are alternatives, like civil state and state of nature), has been—erroneously—transposed into that, whereby the real capacity to order society, pertinent to sovereign power, is transferred to law.

The aspiration—traceable to utopian dreams of “exit” from politics—consists in thinking that one has found a peaceful, if not consensual, form of conflict regulation—that there is, but it is the Sovereign (the sentence) and not the law. Instrumentalization, finally, is intrinsic to the consensus aroused in arguing theses pleasing to the audience (with the consideration—in terms of popularity and power—that that entails).

Indeed, it is quite simple to note in this regard that, without an apparatus of coercion and repression, the law remains unenforced, and that, being a practical activity, the real problem lies in enforcing it; that is, in arousing sufficient consent and exercising congruous coercion for it to be respected. An essentially political problem. So much so that certain conceptions, born in the utopia of law, end up, sometimes, in the reality of the Courts (of the winners), as happened often in the last century.

But, in addition to the—innovative—use of Tribunals to try the vanquished, there has also been a correlative “revival” of the just war.

II

The concept of just war, upon its entry into medieval thought, required certain conditions (or requirements). For St. Thomas (Summa Th. II, II, q. 40, art. I.) the authority to conduct it (i.e., being justus hostis), which belongs only to the “superiorem non recognoscens,” the justa causa (i.e., legitimate motive, such as redressing a wrong); righteous intention (to promote good or avoid evil). All assumed that since there was no authority capable of enforcing the right of (and between) the parties, war was a means to that end.

For Francisco Suarez, the answer to the quaestio, “Utrum bellum sit intrinsece malum” is that “bellum simpliciter nec est intrinsece malum, nec christianis prohibitum.” But for “honeste” i.e., legitimate war to be promoted, three conditions must be met, two of which coincide with those of Aquinas, and the third of which is the “debitus modus gerendi bellum” (De charitate, disp. 13, De bello). For Saint Robert Bellarmine (conforming in this to the opinion of other theologians) the conditions become four, since he summarizes the “third” conditions of St. Thomas and Suarez (intentio and modus)—(Suarez, Scritti politici, Bologna, 1950, pp. 259ff).

In Scholastic thought, for a war to be just (or at least lawful) all must be observed. However, as Schmitt notes (The Nomos of the Earth, pp. 170ff), in the subsequent evolution of international law, the justus hostis, that is, the subject to whom the legitimate exercise of the jus belli is recognized, takes precedence over the other conditions, particularly the justa causa.

Thus justum bellum became the conflict between two justi hostes: two (legally) equal sovereign states; justa causa (and intentio) were (entirely or nearly) expunged. The considerations of justice (objective: substantive right or wrong) contained in the concept of justa causa were no longer considered, not least because a state that waged war without justa causa was still justus hostis, and in any case it was only the sovereign state that decided whether or not a justa causa belli recurred.

Such systematics presupposed and had a determined and consistent meaning when applied to a system of international relations, centered on states (and the related concept). Not a generic political unit can be taken as the basis of such an order, but only the State species (thought of and) formed in the 16th and 17th centuries, with the peculiar differences and peculiarities that distinguish it from other types, attributable to the same genus (empires, poleis, tribes and so on). Chief among these are “enclosure,” sovereignty (in the modern meaning) and monopoly of legitimate violence.

As for “enclosure” (of an orderly and impenetrable political space)—made possible both by the new organization into sovereign states and by the spread of firearms—it constitutes a character often overlooked, even though it is of fundamental importance, consisting of the distinction between internal and external and the delimitation between these areas, i.e., the border. Interior and exterior, intra or extra moenia, do not merely constitute a spatial division, nor do they merely determine the scope of exercise of the state’s imperium, but are the distinction between two different “orders,” based on different principles and assumptions. Within, the space of state sovereignty, of imperium based on the principle that “the sovereign in the state has toward his subjects only rights and no (coercive) duties,” the sovereign will is, by definition, irresistible and not able to be conditioned by legal limits and controls. (This is Kant’s definition in Die Metaphysik der Sitten, p. II, sec. I).

A corollary of this unlimitedness is that there is no external or different power that can influence, decisively, within (the borders) of the political unit. While externally, international law is based on a society of like and equal states, constituents of the global order, whereby, conversely, no one can dictate law to the other, but relations among them are, in principle, equal in character.

Sovereignty (understood in the classical sense, which it had from Bodin onward, i.e., of irresistible and unenforceable power) was worth excluding any other power (whether temporal or spiritual) within the political unit. The consequence of this was the indifference of the internal order of the state with respect to the vicissitudes of interstate relations; as well as the non-responsibility of individual officials with respect to foreign states, because the only responsible party was the state (the Sovereign) itself, the only one competent to judge its citizens (and officials).

As for the monopoly of entrenched legitimate violence, one with sovereignty, the exclusive international responsibility of the state, a sovereign entity endowed with that monopoly is solely responsible for what happens in the internal space of the political unit.

III

This coherent whole began to be shaken by the French Revolution, with the La Révellière-Lépeaux decree of the Convention, on the export of revolutionary principles; the “indifference” of wartime affairs to the internal order of the states involved began to be shaken. Likewise, beginning with the anti-revolutionary and anti-Napoleonic uprisings, a new political “type” appeared in modern history—the partisan fighter (and movement). A jurist as sensitive to real data as Santi Romano noted how the legal discipline of relations with the “insurgents” tended to derogate from the rules of domestic law, to take on connotations and institutions of the international one (Corso di diritto internazionaleCourse in International Law, Padua 1933, p. 73. On the other hand, the question had been posed by Vattel: see, E. di Rienzo “Guerra civile e guerra giusta—Civil War and Just War,” in Political Philosophy (3)2002, pp. 380ff), whose reason he indicated “in the impotence of the State in which the insurrection breaks out to dominate with its order the authors of it,” which are also reflected on the (possible) relations between insurgents and third States. The Sicilian jurist, it may be summarized, traced the re-emergence within the political unity of the state of institutes and norms of international law to the insufficient enclosure and the loss of the monopoly of violence, the cause and reason for which was in essence, a defect of “power;” that is, a “factual” circumstance to which legal changes were (had) to be traced.

In essence, next to the state is thus configured another “type” of hostis, which, injustus in principle, in fact tends to become justus, from the moment when, in its favor, norms of international law are taken to apply and domestic law is derogated therefrom, thereby implementing an atypical and “minor” form of “recognition.” The circumstance that this practice originates de facto does not detract from its juridicality, since “factual” situations are the basis of a good part of the institutions of international law (and not only). The justus hostis thus tends to lose the typical and formal (i.e., state) connotations that defined it in the “classical” period; and it is the same Santi Romano who, in describing the characteristics of the revolution (and of the revolutionary movement), emphasizes—conversely—its juridicity, because it still constitutes an order:

“A revolution which is really such, and not a mere disorder, an occasional riot or sedition, is always an organized movement, in a manner and to an extent which naturally vary according to the case. In general, it may be said that it is an organization, which, tending to replace that of the state, consists of authorities, powers, and functions more or less corresponding and analogous to those of the latter: it is a state organization in embryo, which, little by little, if the movement is victorious, develops more and more in that sense. However, it results in a real order, albeit imperfect, fluctuating, provisional;” and he continues: “And it does not matter if this order, by its very nature and insofar as it does not decant later into the new state order that may result from it, has a transitory duration and stability. As long as it lives and operates, it is an order that cannot but be taken as such” (Frammenti di un dizionario giuridico, Milano 1983, p. 224).

Precisely because of its precariousness, however, the revolutionary order does not fully enjoy any of the three (noted) characteristics of the state: not enclosure, not sovereignty, not the monopoly of legitimate violence; in essence, the revolutionary situation is well represented by the expression employed by Trotsky to denote the period between the Russian revolutions of February and October 1917: of the dualism of powers. But where there are two (and conflicting) powers, none of those characteristics can be fully accorded to each of them.

Trotsky held that dualism of powers “is a revolutionary and not a constitutional fact” because “the share of power obtained in such a situation by each of the classes in struggle is determined by the relations of force and the vicissitudes of battle. By its very nature this situation cannot be stable… the fractionation of power is but a herald of civil war… civil war gives dualism of power its most visible expression, that is, a territorial expression,” with the establishment of party strongholds and the rest of the territory disputed. For “as always in a civil war, territorial delimitations are extremely unstable.” This situation of dualism ends with the victory of one of the parties (or with the itio in partes of the territory) since “society needs a concentration of power,” and the decision between bourgeois democracy (and bourgeoisie) and the Soviet system (and proletariat) must be resolved in a military way, with the victory of one of the parties. To propose, as Kautski and Max Adler did, to combine democracy with the Soviet system is tantamount to turning civil war into a component of the constitution. It is not possible,” Trotsky concludes, “to imagine a more curious utopia”—History of the Russian Revolution, pp. 227ff. See also Lenin’s article “The Dualism of Power,” in Pravda, No. 28, April 9(22), 1917).

The state monopoly of the jus belli (and the unique being justus hostis) was thereby eroded from “below” by movements to the “nascent” state; and, likewise, justus hostis tended, to blur, if not lose, those formal connotations that had ensured this “requirement” to be the principal among those of just war—for having lost its formal character, the reason that, according to Schmitt, had made it preferred, is also diminished: to unambiguously and convincingly recognize the “just” war by anchoring it to the statehood of the contending parties. While it is true that it is enormously easier to identify “what” is State than who is right in a dispute, it is also true that if one loosens the “grid” of the form, ultimately the justus hostis becomes not the one who has the characters of statehood, but the one who in fact succeeds in waging war (civil or with another state), regardless of (full) possession of those. And so determining the (justus) hostis becomes as problematic as (or almost as) deciding which side is the justa causa.

It is barely worth noting, in this regard, that the attributes identified by a military theorist like Sun-Tzu for conducting war victoriously are as many negative connotations for the thinking of an order-oriented jurist pour cause, and therefore form. Not having form allows, in war, surprise and greatly reduces vulnerability; but not having it in a context of order is to bring the possibility of peaceful coexistence to its lowest terms. If only because it makes it impossible to identify with whom to negotiate peace.

Sun-Tzu advises: “O divine art of subtlety and secrecy! Through you we learn to be invisible, through you inaudible; and hence we can hold the enemy’s fate in our hands;” and he continues, “We can form a single united body, while the enemy must split up into fractions. Hence there will be a whole pitted against separate parts of a whole, which means that we shall be many to the enemy’s few” (The Art of War, VI.9; 14)

On the other hand, the emergence of a new justus hostis, such as revolutionary movements, indirectly increases the role of justa causa, because all (or most) insurgents appeal to a new order, the realization of which constitutes justa causa belli. After all, one of the earliest documents testifying to this, in contemporary times, is precisely the Declaration of Independence of the United States. (Which from the very first words—”When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them…”—makes it clear that the subsequent invocation of justa causa—the rights of the colonies and the oppression of the motherland—is aimed at legitimizing the nascent revolutionary state as justus hostis). Lacking the characteristics of stability, form and duration of states, and unable to claim “legitimacy” on the basis of those, the only legitimizing condition of the insurgents’ bellum justum was precisely justa causa. From having often been successful, the role of this has gradually grown. Thus a “historical” and traditional legitimacy (such as that of pre-existing states) is contrasted with a new “ideal” and project-oriented (i.e., future-oriented) legitimacy justifying the use of war.

Note that this perspective is (partly) different from how the late scholastics considered seditio legitimate. Suarez, like Mariana, distinguishes between “tyrannus quoad dominium et potestatem” (i.e., the usurper) and that of “solum quoad regimen.” Against the former (lacking “title” to rule) even war of aggression is permissible; against the latter, no, because verus est dominus. And against the same it is therefore necessary to act “tota respublica quia… tota respublica superior est rege” (See, Suarez, op. cit., Sectio VIII. On this point, also see, St. Thomas Aquinas, De regimine principum, lib. I, ch. 6, where Aquinas posits the criterium differentiae in the right of the people to the choice of the king. On the distinction between the two types of tyranny, see Juan de Mariana, De Rege et Regis Institutione, Lib. I, ch. 6). However, when “tota respublica” means the secessionist party alone (territorially—mostly—determined) the revolution already consists in the declaration of separation, and not in the grounds that could legitimize it.

What even more distinguishes such justae causae from what the scholastics intended is that for the former, justa causa was motivated with respect to a concrete order, made up of rights recognized and observed, sometimes ab immemorabile, such as “transitus viarum, commune commercium occupatio res alterius,” and so on (See, Suarez, op. cit., Sectio IV. And de Vitoria argues that war cannot be waged against the Indians because they are not Christians nor because of their, sins, De indis, I, 2, 20-21); whereas for modern justae causae, it is a matter of rights founded not on history and custom, but, for the most part, on “reason” or “principles.” Often legitimate, as are their foundational aspirations, but with the drawback, compared to the former, of being uncertain and less verifiable—and, often, less shared or agreeable.

Likewise, justa causa is not equated with the violation of one (or more) norms, according to a normativistic way of thinking. Instead, it is intrinsic to it to be the condition for reacting to the violation of a concrete order, in order to restore it. Suffice it for this purpose to consider that the violation of a norm (or right) is not in itself sufficient to constitute justa causa belli: “Non quamcumque causam esse sufficientem ad bellum, sed gravem, et damnis belli proportionatam” (Suarez, op. cit., Sectio IV). The concept of gravis iniuria excludes that war can be waged over unissued passports or un-arrested illegal immigrants and so on (also because in such cases it is impossible to distinguish between the offended right and the pretext sought). The concept of intentio, which Bellarmine specifies in the goal of peace and order, similarly excludes that one can promote it for a purpose other than the reparation of a wrong, or the realization of a right, and within the limits in which these are satisfied and realized, and it is not permissible to instrumentalize a wrong suffered in order to achieve different ends. In these conceptions it is very clear how the Scholastics think of the concrete order and not of any normative violation or disapplication. Inherent to their thinking is a distinction similar to Carl Schmitt’s distinction for constitutional law: that between the Constitution (as the concrete order of political unity) and constitutional laws (norms)—(See, Verfassungslehre, § 1, Berlin 1970, p. 4 ff. On the distinction, especially § 2.2 p. 13 ff. The distinction is taken up several times by Schmitt in this work, see e.g. § 3.2). The international order stands to the relevant norms (customary or covenantal) in a similar way to the Constitution with respect to constitutional laws.

Thus, it is clear that the main—and differential—character of the thinking of theologians and jurists, such as Vitoria, Suarez, Bellarmine, Ayala, with respect to contemporary “just war” was to be oriented to (and about) concrete order and existence, and to apply principles (and ways of reasoning) that were essentially juridical.

Thus, justa causa was—and often is—determinable where, in adjudicating it, one has regard to those assumptions. If one state inhibits another from navigation (outside its territorial waters), it commits a tort, as a violation of a traditionally recognized right. Thus, if the State, offended party, makes war on it, this is, according to the thinking of Suarez and St. Thomas, the only system for restoring that right, in the absence of an authority to appeal to. Tout se tient. Linking justa causa and justum bellum with law (“historical” and concrete) avoids—or reduces—the worst and (most) instrumental consequences. Thus, for example, it is considered legitimate to wage war for one’s own rights, not for those of others (See, St. Robert Bellarmine, op. cit., p. 260, Suarez op. cit, Sectio IV: “Unde, quod quidam aiunt, supremos reges habere potestatem ad vindicandas iniurias totius orbis, est omnino falsum, et confundit omnem ordinem, et distinctionem iurisdictionum: talis enim potestas, neque a Deo data est, neque ex ratione colligitur.” On this point, see Baget Bozzo’s dissent in Panorama, 11/4/03, p. 50)—a sovereign has not only the right, but, more, the duty to protect his own and his subjects’ juras, but not the duty to invest himself as champion of every legal claim, even if well-founded, and similarly to that rule of procedural law whereby no one can act in his own name for the rights of others (Art. 81 c.p.c.).

Even in the case of seditio and tyranny, none of those thinkers—to our knowledge—even posed the question of whether it was licit, in general, for a “third” state to wage war against the tyrant, because, to a legal mindset, the answer is obvious and not worth the quaestio. Thus, while it is sometimes lawful for subjects to rebel against (and even kill) the tyrant because he violates their rights, it is not lawful to go around the planet dethroning tyrants (due to violation of rights) of others. Legal wisdom advises against this, by the way, because then the causae belli would multiply exponentially.

But, if in place of thinking geared toward protecting concrete political existences and concrete order, which justa causa presupposes, we turn to abstract declarations of rights, in effect untethered from legal thinking and mentality, the limitations and drawbacks of the doctrine of justa causa are magnified.

This is the case with just war, at least as it may be understood in recent decades. If instead of violations of the rights of the French or Italian state, the casus belli is the “human rights” of Nepalese highlanders or Somali shepherds—who often do not even know what they are, and perhaps do not feel the primary need for them—the justae causae grow in number and vagueness, so that it becomes much more difficult to distinguish between legitimate exercise of right and pretext. And so justa causa is dissolved in a thick fog of claims, offenses and penalties divorced from real needs and subjects of the claims. The justum bellum, thought of as the lawful remedy to repair the disruption of an order, in function of the restoration of the same, thus becomes, conversely, the picklock to unhinge it. For the problem that arises is not that those rights (often) must be guaranteed and respected, but that in order to do so a state (or an international institution) must wage war, and is entitled to do so.

IV

T0here is, moreover, to be recalled, as mentioned above, that in scholastic thought on justum bellum the conditions had to occur all together for it to be such. In the subsequent evolution, for centuries, justus hostis annihilated justa causa. In the phase we are living through, the inflation of justi hostes (on the one hand) and the renewed importance of justa causa (and the expansion of it) is minimizing the space of the classical justus hostis, i.e., the state. Indeed, most conflicts since World War II have not been fought between states, but between states and non-states, or between non-states (tribes, ethnicities, parties, religious groups). (According to Herfried Munkler, “Politica e Guerra,” in Filosofia politica, only 17 percent of wars after 1945 are wars between states in the classical sense). But a Jesuit or a Dominican of the siglo de oro would never have qualified as justum bellum a conflict promoted by a tribe (lacking jus belli), which proceeds to exterminate (or “ethnic cleansing”) the enemy tribe (without therefore modus), in order to appropriate the pastures of that one (without recta intentio), even if for a (perhaps) appreciable motive. Such a multiplication of subjects and grounds for conflict is precisely the opposite of what just war theorists aimed at, with determining their conditions: to limit them both in number and in the damage done.

V

The decadence of the state as justus hostis is accelerated by the phenomenon, widespread in the 20th century, of states and international institutions claiming to have for a just cause the right to intervene (or otherwise meddle) within other states. With this, the three remembered hallmarks (enclosure, sovereignty, and monopoly of violence) are violated either all together or individually.

Needless to say, such a practice does not fit into the patterns of the justum bellum of the Late Scholastics; more than that, it is openly contrary to the system of states and the international order founded on them. For example, the right of intervention, claimed in this case, injures them all: on the contrary, the rule of non-intervention, with its presuppositions, corollaries and multiple specifications (from the “indifference” of the domestic order to international law—and vice versa to the consequences: cuius regio ejus religio, and so on) safeguards them.

To some extent , although on different assumptions and bases, the same aspiration for leagues of states or at any rate international institutions that avert the use of force by replacing it with “legal” (Kantian-inspired), or rather para-judicial, procedures, contributes to blurring the distinction between internal and external, but without much of the benefits envisaged—not least because, on closer inspection, they fail to bring peace except through war, which differs from a “normal” war only because it is (apparently) promoted and conducted by a league of states rather than a single state. The case of Kosovo was the clearest confirmation of this, because the occasion (and motive) for the intervention was not external aggression (as in the war on Iraq over the occupation of Kuwait), but the repression carried out by the Yugoslav state on the ethnic Albanian population residing in its territory. By this it was challenged to exercise the function of “police,” connected with that of identifying the internal enemy (the rebel) and also the criminal. The principle of non-intervention in the internal affairs of the state, which is essential to the distinction between those and external affairs, is thus lost. The consequence of this, however, is not to replace the right to war, but to expropriate the state of the relative right, transferring it to an international institution, which in the case at hand also has the power to exercise “legitimate violence” and guarantee peace, not only between states, but also within states. (Among other things, the intervention of “third” power in a situation of “internal” conflict actually constitutes a legitimization of the revolutionary movement. Kant, in defending the principle of non-intervention, admitted it in this situation: “Here the yielding of assistance to one faction could not be reckoned as interference on the part of a foreign state with the constitution of another, for here anarchy prevails.” To take away the character of state from the one is, however, tantamount to placing it on the same plane as the other. See, Perpetual Peace, Section I.5).

To a similar conception should be traced, mutatis mutandis, other bodies (such as the International Criminal Court under the recent Rome Statute) which, derogating from the rules (admittedly repeatedly violated in the 20th century) of state exclusivity of the exercise of jurisdiction transfer it, in certain cases, to the international institution.

Tribunals—somewhat based on similar conception—constituted to judge vanquished enemies (even if, as in Milosevic’s case, vanquished by international “mandate”) all have the same fundamental limitation: that on the judges’ bench stand the victors, at the defendants’ bar the vanquished. The constancy of such a “trial position” proves how in effect the decision has already taken place, not so much in the sense of certainty of the defendant’s conviction, but in the fact that it is victory or defeat in the war that assigns the place in the trial, and not the judgment; which, moreover, in the face of a warlike resolution of the conflict (the actual decision) is always useless (and sometimes Maramaldesque). If a trial (any) has the—very important—function of preventing ne cives ad arma ruant, to a trial held after the conclusion of the war not even that merit can be ascribed.

On the other hand, as so many times noted, the practice of trying the vanquished has prevailed in the 20th century and is contrary to the jus publicum europaeum, equating the enemy with a criminal (i.e., denying him the quality of justus hostis). It appeared to some that it may (be justified or rather) follow, to some extent, from the Kantian conception of the hostis injustus. (See on the point Carl Schmitt: “In the final analysis, identification of enemy and criminal also must remove the limits Kant places on the just victor, since he does not allow for the disappearance of a state or for the fact that a people might be robbed of their constituent power”—The Nomos of the Earth, p. 171). In some respects, indeed, Kant’s thought is almost prophetic of certain solutions of the last century. When he writes, for example, that against the unjust enemy the victors cannot go “so far as to divide among themselves the territory of that state and make, as it were, a state disappear from the earth, for that would be a real injustice to the people who cannot lose their original right to form a community; instead, a new constitution can be imposed on them, which by its nature represses the tendency toward war”—this is very reminiscent of the Constitution of Japan (a “constitution octroyée,” it is said, by MacArthur) which both in the preamble and in Art. 9 prescribes the renunciation of war. This is not the only “Kantian”-inspired provision of that charter. The Preamble there states the “laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations”).

It must be said, however, that the philosopher of Königsberg appears opposed to bringing the logic inherent in the concept of the unjust enemy to what might be its consequences: neither trials of the vanquished (in §58 of the Methaphisik der Sitten, he writes “it already results from the concept of a peace treaty, that amnesty must be included in it”), nor debellatio with extinction of the vanquished state (see passage quoted above). Practices, however, invalidated in the 20th century (examples of the latter was the partition of Poland or the annexation of the Baltic States in 1939, this one without war).

Moreover, the limitation of the Kantian conception appears to be twofold: on the one hand for the rejection of the state of nature, to be overcome in a new international order: “the state of nature of peoples as of isolated men, is a state from which one must leave in order to enter a legal state” (Methaphisik der Sitten, § 61), which distinguishes him from (virtually all) “natural law” thinkers of the 16th—18th centuries. On the other hand, the normativistic—and abstract—(almost categorical imperative) character of that criterion (and definition) of hostis injustus.

Moreover, defining it as such, by deriving the norm of its acting from the statements of the same, can even legitimize preemptive war to intentions—which, in an image- and media-driven politics, and with several Captains Fracasse (militarily bumbling) governing states on the planet, would run the risk of provoking wars at every turn.

As for the first aspect, the whole thing tends to underestimate the (realistic) employment of means to safeguard peace (possible) in a pluralistic context (the pluriverse of states): alliances, balance of power, military preparedness.

Even if these (traditional) means have the drawback of impermanence, as Kant writes, it is not necessarily the case that they are less effective, because they are less polemical, than the “legal state” (i.e., the union of states), nor especially that the union envisioned does not end up resembling the innkeeper’s sign, recalled by the philosopher, which under the inscription “for perpetual peace” depicted a cemetery. On the other hand, impermanence is inherent in politics, in foreign and international politics no less than in domestic politics—to the point that several jurists (and others) have seen in wars and revolutions the dynamic moment (and element), which tends to bring the legal order back to the actual power relationship (All this would confirm the intuition underlying the innkeeper’s sign: that absolute peace, undisturbed by wars, is only that of death). This is because Kant’s conception starts from moral (and legal) and not political assumptions—and politics has to do with power far more than with morality; with the widespread and deep convictions of men more than with legally enforced norms.

Rather, Kant’s conception of hostis injustus appears acceptable, if (corrected and) related not to (legal or moral) norms but to the concrete order; that is, taking a step “back” to St. Augustine. In fact, if instead of “maxim” one substitutes order and peace, in the sense that the unjust enemy is the one with whom there is no possibility of (concrete) peace, i.e., international order, the thesis has a real and positive value. In fact, it is necessary to take up precisely the thesis of the Bishop of Hippo, who, of course, did not speak of an unjust enemy, but determined very clearly the human aspiration for (and the connotations of) peace: this is, essentially, “the tranquility of order.” And order is “the arrangement of equal and unequal beings that assigns to each the place that suits them,” as, earlier, he states that peace cannot exist without a leader (City of God, 19.XII and 19.XIII).

In St. Augustine, as in the scholastics, thought is oriented (and determined) by the concrete (and real) order rather than by “normativistic” conceptions. From this assumption, it follows that the unjust enemy is one with whom it is not possible to achieve (and coexist in) an order, however “provisional,” i.e., to conclude peace; it is not the violation of the norm that makes the enemy unjust, but the impossibility of peaceful coexistence, and this is determinable only on the basis of the possibility (of duration) of an ordered and peaceful situation. That is to say, the justus hostis is, from an objective standpoint, the political subject whose features of form are such as to be able to guarantee an order, different from that which pre-existed the war, but nevertheless such an order. This brings us back to Santi Romano’s concept of order and the elements of “statehood” that, in the Sicilian jurist’s thought, make even the revolutionary movement “an embryonic state order.” In fact, if the enemy lacks those elements—so that it cannot be considered insertable in a context of international order and security—with it dealing and making peace is not just or unjust—it is simply useless (if not impossible). An international order presupposes and requires ordered subjects in itself. If there is no internal order in the subject-components, there can be no international (overall) order, either.

An enemy that lacks a connection to territory and population, but has only a leader and followers (i.e., an embryo of an organization), as is the case, apparently, with Al Qaeda and other terrorist groups, is “unjust” because it does not appear determinable who it represents and in what bounded or delimited “space,” as opposed to other movements that have largely resorted to partisan warfare and terrorism (from the IRA to the Zionist movement, from the Algerian FLN to the Viet-Cong); but nevertheless constituted states embedded in the international order and preserved peace within the realm of the possible. This situation can be likened to that of so-called “failed states,” in which “statehood” is only a simulacrum masking a state of endemic civil war between groups (ethnically, religiously or economically based), whereby a legal state form is not matched by effective enclosure, secure sovereignty, or even a monopoly on legitimate violence. Which, however, requires justa causa, as appeared to be the case for Afghanistan (while still obscure for Iraq), given the Taliban’s hosting of al-Qaeda.

VI

This brings us back to the problem of the state. If it is true that the epoch of states, as it seems, is probably in its twilight, we are witnessing the twilight of a historical period that gave long cycles of (possible) peace, having succeeded, to a large extent, in the attempt to put in “form” not only political unity (all of which, however, have a form, even if not as carefully fashioned as that of the state) but even war. War in “form,” the justum bellum of the nascent era of states (and before that, sketched out in the earlier era, with its limitations on feudal and inter-Christian wars), with its justi hostes, justae causae, intentiones and modi gerendi was the most articulate and elaborate system of limiting and humanizing conflicts and building, even for that, states of peace possible. But such an outcome was achieved because war in “form” was the “duel on a large scale” between subjects equally in “form.” If the elements that constitute and characterize them are subtracted from these, it does not appear possible for war, or even peace, to be “shaped.”

A political subject without territory, even in the Trotskyist image of strongholds, without ties to the population and with a “mobile” (and labile) command structure is, to follow Sun Tzu, the ideal combatant, but the worst contractor of peace. In a system of international law that would be better called interstate, since it presupposes states as subjects of the political order of sedentary communities (Hauriou), the “formless” enemy with whom peace cannot be negotiated and preserved is the only possible “unjust” enemy.

It will be said that, on the basis of St. Augustine’s thought, such an enemy is not easy to find (so much so that the saint resorts to the example of Cacus, taken from mythology); but if one relates the concept of an unjust enemy to what is—concretely—a given international order (or rather its fundamental outlines), the incompatibility with this is not merely hypothetical or unreal. It should be noted that St. Augustine makes Cacus’ “wickedness” descend from his total asociality: “So that, had he been willing to make with other men the same peace which he made with himself in his own cave, he would neither have been called bad, nor a monster.” But a completely unsocial man has never been seen, so the saint continues: “It is better, then, to believe that such a man or semi-man never existed, and that this, in common with many other fancies of the poets” (City of God, 19. XII).

On the other hand, Clausewitz in distinguishing between “absolute” war (i.e., the ideal-type of war), with its logic of “ascent to the extreme” (On War, Chpt. I. 5ff) and real war (i.e., concrete, and oriented by political purpose) and the relative “moderation” of the latter with respect to the former, describes, in essence, real war as conducted(and relativized) in the 17th—19th centuries by European states: if instead of those the protagonists are others it becomes likely-as it was, for example, on 9/11-that the act of war is much closer to the ideal type of “absolute war,” without boundaries or rules. That is, without any legal limitations.

Which brings us back to the initial assertion that in war—particularly in those that are real, i.e., actually fought—law is present, both as a rule of conduct (international law of war) and (and most importantly) as an aspiration for an order, for the resolution of conflicting interests that does not destroy the overall “picture” of several coexisting peoples, and, often, linked by a common civilization.

The bellum justum of the scholastics moved precisely from this conception (and aspiration), realistic in its assumptions as ideal in its intentions—to make war limited in its modes, subjects and purposes the—exceptional—means for the implementation of law and the preservation of order in a system of superiorem non recognoscentes states. The objective difficulty of determining right or wrong does not tarnish its achievements, nor especially the assumptions and validity of those realistically oriented conceptions of concrete order, about which there is still reflection and learning to be done, in the context of a political situation so changed since the period in which it was formulated.


Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.


Featured: Turbes (Tubae) silent et gladii recunduntur in vaginis (“The crowds/trumpts are silent and swords put back in the sheaths”), folio 31 verso, from Prudentius’ Psychomachia, Corpus Christi College, Ms. 23, ca. 1000 AD.


Feelings, Zentralgebiet, and the Criterion of the Political

Clausewitz writes, in the first pages of Vom Kriege (On War), that war, under the aspect of its main tendencies, presents itself as a compound trinity:

War is more than a true chameleon that slightly adapts its characteristics to the given case. As a total phenomenon its dominant tendencies always make war a paradoxical trinity–composed of primordial violence, hatred, and enmity, which are to be regarded as a blind natural force; of the play of chance and probability within which the creative spirit is free to roam; and of its element of subordination, as an instrument of policy, which makes it subject to reason alone.

The first of these three aspects mainly concerns the people; the second the commander and his army; the third the government. The passions that are to be kindled in war must already be inherent in the people; the scope which the play of courage and talent will enjoy in the realm of probability and chance depends on the particular character of the commander and the army; but the political aims are the business of government alone (p. 89).

And just before he argues that ” The more powerful and inspiring the motives for war, the more they affect the belligerent nations and the fiercer the tensions that precede the outbreak, the closer will war approach its abstract concept, the more important will be the destruction of the enemy, the more closely will the military aims and the political objects of war coincide, and the more military and less political will war appear to be” (pp. 87-88).

It emerges from these and other passages in Vom Kriege that the “fierce tentions” and the original violence of hatred and enmity is the element of the “trinity” that contributes most to the intensity and determination of the war effort.

According to Carl Schmitt, “The concepts of friend and foe must be taken in their concrete, existential meaning, not as metaphors or symbols; they should not be mixed and weakened by economic, moral and other conceptions, and even less should they be understood in an individualistic-private sense,” because “An enemy exists only when, at least potentially, one fighting collectivity of people confronts a similar collectivity” (Concept of the Political, p. 28).

The enemy is only public as was already written in the Digest. Political opposition is the most intense and extreme; it is not limited on the outside of political unity, although on the inside it is relativized, i.e., it is struggle and not war; if it becomes this, it puts political unity in doubt. War is in itself a political means and can only be such “it would be senseless to wage war for purely religious, purely moral, purely juristic, or purely economic motives” (Concept, p. 36).

However, ” religious, moral, and other antitheses can intensify to political ones and can bring about the decisive friend-or-enemy constellation. If, in fact, this occurs, then the relevant antithesis is no longer purely religious, moral, or economic, but political” (Concept, 36); and he continues: ” Every religious, moral, economic, ethical, or other antithesis transforms into a political one if it is sufficiently strong to group human beings effectively according to friend and enemy” (Concept, p. 37).

In his essay, “The Age of Neutralizations and Depoliticizations” (1929), Schmitt argues (and this also presents interest for the “content” of the political) that Europe has changed its center of reference several times since the 16th century, which has shifted from the theological to the metaphysical, then from this to the moral-humanitarian and then to the economic.

The center of reference determines the meaning of specific concepts from time to time. What is most relevant, “If a domain of thought becomes central, then the problems of other domains are solved in terms of the central domains—they are considered secondary problems, whose solution follows as a matter of course only if the problems of the central domain are solved” (“Neutralizations,” p. 86). This is also the case with the state and the friend-enemy groupings: “Above all the state also derives its reality and power from the respective central domain, because the decisive disputes of friend-enemy groupings are also determined by it. As long as religious-theological matters were the central focus, the maxim cujus regio ejus religio had a political meaning” (“Neutralizations,” p. 87).

Having changed the center of reference, the conception of the state and the content or discriminant of the political changes, which takes on another meaning and criterion and may result in a different friend-foe grouping and thus, “The former central domain became neutralized in that it ceased to be the central domain. On the basis of the new central domain, one hoped to find minimum agreement and common premises allowing for the possibility of security, clarity, prudence, and peace. Europeans thus moved in the direction of neutralization and minimalization” (“Neutralizations,” pp. 89-90).

However, not even the “neutral” landing place that Europeans arrived at in the 20th century, namely, technics, can realize the aspiration for the elimination of conflict; both because “Technology is always only an instrument and weapon; precisely because it serves all, it is not neutral. No single decision can be derived from the immanence of technology, least of all for neutrality” (“Neutralizations,” p. 91), and also because “So far the hope that a politically dominant elite would develop out of the community of technical inventors has not been fulfilled” (“Neutralizations,” p. 92). Schmitt continues: “The constructions of Saint-Simon and other sociologists who anticipated an “industrial” society are either not purely technical (but rather mixed with humanitarian-moral and economic elements) or simply fantastic. Not even the economic direction of the contemporary economy is in the hands of technicians, and until now nobody has been able to construe a social order led by technicians other than as one lacking any leadership or direction” (“Neutralizations,” p. 92).

The correlation, although not always necessary and inescapable, between center of reference and friend-enemy exculpatory persuades only in part.

This is primarily because it must be coordinated with what Schmitt so often repeated, namely, that it is the concrete situation that determines the enemy. For which there is not only the pair of opposites referring to the center of reference, but there are other oppositions, sometimes more important and so decisive (or at least perceived as such) that determine situations of struggle and hostility.

For example, in the short century and particularly after the conclusion of World War II, the opposition between liberal democracies (with annexes) and communist nations repartitioned almost the entire developed world into two camps one against the other, armed, organized in alliance systems (and related organizations), opposed and ready for mutual destruction. Despite this, it did not prevent these nations states of intense hostility, up to war, within both the “two” camps and between “clients” of them, mostly not induced by the main friend-enemy discriminant.

In fact, there have been wars in the same “camp”: China-Vietnam; Vietnam-Cambodia; China-Russia; (the Ussuri “incidents”) for the communist one; Britain-Argentina (for the Falklands-Malvinas) as well as the Turkish occupation of part of Cyprus with the high tensions between Greece and Turkey.

Moreover, the Arab-Israeli wars did not have at all the content and ideological exculpation of the camps that, to a greater or lesser extent, helped one or the other of the contenders, but the “traditional” character of disputes for the possession of land between different peoples.

Even civil wars are not (always) ideological wars (although this has often been the case in the last two centuries). As Henry de Montherlant wrote in the prologue of his drama, La guerra civile (Civil War), acknowledging this: “I am the civil war… I am not the war of the trenches and battlefields. I am the war of the angry square, the war of prisons and streets, of neighbor against neighbor, of rival against rival, of friend against friend.” That “friend against friend” shows how the playwright saw the dissolution of the friendship relationship as the cause of civil war. Against this, the aggregation resulting from the commonality of laws, traditions, history and language, which in any case produces cohesion, does not (always) count; to this must be added the will to exist together and a common future. The failure of which induces the end of political synthesis, which, as Renan wrote, is an “everyday plebiscite.”

In political reality the constant of domination and its determinants, particularly geo-political, so well enunciated by Thucydides in the famous dialogue between the Melians and the Athenian ambassadors (And it is not as if we were the first to make this law, or to act upon it when made: we found it existing before us, and shall leave it to exist for ever after us; all we do is to make use of it, knowing that you and everybody else, having the same power as we have, would do the same as we do, History of the Peloponnesian War, Book 5.17)—oppositions between peoples accustomed to fighting and asserting their identity over their neighbors (as, often, in the Balkans—and not only); the interests of states, such as De Gaulle’s policy towards the communist world—make the main (and epochal) opposition non-decisive. (As for de Gaulle, Europe, from the Atlantic to the Urals, clearly revealed the aspiration to relativize the hostility between NATO and the Warsaw Pact and thus the exculpation).

The decisiveness of the opposition should be traced to its influence on the existence of the political community, both in an absolute sense (the destruction of the community or the institution that shapes it) and in a relative sense (the radical modification of its mode of existence).

Political conflict is thus determined primarily by the community’s need for existence: if another human group is perceived as an enemy-in the sense of being a (concrete) danger to the existence of the threatened community—the same religious, ideological, economic “differences” take a back seat. “Values” and the correlative “canon,” mostly stated, in modern states, in the Constitutions, take a back seat at the moment when the existence of the community is at stake. This is done on both the internal side (the decision on the state of exception) and the external side (the decision on the enemy), in homage to the maxim, salus rei publicae suprema lex. The enemy is the one who is such for the salus of the state institution (and the community). It is the concrete situation and the danger to the collective existence, and the hostile feeling that follows from it, more than the contrast on the mode of existence of a people that designates the enemy. Thus, it belongs to each community to decide who is such, and whether the epochal opposition is more or less important than the other oppositions, which have the character not only of concreteness but also of particularity. As Freund wrote, “To fall into error about the enemy out of ideological stupor… is to expose oneself to putting, sooner or later, one’s existence in danger” (Essence du Politique, p. 496).

Gentile wrote that “The political sense is the soil (humus) in which the tree of the State sends down its roots” (Genesis and Structure of Society, p. 182). This statement is complementary to Clausewitz’s statement about the tendency/component/constant of war constituted by the blind instinct—and with that, the political feeling —that “corresponds” to the people. Gentile writes that the living (i.e., vital) state needs political feeling: “This structure must have life, such as it can have only if it is a feeling, a political sense, the secret source of every passion that the political activity of the individual brings to light. When this fountain dries up, political action loses all sincerity and warmth; it is emptied of all constructive energy and decays into a mere game for dilettanti” (Genesis, p. 183), and he continues: “The more vigorous this political sense is, the more powerful and effective political action becomes” (Genesis, p. 183).

Without political feeling there is neither war nor viable state—that one thus has the possibility of being waged and, in the case, won; in this it is resolved in the relativization of oppositions and conflicts, particularly that between rulers and ruled in the consent of the latter to the former, in an idem sentire de republica. This appears to be the meaning given to consent by Gentile: “This consent may be spontaneous or it may be procured by coercion. The moral ideal of the State, within which the government exercises its authority, requires that spontaneity be increased to a maximum and coercion reduced to a minimum; but it is impossible that either element should ever stand alone, unaccompanied by its opposite. The nations swing restlessly between the two poles of a minimum of coercion with a maximum of spontaneity, and a maximum of coercion with a minimum of spontaneity: between democracy and absolutism, for it is very hard to attain that mutual—tempering of the opposed principles which is their dialectical synthesis… For neither of the two terms can stand alone; and the necessity of their synthesis is a consequence of the essentially dialectical character of the spiritual act” (Genesis, pp. 123-124; 125).

The problem of the legitimacy of consent and integration, which contemporary jurists often resolve in legality, without considering that this is based on the conviction of the legitimacy of those who exercise power, and not vice versa; so that, wrote Gentile, there is no police that can provide for it, if the social order is not shared: “Peace takes definite and determinate form as the system of social order, the maintenance of which is the primary task of every State; and no one can pretend that the police force is all that is required to meet this essential and fundamental need. The police may be helpful in preserving peace, but only if order reigns in men’s hearts by virtue of the political sense in which the State is rooted and from which alone it gets its vital sap. Police work is a medicine; and just as no medicine can keep alive an organism threatened by an inner failure of vitality, so no police force can restore the health of a State when the vis medicatrix naturae has run out” (Genesis, p. 182).

A phenomenological analysis of the friend-foe relationship must start from the factual observation that conflict is in itself irrepressible both within and outside the political synthesis. A society, so harmonious as to know no internal conflict is the result of utopianism; that is, of that variant of utopian thought aimed at imagining impossible fantasies because they are opposed to the factual datum.

What, on the other hand, is part of historical experience (and is constant) is that political syntheses exist as such as long as they succeed in relativizing internal conflicts, recomposing and deciding them; conflicts relativized by consent to a higher authority, recognized (by the governed) to make the (unappealable) decisions for the order it ensures. Where this does not happen, the result is that those conflicts move from relative to absolute, in which at stake is the existence and, gradually, the form of government, the regime of political synthesis and no longer internal disagreements. It follows that out of all the innumerable conflicts that may exist within the political synthesis, depowering one, certainly present, is a necessary presupposition of the amicable relationship: that between rulers and ruled. For it enables the recomposition of all others.

Authority, order and rules have as their fundamental requirement to settle and decide conflicts, and thus the struggle that inevitably ensues, limiting and degrading it to agonal competition.

Even more, the relativization of internal disagreements is based on the pacifying role of the third party, internal to the political synthesis, that is, in principle, the sovereign power. In principle because the activity of the third party (including internal) may not be carried out by an organ of the state and, the political result (the settlement of the disagreement), nevertheless achieved. But the role of the “third party” may not be limited to internal conflicts and, especially its action, be aimed at stirring up dissension, not recomposing it.

It has often been thought, in the post-atomic era and following the debellatio of Germany and Japan (the case of Italy is different), that the end of war is identified with the military occupation of a country, previously destroyed by the victor, and thus placed in the material impossibility of defending itself; the terrible effects of a nuclear war in the collective imagination have done the rest.

In reality, a war ends when one side no longer has the will to fight. War is a clash of wills, as Clausewitz and Gentile, among others, wrote. It therefore presupposes that both contenders have the will to make it and continue it—if one of them surrenders, the war ceases.

Rightly de Maistre noted that a battle lost is one that we imagine we have lost. Indeed, De Maistre writes that “it is imagination that loses battles,” but, to some extent, this is also true of the wars (St. Petersburg Dialogues, p. 222). In this regard, this conclusion was drawn by Gustave Le Bon who argued that often “The rout is obviously only the result of a purely psycholoiric impression, and by no means an inescapable necessity.” (La Psychologie politique, p. 96).

Absolute war stands to real war as the (perpetual? universal?) peace of debellatio stands to a treaty (or even “dictate”) of real peace. It is essential to bend the enemy’s will to fight and thus the feeling of (communal belonging and) hostility. To this end, all means are good: both the prospect of superior punishment and harm and the opposite of benefits, advantages or clemency. The armistice with which the First World War ended (militarily), with Germany still master of much of Central and Eastern Europe, is one such case.

Economic pressures (the effects of the blockade), the armistice of Austria-Hungary, and the strategic prospects of this, and increased U.S. intervention contributed to depowering the will to fight.

But even in the 20th century, in the age of technical and total warfare, often determined and motivated partisan armies endured and won under conditions of (abysmal) material inferiority, at the cost of vastly greater casualties than hyper-technological enemies. The material imbalance was offset by the intensity of hostile feeling and so of morale. Enemies could not bear the (far inferior) sacrifices, so they preferred to conclude peace or otherwise give up the war. Hostile feeling is, for the weaker, the factor that can enable them to wage and win war, even though it is marked by a very considerable material asymmetry. (This was the conclusion of many liberation wars: from the Vietnamese to the Algerian to the Soviet-Afghan—and many others).

It is precisely asymmetrical warfare in its various forms that has connoted contemporary conflicts since the collapse of communism and the consequent breakup of the bipolar condominium that had characterized the second half of the 20th century.

Similarly, hostility between human groups, which shares the chameleon-like nature of its most intense product, war (characterized by the use of violence), takes intermediate forms (mostly mystified or entirely concealed). Influenced by derivations (in Pareto’s sense) of pacifism; these consist in denying armed interventions the character of war, in the name of irenic intentions and especially because they are undertaken in order to maintain peace. (Often such externalized intentions match the actual purpose, but, at least as often, they do not).

But the panoply of hostility is not limited to wars in disguise.

Other forms of it are those actions tending to the same purpose as war—to bend the will of the adversary—by non-military means (economic blockade, cyber-attacks, financial raids, all the way to peaceful invasions); that is, conducted by subjects not having the status of legitimate belligerents (justi hostes), a means well known even to centuries past. The common connotation of all these types of hostile acts is that, having the same purpose as “classical” war, they lack one (or more) of the requirements identified by Christian theology for there to be a just war (justum bellum): here the recta intentio is missing, there the auctoritas, elsewhere a justa causa belli. Hence (perhaps) they cannot be considered wars in the proper sense; but they almost always cannot be traced back to the concept of just war elaborated by theologians.

It is precisely in such wars not wars that the need to annihilate the enemy’s will to resist (and to fight) assumes perhaps greater prominence than in classical wars; for the adversary knows full well, as de Gaulle wrote, that strength resides in the order of it and that breaking this destroys that.

In the “atypical” forms of warfare that connote the 21st century, this is possible in various ways, and the means must be congruent with the objectives. The loss of the enemy’s political cohesion, however, appears to be decisive. The degrees of action may be different: they range, in escalation, from the replacement of the hostile government, to the abolition of the political regime, to the destruction of the political synthesis targeted by the hostile intervention.

As examples in modern history, one may recall, for the first type, the fall of governments (and then regimes) of real socialism in Eastern Europe; although, in this case, the intervention of the antagonist (the U.S. and NATO) was unimportant and entirely indirect. In fact, the endogenous cause, that is, the unpopularity of the regimes that made the amicable relationship between rulers and ruled problematic, was totally (or almost totally) decisive. However, this confirms that the amicable relationship is decisive; without this, in the long run, any political regime collapses, even without the intervention of other political actors. Another case, of the same type, although achieved in part by military means, is the Cyprus crisis in 1974 and the fall of the Joannides government. Of the second, the end of the regime was the tsarist collapse and the seizure of power by the Bolsheviks. Of the third, the end of Czechoslovakia in 1939 with the absorption into the Reich of Bohemia and Moravia and the birth of the Slovak republic of Mgr. Jozef Tiso. In all these (and other) cases, military means were not used at all; or, if used at all, were not decisive. What was decisive was the attenuation or disappearance of the friendly relationship and hostile feeling.

A common notion is that the means used and the purpose make it closer to revolution than to war: even if the end is not always revolutionary it consists of the subversion and overthrow of the hostile order (and so at least the government). Since contemporary hostile interventions have—like so many wars on the other hand—limited goals, the replacement of the government is often sufficient to achieve them.

Despite the non-use of military means, this makes it far more damaging to the principles of international law than a justum bellum: stirring up subversion (up to revolution) in other states has, in the view of many, constituted an international tort, often vituperated and equally practiced.

Political thought has wondered for millennia about who the enemy is, and the answers to the question have been the most varied and not even mutually exclusive. It has been held that there were enemies by nature (see, Alberico Gentili, Il diritto di Guerra, p. 78), and in Cromwell’s speech quoted by Carl Schmitt (Concept, pp. 67-68): “Why, truly, your great Enemy is the Spaniard. He is a natural enemy. He is naturally so; he is naturally so throughout, by reason of that enmity that is in him against whatsoever is of God. ‘Whatsoever is of God’ which is in you, or which may be in you.” Then he repeats: “The Spaniard is your enemy,” his “enmity is put into him by God.” He is “the natural enemy, the providential enemy,” and he who considers him to be an “accidental enemy” is “not well acquainted with Scripture and the things of God,” who says: “‘I will put enmity between your seed and her seed'” (Gen. III:I5).”); or more often by divergence of interests, or even by customs (Alberico Gentili argues that “If there really were causes dependent on nature, the resulting war would surely be just. But causes of this kind do not exist Men are not enemies among themselves by nature; it is activities and customs which, according to their compatibility or incompatibility, induce them to concord or discord” (Il diritto, p. 80); by religion, the source of so many contrasts. (On the basis of two well-known Digest fragments, the one who is not sovereign (and for non-public causes) is normally ruled out (Dig. L.16.118 and Dig. XXXXVII.15.24). Even more so about who is the right enemy.

As argued by Schmitt (and others), the 20th century saw the recognition of the status of just enemy, even to political subjects other than states (particularly revolutionary movements); thus, a legitimization of just wars, predominantly on the basis of the criterion of justa causa belli.

On the phenomenological level, the whole led not to the reduction but to the increase in the role of hostile feeling: in particular, war activity carried out by relatively (little) institutionalized (on this point, see “Revolution,” in Frammenti di un dizionario giuridico, p. 224), non-state organizations led to an increase in the active role of the population in war, according to Mao Zedong’s conception, and thus in political feeling.

Weak institutionalization has similarly made the role of “technical” and specialized personnel less relevant. The command—and cadres—of partisan movements are only occasionally (and rarely) military technicians and bureaucrats; for the most part they either do not possess war experience or have little. Even at the dawn of the modern partisan, we find Cardinal Ruffo, who was not a military man but a religious and civil administrator. On the other hand, he knew very well how to arouse and make use of the hostile anti-Jacobin feeling of the southern populations. So did most of his followers; something repeated in all (or almost all) modern revolutionary movements. Fra Diavolo the partisan leader was a saddler and then enlisted (some time) in the regular Bourbon army; Empecinado the farmer.

And, in this respect, it is necessary to return to Schmitt’s conception, mentioned earlier, of the role of technics and technocracy, relative to political feeling, whether it be aversion to the enemy or cohesion with the friend.

Technics itself is a tool and a means, not an end.

Rather, the shift from the conception of technics (of the first half of the last century) that Schmitt writes about as “faith in an activist metaphysics, faith in man’s boundless power and dominion over nature, and thus also over human physis, faith in the limitless ‘overcoming of natural obstacles,’ in the infinite possibilities of change and refinement of man’s natural existence in this world,” so that he cannot declare it “simply a soulless, spiritless, mechanistic dead thing,” reinforced the null (or scant) suitability to arouse “political feeling.”

If technics at the time was conceived in a Promethean dimension (and function), it is now perceived as the satisfaction of (mostly private) needs of a society of pantomime consumers, who in any case have abdicated any sense of collective existence, other than that of producing and consuming. Which dovetails very well with Tocqueville’s prophecy of mild despotism (Democracy in America, Vol.2, Book IV, Chapter VI. It may also be recalled, as a supplement to Tocqueville’s judgment what Schmitt writes: “Great masses of industrialized peoples today still cling to a torpid religion of technicity because they, like all masses, seek radical results and believe subconsciously that the absolute depoliticization sought after four centuries can be found here and that universal peace begins here. Yet technology can do nothing more than intensify peace or war; it is equally available to both. In this respect, nothing changes by speaking in the name of and employing the magic formula of peace. Today we see through the fog of names and words with which the psycho-technical machinery of mass suggestion works”—”Neutralizations,” p. 95); while according to the Plettenberg jurist, ” All new and great impulses, every revolution and reformation, every new elite originates from asceticism and voluntary or involuntary poverty (poverty meaning above all the renunciation of the security of the status quo)—(“Neutralizations,” p. 94).

Nonetheless given that any choice, as is also the choice to make use of technology (or technologies), can provoke a friend-foe opposition it is the case to see if this (and/or those) can also constitute an aggregating/ discriminating foundation.

First, it must be remembered that the rejection of certain technical (solutions) is, more often than not, only a reflection of a choice of values; in the contemporary world this is evident for (new) technologies traceable to bioethical orientations (Although today, as in past centuries for the most part, such contrasts have not resulted in conflicts between political symbioses, the contrast in internal political struggle even if minor can always be traced back to the friend-enemy pair). The dependence of these on those makes them irrelevant or, at best, secondary.

Second, the total (or nearly total) rejection of technics, as the resultant/component of another science and civilization, has been repeated over and over again throughout history.

In particular, Toynbee considers it one of the types of behavior held by human communities not part of Western civilization (of Christianity) in the face of its planetary expansion. Regarding rejection (as opposed to assimilation/acceptance) he considered “champions” (among other rejectors) Japan before the Meiji Revolution and Abyssinia; of acceptance (modernization) he considered the most typical historical figures Peter the Great, Mehmet Ali and the Japanese statesmen of the Meiji era (Mankind and Mother Earth, p. vii): “Eminent examples of Westernizing statesmen in the first century after the beginning of the Industrial Revolution in Britain are Ranjit Singh (ruled 1 799-1839) the founder of the Sikh successor-state, in the Punjab, of the Abdali Afghan Empire; Muhammad Ali, the Ottoman Padishah’s viceroy in Egypt from 1805 to 1848; the Ottoman Padishah Mahmud II (ruled 1808-39); King Mongkut of Thailand (ruled 1851-68); and the band of Japanese statesmen that, in the Emperor’s name, liquidated the Tokugawa regime and took the government of Japan into its own hands in 1868. These Westernizing statesmen have had a greater effect on the history of the Oikoumene than any of their Western contemporaries. They have kept the West’s dominance within limits, and they have done this by propagating, in non-Western countries, the modern West’s way of life” (Mankind and Mother Earth, p. 567). And for rejections: “In 1632 the Abyssinians (present-day Ethiopians) expelled the Portuguese and also Jesuits of all European nationalities, and insulated themselves from the rest of the Oikoumene, without any foreign help. Almost simultaneously the Japanese did the same. Hideyoshi had ordered the expulsion of Christian missionaries as early as 1587. An edict banning the practice of Christianity in Japan…” (Mankind and Mother Earth, p. 532).

But the rejection of technics and technology was the consequence/ result of the rejection of Western civilization as a whole, in its values as well as in social organization (including law), as well as technology, and thus, in part, coincides with the first type of choice.

Even if an opposition to technics is theoretically conceivable, it does not appear in practice, as a real determinant of conflict, nor can it constitute, except in an ancillary role (although sometimes the ancillary function plays a minor, still relevant, role), a decisive and legitimizing factor of power. Every conflictual and nonconflictual situation of enmity or friendship; dissent or consensus of values or interests is left to the human will, while the choice of technics (and the validity of it) is not preference of will, but of appropriateness and expediency.

The contemporary situation, following the collapse of communism (and the institutions-alliances that determined its field) has brought to an end the bourgeois-proletariat opposition that connoted (at least) the “short century.” The recent electoral assertions of movements and candidates that cannot be traced back to the old Zentralgebiet, in Europe first and foremost, and, as appears from Trump’s election, in the U.S. as well, bring out a new friend-foe opposition, ideologically less defined but, at least potentially, virulent. It seems clear that this opposition, as I happened to write recently, is that between nation (national identity) and globalization (see, Nazione e globalizzazione in Nova Historica, 15/56, 2016, pp. 39ff); (or “direct” internationalism). Compared with the old Zentralgebiet, especially the one generating the bourgeoisie-proletariat opposition, it has in common the character of being divisive internally no less than externally—it generates populist parties that oppose the domestic and international elites, represented by the old decaying parties, whose survival strategy is often consistent with the emergence of the new opposition (which makes the old one secondary and unimportant): they tend toward entrenchment, to bloc together (the old right and the old left), to prevent the new amicus-hostis “couple” from seizing power.

Although, it is often the case to speak of parallel divergences rather than entrenchment. But parallel divergences are one of the sources of alliances between different parties on so much (or everything) but united by the enemy.


Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.


Featured: The Battle of Gorossló (Allegory of the Turkish War), by Hans von Aachen; painted ca. 1603-1604.


Wars More Democratic than Just

It is common nowadays to believe that just war is that waged to export the “values” (and institutions) of liberal democracy, among which is placed (and stands out) the ideology of human rights. Alongside this is the thesis—often connected—that to prevent “unjust wars” and punish their perpetrators requires international tribunals. Thus reversing, or rather applying in the wrong context, De Maistre’s judgment that “where there is no judgment, there is confrontation.”

We say the context is wrong because De Maistre’s judgment is the synthesis of a discourse on sovereignty, the example of which is precisely the Tribunal: “In the Tribunals one sees the absolute necessity of sovereignty; because man must be governed just as he must be judged, and for the same reason; that is, because where there is no judgment there is confrontation” (Du Pape, II, 1, trad. it. di A. Pasquali, Milano 1995, p. 155). But, in De Maistre, the whole presupposes sovereignty and state, and a Tribunal—the office of the latter.

Instead, in postmodern thought, the (international) court is the alternative/substitute of the state. That is, it is the opposite of Hegel’s judgment that “there is no Praetor among States” (Grundlinien der philosophie des rechts, § 313). Here, conversely, it is assumed that there can be, and is able to uphold (i.e., enforce) its judgments, as, within the state, police and other state departments and offices do, availing themselves of the (state) monopoly of the legitimate use of force. However, that the problem is actually this, and not that of jus dicere, is forgotten, and so are the various historical experiences that prove it.

But is this kind of warfare really just? And does it conform to real criteria of justice? A historical examination can contribute to the answer.

At the dawn of the jus publicum europaeum, Christian theology, which outlined its principles, identified the requirements of just war in the (legitimate) authority of those who waged (and declared) it—the just (war) motive, the right intention, and the correct manner of waging it. Just cause was understood in the “classical” legal sense, that is, as the protection of concrete rights violated. The necessity (and legitimacy) of war then stemmed from the absence of an authority that could settle disputes by redressing rights violations by effective command and enforcement by the disputants. In this legal construction, there is no room for abstract “rights,” only (very) concrete ones. Suarez, in listing examples of “just cause” for war, makes almost an enumeration of the “actions” recognized in Roman law for the restoration of injured rights: taking impediment of transit of other people’s provinces (claims), (confessoria servitutis), as well as injuries to the right to customary economic relations. These are rights based on history and custom; that is, on a concrete order, to the maintenance and preservation of which the remedy of war contributes.

The subsequent evolution, induced to make just war rather than a means of restoring law, that of preserving the power, (security, balance) of states, and, consequently of the international community, is founded on the pluralism of political units. Not that the protection of law (which in itself is a power) no longer constituted just cause, but alongside or rather above it, the reason of defense of power was added (and prevailed). An example is offered by Montesquieu “The life of states is similar to that of men: the latter have the right to kill in self-defense, those have the right to wage war for their own preservation;” and he continues “Between citizens, the right of self-defense does not imply the necessity of attack. Instead of attacking, they have only to resort to the Courts.”

Therefore, they can only exercise this right of self-defense in subjective cases, in which they would be lost if they waited for the help of the law. But among societies, the right of self-defense sometimes implies the necessity of attacking, when a people realize that a longer peace would give another state the opportunity to destroy it, and that attack is at that particular time the only means of preventing such destruction. To conclude: “The right of war is therefore derived from necessity and a strict adherence to right. If those who direct the conscience or the advice of princes do not abide by these standards, all is lost; and, if we are to be founded on arbitrary principles of glory, welfare, utility, streams of blood will flood the earth” (Ésprit des lois, X, 2 trad. it., 1965, pp. 247-248).

That to derive the right of war from necessity means nothing more, since necessitas non habet legem, that there is no need for a right to be restored. On the contrary, that in case of necessity it is legitimate to violate the right.

The situation changed with the French Revolution. Until that time, it was normal for wars to be a means of settling disputes (of power or law) between states that recognized and respected each other. The consequence of this was the intangibility of domestic law and of the states themselves. Wars ended with the “handover” of a few provinces or (more often) colonies that left the order essentially unchanged.

This system began to be shaken by the French Revolution: with the La Révellière-Lépeaux decree of the Convention on the Export of Revolutionary Principles, the “indifference” of the events of war, to the internal order of the states involved, began to be shaken. Likewise, respect for the existence of states, which, in the revolutionary and Napoleonic periods took the form of the creation of entirely new states (the sister-republics and then the states of the Napoleonic system), politically homogeneous with the victor; something that positively undermines the “constituent” and original right to form a community. Kant wrote that against the unjust enemy, the victors cannot go “so far as to divide among themselves the territory of that state and make, as it were, a state disappear from the earth; for that would be a real injustice to the people who cannot lose their original right to form a community” (I. Kant, Methaphisik der Sitten § 61). And what it says for the disappearance of states also applies to the creation of new ones by the victor. What is equally interesting is that with the formula of “guerre aux chateaux, paix aux chaumiéres” began and legitimized the exportation of abstractly formulated principles, foreign to the communities that had to forcibly import them and often generating a “new” form of warfare—the partisan (modern) one, in which the “importing” community, through the guerrilla movement, progressively assumes the character of the enemy (and belligerent subject), as a people in arms. The most radical formulations of which are that of Mao-Tse-Dong, and the related practice is that of the anticolonial wars of the 20th century.

The conclusion of World War II confirmed this in an entirely different context. Early on, in the Atlantic Charter, it was written that the governments of the United States and the United Kingdom declared at that time that they “respect the right that all peoples have to choose the form of government under which they ask to live, and desire that sovereign rights and the free exercise of government be restored to those from whom it has been forcibly taken away,” as confirmed at Yalta, “for every liberated state in Europe, to every former European satellite state of the Axis.” That is, even if someone had not expressed the intention.

The implementation practice of this declaration was, as is well known, that each of the liberated people gave themselves the form of constitution corresponding to the color of the uniforms of the liberators (occupiers).

Constituent power, as later explicitly stated for sovereignty, was (to say the least) limited by it. And one has to wonder, at this point, whether to limit powers that are in themselves unlimited (such as, precisely, constituent power and sovereignty) is not to deny them at the very root, as implied in the doctrine of the modern state from Sieyès to Victor Emmanuel Orlando.

As for International Criminal Tribunals, institutions popularized in the last century for the purpose of judging the vanquished enemy (by the victors), these were completely unknown, because they were rejected by the jus publicum europaeum, in which the principle that par in parem non habet jurisdictionem was in force. Hence, between sovereign states, one could not judge the other (and the whole was true, both for the “apex” bodies and for the others). What is more, Kant considered connatural, in every peace treaty, the “amnesty clause” (reciprocal) between the contracting parties. What is most striking about this practice (established for centuries) is its realism that adapted it far better than contemporary pan-jurisdictionalism to the concrete order of communities endowed with equal rights and dignity. Firstly, because it raises the problem of justice (and law) in concreto: the activity of the judge is not a pure position of norms, but the application of norms to a concrete fact; even just and agreed upon norms, if applied selectively, or by an unbiased judge, or resulting in unenforceable judgments, do not possess the characteristics commonly attributed to justice, nor do they have the real utility of justice.

Now, common connotations of these Tribunals are (always) that the accused coincides with the vanquished; (very often) that the judges are the victors; that for practical purposes (i.e., to conform the new order to the factual (and power) situation created as a result of the war, the decisions of the Tribunals have no bearing. The prevailing function is liturgical: to clothe with the solemn robes of justice what was decided by war, morally disqualifying the vanquished enemy. They are in essence the auto-da-fés of globalization. But that the need to be resolved has already been resolved by war, the outcome of which is really “conformative” of order, and that the Tribunal’s judgment adds or detracts nothing to this is self-evident. Unlike that of a “domestic” judge whose decision is essential to the rights (and life) of the adjudicator.

Common notion of these two “innovations” is mostly believed to be the “democratic” character that the state and modern warfare have acquired in the last two centuries. Hence democracy, deemed a valuable asset by those peoples who have struggled to acquire it, would be a gift—just as important—to those who never dreamed of it. But, most likely, they did not do so because they did not judge it so valuable as to be worth a war or a revolution. Moreover, and even more, “export” wars and international tribunals are linked to an aspiration (illusion) for peace. It is considered better to have democratic governments in power in other countries because they are judged to be less prone to war; and Tribunals would be the means of preserving peace by punishing those who violate it. But as to the former, history shows that democracies are no less warmongers than other forms of state; indeed, in fact, they are, as to the intensity of war, more so. Already in describing the characters of the Athenian one, Pericles, in the speech reported by Thucydides (Peloponnesian War, II, 35-47), treads, as it were, on its warlike exploits (and virtues). Even more, in modern times, democracy has (mostly) been combined with levée en masse and the intensification of hostility.

But if still for democracy, there is hope that the “modern” aspect of it will prevail (according to Benjamin Constant’s well-known distinction) i.e., the liberal element, tolerance, esprit de commerce that in any case conditions the esprit de conquête, for the remedy of the Courts no reasonable hope is in sight. Because in that case it is, in essence, a matter of substituting politics (and the political) for law. An old recipe, which can only work if the court takes on political connotations, i.e., ceases to be a (pure) judicial body and becomes—organizationally and functionally—a political unit or official organ thereof; that is, capable of making use of force (thus with an appropriate organization), and thus be “power” in the Weberian sense; that is, capable of enforcing—concretely—its commands. Those who believe this believe they have invented politics without (the means of) force. A Prince (all coup and no) Lion. A subject who has not yet appeared in history, and who, being contrary to a realistic conception of man, it does not seem possible will ever appear there. Not least because if the Court makes use of the force of states, it is this, and not the judgment, that will determine the real relationship between international justice and the executing state (or states)—since the execution of judgments is the decisive fact, it will be the ability or willingness to do so that will determine the possibility of what really matters; that the decision be observed and move from normative imagination to concrete order, conforming it.

Moreover, the rationalism underlying the doctrine of the modern state has constructed as its “User’s Manual” the Reason of State. “Reason of State” was based on—and was one of the consequences of—both secularization, configured (also) as separation/limitation between temporal and spiritual power, and the autonomy of the political, its extraneousness-indifference to other spheres of human experience. Also determined by the latter was the specific purpose of the policy: the protection, security and well-being of the community of reference, with religious or moral objectives being excluded—or taking a back seat. If a pope in the Middle Ages could proclaim a crusade, the same could not be done by an absolute monarch of the modern age, whose specific function is the one mentioned above, and not to promote the diffusion of a faith or a morality. Different, but only in part, for the right (or rights): in that case the protection of those, if corresponding to an interest of the state is the task of the state. However, according to the doctrine of jus publicum europaeum, by right in such cases is meant the right pertaining to the state and its subjects; on the other hand, it is excluded that it is justa causa belli to protect rights that do not belong to one’s own state or subjects. Which in “wars for democracy” is sacrificed to an overbearing altruism, and whose probable (and visible) effect is to multiply (the justae causae) of conflicts.

(E.g. see, Suarez, De Charitate-De Bello, section IV: “Unde, quod quidam aiunt, supremos reges habere potestatem ad vindicandas iniurias totius orbis, est omnino falsum, et confundit omnem ordinem, et distinctionem iurisdictionum: talis enim potestas, neque a Deo data est, neque ex ratione colligitur;” also see, Bellarmino, Scritti politici, Bologna 1950, p. 260).

Just what the rationality of those jurist-theologians of the Counter-Reformation sought to avoid.

In this sense, this conception was in accordance with the theory of Reason of State, which is not a legal conception (although it has great legal implications) in the sense that it is not based on the concept of law, but rather on the concept of interest: it is the task of the state to protect the (general public) interest of the political community (salus rei publicae suprema lex). What is in accordance with that is lawful and should be done. By contrast, in the case of “democratic wars,” the supreme lex of the state’s interest ends up, precisely in situations of exception, in the background; and in the foreground is placed instead an abstract justice, promoting rights of which it is not clear whether and how much the “protected” aspire to enjoy (and how much they want to sacrifice for those). The purpose of politics and the state is no longer primarily that of the common good of the state and the community, but the affirmation-protection of (abstract) rights or a political regime.

True, state interest and defense of liberal democracies can coincide, as in Roosevelt’s aid to Britain during World War II, even before the U.S. entered the war; but the fact that the ideological motive is externalized and that of power concealed, confirms, and constitutes a sui generis application, of the Paretian theory of residues and derivations, as of the oblivion of the lesson of Thucydides (the well-known ambassadorship of the Athenians to the people of Melos) that the first determinant of political action is (the defense, preservation, and enhancement of ) power.

(The President’s well-known phrase that the U.S. would be the “arsenal of democracies” did not express the fact that the U.S. interest was to help Britain and contain Germany and Japan, even though the political regimes of the three powers were not that).

The proof was seen, repeatedly, during the Cold War, in which very often the U.S. left alone and even supported and had for allies political regimes that in matters of democracy had credentials no better than those of Soviet regimes, i.e., real enemies.

Politically correct choice as much as ideologically contradictory.

In fact, the very examples given above demonstrate the essentiality of the correct perception of the enemy. If the enemy is perceived as such because it has a different order, with a different political regime or other values of reference, since politics (and the international order) is a pluriverse of different human communities, each people, which in itself is recognized as having the right to give itself the order it prefers, becomes, by virtue only of the magnitude of the differences, an enemy. It becomes such because its mode of political and social existence is not homogeneous with that of the “dominant” power (or powers).

It is an enemy not because of the actions done (to the limit that it can do) but only because it exists in a certain way. In this case, “wars for democracy” easily become the means of promoting political homogenization, which in turn may lead not so much to (political) globalization but to the construction of a new political entity, imperial and non-state, with rules, forms, and types of behavior that we do not yet know, but of which something is glimpsed. One glimpses in particular the (partial) loss of the impenetrability of the state, whereby its borders marked the boundary between internal and external, between domestic and international order.

On the other hand, such a criterion in choosing the enemy leads to contradicting the first rule of political action, which is to reduce the number of possible enemies. Expressed in history in so many ways, both as a rule for domestic and international politics—from the political practice of the Roman Senate, whose constant maxim was to divide peoples (Montesquieu, Considérations sur les causes de la grandeur des Romains e de leur décadence, ch. VI), who were potentially enemies (divide and rule), to the “never war on two fronts” precept of German strategy in the last century, twice violated, with the results we know. If the real enemy (i.e., one who is such by actions and contrasts of power and interests) is joined by the one (or ones) who are such by ideal differences, the rule is surely violated.

Thus the “democratic wars” appear as the negation of certain ideas peculiar to the modern state and politics, as delineated from the Renaissance onward, thanks to the peculiar form of political unity of the post-Medieval era and that is the state, but anticipated and nevertheless practiced for millennia.

It is precisely the state that is the first victim of such a shift in perspective. Its salient features: the distinction between internal and external, temporal and spiritual, impenetrability, the monopoly of the political (and of legitimate violence) are to a greater or lesser extent, contradicted by the spread of “wars for democracy.” Consequence of which is the imposition of a political regime, with its institutions and values of reference, of a claim to the permeability of borders, and thus to a limited sovereignty in its own territory in which different (command) powers come to compete. All incompatible with the jus publicum europaeum. Which was constituted on the attempt (successful for centuries) to bring different peoples together. Which was succeeded by the current one of doing so with (relatively and artificially) homogeneous peoples, at the price of increased “supranational” power.

True, democracy is based on a certain rate of homogeneity in the people, but this is a prerequisite, not a consequence of the choice of political regime; and, in any case, here we are dealing with external relations between states, not internal relations between the different components of a community. That is, unless the whole thing is the premise of the establishment of a new imperial political form, in which inter-state relations are replaced by relations within the Empire. In which case the internal/external (and other) logic would have a different meaning, all to be written.

(The last attempt to form a political unity between Muslims and Christians, Turks and Slavs, Protestants and Orthodox was the Union Treaty designed by Gorbachev and was terminated as everyone knows. On this subject we refer to our paper, “Dal comunismo al federalismo,” in L’Opinione (June 1991).

However, given that imperial political forms were (mostly) characterized by the distribution of jus belli among different subjects of political unity, it is all to be seen whether a future of union among (institutionally) homogeneous people is more peaceful than the coexistence among different people on which the jus publicum europaeum was based.


Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.


Featured: Allegory of Law and Violence (Allegory of King Charles I of England), by Jan Brueghel the Younger; painted ca. 1666-1669.