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.


Dostoevsky’s Heroes in the Philosophical Jurisprudence of Carl Schmitt and Eugen Rosenstock-Huessy

Exactly 100 years ago, in 1923, Carl Schmitt, a German lawyer whose controversial talent for brilliantly formulating political concepts continues to attract a great deal of attention from researchers to this day, published Roman Catholicism and Political Form. This book made him a prominent figure among German Catholic intellectuals in the Weimar Republic. Out of all the plethora of ideas in the 1923 essay, we would like to analyse Schmitt’s attitude to the Russian writer Dostoevsky, with whom he continuously polemicises not only throughout the essay, but it could be argued throughout his entire life. It would be of particular interest to us to compare Schmitt’s attitude to Dostoevsky and his heroes with the views of his contemporary and colleague, another German legal scholar Eugen Rosenstock-Huessy. Although these two authors took opposite stances in Germany in 1933 (support for the Nazi party and criticism of it from emigration), nonetheless they are united by the fact that, although they were jurists, they wrote about the Church, thus making them stand out from the general secular tendency of the social sciences of their era. As will be shown below, the Russian Orthodox author appears in the texts of these thinkers not so much in his capacity as a political-legal journalist, as in that of a vivid artistic symbol of a critical attitude to law and to the whole area of juridical thought and practice. Referring “to Dostoevsky” allows these philosopher-jurists to give their own diagnosis of the period following the First World War. This example makes it possible for us to trace the evolution of their own teachings, and their ideas on Russian culture and its place in world history.

1.

Emphasizing that non-Catholic authors are often motivated by “anti-Roman temper,” (Roman Catholicism and Political Form, 1996, p. 3) Carl Schmitt cites Dostoevsky as an example of this “temper” and his main opponent. He remarks that in the first centuries of the Reformation, the Protestants were the most striking bearers of this “temper,” but from the 18th century onwards Protestant political authors become increasingly rational in their anti-Roman argumentation. From Cromwell to Bismarck and the French secularists of the end of the 19th century a whole epoch passes; Catholic-Protestant polemic loses its emotional expressivity, and the sole exception to increasing political rationalism Schmitt finds in the Russian-Orthodox Dostoyevsky’s “portrayal of the Grand Inquisitor,” which allows: “the anti-Roman dread [to] appear once again as a secular force” (Ibid.).

Several pages later, Dostoevsky is once again mentioned by the German jurist in a typological group containing a paradoxically broad spectrum of political views: people who see in the Roman-Catholic Church the heir of the universalist program of the Roman Empire.

The Roman Catholic Church as an historical complex and administrative apparatus has perpetuated the universalism of the Roman Empire. French nationalists like Charles Maurras, German racial theorists like H[ouston] Stewart Chamberlain, German professors of liberal provenance like Max Weber, a Pan-Slavic poet and seer like Dostoyevsky—all base their interpretations on this continuity of the Catholic Church and the Roman Empire (5).

The principle of precedent in the evolution of law inspires Schmitt to an apology for the Roman Catholic Church as the bearer of a particular political and juridical mentality that has placed its seal on the juridical development of the peoples of continental Europe. The German jurist not only expresses his approval of Catholic political thought (where for him the most important author is the Spaniard Donoso Cortés), but also of the canon law which had adopted the ideas of dogmatic development of the First Vatican Council. Describing papal dogma in Max Weber’s categories of the juxtaposition of charisma and office, he sees in unilateral church authority the removal of the contradictions of parliamentarism in the ecclesial complexion oppositorum. The pope has a representative role or function as Vicar of Christ. The papacy is both institutional and personal, yet “independent of charisma” (Ibid., 14).

Noting different aspects of criticism of Catholicism, Schmitt singles Dostoevsky out among a special section of critics taking a position of anti-legalism as “pious Christians.” In his interpretation, the Russian writer comes close to the Protestant jurist Rudolf Sohm, a German historian of law known for his theory of the “lawless church.” Dostoevsky is interpreted by Schmitt through the prism of Sohm’s antagonism between the juridical and spiritual principles of church organization. Both Sohm and Dostoevsky, according to Schmitt, juxtapose their Christianity to the “ethos of power” of the Roman church, which is amplified to an “ethos of glory.” Such “pious” anti-Roman attacks, writes Schmitt, are dangerous because they not only subject church law and authority to criticism, but the very principles of form and rule of law in society, and thereby feed the anarchic tendencies.

Schmitt does not cite any extensive quotations from Dostoevsky; it is enough for him that the writer created the image of the Grand Inquisitor. This image is interpreted by the German jurist literally, outside literary convention, outside the problem of polyphony and authorship within the novel, The Brothers Karamazov, where “the poem of the Inquisitor” is narrated by Ivan Karamazov and commented on from an anti-Roman perspective by Alyosha Karamazov. In the perception of the German jurist, the Grand Inquisitor is almost a historical character, one of the highest prelates of the Catholic Church, a Spaniard, like the writer who was politically closest to Schmitt, Donoso Cortés. The Inquisitor operates within the framework of the Church’s judicial legal system and procedure among the subjects of the Spanish monarchy. As a result, all these political institutions are condemned and their authority undermined at the moment when Dostoevsky’s Grand Inquisitor admits that he has succumbed to the temptations of Satan.

Thus, although Schmitt does not undertake a literary analysis of the text, he perceives it in all the depth of its artistic content. He sees in the figure of the Inquisitor a realistic image that demands a reaction from him (which may be regarded as an indirect recognition of the talent of the Russian writer). The German jurist is sure that the Inquisitor is right in the political dispute; he deliberately aligns himself on the side of the Grand Inquisitor, in opposition to Dostoevsky. Towards the end of his life, Schmitt stated in a conversation with Jacob Taubes, anyone who failed to see that the Grand Inquisitor was right had grasped neither what a Church was for, nor what Dostoevsky, contrary to his own conviction, had really conveyed (Jacob Taubes, Ad Carl Schmitt. Gegenstrebige Fügung, 1987, p. 15). For Schmitt, the Russian writer’s error consists in the fact that he depicts the Spanish prelate as a losing figure; he is placed by the narrative in a scandalous and unseemly, and therefore, one might say, satirical situation (the sort of Dostoevskian satire that Mikhail Bakhtin would term menippeia), which gives the lie to the exaltedness of his position. Where, through the use of irony, the sublime authority of the Catholic Church is undermined, for Schmitt the authority of jurisprudence is also undermined: after all, the latter has its origins in political Catholicism.

Owing to its formal superiority, jurisprudence can easily assume a posture similar to Catholicism with respect to alternating political forms, in that it can positively align itself with various power complexes, provided there is a sufficient minimum of form “to establish order”…Once the new situation permits recognition of an authority, it provides the groundwork for jurisprudence—the concrete foundation for a substantive form (29-30).

Schmitt attributes “potential atheism” to Dostoevsky (as if the writer projects his own potential atheism onto the Roman Catholic Church), because he sees in him an “anarchic instinct.” For Schmitt, the anarchist is essentially atheistic, because he denies the possibility of authority. The romantic reader perceives the institutional coldness of Catholicism as evil, and the formless breadth of Dostoevsky as true Christianity; but this is a false contrast.

All this leads Schmitt to the conclusion that, for all the apparent differences between Dostoevsky and the Bolsheviks (the latter he initially conflates with “American financiers” in their rejection of classical jurisprudence), they represent a single stream of anarchist sentiment opposed to classical politics and the Western European legal tradition. And despite the phrase, “I know there may be more Christianity in the Russian hatred of Western European culture than in liberalism and German Marxism… I know this formlessness may contain the potential for a new form” (38), Schmitt’s condemnation of Dostoevsky remains in force: he is a symbol of the barbaric Russian threat to European forms, both cultural and legal. The German jurist interprets him anarchically in almost the same way that the French existentialists would later do, and it is this interpretation that he himself condemns as the threat of “potential atheism.” In the final part of the essay, where Schmitt retells the dispute between the Russian and Italian revolutionaries Mikhail Bakunin and Giuseppe Mazzini, the image of the Grand Inquisitor created by Dostoevsky must inevitably join the “Bakuninist” line of argument in the European revolutionary movement, as for Schmitt Russian thought is a priori anarchist.

2.

The German-American jurist, historian, and social thinker Eugen Rosenstock-Huessy who was in contact with Carl Schmitt until 1933 wrote about Dostoevsky in the context of the Russian Revolution and its new order (Wayne Cristaudo, Religion, Redemption and Revolution: The New Speech Thinking of Franz Rosenzweig and Eugen Rosenstock-Huessy, 2012). “Dostoevsky extricates the types of men who will become the standard bearers of the Revolution. To read Dostoevsky is to read the psychic history of the Russian Revolution” (Eugen Rosenstock-Huessy, Out of Revolution, 1938, p. 91).

Rosenstock-Huessy created his theory of revolution after the First World War. The son of a Berlin banker from a Jewish family, as a young man Eugen chose to be baptized into the Lutheran Church. In 1912, at the age of 24, he became Germany’s youngest associate professor as a teacher of constitutional law and legal history at the University of Leipzig, where he worked with Rudolf Sohm. During the war, Rosenstock-Huessy was an officer in the German army at Verdun, and after demobilization he returned to academic and social activities. During the war itself, he became one of the organizers of the Patmos Circle, a group of intellectuals who gathered to reflect on the catastrophe of the world war. The Patmos Circle included, in addition to Rosenstock-Huessy, such well-known intellectuals as Hans and Rudolf Ehrenberg, Werner Picht, Victor von Weizsäcker, Leo Weismantel, Karl Barth, Martin Buber, and Franz Rosenzweig, among others. From 1915 to 1923, due to the crisis of European culture, the founders of this circle felt themselves to be living in a kind of internal immigration “on Patmos” (hence the publishing house they founded in 1919 was named Patmos).

Rosenstock-Huessy saw the Russian Revolution as the last possible European revolution, completing a single 900-year period of humanity’s quest in the second millennium. This period begins with the revolution of the Roman Catholic Church under the authority of the papacy against the power of monarchs and feudal overlords. Subsequently, the “chain of revolutions” was continued by the Reformation in Germany, the Puritan Revolution in England, the American Revolution, the French Revolution and, finally, the Russian Revolution. As a result, the Russian Revolution is part of the autobiography of every European.

Returning to Dostoevsky, it must be said that Rosenstock-Huessy emphasizes his dual identity as both a Russian and a European writer, who so virtuoso-like masters the Western European form of the novel that he cannot in any way be a symbol of “formlessness.” Russian novels became part of European culture in a special political period.

In the sixties, after the emancipation of the peasants, when the split between official Czarism and the Intelligentsia had become final, when the revolutionary youth vanished from the surface and sank into the people, the soul of old Little Russia began to expire. But some poets caught the sigh. Through their voice and through the atmosphere created in their writings, Russia could still breathe between 1870 and 1914. This literature, by being highly representative in a revolutionized world, became the contribution of Russia to the rest of the world. Without Dostoevsky and Tolstoi, Western Europe would not know what man really is. These Russian writers, using the Western forms of the novel, gave back to the West a knowledge of the human soul which makes all French, English and German literature wither in comparison (91).

The people Dostoevsky describes are not the heroes of Romanticism, distinguished by their special talents; on the contrary, “they are as dirty, as weak and as horrible as humanity itself, but they are as highly explosive, too. The homeless soul is the hero of Dostoevsky, the nomadic soul” (Ibid.).

For Rosenstock-Huessy, however, the “dynamite man” of Dostoevsky’s novels is not only a destroyer of law and order, living in an atmosphere of permanent scandal, but also a potential figure of the future. This is exactly the type of figure needed in the new circumstances of the twentieth century, when economic disasters and wars have become part of everyday life. “The revolutionary element will become a daily neighbour of our life, just as dynamite, the explosive invention of Nobel, became a blessing to contractors and the mining industry” (93).

The world of Dostoevsky’s novels is a world in which human passions, “the reverse of all our creative power… are faced without the fury of the moralist, or the indifference of the anatomist, but with a glowing passion of solidarity in our short-comings. The revolutionary pure and simple is bodied forth in these novels as an eternal form of mankind” (Ibid.).

Thus, Rosenstock-Huessy notes in the political idea of the Russian Revolution, as reflected in nineteenth-century Russian literature, precisely what Schmitt denies to the “Russians”: form. The Russian Revolution not only criticized the system of law created by the previous epoch (primarily the French Revolution, which in its drawn-out century-long cycle found a modus vivendi with the Anglo-American world), but also critically cleared the space for a new phase of world history: the planetary international organization of humanity.

Rosenstock-Huessy takes the contribution of the Catholic Church to the legal tradition of Europe extremely seriously, and in this he coincides with Schmitt. However, the Catholic idea is not the only one at the origin of the Western tradition of law, according to the German-American jurist. To no lesser extent, this tradition is the result of another religious revolution—that of Martin Luther—and the entire Protestant Reformation that followed. Therefore, those in the ranks of Hitler’s supporters who try to idealize the “Roman form” in modern times deny the achievements of the Reformation, and the Führer becomes for them a kind of “false pope.” The Russian situation, in which Dostoevsky’s heroes find themselves, is certainly different. Rosenstock-Huessy notes that the Russians were the first non-Roman (in the ecclesiastical sense) nation to launch a revolution of world significance, and that the Russian Church stands apart from and outside the Catholic-Protestant clash.

In Russia the Church had never conquered its liberty from the Empire. It had been petrified for a thousand years. Nothing had moved within the Church since the famous monasteries of Mount Athos were founded during the tenth century… These traditions were well-preserved in Russia. The Russian church, it is true, kept all the joy and delightful cheerfulness of ancient Christianity, and since there was less struggle with popes or reformers or puritans, it upheld the old tradition much better than Western Christendom. The childlike joy and glee which the members of the Russian and Greek Church feel and express at Easter are strange for a Roman Catholic, to say nothing of a Protestant (42).

Behind these words of a loyal Lutheran is not so much praise as a statement of fact, a clarification of the details of a historical drama. The German-American social thinker believes that the Russian church, “having lost to the empire,” is under attack by the Bolsheviks not because it poses a threat to them as part of the old order, the “ancien régime,” like the Catholic Church during the French Revolution. On the contrary, from the Bolshevik point of view, it is to be destroyed because, as it stands, it is a symbol of weakness, a symbol of peasant Russia, “the Church of the ‘moujik.’”

To the Russian Moujik the church gave one special instrument of communication with the majestic world of God and his Saints, an instrument well adapted to a far-off village in the country. In the lowlands of the Volga, earth is expanding and the individual is quite lost. Man is, in Russia, but a blade of grass. To this powerless man the church presented the Ikons, the painted images of the Saints… The Saints visited the poor as witnesses of a united Christianity far away, and as sponsors of a stream’ of power and strength going on from time eternal (42-43).

The Soviets must be against the Ikons because these reflect village economy… that fight is connected with the industrialization of Russia (44).

Rosenstock-Huessy refers to the church tradition of the Russians not as national, but as the preserved universal tradition of the first millennium: “In Russia in 1914, and in Russia only, the Christian Church was still what it had been everywhere in 900” (44).

Nationalism is a concept that for Russians is not connected with the traditional church, but rather with their openness to Europe in the 19th century: “capitalism presented itself to their eyes in the form of fervent nationalism… Furthermore, all the western territories of the Empire, Poland, the Baltic provinces, were more national than Russia itself” (66).

Returning to Dostoevsky, we can say that his ideal, which he puts into the mouth of Elder Zosima (“the state having become the church”) is not anarchy, but form, order, structure—a “church-like order,” as Rosenstock-Huessy calls it. And to the extent that this ideal is ecclesiastical, it is at the same time culturally a conduit of the classical culture of Roman antiquity. Dostoevsky’s political ideal, expressed through Elder Zosima, is not related to the nation-building of the “Russians;” it is universal, and yet it is an ideal of social and political form, not anarchy. The form of social life that Dostoevsky would like to see is as distanced as possible both from political romanticism and romantic nationalism in the style of J. G. Herder. Romantics might be defined as those who, in the age of the Great Reforms, would have liked to see the liberation of the individual in judicial and peasant reforms or in the mechanical destruction of czarism, and it is their dreams that Dostoevsky dispels in his works.

Thus, Rosenstock-Huessy, unlike Schmitt, does not ascribe anarchist sympathies and “anti-Roman temper” to Dostoevsky (and Russians in general). The German-American thinker scrutinizes the cultural preconditions of the Russian Revolution and concludes that many aspects of the anti-legalism of Russian authors are a criticism of the liberal-bourgeois law of Western European countries. The question of how law and religion will be treated in post-Bolshevik Russia for Rosenstock-Huessy remains open.

Conclusion

Having considered the juridical ideas of Carl Schmitt and Eugen Rosenstock-Huessy, which they expressed in the form of comments or references to Dostoevsky and the images of his heroes in the 1920s-30s, the following conclusions can be drawn. Dostoevsky’s heroes are certainly a symbol of anti-juridical existence, both for Carl Schmitt and Rosenstock-Huessy, but their interpretation of this symbolic space differs. Schmitt insists on the anarchism inherent in Russian culture, but his attitude towards the image of the Grand Inquisitor is complex. He solidarizes with him, writes about his political correctness, but at the same time he believes that Dostoevsky, due to his attitude as an Orthodox Christian towards a Roman Catholic, was fundamentally wrong and biased in depicting the Spanish prelate as an object of satire in a scandalous situation. As a result of this, the Inquisitor cannot symbolize a solution to the problem of the authority of law. The problem with this image, Schmitt suggests, is that it is written by an author for whom Christianity is infinitely broad and formless.

Rosenstock-Huessy argues that Dostoevsky anticipated and described the human type of the Russian revolutionary. While remaining critical of Marxism, and to an even greater extent of Bolshevism, the Protestant thinker notes in the political idea of the Russian Revolution the positive content of social justice reforms. Dostoevsky’s heroes have “explosive power” and criticize the social and legal order of previous epochs (the French and English revolutions). However, this criticism, even passing through tragic errors, clears the space for a new cooperation of Christian forces in the context of a new universal planetary phase of human history.


Irina Borshch is a historian of legal thought. She is also a doctoral researcher at the Waldensian Faculty of Theology (Rome) and a senior fellow in the Ecclesiatical Institutions Research Laboratory at St. Tikhon’s Orthodox University (Moscow). She holds a Doctorate in Missiology from the Pontifical Urbaniana University.


Featured: Elder Zosima, by Ilya Glazunov; painted in 1982.


Religious Residue and AI: The Eight Rugby Players

On the first Saturday-Sunday in October, tens of thousands of Argentines undertook a pilgrimage, known as a “la Peregrinación,” to the Marian Basilica of Lujan, under the theme “Holy Virgin, make us one.” Sunday evening saw the first debate between five presidential candidates, three weeks before the general election of 22 October. All the parties preached unity, union, common strength, under a variety of slogans, as opportunistic as they come. Galloping inflation, obsidional crime, Rosario as the new Colombia of drugs, half the population in a state of poverty—while, on Saturday, a Kirchnerist oligarch, seen strutting around on a yacht with a callipygian “model” in Marbella, told his critics to go to hell by imitating, in Spanish, the vulgar American retort, “Get a life.” Sure, but what kind of life?

One response to that question was the pilgrimage. Under the leadership of the young Archbishop of Buenos Aires, the “Peregrinación” was a response to the political class — to Peronists in power (Peronism like historical Gaullism is an emotional belief system, straddling a wide spectrum), to the legacy bourgeoisie of Buenos Aires, and to the Chavist socialists. The political class paid lip-service to or ignored the pilgrimage and its message of good will.

With one discordant voice: the man who upset the usual suspects’ playbook, Javier Milei, portrayed by Western medias as “extreme right,” is an anti-Statist economist and a formidable rhetor in the long tradition of Argentine politics —emblematized by Juan Perón’s famous 1973 re-election address, “Gobernar Es Persuadir.” So Milei went frontal : one of his teammates mooted to suspend relations with the Holy Sea, the utmost meddling, invisible “state” in their view. Anti-statism and anti-clericalism are indeed congruent – but don’t tell that to Anglicans (conservatives or not) in the UK, cossetted protestant churches in Germany, or even French “liberals.” Not to mention US conservatives.

To grasp further the multi-layered religious residue in Argentine public life: when Pope Francis was elected, labels bearing his effigy on the streetlamps of Buenos Aires rubbed shoulders with a massage parlour advertisement (and an unintended joke): “Two for the price of one.”

That being said, how do you measure religious residue and mediatization of a public event, and the use of AI? Let’s look at one case.

At the beginning of the year, in the middle of the southern hemisphere summer vacation, a resounding trial fascinated Latin America: that of the ocho rugbiers, eight young rugby players who, at the same time three years before, had murdered a young man, Fernando Báez Sosa, outside a nightclub in Villa Gesell, a seaside resort south of Buenos Aires.

For weeks, the trial, held in Dolores, an old and dignified town on the pampas, was broadcast live on Argentine TV and followed daily from Peru to Mexico. A continental media phenomenon. A judicial phenomenon. A popular, if not populist, phenomenon. Ignored everywhere else, of course.

First mediatization : an extensive coverage by open access medias, such as La Nacion+ , which not only had reporters on the spot all day long, but also organized panels of legal experts who explained each stage of the proceedings with verve but clarity. One reporter stood out: “Carla,” who never lost track of events, maintained admirable calm and exemplary accuracy—she deserves an Oscar for court reporting.

Second mediatization: publicly available CCTV footage of the murder, bearing directly on the judicial process. People wondered: was it a pelea, a brawl involving the exchange of blows (the defense)? Or was it a patada, kicking and punching a victim (the public prosecutor and the family lawyer)? You only have to look at the numerous footage reels to see that it was not a brawl. In Argentina, surveillance cameras are ubiquitous, and there seems to be no law against making public what they record. Every morning, on the 7 a.m. news, you can watch burglaries, and even murder attempts, being committed.

From the very start of the investigation, anyone with access to YouTube or the Web could see what had happened. There was no blurring, in the style of false American prudishness (the “fig leaf” camera) or European-style hypocrisy (“some images may be harmful to sensitive viewers”). Living in society also means seeing what is going on. How can we witness this famous communal life if we cannot see what disrupts it? Even YouTube has not censored anything. From this point of view, Latin America is free.

So, the public had the obvious, right in front of them. The obvious — in the sense that to see is to be convinced of/by the obvious —was freely available, and in no way reserved for the courtroom. The violent crudity of the images was, and remains, public. As a rhetorician, I approve.

And then, a novelty: mediatization using AI. In order to tease out the (concealed) obvious of/from the images of the murder, the Báez Sosa family lawyer resorted to computer analysis: each of the eight assailants was represented digitally. The lawyer brought out this AI mapping at the end of the trial, in his recapitulation. The presiding judge immediately indicated that this could not, at this stage of the trial, be a prueba but she accepted the argument (supported by a reminder of the procedural code) that it was just another visualization of the video which per se was a building block of the proof already argued. As a rhetorician in a law school, I approve.

This digital reconstruction of the video made it possible to follow exactly the movements and the gestures of each assailant. It stunned everyone (and again, all that was broadcast live). We see the victim raising his hand in a plea for mercy, which drew cries from the victim’s mother. AI provided a dis-closure of the video. This is where “mediatization” takes on a whole new meaning. It harks back to the rhetorical concept of aletheia, de-concealment, dis-closure, of the truth, that is the exhibition of what cannot be seen without being mediated, here by AI.

At this point in the trial, the public had indeed judged. Even though the lawyer’s digital ex-planation (in the strict sense of unfolding) was not judicial evidence (at this concluding stage of the trial), it had now become more than a procedural support ; it is energetic evidence (in rhetoric, the Greek energeia translates into evidentia in Latin). That is how aletheia operates.

But what about the three judges (there is no jury)? Digitizing the video had the effect of transforming their naive viewing (however logical in terms of points of argument) into something else: a logic of the gaze.

Watching is necessarily naive: few people are taught to watch, just as they are taught to count or read. Because looking or watching is supposed to be natural. We hardly ever educate people (except specialists in classical painting, for example) in the logic of the gaze. Now, with digital reconstruction, the naive, emotionally-charged —in short, reactive— evidence produced by “watching a video” is replaced by a rational, cold, categorical evidence of a learned gaze. It is a cognitive effect, produced by digitization. The judges had watched. But AI taught them now how to watch. Now they really know : they have a concept of what happened, but was, on their part, a naive, natural act of perception.

Indeed, as we all know, there are two types of knowledge: instinctive knowledge (perception) and constructed knowledge (conception); perception is unstable, perverse, subjective knowledge. But when you glue a strong element of “design” (in this case, AI) onto perception, you have graduated from “percept” to concept.

Lawyer Fernando Burlando’s persuasive strategy was subtle. He played on two rhetorical, audience-centered registers. On the one hand, he targeted the public who had watched the assassination videos, reinforcing their naive certainty (“wow, they’re killing him”) with a logic of movements and gestures (“wow, now I can see what’s going on thanks to the digital markers”). On the other hand, he approached the judges, telling them, without actually saying it, “Of course you have seen the video and analyzed it, but all the same, between you and me, people of good character, you know the value of AI, and having now watched it accurately you have gone beyond a naive perception: you have been introduced to the logic of the gaze.”

In short, he used the extreme media coverage of the case, the avalanche of videos, to supplement a video that is not a video at all, but the purified, perfect, irrefutable version of an exact medium subject to the logic of the gaze. That is aletheia at work.

To sum, so far: mediatizing an event always has a hint of cheating (you cut, paste, edit, have your own angle), and it is even the rule of visual media; otherwise, all agencies would produce the same images, identically; and that is not the case, of course. But transforming media coverage into a certified, accurate, scientific and intelligent mediatization, exhibiting, in this case, the logic of the gaze, is to move to another level.

So, it is understandable that the mother of the main culprit, Máximo Thomsen, accused the media of being responsible for her son’s life sentence (he and four others, the remaining three received a 15-year sentence). But she got the wrong media. It is the use of AI mediatization that established the concealed obvious. Certainly, the accumulation of evidence (DNA, material objects, various videos, autopsy, eyewitnesses, WhatsApp messages) led to a conviction—but for what? For first or second degree murder, or manslaughter (as it was argued) or even non culpable homicide ? But it was the transformation of the video of the attack into an irrefutable object and subject to the logic of the gaze that won the judges over. Intelligent digitization was not proof, but was better than proof. It taught the judges how to watch.

And that is where the religious residue returns.

The “Justicia por Fernando” slogan that guided Fernando Báez Sosa’s family is explicitly religious. His family is pious, and the reference on the networks to Fernando as an “angel” is not a figure of speech. “Justice” then became a rallying cry against all the injustices, judicial and social, poisoning Argentina from below, at a time when the Kirchnerist government was leading the country to ruin. There was an outpouring of vigils, marches and interfaith services, which doubled up as “justice” hearings. The street became an ekklesia. The religious took over the judiciary, and the political as well (the country was experiencing several cases of infanticides, the atrocious result of poverty).

Yet, in the face of this vocal surge of the religious, the eight defendants remained impassively silent throughout the trial (except for one brief interjection), refusing to answer any questions, adopting a stiff stance, and staring fixedly. This was perceived as class contempt, and to a large extent it was: you do not talk to the poor. Their non-gestures, their non-spoken words projected the image of this contempt: “They refuse even to talk to us or look at us. In their eyes we don’t exist. They are beyond justifying themselves.”

But when the sentence was passed, the mask of contempt for justice fell off. But it fell into a religious evocation. When the young men understood what the convoluted pronouncement of the sentence meant, “prison perpetua,” three of them reacted oddly, breaking their weeks long impavid posture: one wept, his head in his hands; another, lionized as a “heart-throb,” fainted dramatically; a third, who had only been sentenced to fifteen years, raised his face to Heaven.

Suddenly the eight rugbiers proffered a religious tableau, worthy of the great altar paintings of Latin American Baroque churches, of three villains facing Judgment, and in various states of what classical painters called “passions,” from despair to imploration and terror. This is the screenshot at the top of this article. So, by instinct and atavism, the condemned placed themselves in the same logic of the gaze and religious representation as the angelization of martyred Fernando. A surprising, Baroque indeed, Pietà tableau came up next: after recovering from his dizzy spell, the dejected accused had his torso and head across the knees of a companion who held him gently like a Mater Dolorosa would hold her Son at the Sixth Sorrow. Gestures like that are residues.

However, to understand the agency of such residues, you have to know how to look, to accept the logic of a particular gaze, Christian or more precisely, Catholic. In fact, Baroque iconicity operated as AI did: the tableau brought out what was concealed, the religious residue, which is now dis-closed and colours the entire event.

In conclusion, it would be good to reflect on the religious substrate on which AI operates, and its insidious and vulgar intrusion in the cultural residues of audiences who, through ignorance and consumerism, see AI only as a practical tool. The inscription of AI in a particular cultural milieu, such as South American religiosity, provides food for thought. We must be wary of treating AI as independent of cultural contexts, residues as Pareto calls them. Its aura of neutral machine is a mercantile ploy. A vending machine knows nothing. Try to make a machine pray, or go on a pilgrimage.


French philosopher and essayist Philippe-Joseph Salazar writes on rhetoric as philosophy of power. Laureate of the Prix Bristol des Lumières in 2015 for his book on jihad (translated as, Words are Weapons. Inside ISIS’s Rhetoric of Terror, Yale UP). In 2022, the international community of rhetoricians honoured him with a Festschrift, The Incomprehensible: The Critical Rhetoric of Philippe-Joseph Salazar. He holds a Distinguished Professorship in Rhetoric and Humane Letters in the Law Faculty of the University of Cape Town, South Africa.


Featured: A screen capture (at 1:17) of the verdict.


Freedom’s Anchor: An Introduction to Natural Law Jurisprudence in American Constitutional History

In Freedom’s Anchor, Andrew P. Napolitano, the well-known American jurisprudent, vigorously demonstrates that the Natural Law is the very lifeblood of the United States—and without it the nation cannot truly and fully exist. The strength of the book lies in its rich array of caselaw, from Colonial America down to the present-day, in which the Natural Law has functioned as the dynamic “logic” for the rulings rendered. This book will not disappoint, so do make sure to get a copy.

Judge Napolitano is a graduate of Princeton University and the University of Notre Dame Law School. He is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995 and presided over more than 150 jury trials and thousands of motions, sentencings, and hearings. Judge Napolitano taught constitutional law and jurisprudence at Delaware Law School for one and a half years, at Seton Hall Law School for 11 years, and at Brooklyn Law School for four years. He was often chosen by the students as their most outstanding professor. As Fox News’s Senior Judicial Analyst from 1997 to 2021, Judge Napolitano gave 14,500 broadcasts nationwide on the Fox News Channel and Fox Business Network. He is nationally known for watching and reporting on the government as it takes liberty and property. His newspaper column is seen by millions every week. He is an internationally-recognized expert on the U.S. Constitution and a champion of personal freedom. Freedom’s Anchor is his tenth book.

This excerpt comes through the kind generosity of Academica Press.

What is the Natural Law Tradition? Is the natural law related to the medieval church and the nature of man as a divine creation? Or is it a philosophical methodology linked to Enlightenment ideas of personhood? Perhaps it is a legal rule with specific form and content incorporated by the Ninth Amendment to the U.S. Constitution? The truth is that the natural law is often confounded among many of these questions, and as such, we must look backwards throughout history to discern its complete meaning if we are to look forward and see how we may use it to achieve the best form of government.

Even those who question or reject the existence of a Creator can embrace the concept of natural rights, for they can accept that our exercise of human reason leads us to discern right from wrong, and in turn, discover truth. An atheist will agree that there are certain basic values acknowledged everywhere, in all times and circumstances. After all, even a person deprived of senses has the ability to reason.

The Boston Massacre Trial: Self-Defense as a Natural Right for All

Indeed, “it was not uncommon for colonial lawyers and colonial courts to regard Natural Law and ancient principles of the common law as superior to ordinary legislative acts.” For instance, during the Boston Massacre trial of 1770, in which John Adams and Josiah Quincy II defended British soldiers accused of killing innocent colonial civilians, Adams asserted a self-defense justification. Adams was advised, Roscoe Pound maintained, by Jeremiah Gridley, “the father of the Boston bar, […] that [the] study of the natural, i.e. ideal, law, set forth in the Continental treatises on the law of nature and nations, if unnecessary in England, was important for the American lawyer.” Quincy argued for one of the soldiers by dispelling the notion forwarded by the Crown, that “the life of a soldier was of very little value; of much less value than others of the community.” Quincy argued that “we all reluct at death […] God and Nature hath implanted this love of life.—Expel therefore from your breasts an opinion so unwarrantable by any law, human or divine[.]” He then quoted Blackstone, who… unmistakably invokes the natural law: The law by which the prisoners are to be tried, is a law of mercy—a law applying to us all—a law, judge Blackstone will tell us “founded in principles that are permanent, uniform and universal, always comfortable to the feelings of humanity and the indelible rights of mankind.”

Quincy was quick to remind the jury of the earlier natural law claim he asserted with Adams, including a citation to John Locke. Adams, in his closing discussion of justifiable homicide, also invoked Blackstone and “the laws of nature,” signaling the powerful sway of natural law arguments on juries and the bench at the time.

Of course, as any trial attorney will attest, judges and juries often decide cases on many factors beyond the persuasiveness of the attorneys and compassionate presentation of the defendants or victims. A colonial Boston jury, some scant three-and-a-half years before the signing of the Declaration of Independence, was not sympathetic to a cadre of British soldiers who had just killed or injured several of their fellow Bostonians. However, the natural law appeals of Adams and Quincy were rational rather than sympathetic; and they won the day resulting in the acquittal of six of the soldiers, and convictions for manslaughter, instead of murder, for the remaining two.

Madison, in crafting the Bill of Rights, needed to manage two competing arguments: the disingenuous argument of Alexander Hamilton, that any enumeration of rights “could be used to justify any unwarranted expansion of federal power” as the government is of enumerated powers, and to enumerate rights implies areas of rights the government can reach into beyond those enumerated, on the one hand; and, the Madisonian argument that “any right excluded from enumeration would be jeopardized,” on the other hand. Madison, in this initial proposal to the House “ran together both of these concerns.”

His proposals went to a select committee (of which he was a member) for consideration, and “[e]ventually, the two ideas were unpacked” into the Ninth and Tenth Amendments, which deal with “rights” and “powers,” respectively. That is the Barnett-libertarian view of the Ninth and Tenth Amendments, which Professor Randy Barnett… termed as power-constraint: The two amendments act to constrain the federal government from either expanding its own powers at the expense of individual persons and of the States, or from infringing on the other unenumerated natural rights of individual persons.

Such a bundle of amendments dispels any argument that the founders disavowed natural law and natural rights.

Why else would such a clause exist? What other rights could there be? Of course, there were the state bills of rights, but Madison addressed that concern too! “The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.” So, after setting up the Bill of Rights to contain a provision to protect non-enumerated rights, Madison returned to protect the rights of the states which created the Constitution and to emphasize that the Constitution provided government only with the powers that the states ceded to it, and nothing more.

Whereas legal positivism dominated the judicial landscape of the nineteenth and early twentieth centuries, natural law theory jurisprudence began to reemerge and win small victories starting in the middle of 1946 and persisting through today. That is not to say that the Supreme Court adopted a doctrinal approach that examined matters before it with strong deference to natural law and natural rights, but rather that activist and conservative Courts alike ruled on matters in such a fashion as to incorporate into lofty stare decisis certain natural law principles. All of this occurred much to the chagrin of simple fairweather positivists, who grumbled about statutory law, and so-called legal realists, who believe in the importance and primacy of judicial precedent, though, it seems, only when such reliance suited their ends.

We see now that around the end of the second World War a return to Natural Law theories emerged with renewed vigor. During this time, the Third Reich had revealed to humanity the devastation and atrocities of which contemporary society became capable when deploying modern methods of engineering, science, and manufacturing to sinister, horrific and protracted ends and grounding them in positivism. We have also observed the means by which societies sought to safeguard against future abuses through the passage of laws and rules holding government more accountable, such as the Federal Tort Claims Act in 19462 in the United States, which allowed injured persons to sue the federal government in certain limited circumstances, and the Crown Proceedings Act in 1947 in England, which granted English “subjects” (how I loathe the word when referring to persons) the right to sue the Crown without first obtaining a royal fiat.

Though typically at loggerheads, Natural Law theory and legal positivism can find common purchase through soft-hearted approaches to Originalism that factor in the principles behind the Ninth Amendment to the U.S. Constitution. Justice Antonin Scalia, one of the most significant figures in the spread and modern development of Originalism, brought what he believed to be a greater sense of order and consistency to the bench by calling for judges to restrict their decisions in a narrow fashion by adhering to Originalism, a philosophy he believed would lead toward more authentic and honest interpretation of laws and the Constitution itself.

As time passes, language can undergo semantic shift in which the popular meanings of words change. So, in order truly to understand a statute, some argued, one needed to seize the mantel of the historian and endeavor to determine what was meant by a statute at the time of its passage rather than interpreting the statute according to the contemporary meaning of its words. In 1982, Paul Brest, then a professor at Stanford Law School, coined the term “Originalism” which he defined as “the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intention of its adopters.” According to Brest, “[a]dherence to the text and original understanding arguably constrains the discretion of decision makers [i.e., judges] and assures that the Constitution will be interpreted consistently over time.”

Different flavors of Originalism focus on different original elements involved in the drafting, creation, adoption, and passage of various elements of the Constitution, its amendments, and legislation written under its authority. The textualists look to the language of the text in question.5 “The plain meaning of a text is the meaning that it would have for a ‘normal speaker of English’ under the circumstances in which it is used.”6 Though textualists focus mainly on the words of the text in question, they will occasionally consult outside sources to determine exactly what a word or a term of art meant to the general public at the time the particular provision was adopted or passed. In other words, they may look to newspapers, other legislation, books, speeches, circulars, broadsides, treatises, or treaties contemporaneous to the particular language they seek to understand. However, such an approach looks to extratextual material only in so far as it clarifies the meaning of the words involved in the piece in question and is not used to try to understand what may have been the intent of those who adopted the law. The textualists care only about the plain public meaning of the words at the time they were written, not the intent of the authors.

Intentionalists, on the other hand, seek to divine the intentions of those who adopted or passed a piece of legislation or provision. They endeavor to do so by considering the text of the law or provision as a persuasive—though not controlling—authority.

Intentionalists will look to a nearly endless variety of sources related, directly, or even imaginarily, to the piece in question. The camps of intentionalists diverge or sometimes disagree over whose intent they should consider. Some believe that the intent of the drafters of a piece should carry more weight when it comes to its interpretation, while others argue for heavier consideration of the intent of those who adopted it. Further wrinkles arise when others advocate for the inclusion of ideas of legal structuralism, calling for evaluation of the relationships between the various branches of government at the time of the passage of language in question to determine how different organs of government relate to and interact with one another.

Was Jefferson partly right about the tree of Liberty occasionally, and only when absolutely necessary, soaking up the blood of patriots and tyrants in order to survive? Or was he right when he observed that in the long march of history, governments grow and liberty shrinks? Or, were intellectual giants from Aquinas to Rothbard right when they argued that so long as we can reason, we will have liberty?

But to exercise reason, we must have free will. Both free will and natural law principles have been imprinted in us. Positive law not faithful to the natural law principles is an artificial fabrication of humans, usually for their own good or tenure in power. Yet all rational adults have natural inclinations to know good from evil.

The issues this work addresses are not those of individual fidelity to natural law principles, but government infidelity to them. Government fidelity to natural law principles assures individual choices, personal autonomy, and authorship of one’s own life. Isn’t that the definition of personal liberty – freedom bounded, as Jefferson said, only by the natural rights of others? Isn’t that the pursuit of happiness?

Short of a government committed to the preservation of natural rights, there is darkness and chaos.


Featured: The Tontine Coffee House, New York City, by Francis Guy; painted in 1797.


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.


Ukrainian Nationalism: Russian Special Operation— Denazification of Ukraine

Abstract:

This paper presents the results of the analysis of relevant aspects of the history of the Organization of Ukrainian Nationalists (OUN) in comparison with the policy of the Kiev regime in 2014-2022, using the secrets revealed with the beginning of demilitarization and denazification of Ukraine during the special military operation of the Armed Forces of Russia. These revelations have increased the amount of evidence that the destruction of Russia is the invariable strategic goal of radical Ukrainian nationalism—Ukronazism—throughout its history and in our times, along with the continuity of goals, ideological positions, anti-people policy and crimes of the Banderites and their modern followers. Attention is drawn to the fact that the OUN actively participated in Hitler’s atrocities against Russia and its people. Their leaders and many other Ukronazis were agents and executors of the will of Hitler’s special services, after the victory over fascism, and of special services of the USA and the West. Maidan usurpers of power under the control and with the participation of the United States and their NATO satellites robbed and destroyed Ukraine, turned it into an anti-Russian bridgehead of the United States and NATO and together with them crossed the red line in creating a military threat to the Russian Federation and preparing aggression against it. Russia has therefore taken measures adequate to this threat to protect its national security, to save the people of the Donbass from genocide and to free the fraternal people of Ukraine from neo-Nazism. The most significant common features of radical Ukrainian nationalism in the 1920s-1940s and 2014-2022 are identified. The main elements of the Russian leadership’s decisions to recognize the Lugansk People’s Republic, Donetsk People’s Republic and to conduct a special military operation in Ukraine are summarized. The necessity of the denazification of Ukraine, including the holding of an international military tribunal, is confirmed by numerous facts and the results of preliminary investigations, which have established the involvement of more than 220 persons in crimes against peace and security of humanity.

Introduction: Decision to Conduct a Special Operation. Its Goal and Objectives

On February 24, 2022, a special military operation of the Armed Forces of the Russian Federation in Ukraine (special operation) was launched to prevent further civilian casualties and a humanitarian catastrophe in the Donbass, to denazify and demilitarize Ukraine, to prevent Ukraine from becoming a nuclear power and, as a consequence, to protect the state interests and sovereignty of the Russian Federation.

The decision to carry out the special operation was preceded by the Resolution of the State Duma of the Federal Assembly of the Russian Federation No. 743-8 GD, unanimously adopted by the deputies of the State Duma on February 15, 2022.

The decision to conduct a special operation was preceded by the Resolution, unanimously adopted by the deputies of the State Duma on February 15, 2022, of the State Duma of the Federal Assembly of the Russian Federation, No. 743-8 GD: ” “On the appeal of the State Duma of the Federal Assembly of the Russian Federation to the President of the Russian Federation, V.V. Putin, on the need to recognize the Donetsk People’s Republic and the Luhansk People’s Republic. The appeal noted:

Residents of Donetsk and Lugansk regions of Ukraine at the all-Ukrainian referendum on March 27, 1994 agreed to the federal-territorial structure of Ukraine and the consolidation of the Russian language as the state language of Ukraine, along with the Ukrainian language, and also supported the use of the Russian language in the territories of Donetsk and Lugansk regions of Ukraine, in the sphere of labor relations, office work, documentation, education, and scientific activities.

The new authorities of Ukraine, glorifying the fascists Bandera, Shukhevych and their followers, became intolerant of the historically established norms of life, as well as the will and religion of the inhabitants of these regions. The actions of the Ukrainian authorities forced residents of certain areas of the Donetsk and Lugansk regions of Ukraine to initiate a referendum and vote, in May 2014, for the adoption of the Act of Self-Determination of the Donetsk People’s Republic (89%) and the Act of Self-Determination of the Luhansk People’s Republic (96%).

For eight years, residents of certain areas of the Donetsk and Lugansk regions of Ukraine lived under shelling of small- and large-caliber weapons. According to the United Nations, more than 10,000 people have died, more than 50,000 have been injured, more than 1.4 million people are internally displaced within Ukraine, and more than 2.5 million people have arrived en masse in the Russian Federation, seeking emergency asylum. The Ukrainian authorities had stopped paying pensions and social benefits to residents and had established a complete economic blockade of the population and enterprises of certain regions of the Donetsk and Lugansk regions of Ukraine. The actions of the Ukrainian authorities can be regarded as the genocide of their own people.

As it became known from the originals of secret cipher telegrams captured by Russian military personnel during the special operation, on January 22, 2022, the commander of the National Guard of Ukraine, Colonel-General Mykola Balan, ordered the heads of the northern Kiev, southern Odessa and western territorial departments of the National Guard of Ukraine to prepare one of the strike groups for offensive operations in the zone of the “Joint Forces Operation” (JFO) in the Donbass. All activities of combat coordination of the nationalists were ordered to be completed on February 28, 2022, in order to continue to carry out combat missions as part of the Ukrainian “Joint Forces Operation” in the Donbass.

By February 2022, Ukrainian forces multiplied the shelling of the Donbass with prohibited large-caliber artillery weapons. Against the background of false statements about the desire for peace, Kyiv had begun large-scale artillery preparations for an offensive by a strike group of troops pulled into eastern Ukraine, with the support of aviation and missile systems.

On February 21, the leaders of the self-proclaimed Donetsk People’s Republic (DPR) and the Lugansk People’s Republic (LPR) Denis Pushilin and Leonid Pasechnik addressed the President of the Russian Federation V.V. Putin with a request to recognize the republics:

  • Denis Pushilin, head of the DPR: “On behalf of the entire people of the DPR, we ask you to recognize the Donetsk People’s Republic as an independent, democratic, legal, social state. We also ask you to consider the possibility of concluding an agreement on friendship and cooperation between the DPR and the Russian Federation, providing for cooperation in the field of defense;”
  • Leonid Pasechnik, head of the LPR: “Dear Vladimir Vladimirovich, in order to prevent the mass death of the civilian population of the republic, 300 thousand of whom are citizens of Russia, I ask you to recognize the sovereignty and independence of the Lugansk People’s Republic.”

On the same day, an unscheduled meeting of the Security Council of the Russian Federation was held in the Kremlin, under the leadership of the head of state, to discuss the appeal and the situation that had developed in the Donbass. Each gave his proposals to the President regarding the appeals of the leaders of the DPR and LPR to Russia, with a request to recognizing their sovereignty, and the resolution of the State Duma of the Russian Federation, calling on the head of state to recognize the independence and sovereignty of the DPR and LPR.

On February 21, the President of the Russian Federation signed Decrees No. 71 “On the Recognition of the Donetsk People’s Republic,” and No. 72 “On the Recognition of the Lugansk People’s Republic.”

On February 22, the State Duma adopted, the Federation Council approved, and the President of the Russian Federation signed and promulgated federal laws No. 15-FZ “On the ratification of the Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Donetsk People’s Republic,” and No. 16-FZ “On the ratification of the Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Lugansk People’s Republic.”

On the same day, the President of the Russian Federation submitted to the Federation Council a proposal to adopt a resolution of the Federation Council on consent to the use of the Armed Forces outside the territory of the Russian Federation. On February 22, the Federation Council adopted Decree of the Federation Council of the Federal Assembly of the Russian Federation No. 35-SF “On the use of the Armed Forces of the Russian Federation outside the territory of the Russian Federation.” The decision of the Federation Council was aimed at establishing peace, preventing the continuation of bloodshed and shelling of citizens.

All these acts were adopted in accordance with the Constitution of the Russian Federation, and in compliance with the necessary procedures provided for the activities of the Federal Assembly of the Russian Federation.

On February 23, the Heads of the DPR (Denis Pushilin) and LPR (Leonid Pasechnik) appealed to the President of the Russian Federation, with a request to provide assistance in repelling aggression from the Armed Forces of Ukraine (APU), in order to avoid civilian casualties and prevent a humanitarian catastrophe in the Donbass. The appeals emphasized the following:

… at present, due to the aggravation of the situation and threats from Kyiv, the citizens of the republics are forced to leave their homes, their evacuation to Russia continues. In the context of ongoing military aggression by the Armed Forces of Ukraine in the republics, the destruction of civilian and industrial infrastructure, schools, hospitals, kindergartens and, worst of all, the death of the civilian population, including children. The actions of the Kyiv regime testify to the unwillingness to stop the war in the Donbass;

Kyiv continues to build up its military presence on the line of contact, while receiving comprehensive support, including military support, from the United States and other Western states. The Kiev regime is focused on the forceful solution of the conflict.

Taking the above into account, the heads of the two republics, in connection with the current situation, as well as in order to prevent civilian casualties and a humanitarian catastrophe, on the basis of Articles 3 and 4 of the treaties of friendship, cooperation and mutual assistance between the Russian Federation and the republics, asked the President of Russia to assist in repelling the aggression of the armed forces and formations of Ukraine.

On February 24, in accordance with the decision of the Supreme Commander of the Armed Forces of the Russian Federation, V.V. Putin, the Russian Armed Forces launched a special military operation to protect the Donetsk and Lugansk People’s Republics.

The President announced his decision in an address to the citizens of Russia on February 24 at 06:00 Moscow time:

Circumstances require us to take decisive and immediate action. The people’s republics of Donbass turned to Russia with a request for help.

In this regard, in accordance with Article 51 of Part 7 of the UN Charter, with the sanction of the Federation Council of Russia, and in pursuance of the treaties of friendship and mutual assistance, ratified by the Federal Assembly on February 22 this year with the Donetsk People’s Republic and the Luhansk People’s Republic, I have decided to conduct a special military operation.

Its goal is to protect people who have been subjected to bullying and genocide by the Kyiv regime for eight years. And for this we will strive for the demilitarization and denazification of Ukraine, as well as bringing to justice those who have committed numerous murderous crimes against civilians, including citizens of the Russian Federation.

In doing so, our plans do not include the occupation of Ukrainian territories. We are not going to impose anything on anyone by force.

When making decisions, as reported by the Chief of the Main Operational Directorate of the General Staff of the Russian Federation Armed Forces, First Deputy Chief of the General Staff of the Russian Federation Armed Forces, Colonel General Sergey F. Rudskoy, two possible courses of action were considered. The first, to confine ourselves to the territory of the DPR and LPR within the administrative borders of the Donetsk and Lugansk regions, which is enshrined in the constitutions of the republics. The first was to limit the territory of only the DNR and LNR within the administrative borders of the Donetsk and Luhansk regions, which is enshrined in the constitutions of the republics. But at that time there was a high probability that the Ukrainian authorities would constantly support the group involved in the so-called joint forces operation. Therefore, the second option was chosen, providing for actions on the entire territory of Ukraine, with the implementation of measures to demilitarize and denazify it.

Ukrainian Nationalism: Origins, Essence and Content

How did nationalism develop so radically in Ukraine that the Russian army has to solve the task of its denazification? What are the essence, content and origins of nationalism in modern Ukraine?

First of all, let us define the concept of “nationalism.” In the West, it is widely used in the same sense as patriotism. And in Russia these concepts have different content. The patriotism of the multinational Russian people is traditionally combined with respect for the interests, culture and patriotic feelings of the peoples of other countries, and nationalism, especially in extreme, radical forms—chauvinism, fascism, Nazism is condemned as an ideology that opposes peoples and states to each other, sowing enmity and serving an aggressive policy. These features are inherent in radical Ukrainian nationalism. Under the slogans of self-determination and independence, Ukrainian radical nationalists, Ukronazis, throughout the history of their movement have pursued the goal of selling their native Ukraine to foreign colonizers in order to become a privileged collaborationist caste of overseers over their compatriots.

In the early 1930s, the Organization of Ukrainian Nationalists (OUN) declared the goal of creating its own “self-styled” state. But realizing that these aspirations were impossible and unattainable, it limited its dreams to being the Ukrainian colony of Germany in the hope of serving the role of henchmen of future colonizers. For the sake of this the OUN fought against full-fledged Ukrainian statehood and for its replacement by the false tinsel of a puppet, self-styled “independence”—and against the Ukrainian Soviet Socialist Republic, a full-fledged Ukrainian state, equal among equals with the Soviet federation, and one of the founders of the USSR and the United Nations. And the OUN’s descendants sold for foreign money and cookies the independence of their native Ukraine, obtained with the help of Russia in 1991, together with the huge territories given to it by Russia during the time when both of them were in the United Federation. And the US with its NATO satellites bought Ukraine—along with the sellers—in order to fight against Russia and destroy it.

The roots of terror and genocide in Ukraine in the 21st century are in the ideology and bloody experience of Ukrainian nationalism. In 1900, the “ideologist of Ukrainian sovereign independence” Mykola I. Mikhnovsky, called “the forerunner of strong-willed Ukrainian nationalism,” in a speech, later published in Lvov as a program of the Revolutionary Ukrainian Party (RUP), in the pamphlet Independent Ukraine, proclaimed ultra-radical racist slogans:

  • One, the only, indivisible, free, independent Ukraine from the Carpathians to the Caucasus.
  • Everyone who is not for us throughout Ukraine is against us. Ukraine is for Ukrainians, and as long as at least one foreign enemy remains on our territory, we have no right to lay down our arms” [M. Míkhnovsʹkiy, Samostíyna Ukraí̈na. B/m, 2012. (in Ukrainian). p. 17, 18].

The most amazing maxim of this opus is the assertion that “God himself has become a stranger and does not know (in the original “is not able,” apparently, in the meaning “does not know how”—V.K.) the Ukrainian language.

Having created the Ukrainian People’s Party (UNP), even more radical than the RUP, Mikhnovsky published its “code”—”The Ten Commandments of the UNP.” Some of these later became the basis of the ideology of OUN Ukronazism:

  • One, united, indivisible from the Carpathians right up to the Caucasus, independent, free, democratic Ukraine;
  • All people are your brothers, but Muscovites, Poles, Hungarians, Romanians and Jews are the enemies of our people;
  • Ukraine is for Ukrainians. So, drive out the foreign oppressors from everywhere in Ukraine;”
  • Everywhere and always use the Ukrainian language. Let neither your wife nor your children defile your house with the language of foreign oppressors;
  • Do not take a wife from strangers, because your children will be your enemies. Do not be friends with the enemies of our people, because you give them strength and courage. Do not act (in the original Ukrainian—“do not mess around”—V.K.) together with our oppressors, for you will be a traitor.

Mikhnovsky’s RUP program was published in Lvov. There, as early as 1897, he established close contacts with pro-Ukrainian figures in Galicia. In Galicia, which was part of Austria-Hungary, the anti-Russian, Russophobic orientation of Ukrainian nationalism was formed. From there, the doctrine of aggressive Galician Ukrainianism began to be planted in Malorossiya, even before the emergence of Italian fascism and German Nazism, in their misanthropic, racist spirit, incited hatred. In 1912, the Ukrainian-language magazine Ukrainska Khata (Ukrainian House), published in Kiev, urged:

If you love Ukraine, you must sacrifice your love for other geographical areas. If you love your language, hate the language of your enemy… Know how to hate. If we are talking about Ukraine, we should operate with one word—hatred of its enemies… Revival of Ukraine is synonymous with hatred of your wife—a Muscovite, to one’s children—Katsaps, to one’s brothers and sisters—Katsaps, to one’s father and mother—Katsaps. To love Ukraine means to sacrifice your Katsap kin… If you love Ukraine, if you want it to be—be with it, do not be with its denial” [Ukraí̈nsʹka khata, 1912, No. 6 (in Ukrainian)].

The predecessor of the OUN, the Ukrainian Military (Army) Organization (UVO), founded in 1920 and headed by Yevhen M. Konovalets, responded to the Polish oppression of the indigenous population of Galicia with terror. The most notorious action was the unsuccessful assassination attempt of the chief of the Polish state Józef Pilsudski, on September 25, 1921 (V. Kruzhkov, “Ukrainskiy natsionalizm v Rossiyskoy imperii i na yeyo oblomkakh,”—”Ukrainian nationalism in the Russian Empire and its ruin,” in Mezhdunarodnaya zhizn’ (9)2021).

Soon Konovalets established cooperation with the German intelligence, and the UVO began to receive money from the Germans for espionage against Poland. The headquarters of the UVO was located in Berlin. With the help of German money, the UVO unleashed terror and sabotage in Poland (explosions, attacks, robberies-expropriations, etc.) [Ukrainskiye natsionalisticheskiye organizatsii v gody Vtoroy mirovoy voyny. DokumentyUkrainian nationalist organizations during the Second World War. V 2 (T. 1. M.: ROSSPEN, 2012), pp. 335, 776; 5].

According to one researcher, “The UVO, in which the OUN originated, was a criminal organization. In the criminal sense, this criminality consisted in terrorist murders. Politically, the crime of the UVO, and later of the OUN, was the usurpation of the representation of the entire Ukrainian people. Neither the UVO nor the OUN received such a mandate from the people… never in their activities received the support of the Ukrainian people” (OUN-UPA: mif i real’nost: “Ukrainstvo”—OUN-UPA: Myth and Reality: “Ukrainianness.” Chap. XVII., pp. 142, 143, 143, 143, and V.V. Polishchuk, Gor’kaya pravda. Prestupnost’ OUN-UPABitter Truth. Crimes of the OUN-UPA (Kiev, 2011), pp. 142, 143).

With the establishment of the UVO in 1929, its intelligence service played the dual role of its intelligence and counterintelligence (I.K. Patrylyak, “Sluzhba bezpeky OUN(b),” Entsyklopediya istoriyi Ukrayiny—Security Service of the OUNb. Encyclopedia of the History of Ukraine. Vol. 9. Kiev: Naukova Dumka, 2012, pp. 658-660). Separate from the UVO, the OUN created a control and intelligence reference office in 1932. In Western Ukraine, there was an intelligence branch in the regional executio (Latin “executio”: execution, executive body of the regional wire—the OUN governing body), and intelligence and communications services in the districts (S. Hrab, Sluzhba bezpeky Orhanizatsiyi ukrayinsʹkykh natsionalistivSecurity Service of the Organization of Ukrainian Nationalists. Voyenna Istoriya, 2008, No. 5).

Some Ukrainian authors directly link the explosive growth of terror of the UVO-OUN in the early 1930s—more than 60 attempts and murders, hundreds of acts of sabotage, and dozens of robberies (“expropriations”)—to the formation of nationalist security structures )D. Vyedyenyeyev, V. Yehorov, Mech i tryzub. Notatky do istoriyi Sluzhby bezpeky Orhanizatsiyi ukrayinsʹkykh natsionalistivyu CH.1. “Z arkhiviv VUCHK, HPU, NKVD, K·HB”—Sword and Trident. Notes on the history of the Security Service of the Organization of Ukrainian Nationalists. “Part 1. From the archives of the Vuchk, GPU, NKVD, KGB.” 2(4) 2000, pp. 485–503).

According to the conclusion of one of the researchers, “the UVO, in which the OUN was born, was a criminal organization.” In the criminal sense, the crimes consisted of terrorist murders. Neither the UVO nor the OUN received such mandates from the people; never in their activities did they receive support from the Ukrainian people” [6, pp. 142, 143].

With the creation of the UVO intelligence agency in 1929, the OUN played the dual role of its intelligence and counter-intelligence [7, p. 658-660]. They created a separate control-reconnaissance service in the OUN in 1932. In Western Ukraine, the regional executive (from the Latin “executio”—“the executive organ of the regional branch”—the governing body of the Ukrainian government) had intelligence services, and in the districts—intelligence and communications services.

Some Ukrainian authors directly link the explosive growth of UVO-OUN terror in the early 1930s with the establishment of the security structure of nationalists—more than 60 attempts and murders, hundreds of acts of sabotage, dozens of robberies (“expropriations”).

In 1932, the Galician national clerical newspaper Tsel (The Goal) murderously proclaimed:

Ukrainian nationalism must be prepared for all methods of struggle… not excluding mass physical extermination (annihilation), even if only at the cost of sacrificing millions of human existences (essences, lives) [Tsel’, April 17, 1932, 11, p. 6; V.I. Maslovsky, Z kym i proty koho voyuvaly ukrayinsʹki natsionalisty v roky Druhoyi svitovoyi viyny—With whom and against whom Ukrainian nationalists fought during the Second World War (M.: Slavyanskyy Dyaloh)].

The OUN “Military Doctrine of the Ukrainian Nationalists” of 1938 demanded:

Against the hostile element it is necessary to issue such cruelty… so that the tenth generation would be afraid to look in the direction of Ukraine.
In the future Ukrainian state, there must be a pure national composition… Poles, Russians and Jews must be destroyed.(“Arkhivy OUN: ukrainskiye natsionalisty stavili tsel’yu vyseleniye i unichtozheniye vsekh polyakov—”OUN archives: Ukrainian nationalists aimed to evict and destroy all Poles.” TASS. 01.12.2016)

In the spring of 1941, Bandera and Co. with the briefing, “Struggle and Activities of the OUN During the War,” specified the tasks of genocide and terror: to destroy “hostile” national minorities—”Moskals,” Poles, Jews. They demanded: “Our power must be terrible for its opponents, terrorize foreign enemies and their traitors… The Ukrainian ruler of his own land must from every rank, at every step be promoted.”

The section, “Organization of the Security Service,” listed the enemies of the OUN to be destroyed: “Moskals,” Jews,”outsiders, mainly various Asians, with whom Moscow is colonizing Ukraine, Poles in the western Ukrainian lands”. The Security Service was given “executive power… to destroy elements hostile to Ukraine… as well as… to control social and political life in general” (“OUN v 1941 rotsi.” Dokumenty. V 2-kh ch. CH. 1. Kyiv: Instytut ictopiyi Ukrayiny NAN Ukrayiny—”OUN in 1941.” Documents, in 2 parts. Part 1. Kyiv: Institute of History of Ukraine of the National Academy of Sciences of Ukraine, 2006, pp. 102, 103, 129, 159).

Roman Y. Shukhevych, the SS Hauptsturmführer, and leader of the UPA and the OUN “on Ukrainian lands,” who was elevated to “hero” of the Banderized Ukraine (“Yushchenko awarded the title of Hero of Ukraine to Shukhevich, one of the UPA leaders,” RIA Novosti. 14.10.2007), demanded: “Not to intimidate, but to physically destroy! There is no need to be afraid that people will curse us for our cruelty. Let half of the 40 million Ukrainian population remain—there is nothing terrible in this” (“Kakiye geroi—takaya i derzhava”—”What heroes-such a power,” in Odna Rodina, 04.01.2016).

Ideology of Nationalism in the Service of the Kiev Regime in Modern Ukraine

The anti-Russian hysteria in Ukraine, which began in the years of perestroika, based on Bandera templates, along with the glorification of the OUN-UPA butchers, became the ideological justification for turning the Ukrainian regime into a puppet and anti-Russian tool of the United States and the West. It has intensified since 2004, when one of the leaders of the first Maidan, head of the “Batkivshchyna” party, people’s deputy of Ukraine (this is the constitutional name for the deputies of its Verkhovna Rada, hereinafter, Nardep), future Prime Minister of Ukraine (in 2005 and 2007-2010), Yulia V. Tymoshenko, demanded that the Donbass be with barbed wire and napalm poured on it (A. Moskval, “‘Molyashchemusya’ Poroshenko o nachale voyny v Donbasse”—“’Praying’ Poroshenko about the beginning of the war in Donbass,” in Odna Rodina, 01.06.2018). Back in 2014, she stated: “…it is necessary… to kill these bloody Katsaps together with their leader… so that, damn it, there is not even a scorched field left of this Russia! …it is necessary to shoot them with atomic weapons.”

In December 2014, MPs Yuriy M. Bereza, Andriy M. Levus, and Igor V. Mosiychuk justified the terrorist attack in Grozny and called for similar crimes in Russia with the help of the media (“SK RF vozbudil delo protiv trokh deputatov Verkhovnoy rady za prizyv k terrorizmu”—”Investigative Committee of the Russian Federation opened a case against three deputies of the Verkhovna Rada for calling for terrorism,” in TASS, 12/06/2014). Ex-prime minister Iryna D. Faryon made criminal (according to the forensic conclusion) calls “to destroy Russia as a state and Russians as a group of people on the basis of nationality,” to carry out genocide (“SKR reshil nakazat’ eks-deputata Rady Farion za prizyvy ‘unichtozhat Rossiyu'”—”TFR decided to punish the ex-deputy of the Rada Faryon for calls to ‘destroy Russia,'” in NTV, 08.07.2015). Tyahnybok’s neo-Banderite Svoboda also called for it:

No matter how qualitatively the Russian-speaking amorphous biomass of living stomachs lives—they will not start singing on October 14 (the date of the alleged formation of the UPA, and since 2014 the holiday, “Day of Defenders and Protectors of Ukraine,” which legalized the substitution of the concepts of “heroism” and “betrayal,” the abuse of the memory of the fallen in battles with fascism and the victims of the Banderites: “Gossovet Respubliki Krym prinyal zayavleniye v svyazi s situatsiyey na Ukraine”—”The State Council of the Republic of Crimea adopted a statement in connection with the situation in Ukraine,” in Sayt Gossoveta Respubliki Krym, 22.10.2014—V.K.).” “Oh, there’s a red viburnum in the meadow…” (since 1914, the song of Ukrainian Sich Sagittarius, which is also sung by the UPA: —V.K.), will not pass in torch procession on January 1 (Bandera’s birthday—V.K.). This herd should be liquidated, somewhere around 5-6 million individuals… For 45-million of Ukraine, the disappearance of 6 million will be imperceptible” (“Iz FB Marii Zakharovoy”—”From FB Maria Zakharova,” in Antimaydan, 19.03.2022).

On Maidan 2014 and afterward, neo-Banderites shouted: “Knife the Moskals!” They called for them to be hanged and made their own meme: “Slit Russians!” This was shouted by two-legged predators, with SS symbols, accompanied by shouts of “Sieg Heil!” and raising of hands in the Nazi salute, by children zombified by them. Oleksandr Turchynov, “Bloody pastor,” ex-speaker of the Verkhovna Rada, by whose decree the acting president began the genocide of the people of the Donbass, proclaimed:

We are ready to destroy the Russians wherever we can. It is necessary to beat Russians not only in Ukraine, but also beyond its borders—on the territory of Russia (“Byvshiy spiker Rady Turchinov prizval k genotsidu russkikh—Former speaker of the Rada Turchinov called for the genocide of Russians,” in Komsomol’skaya Pravda, 01.03.2022).

This position of the Ukronazis was declared even during the special operation, on the Ukrainian Channel24, by its employee Fakhrudin M. Sharafmal (“Operatsiya po zakhvatu natsistskogo prestupnika Adolfa Eykhmana (1960)”—”The operation to capture the Nazi criminal Adolf Eichmann (1960),” in RIA Novosti. 11.05.2020). Eloquently and literally, he quoted the words of the Nazi criminal, one of the organizers and executors of Hitler’s holocaust policy:

Eichmann said… to destroy a nation, it is necessary to destroy first of all children, because by killing their parents—children will grow up and will definitely take revenge. If you kill the children, they will never grow up and the nation will disappear (“V Ukraine net natsizma”—”There is no Nazism in Ukraine,” Pikabu).

And Sharafmal continued, flouting the Geneva (and other) conventions, that

when I get a chance to kill Russians, I will… observe the Adolf Eichmann doctrine and make sure that neither you nor your children will ever live on this earth…. you must realize that this is about victory for the Ukrainian people, not peace. We need victory. If that requires slaughtering all of your families, I will be one of the first to do it… And I hope that there will never be another nation like Russia and the Russians on this earth…. If Ukrainians have the opportunity … to crush, slaughter, kill, strangle the Muskalnaya, I hope that everyone will contribute and ‘mop’ at least one Muskal.

Note: Sharafmal threatened to destroy not Russians, but the nation itself—a set of citizens of one state with a common self-consciousness (identity). All citizens of Russia of all nationalities. (In Ukrainian, “Russians,” the nationality and “Russians,” citizens of Russia of all nationalities are referred to by one word – “Russians”). And it is possible to fulfill this threat only by massacres all over Russia. In fact, he called for a total terrorist war in Ukraine and Russia, desired by the United States. But Sharafmal did not go to the front himself. He “fought” on the air.

These incitements were condemned by the Office of the UN High Commissioner for Human Rights (“V UVKPCH OON osudili prizyv ukrainskogo zhurnalista k genotsidu russkikh,”—”UN OHCHR condemned Ukrainian journalist’s call for genocide of Russians, in RIA Novosti, 03/17/2022). The Main Investigative Directorate of the Investigative Committee of the Russian Federation opened a criminal case against Sharafmal on the grounds of the crimes stipulated by para. “b” part 2 of article 282 of the Criminal Code of the Russian Federation, “Incitement of hatred or enmity, as well as humiliation of human dignity,” subparagraphs “a,” “c,” part 2 of article 354.1 of the Criminal Code of the Russian Federation, “Rehabilitation of Nazism.” Ukrainian judiciary is obligated to judge Sharafmal’s incitement under the Criminal Code of Ukraine—Article 2582, “Public calls to commit a terrorist act” (up to five years of imprisonment) and under Article 442 “Genocide,” which provides for up tofive years of imprisonment for public calls for it (Criminal Code of Ukraine, effective from 03/16/2022). But it did not. It seems that justice has disappeared in the Bandarized Ukraine. Acts recognized as crimes by international law, laws of different countries, including Ukraine, have become unpunished demonstrations of “national opinion” (conscience).

It is important to note one more circumstance. The main striking force and organizer of terror, the participation of the Banderites in the fascist genocide of our people was Bandera’s inquisition—the Security Service (SB) of the OUN and the Ukrainian Insurgent Army (UPA) banned in Russia. (The Ukrainian Insurgent Army, banned in Russia, was an anti-Soviet armed group of Ukrainian nationalists that operated mainly in Western Ukraine, from December 1941 to July 1943—created by Taras-Bulba Borovets. In 1943, the OUNb gangs merged into the UPAb, the Borovets UPA ceased to exist, its members joined the OUNm and UPAb gangs. From 1944-1949, the UPA committed acts of terrorism, sabotage. It was completely liquidated in the early 1950s). The brutal traditions of Bandera’s executioners are continued by their modern-day descendants in Ukraine. Back in 2015, the then head of the Security Service of Ukraine (SBU) Valentyn O. Nalyvaichenko stated that the SBU should be reformed on the model of the Banderite inquisition: “it is important to take as a basis the traditions and approaches to the work of the Security Service of OUN-UPA” (A. Sidorchik, “Inkvizitsiya Bandery. Kak ‘Sluzhba bezpeki’ sozdavala ‘Ukrainu dlya ukraintsev,'”—”Bandera’s Inquisition. How the ‘Security Service’ created ‘Ukraine for Ukrainians,'” in Argumenty i fakty, 02.04.2015).

Tyahnybok of the far-right nationalist party, Svoboda argued:

The Security Service of Ukraine remains the only carrier of the Ukrainian state idea in the 21st century, a kind of link between its past and future. And, accordingly, the leadership of the nationalist movement should be formed primarily from officers of the security services, because there is no other personnel reserve (I. Matveyev, “SSHA i YES rukami VO «Svoboda» gotovyatsya unichtozhat’ russkikh na Ukraine,”—”The US and the EU are preparing to destroy the Russians in Ukraine with the hands of the VO ‘Svoboda,'” in Voyennoye obozreniye, 26.02.2014).

According to the assessment of the Belarusian analyst, the Banderization regime, starting with President Viktor A. Yushchenko, turned the SBU into the “Service of Ukraine’s Banderization” (N. Malishevsky, “Sluzhba banderizatsii Ukrainy”—“The Banderization Service of Ukraine,” in RIA Novosti. 12/01/2014), and with its atrocities in the Donbass has likened the Ukrainian security forces to the OUN and UPA, which were recognized by the Court of Peoples—the Nuremberg International Military Tribunal—as accomplices to the crimes of Hitler’s Germany, which according to Article 6 of the Statute of the Tribunal are responsible for them (Statute of the International Military Tribunal for the trial and punishment of the main war criminals of the European Axis). As the Supreme Court of the Russian Federation pointed out on November 17, 2014, in its decision to declare the UPA and four other Ukrainian organizations extremist and ban their activities in Russia, the Nuremberg Tribunal recognized the OUN and UPA as collaborators. (From the decision of the Supreme Court of the Russian Federation, in case No. AKPI14-1292C of November 17, 2014: “…to recognize the Ukrainian organizations ‘Right Sector,’ ‘Ukrainian National Assembly – Ukrainian People’s Self-Defense’ (UNA-UNSO), ‘Ukrainian Insurgent Army’ (UPA), ‘Stepan Bandera’s Trident,’ and ‘Brotherhood’ as extremist and ban their activities on the territory of the Russian Federation.” See: Official website of the Supreme Court of the Russian Federation).

Denazification of Ukraine

To compare the goals and deeds of Hitlerites and accomplices of their crimes—the OUN-UPA and usurpers of power of the Maidan-2014, organizers and participants in the genocide of the people of the Donbass, allow evidence collected by law enforcement and the civilian researchers (Obyknovennyy fashizm: voyennyye prestupleniya ukrainskikh silovikov (2014—2016)Ordinary Fascism: War crimes of the Ukrainian security forces (2014-2016). Moscow: Kuchkovo Pole, 2016, p. 431), and the media. These are the documents from archives, investigations and courts.

A lawsuit on the facts of genocide of the population of the Donbass and other acts in Ukraine, based on copies of criminal case files handed over by the Investigative Committee of the Russian Federation, has been considered by the European Court of Human Rights since July 2021.

“The nationalists who have seized power have unleashed a persecution, a real terror campaign against those who opposed their anti-constitutional actions… A wave of violence swept Ukrainian cities, including a series of high-profile and unpunished murders,” Russian President Vladimir V. Putin stated in an address on February 21, 2022. “One shudders at the memories of the terrible tragedy in Odessa, where peaceful protesters were brutally murdered, burned alive in the House of Trade Unions. The criminals who committed that atrocity have never been punished, and no one is even looking for them. But we know their names and we will do everything to punish them, find them and bring them to justice.”

By February 10, 2022, the Investigative Committee of the Russian Federation initiated 467 criminal cases, on the grounds of numerous crimes of the Maidan usurpers of power and their friends against dissenters, on the grounds of genocide of the population of the Donbass, killings and torture of its inhabitants by the agencies of the SBU, the Interior Ministry, the Ukrainian army and nationalist battalions (the Natzbat), which were of a large-scale and systemic nature (Obyknovennyy fashizm. Ukrainskiye voyennyye prestupleniya i narusheniya prav chelovek. 2017-2020Ordinary Fascism. Ukrainian war crimes and human rights violations. 2017-2020. Moscow: Mezhdunarodnyye otnosheniya, 2020, p. 452). Thus, in 2014, a criminal case was opened on suspicion of crimes of the then head of the SBU, V.A. Nalyvaichenko. In April 2022, another criminal case was opened against Nalyvaichenko for calling for violence against the Russian military. 103 perpetrators were prosecuted in absentia. Among them are the former head of the Ministry of Internal Affairs of Ukraine, Arsen B. Avakov and the former governor of the Dnipropetrovsk region, Igor V. Kolomoisky. Former Deputy Interior Minister Anton Y. Gerashchenko, was sentenced to six years in prison in absentia. Criminal cases were investigated against ex-Chairman of the Verkhovna Rada Oleksandr V. Turchinov, ex-ministers of defense Anatoliy S. Hrytsenko and Valeriy V. Heletey, and ex-Chief of the General Staff of the Armed Forces of Ukraine, Victor M. Muzhenko.

On March 18, Russian Foreign Minister Sergey V. Lavrov explained the meaning of Ukraine’s denazification. In his opinion, it implies the abolition of not only laws that encourage Nazi ideology and practices, but also laws that discriminate against the Russian-speaking population.

As the course of the special operation confirmed, the strongholds of the Kyiv regime are nationalist units, such as Azov, Aidar, Right Sector and others recognized in Russia as terrorist organizations. In Mariupol alone, they had more than 7,000 militants who “fought” under the cover of civilians, using them as human shields. The Azov militants drove women and children out of basements, threatening them with weapons and directing them towards the advancing DNR units in order to impede the advance of the People’s Militia. This has become a common practice for them.

Russian investigators found out that the Azov unit is made up of people of different ages, education levels and life experiences. But they are united in their unwavering determination to kill innocent people. This is the essence of Azov nationalists. To understand this, it is enough to give a few examples. In early March, in Mariupol, Azov member, Sergei Mikhailenko, and his colleague with the call sign “Drone” were near a residential building. A passenger car with “Children” written in large letters was moving in their direction. Despite this, they opened fire on the car, killing the four family members in it, including a three-year-old child. Another example. Alexei Mozgovoy and his brother Yuri took positions in a five-story building in Mariupol. There were 15 civilians in the basement, among them a man suffering from a serious illness. The nationalist brothers, threatening to kill, forbade civilians to leave the basement, even to bring medicine to the sick man. As a result, the man died. And when civilians, having seen what had happened, wanted to leave the place, the Mozgovs started shooting at them—four more people died. And, unfortunately, there are many such examples.

The testimonies of civilians who came out of the blockaded settlements and of captured Ukrainian servicemen show that the Ukrainian armed forces’ ability to resist is based on fear of reprisals from neo-Nazis. Their representatives are embedded in all troop units.

On 30 March, Russian Education Minister Sergey Kravtsov said that more than 50 experts, teachers and historians had analyzed textbooks and teaching aids used by teachers and children in Ukraine. It turned out that whole pages of history were rewritten in them. All this was financed by foreign countries.

“We could see that this is deliberate work, fabricating a system that distorts historical truth. This is not only aggression and readiness for a military operation against our country, but also the zombification of teachers, schoolchildren—and often violently—against Russia. We will never allow history, geography to be distorted, the facts of the Great Patriotic War, our friendship with Ukraine and other countries. Our country is always open, has always helped brotherly nations, including Ukraine,” emphasized Sergey Kravtsov.

“History textbooks emphasize military topics. The education minister drew attention to the fact that the authors of the manuals emphasized that “modern Ukraine needs a compact mobile army in the conditions of aggression by the Russian Federation… History textbooks name Bandera and Shukhevych as heroes, which are thus cultivated. The children’s nationalist organization “Plast” has been revived—Bandera and Shukhevych were its members. In it, Nazism is directly elevated to an absolute,” said Kravtsov.

After the investigation, the textbooks were handed over to the museum of the “Russia—My History” park, where a corresponding section of the “Liberation” display will be created. Everyone will be able to familiarize themselves with the facts of the distortion of history and geography in Ukrainian educational materials.

On April 2, the Investigative Committee of Russia, continuing to investigate crimes committed by the Ukrainian military and nationalists against the civilian population of the Lugansk and Donetsk People’s Republics, on the basis of the collected evidence, in addition to the earlier charges under Article 356 of the Criminal Code of the Russian Federation (use of prohibited means and methods of warfare), brought charges in absentia against 22 high-ranking Ukrainian military officers for genocide of the civilian Russian-speaking population (Article 357 of the Criminal Code of the Russian Federation) of Donbas.

In violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and other international legal instruments condemning genocide, Ukrainian military officers in leadership positions gave orders, and others followed them, to completely destroy a national group of Russian-speaking citizens living on the territory of the Lugansk and Donetsk People’s Republics.

For eight years, Ukrainian security forces have been shelling populated areas in the Donbass using Grad and Uragan multiple-launch rocket systems, cluster-headed unguided aerial missiles, Tochka-U tactical missiles and other types of heavy offensive weapons with indiscriminate effects. As a result, a large number of civilians were killed and injured and civilian infrastructure and life-supporting facilities were destroyed.

Among the Defendants

High-ranking Ukrainian military charged in absentia for genocide of the Russian-speaking population in the Donbass:

  • Ukrainian Defense Minister, Valeriy Geletey (from July 2014 to October 2014);
  • Ukrainian Defense Minister, Stepan Poltorak (from October 2014 to August 2019);
  • First Deputy Minister of Defense of Ukraine, Ivan Rusnak (since September 2014);
  • Deputy Minister of Defense of Ukraine, Oleksandr Dublyan (from October 2015 to December 2016);
  • Deputy Minister of Defense of Ukraine, Igor Pavlovsky (from 2015 to 2019);
  • Deputy Minister of Defense of Ukraine, Oleg Shevchuk (from November 2016 to September 2019);
  • Viktor Muzhenko, chief of the AFU General Staff (from July 2014 to May 2019);
  • Commander of the 13th Army Corps of the AFU Ground Forces (subsequently First Deputy Chief of the AFU General Staff, 2019), Igor Kolesnik;
  • Deputy Chief of General Staff of the AFU, Vladimir Khizhiy (2014);
  • Deputy Chief of General Staff of the AFU, Sergey Bessarab (from 2015 to March 2020);
  • Vasyl Burba, Head of the Main Intelligence Department of the AFU (from 2016 to 2020);
  • Commander of the AFU Ground Forces, Sergey Popko (from 2014 to 2016);
  • Commander of the Air Force of the AFU, Sergey Drozdov (from 2015 to 2021);
  • Commander of the High Mobility Airborne Troops of the AFU, Mikhail Zabrodsky (from 2015 to 2019);
  • Commander of the AFU Special Operations Forces, Igor Lunev (from 2016 to 2020);
  • Commander of the AFU Naval Forces, Igor Voronchenko (from 2016 to 2020);
  • Commander of the troops of the Operational Command “East” of the AFU Ground Forces, Sergey Naev (from 2018 to 2019);
  • Deputy Commander of the troops of the Operational Command “West” of the AFU Ground Forces (since March 22, 2017—commander of the troops of the Operational Command “West” of the AFU Ground Forces), Oleksandr Pavlyuk;
  • First Deputy Commander of the Operational Command “North” of the AFU Ground Forces, Andriy Grishchenko (2016);
  • First Deputy Commander of the troops of the Operational Command “East” of the AFU Ground Forces, Oleksandr Krasnook (2017);
  • First Deputy Commander of the AFU Ground Forces, Oleksandr Lokota (2016);
  • Commander of the 30th separate mechanized brigade of the AFU, Ivan Garaz (2015).

In total, as of July 25, 2022, the Investigative Committee of the Russian Federation had opened more than 1,300 criminal cases, in which more than 400 persons are being prosecuted. The preliminary investigation has already established the involvement of more than 220 persons, including representatives of the high command of the Armed Forces of Ukraine and commanders of military units that shelled civilians, in crimes against peace and security of humanity that have no statute of limitations. A total of 92 commanders and their subordinates have been charged. A total of 96 individuals, including 51 AFU commanders, are wanted.

On April 3, the chairman of the Investigative Committee of Russia, Alexander I. Bastrykin, supported the initiative of the LPR representatives on the need to hold a tribunal on the war crimes of the Ukrainian regime in Donbas, expressing readiness for its establishment. He noted that the Investigative Committee of Russia has been recording all unlawful actions of the AFU and other Ukrainian nationalist military formations against the peaceful population of the Donbass for eight years. Each fact is given a legal assessment. In future, the evidence gathered by the Russian investigation will be presented to the public, and those involved in committing these crimes will be brought to trial.

Numerous war crimes by Ukrainian nationalists have already been recognized at the international level. For example, on April 6, the American publication The New York Times confirmed the authenticity of a video showing Ukrainian nationalists shooting wounded Russian servicemen, and on April 7, at a press conference in Brussels, the NATO Secretary General called for an investigation into all reports of war crimes in Ukraine, but refused to comment on video footage of Ukrainian nationalists killing Russian prisoners of war—”because he knew nothing concrete about it.”

On June 1, 2022, the chairman of the Committee on Criminal and Administrative Legislation of the People’s Council of the DNR, Elena N. Shishkina, stated that the composition of judges at the international tribunal against Ukrainian militants may include representatives of European countries “who will respond and will not be afraid to openly oppose Nazism, which thrives on the territory of the state of Ukraine,” invitations to which have been sent. She also admitted that the first meeting of the interim “Mariupol tribunal,” whose charter is being drafted, might take place before the end of the summer.

At the same time, as Bastrykin noted on July 25, 2022, “given the position of the ‘collective West,’ which openly sponsors Ukrainian nationalism and supports the Kyiv regime,” the establishment of an international tribunal, under the auspices of the United Nations, “is extremely doubtful in the current perspective. It would be more appropriate to work on this issue with Russian partners in such organizations as the CIS, CSTO, BRICS and SCO. The establishment of the court and its statutes could be formalized by an agreement between Russia, member countries of these organizations and the Donetsk and Luhansk People’s Republics. At the same time, it would also be advisable to involve other countries demonstrating an independent position on the Ukrainian issue, based on the norms of international law, in particular Syria, Iran and Bolivia. The establishment of an international judicial body would demonstrate to the entire international community the inevitability of punishment for crimes against the peace and security of mankind and the determination of Russia and our country’s true partners in eradicating Nazism, nationalism and xenophobia.”

However, the inevitability of the complete denazification of Ukraine and the holding of an international tribunal against the war criminals of the Kyiv regime does not stop the succession of their madness, which extends not only to the civilian population of the Donbass but also to civilians in Ukraine and Russia. Thus, on April 27, at around 11 p.m. Moscow time, the Ukrainian armed forces launched a massive missile strike with Tochka-U ballistic missiles and high-powered multiple-launch rocket systems against residential neighborhoods in the central part of the city of Kherson. The targets of the indiscriminate missile strike by the nationalists were residential neighborhoods near Ushakov Avenue, where kindergartens, schools and many social institutions are also located. Russian air defense units repelled the missile attack by Ukrainian troops on residential areas of Kherson. Twelve high-powered multiple rocket launchers and two Ukrainian Tochka-U ballistic missiles were shot down in the air above the city. Fragments of one of the downed Ukrainian Tochka-U missiles fell in Shevchenko Park. The indiscriminate missile strikes by the Kyiv nationalist regime against residential areas in Izium and Kherson constitute a war crime and a flagrant violation of international humanitarian law.

Another example is the shelling, by units of the Ukrainian armed forces, of the liberated villages of Kiselevka and Shirokaya Balka in the Kherson region on May 1st. The Ukrainian nationalists were firing at purely civilian objects. A school and a kindergarten, in the village of Kiselevka, came under artillery fire. Also, artillery fire was purposefully directed at the cemetery located on the outskirts of Shirokaya Balka, where there were people at that moment. As a result of the shelling, civilians were injured and killed. The buildings of the school, kindergarten and private houses were seriously damaged. Because of the consequences of the shelling by the AFU, the residents of these settlements were partially deprived of electricity.

Since February 25, Ukrainian nationalists have been subjecting civilian infrastructure facilities on the territory of Russia—the Belgorod, Bryansk, Voronezh, Kursk and Rostov regions—to artillery and rocket fire and air strikes. On May 11th, such a criminal act ended in tragedy for the first time: one person was killed and six others injured when Ukrainian troops shelled the village of Solokhi in the Belgorod region of the Russian Federation. Subsequently, instances of death of the population of Russia, as a result of the use of firearms by Ukraine, have been recorded on numerous occasions.

On the territory of the LNR and DNR, nationalists destroyed and partially damaged more than 7,000 civilian infrastructure facilities, including residential houses, schools, kindergartens, and vehicles. During the entire period of investigation in the criminal case of the Investigative Committee of the Russian Federation by mid-July 2022, more than 216,000 people were questioned; more than 91,000 people were recognized as victims, including 14,072 minors.

It is likely that after the publication of this article, other crimes of the Kiev nationalist regime will be uncovered. The investigation and decisions of the courts and the International Tribunal on the genocide of Russian people during the Great Patriotic War and, in 2014-2022, of the population of Donbass, on terror, murders and pogroms in modern Ukraine will provide new arguments to expose Hitlerism, the OUN and their modern followers, and to carry out the denazification of Ukraine.

Conclusion

Banderites in the service of the Third Reich and their pro-American followers in modern Ukraine are united by a single ideology—radical Ukrainian nationalism, Ukronazism, and its anti-Russian orientation; as well as, immorality and inhumanity; venality and service to foreign suzerains for the sake of benefits, along with a cynical trade in the interests, fates and lives of compatriots, of Ukraine and its people; grave crimes against Ukraine, which have had a massive and systemic character, namely, terror and genocide—fascist terror with the participation of the Banderaites against the people of Russia and neo-Nazi terror against the population of Donbas, and terror against the inhabitants of Odessa (Odessa Khatyn), other towns and villages, in which the Ukronazis left a bloody trail.

After the Great Victory, Ukraine was cleansed of OUN gangs and the underground in a matter of years, because the effective struggle of law enforcers against Ukronazism was accompanied by widespread popular support. The betrayal of Soviet elites in the mid-1950s (the “Adenauer-Khrushchev Amnesty”) allowed former nationalist collaborators to return to Ukraine with a completely clean reputation, almost as heroes and even martyrs.

In 2022, Russia, by giving the lives of its loyal sons for the liberation of Ukraine from nationalism, by destroying and capturing neo-Nazis, by revealing the truth about their crimes and criminal plans, is creating the conditions for the final eradication of Nazism. On July 3, as a result of successful combat operations by the Armed Forces of the Russian Federation, together with units of the People’s Militia of the LPR, the liberation of the Luhansk People’s Republic was completed. The military victory in the DNR and the international tribunal against the war criminals are approaching.

Both in the liberation of the Donbass and in the denazification of Ukraine, the timing and results of their completion, guarantees against recurrences of Ukronazism and the conditions for reliably ensuring the sovereignty and security of the country, the interests and rights of its population, and the sustainable development of the Ukrainian state and society largely depend on the active participation of the people of Ukraine, their awareness of the danger of radical ideologies and their open condemnation.


Vladimir G. Kiknadze is a Russianhistorian, associate professor and a Colonel in the reserves. He is the author of over 200 published works. This article appears courtesy of Nauka, Obshchestvo, Oborona journal.


Featured: Members of the Azov Battalion, March 11, 2022.