JURIDICAL NIHILISM

juridical 2

 

 

 

 

 

1. Law as seen through the nihilistic lens. The legal world has long been invested by the skeptical position according to which there is no truth, justice and rationality of the law, in which everything comes from will and its intrinsic mobility. 

There is no natural right (jus naturale) which is valid in itself, but everything is revocable and changeable: the fact that there is no natural right means that any law or rule is conventional and therefore arbitrary. According to L. Strauss, the rejection of today’s natural right leads to nihilism, indeed making it one with itself (1). The present post-metaphysical turn of so many philosophical schools is a disquieting signal.

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

 

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

2. You know well the necessity to differentiate between lex naturalis and jus naturale on one side, and lex and jus on the other, and the constant difficulty in settling this problem as in the English language, ‘law’ is generally used to express both ‘lex’ and ‘jus’. Inspired by L. Strauss, who entitled his famous book Natural Right and History, I have decided to also employ the term ‘right’ to render jus naturale as natural right and Diritto/Droit/Derecho/Recht as Right. This concept of Right, intended as something which is by nature due to the person as such (and this is his right), is central in ethics and the philosophy of law, and constitutes a genetic and systematic notion of these sciences.

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

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

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

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

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

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

According to Nietzsche, when Law is not Tradition it is Imposition or Command (4). That law must be imposed by power is his first and the last word: when law is not valid according to the tradition, it only applies if imposed by force. In juridical nihilism law is violently detached from practical reason, becoming a mere production of will that doesn’t recognize any natural Right: only positive law, positum by will, exists.

In 1984, in a dramatic and violent conversation with his jailer O’Brien, Winston Smith represents the last man in Europe to fight the Party and Big Brother, in order to keep a shred of humanity. In this long interrogation Orwell disseminated illuminating considerations that recall dilemmas that are still unavoidable today.

I have brought some of them together, leaving the floor to O’Brien who wants to make Winston Smith a totally controlled being:

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

 

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

 

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

 

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

 The challenge of nihilism

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

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

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

– as for the aim, that the eternal world becoming aims at nothing; it has no end in view;

 

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

 

– as for truth, that there is no ‘real world’, no suprasensible reality that goes beyond and above the eternity of a becoming that constitutes the only reality (7).

Nietzsche’s conclusion is sharp: “Briefly: the categories “aim,” “unity,” “being”, which we used to project some value into the world— are now by us extracted again from the world; so that it looks valueless… ” (p. 258).

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

I am unable to show here that these characters are strongly linked to each other. I can only say that anti-realism and oblivion of being adequately synthesize them. In this way we arrive at the truth of A. Camus’ illuminating quote: “A nihilist is not one who believes in nothing, but one who does not believe in what exists. “(8).

In ‘What exists’ it is included the Value intended as the original face of Good, the Value which comes before the action and orientates it, as Camus claims in L’homme revolté. The formulas ‘philosophy of values’ and ‘tyranny of values’ (Schmitt) are very ambiguous and should be clarified, because they risk neglecting value as the manifestation of Good and Being. Axiology is in reality always ontology, and Value is rooted in Being with its permanence and certainty (9).

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

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

 

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

 

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

 

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

 

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

 

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