Voegelin and The End of

Meeting Index

Eric Voegelin Society Meeting 2001

Eric Voegelins critique of ideology and the functions of ideology under modern democratic conditions

Copyright 2001 Paul B. Cliteur

"It was the splendid achievement of a brilliant analyst, and it was so good that it hardly could be improved upon."

This is Voegelins laudatory appraisal of Kelsens Pure Theory of Law. For all the differences between the two authors, there are many similarities as well. Both writers were very critical of ideology. The irony is, of course, that in Kelsens perspective Voegelins theory would be disqualified as "ideology". And, vice versa, in Voegelins perspective Kelsens positivism would be rejected as "ideology". Although for different reasons I am an admirer of the work of both Kelsen en Voegelin, I think their critique of ideology is outdated.

In this paper I want to emphasize two points. First: democracy under modern conditions is only possible as representative government (following Benjamin Constant). Second: to make representative government work, we need ideology as a common framework of ideals and goals for political action (my own development of Constants thesis). So we should not follow Voegelin in his violent rejection of the notion of ideology.

 

Voegelins criticism of ideology

Let us start with Voegelins devastating comment on ideology and ideologists. What are Voegelins complaints about ideologies and ideologists? He makes four claims.

There is, first, the question of - what he calls - "intellektuelle Rechtschaffenheit" (intellectual honesty). This ideal is part of Webers inheritance. One of the virtues Weber thought a scholar should have was "intellektuelle Rechtschaffenheit". However - and this is important - honesty is not easy, if not impossible, as an ideologist. "Ideologies, whether Positivist, or Marxist, or National Socialist, indulge in constructions that are intellectually not tenable", Voegelin states. That ideology is a phenomenon of intellectual dishonesty is "beyond doubt", he continues, "because the various ideologies after all have been submitted to criticism, and anybody who is willing to read the literature knows that they are not tenable, and why".

That reproach reminds us of the critique of ideology that was further developed by thinkers as Karl Popper: ideologies are impervious to criticism and critical assessment. This element is connected to the intellectual dishonesty, Voegelin contends, because if one adheres to ideas while they have been refuted, the prima facie assumption must be that the ideologist is intellectually dishonest. Needless to say, this criticism of ideologies appertains to all forms of ideologies. Voegelin is opposed to "any ideologies", whether they are Marxist, Fascist, National Socialist, or what have you. They are incompatible with what he calls "science in the rational sense of critical analysis". As has been said before, Voegelin pays tribute to Max Weber as the great thinker who drew that problem to our attention.

A second feature of ideologies has to do with their social consequences. Voegelin seems to think that ideologies lead to noxious social results. He bluntly states: "A further reason for my hatred of National Socialism and other ideologies (italics added; PC) is quite a primitive one. I have an aversion to killing people for the fun of it." So ideologies, in his view, not only National Socialist, but every ideologie, lead to the killing of people for the fun of it.

That raises the question why people who otherwise are not quite stupid indulge in intellectual dishonesty as soon as they touch science. According to Voegelin "the fun" consists of gaining a pseudo-identity through asserting ones power, optimally by killing somebody. A pseudo-identity serves as a substitute for the human self that has been lost. Voegelin developed this theme in his study Eclipse of Reality (1970) and refers to Albert Camus as a fellow thinker who explored the same problem. Maurice Merleau-Pontys Humanisme et Terreur (1947) is mentioned as an exemplification of the lost self that becomes a pimp for this or that murderous totalitarian power.

As a third motif for his aversion of ideologies, Voegelin refers to a predilection "to keep his language clean". If anything is characteristic of ideologies and ideological thinkers, "it is the intellectual jargon of a high level of complication, sometimes on a vulgarian level". Marx is adduced as an example. According to Voegelin Marx was an "intellectual swindler for the purpose of maintaining an ideology that would permit him to support violent action against human beings with a show of moral indignation".

Fourth and finally, Voegelin mentions a "particular hatred of ideologists" because they vulgarize the intellectual debate and give to public discussion a distinctly ochlocratic coloring. Today this has reached the point of considering as fascist or authoritarian even a reference to the facts of political and intellectual history that must be known if one wants to discusss the problems that come up in political debate.

With this last notion of ideology, Voegelin seems to think about much more recent ideological aberrations, such as the student revolt in the Sixties and attitudes of students in general. In his autobiography he writes on Amerian students. In the South the problem of "ideological corruption among young people was negligible". The students were open-minded and had little contact with ideological sectarian movements. Voegelins experiences in the East were less favorable. The ideological corruption of the East Coast affected the student mind profoundly. "A great number of students simply will not tolerate information that is not in agreement with their ideological prejudices", Voegelin tells us.

This last type of ideological insanity also has to do with the democratization of the universities.

When I say that prospects are dubious, I mean that in fact the active operation of the universities, especially in the fields of the social sciences and the humanities, has been widely destroyed through the famous democratization, especially through the participatory democracy, which means in fact that nobody is permitted to do his work in peace.

In a case like Berlin, leftist students simply do not permit anybody who was not a Marxist to open his mouth. Munich was fortunately preserved from the worst effects, partly because his institute there was a stronghold of nonideological science, Voegelin writes.

 

Is Voegelins conception of ideology is too broad?

After this tour dhorizon of Voegelins criticial remarks on ideology a question forces itsself upon us: is his conception of ideology is not much too broad to be fruitful? His notion of ideology covers an overwhelming range of convictions that are - at first sight at least - essentially different.

A stubborn preoccupation with prejudices - the first notion of ideology - seems to be different from ideology in the second sense: a pretext to kill people for the fun of it. The habit to use incomprehensible language (third notion of ideology) is despicable, to be sure. But it is something different from intolerant enthousiasm that was characteristic of the student revolt in the Sixtees.

There may be some broader framework that legitimizes to bring those notions under a new structure structure, but that would require further analysis and argumentation than Voegelin presents.

To understand his reasons for this wide conception of ideology we have to deal with Voegelins philosophy of history.

 

The origins of Voegelian philosophy of history

In his Autobiography Voegelin gives us some information about his intellectual development in the thirties. In the years 1933-36 he began to develop interests in neo-Thomism. He read the works of A.D. Sertillanges, Jacques Maritain, tienne Gilson, and then got even more fascinated by the not so Thomistic but rather Augustinian Jesuits like Hans Urs von Balthasar and Henri de Lubac. "To this study, extending over many years, I owe my knowledge of medieval philosophy and its problems", Voegelin tells us.

This is a crucial passage. But, I believe, more for its ommissions than for the explicit information its conveys. There is definitely much more to acquire than "knowledge of medieval philosophy and its problems" from Henri Lubacs vision of history and criticism of modernity. Voegelin seems to think that the Thomistic and Augustinian influences are more or less compatible. But there is one crucial difference. The Thomistic tradition is essentially rationalistic, whereas the Augustinian tradition is voluntaristic. Both influences had a decisive influence in Voegelins work and an important question, so it seems, is whether they can be reconciled at all. The rationalistic influence manifests itself in Voegelins adamant emphasis on rationality, criticism, openness towards refutation and so on. This reminds us of his positivist and Weberian bent, pace the authors own interpretation of his intellectual development. But on the other hand, there is the Augustinian speculation on world history as the unfolding of the grand strife between the city of God and the earthly city. There we also gauge Henri Lubacs Drame de lhumanisme athe. Voegelins synthesis of these intellectual influences seems to be that christianity is presented as the more or less "rational" religion that had to compete with the "irrational" cults of late-Antiquity that it finally managed to supersede. Prominent among those cults of late-Antiquity was gnosticism. "Gnosis", according to Voegelin in The New Science of Politics, "was an accompaniment of Christianity from its very beginnings; its traces are to be found in St. Paul and St. John. Gnostic heresy was the great opponent of Christianity in the early centuries."

So far, so good. But acknowledging the importance of gnosticism as a historical competitor to christianity is one thing, lumping all other non-christian or anti-christian philosophies, ideologies, systems of ideas and religious currents as essentially "gnostic" or crypto-gnostic is quite another. And that is exactly what Voegelin, more or less following Augustine and the Augustinian philosophers as Henri de Lubac, does.Trying to understand the whole of Modernity as essentially "gnostic" seems to me an enormous tour de force.

Let us try to look more closely at the different steps in Voegelins analysis of modernity as essentially gnostic.

As has been said before, according to Voegelin we have "to recognize the essence of modernity as the growth of gnosticism." The term gnosticism as used by Voegelin, however, is much broader than the attitude or current described by the gnosticism-scholars such as Berkhof and others. Voegelin is a Feuerbach in reverse. In his christo-centric view of reality and history he thinks he can show an "inner logic" of Western political development "from medieval immanentism through humanism, enlightenment, progressivism, liberalism, positivism, into Marxism". Voegelin then anticipates on the unwillingness he presupposes among his readers. "One can easily imagine how indignant a humanistic liberal will be when he is told that his particular type of immanentism is one step on the road to Marxism". However, the present author is not so much indignant as curious what arguments could be advanced for maintaining such a bold hypothesis. Voegelin presents scanty proof for his sweeping statements. On the contrary, his generalizations grow wider and wider:

Secularism could be defined as a radicalization of the earlier forms of paracletic immanentism, because the experiential divinization of man is more radical in the secularist case.

This is philosophy in the grand manner indeed. Sometimes Voegelin seems to be aware of the lifting of eyebrows he supposes from his reading public. In his Autobiography he writes "() in Die politische Religionen I still pooled together such phenomena as the spiritual movement of Ikhnaton, the medieval theories of spiritual and temporal power, apocalypses, the Leviathan of Hobbes, and certain National Socialist symbolism. A more adequate treatment would have required far-reaching differentiations between these various phenomena." But "far-reaching differentiations" do not seem to be Voegelins strength.

 

Representation according to Voegelin

A second element of Voegelins work we have to discuss are his remarks on representation. The central claim I hope to substantiate is that Voegelin it blind to the positive functions of ideologies have in systems of representative government. To substantiate this thesis we have to enter into a brief analysis of Voegelins concept of representation, another key-concept of his thinking.

In his autobiography Voegelin writes that on occasion of the Walgreen Lectures in Chicago in 1951 a breakthrough occurred in his intellectual development. He felt obliged formulate some of the ideas that began to crystallize on the problem of representation and the relationship between representation and social and personal existence in truth. In what sense could the Soviet government, for instance, be considered to be representative of the Russian people? The Soviet government was not in power by virtue of representative elections in the Western sense. Voegelin called this "the problem of existential representation". Existential representation is always the core of effective government, independent of the formal procedures by which the existentially representative government achieved its position. In a primitive society where the mass of people is incapable of rational debate and of forming political parties who select issues, a government will rest on traditional or revolutionary forces without the benefit of elections. Why is the government tolerated under these circumstances? Because it is the result of "fulfilling more or less adequately the fundamental purposes for which any government is established - the securing of domestic peace, the defense of the realm, the administration of justice, and taking care of the welfare of the people".

This existential representation is empirically supplemented - at least in some historically existing societies - by a claim to what Voegelin dubs as "transcendental representation". That is: the symbolization of the governmental function as representative of divine order in the cosmos. In all the Near Eastern empires the king was considered to be the representative of the people before the god and of the god before the people.

 

Voegelins terminology of existential and transcendental representation is not very enlightening

What is Voegelins concept of "existential representation"? It seems to me a common truth about the legitimacy of states and governments. Every legitimate state first has to exist before we can ask whether it accomplishes his other functions: "order is heavens first law" (Pope). A state that cannot succesfully maintain its existence may be a constitutional state, a democratic state or whatever other beneficial qualification we might give it, since it cannot exist, it is useless.

Especially authors who have experienced the collapse of liberal democracies between the two worldwars are sensible to this "order-precedes-justice-argument". Voegelin sides with Robert H. Jackson that democracy is not a suicide pact (in the Terminiello-case of 1949).

We do not need to be Nazi-victims to understand this. In the German theory of the State (for instance in Webers famous definition of the state) the Zwangsmonopol was always proclaimed as an essential element.

So the question is not whether order and authority is important. The question is what will be gained by bringing this all too common observation under the notion of "representation".

 

What is representation?

Representation has been defined as "the making present again, in some non-literal sense, of some entity, whether personal or abstract". But that immediately confronts us with the question: in what sense, and under what circumstances, does one entity "stand for" another, and on what grounds can one say that representation is or is not taking place?

Edmund Burke made a celebrated distinction between representation and delegation. "A delegate merely mirrors and record the views of his constituents, whereas a representative is elected to judge according to his own conscience".

The philosopher Roger Scruton, more or less following Burke, makes a distinction between mandation, delegation and representation.

Mandation is the relation between an office-holder and an electorate, by virtue of the promises of the former to the latter, under which he is obliged to fulfil those promises.

Delegation is the relation between an officer and an electorate, when the electorate has instructed him to convey certain requests and commands to another body.

Representation is the relation between an officer and an electorate which has no power over the officer other than that provided by an election, and in which the officier is bound (a) to obey the principles and constitution of the assembly in which he sits, and (b) within that framework, to urge consideration of the interests of those who elected him.

But Burke was writing before the development of political parties and it may be contended that his conception of representation is too loose: it leaves too much discretion to the representatives. There must be some spiritual bond between representatives and those that are represented to make representative government work. This bond, so it seems, is "ideology". Anarchism, communism, socialism, liberalism - those more or less coherent sets of ideas intermediate between voters and representatives.

In this context I use the word "ideology" not in any derogatory meaning, but as a more neutral term. An ideology is a more or less coherent set of ideas that provide the basis for some kind of organised political action. Ideologies offer an account or critique of the existing order. They provide a "world view". They give us a model for a desired future and a vision of the good society. They also outline how political change should be brought about.

I do not think that with this approach to ideology, I succomb to the gnostic temptation or any other illict attempt to realize the kingdom of heaven on earth. Ideology is simply a device to mediate between the concrete and the ideal. In On Liberty John Stuart Mill gave us the outlines of a liberal ideology. In God and State Bakunin presented the ideology of anarchism. Marx presented communist ideology in The Communist Manifesto. In Reflections on the Revolution in France conservative ideology was expounded by Edmund Burke. There is no need to think that those ideologies or idelologists are "intellectually dishonest" or lead to the killing of people for the fun of it. Nor can we say that those thinkers did not "keep their language clean" or "will not tolerate information that is not in agreement with their ideological prejudices." But the most important thing is: we need ideology in representative government under modern conditions.

This last claim I hope to make clear in what follows.

 

Benjamin Constant on democracy under modern conditions

With the words "representative government under modern conditions" I refer, of course, to Benjamin Constants distinction between two kinds of liberty, as developed in his famous lecture The Liberty of the Ancients compared with that of the Moderns (1819).

The first is the liberty the exercise of which was so dear to the ancient peoples. It consisted in exercising collectively, but directly, several parts of the complete sovereignty; in deliberating, in the public square, over war and peace. The aim of the ancients was the sharing of social power among the citizens of the same fatherland.

The second is the liberty the enjoyment of which is especially precious to the modern nations. What would an Englishmen, a Frenchman, and a citizen of the United States of America understand today by the word "liberty"?, Constant asked. And his answer is: "For each of them it is the right to be subjected only to the laws, and to be neither arrested, detained, put to death or maltreated in any way by the arbitrary will of one or more individuals." This we might call the principle of legality. It formulates - in terms familiar to a contemporary reader - the rule of law, in contrast to the rule of men. But this is not all. Constant goes further with enumerating the specific political rights that demarcate an individual sphere of the citizen exempt from state power: the right to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings. The modern concept of liberty is also the right to exercise some influence on the administration of the government, either by electing all or particular officials, or through representations, petitions, demands to which the authorities are more or less compelled to pay heed. So the next element of modern liberty is political rights. In contemporary terminology: constitutionalism as a further development of the principle of legality.

Constants reference to representation is crucial. It makes clear that the modern concept of liberty matches with representative government and not with direct democracy as was common in the ancient city states of Greece.

Ancient liberty is no longer possible in a democracy under modern conditions. For three reasons.

First, ancient republics were restricted to a small territory. The most populous, the most powerful, the most substantial among them, was not equal in extension to the smallest of modern states.

Second, the ancient states had slaves. So the mechanical professions were committed to people in chains.

Third, commerce does not, like war, leave mens lives intervals of inactivity.

 

The ancients and the moderns: radical differences

The modern world offers us a completely opposing view. Thanks to commerce, to religion, to the moral and intellectual progress of the human race, there are no longer slaves among the European nations. Free men must exercise all professions, provide for all the needs of society. That leaves us, moderns, much less time for politics. We cannot spent every day at the public square in discussions. We can no longer enjoy the liberty of the ancients, which consisted in an active and constant participation in collective power. Our freedom must consist of peaceful enjoyment and private independence.

Constant warns us against all unrealistic nostalgia for the concept of liberty and democracy that cannot be applicable to our modern condition. We are no Persians subject to a despot, nor Egyptians subjugated by priests, nor Gauls who can be sacrificed by their druids, nor, finally, Greeks or Romans, whose share in social authority consoled them for their private enslavement.

We are modern men, who wish each to enjoy our own rights, each to develop our own faculties as we like best, without harming anyone; to watch over de development of these faculties in the children whom nature entrusts to our affection, the more enlightened as it is more vivid; and needing the authorities only to give us the general means of instruction which they can supply, as travellers accept from them the main roads without being told by them which route to take.

Constant presents his own critique of the totalitarian leanings in the ideology of the French Revolution. He points out the dangerous implications of the political philosophy of Rousseau and Abb de Mably. Terror and totalitarian catastrophy result from the wish to realize ancient liberty under modern conditions.

But it is not my ambition to present Constants approach to ideological aberrations in contrast with the one developed by Voegelin. What interests me in this context is the unavoidability of representative government als the sole model of democracy that can exist under modern conditions, that is: without slavery. We are in "need for the representatieve system", Constant writes. "The representative system is nothing but an organization by means of which a nation charges a few individuals to do what it cannot or does not wish to do herself." Constant is complety free from any sentimental nostalgia for the past: "Poor men look after their own business; rich men hire stewards." But rich men who employ stewards keep a close watch on whether these stewards are doing their duty, Constant writes. My point is: this is only possible when the representatives feel themselves obliged to a grander political set of ideas they have in common with the people who voted for them. If we have no such framework at our disposal, we are obliged to involve ourselves much more in politics than is possible under modern conditions. In other words, ideology is indispensible in representative government in order to avoid a return to the ancient condition of direct involvement of the citizen in the affairs of the state.

Voegelin and The End of [Legal] Philosophy

Copyright 2001  Patrick H. Martin
 

"Now faith is the substance of things hoped for, the evidence of things not seen."

Introduction

Eric Voegelin taught a course in Jurisprudence at the LSU Law Center for several years while he was a member of the Political Science Faculty of the University. He completed a manuscript on The Nature of the Law in 1957. Edited by Robert Anthony Pascal, James Lee Babin and John William Corrington, the manuscript was published, along with several other Voegelin writings, in 1991 as volume 27 of The Collected Works of Eric Voegelin. References to this book will be in brackets throughout this paper.

The enterprise of providing the philosophical foundation for natural law is certainly a worthy undertaking. Voegelins The Nature of the Law is such an endeavor, and it deserves close study by any student of the subject and by any person interested in Voegelins thought. The book is little but weighty, and its value lies in its critique of a century or more of legal positivism and its explicit premises that point the way for a more fully realized development of natural law theory, such as we find in John Finniss 1980 Natural Law and Natural Rights.

With this title I hope to reflect several themes in Voegelins approach to law and Twentieth century thought. The word "End" signifies the notion of purpose or goal which also equates to Aristotles belief in "final cause", telos or finis. We are all familiar with Aristotles four causes: the material, efficient, formal, and final cause. A failing of the reigning approach in contemporary legal philosophy, positivist, normative jurisprudence was, in Voegelins opinion, to equate "law" with the process of law making. Using Kelsens "Pure Theory" as a representative case of normative jurisprudence, Voegelin said: "the lawmaking process acquires the monopoly of the title law, . ." [p 28] In the view which he criticizes, the sole criteria for legal analysis is the process for making law: "whatever power establishes itself effectively in a society is the lawmaking power, and whatever rules it makes are the law." [p 28].

The final end, purpose or cause of a thing is its reason for being. Voegelins Nature of Law is concerned not with mere analysis of law as to form or content but purpose in the life of man. Laws nature is not verbal construction (i.e. command of a sovereign backed by sanction) nor a substantive collection of rules of contract or property. Rather its nature is associated with the philosophy of mans being.

[Legal] I place in brackets to reflect Voegelins belief that legal philosophy is not distinct from other aspects of philosophy:

The relations among human beings in a society, thus, to a large extent have legal structure. The legal character of social reality, however, is even more pervasive than it appears to be if we consider nothing more than the specific rules created by members of the society for themselves. [p 23]

He follows this up with his broader reflection that contemporary use of the word law is inadequate to convey a proper concept of law: "the equivocal use of the law in the sense of valid rules made by organs of government and the law that somehow pervades the existence of man in society. What is preserved in this pale equivocation of our everyday language is the profound insight, rarely to be found in contemporary legal theory, that the law is the substance of order in all realms of being." [p 24]

Laws nature is seen in Voegelins careful choice of words to describe certain aspects of laws elements. Commenting on Plato and Aristotle, he states:

The inquiry into the true order of the polis is the philosophers principal task. Specific rules are formulated under the aspect that they articulate the true order in society and, if enacted, will secure it. The lawmaking process is studied under the aspect whether its organization will result in rules that will secure the true order. [p 26]

Specific rules do not make the order of society; rather they articulate the true order. When enacted they are not the order of society. rather they are a means of securing the true order.

The secondary implication of my use of "End" in association with Voegelins work is to suggest downfall or disintegration, a coming to an end -- a theme that he returns to several times in The Nature of Law. In Voegelins view, legal thought and philosophy were in poor shape in the Western thought of his and our time:

[W]ith the progress of secularism and the disintegration of philosophy in the nineteenth and twentieth centuries, the lawmaking process achieves complete autonomy, i.e., its theorists remove from legal theory the question of substantive order. [p 27]

He speaks of the "state of philosophical disintegration that is manifest in normative jurisprudence." [p 29]. Or again: "While the intention of the rule is not cognitive, the rule nevertheless intends a truth. That is the point perhaps most difficult to understand in the contemporary state of philosophical disintegration." [ p 65] Elsewhere Voegelin spoke even more strongly of the times saying that "the insane have succeeded in locking the sane in the asylum . . . the political tentacles of scientistic civilization reach into every nook and corner of industrialized society."

Is there not an inconsistency in a philosophy that posits the existence of an order in society that is reflected in law while at the same time decrying the disintegration of that philosophical order? I would argue that it is not. The good conservative can be an optimist. The optimistic conservative has faith in the wondrous nature of the human being even while lamenting the state of the present population and polity of humans.

Voegelinian Themes

Nature

We may begin with a consideration of the word "nature" from the books title. In ordinary use, as reflected in the American Heritage Dictionary, it refers to the "intrinsic character or a person or a thing." The Oxford English Dictionary defines nature as "The essential qualities or properties of a thing; the inherent and inseparable combination of properties essentially pertaining to anything and giving it its fundamental character." When we, and Voegelin, refer to the "nature" of the law we are looking to its intrinsic character, its essential qualities or properties. Voegelin identifies the use of "nature" as having the same meaning for Aristotle as "form" on occasion, though he notes an inconsistency in usage by Aristotle. [p 41] At the outset of his book, Voegelin raises the possibility "that perhaps the law does not have a nature. And since the only reason for a thing not to have a nature is its lack of ontological status -- the fact that it is not a self-contained, concrete thing in any realm of being -- there arises the unpleasant question whether the law exists." [p 6] His focus then is on the "ontological status" of "the law," whether law has real existence. Nature also refers to the "order, disposition, and essence of all entities composing the physical universe." If we were to engage in Voegelins predilection for playful turning of words back upon themselves, we might be tempted to summarize his view by saying: For Voegelin, the nature of law is in the law of nature. But I am assured by those who knew him that Voegelin would not have so characterized his views.

Human nature

Human nature is of considerable importance in Voegelins schema of law. Where Voegelin is unacceptable to contemporary legal thought is precisely where he is most Aristotelian his view of law proceeds from a belief in "human nature". It is that nature of man, his Logos, that is the center of social order, political science and we may assume also, law. The telling verb that he uses reveals much: "unfold" As he discusses Aristotle, he provides his view of law: "The nature of human community unfolds fully in the polis because it provides the social environment for the full unfolding of human nature":

The inquiry into the true order of society, regardless of the question whether the surrounding society is a suitable field for its realization, develops, in the classic philosophers, into an autonomous occupation of the human mind--an enterprise that can be successful only because the true order of society is the order in which man can unfold fully the potentialities of his nature. The nature of man, his Logos, becomes the central theme of a science of social order; the science of human nature, philosophical anthropology, becomes the centerpiece of political science; and the nature of man, as it unfolds in the existence of the philosopher, as well as in the disordered human existence of the surrounding society, becomes the empirical material for the inquiry. [p 52]

The Aristotelian point of view is seen also in his borrowing of the term: the bios theoretikos. "Aristotle insisted that a society was ordered truly only when it made possible the bios theoretikos." -- "the contemplative life" as he identifies it in the Supplementary Notes that are reprinted with The Nature of the Law, [p 74]. Or again as he puts it,

Natural law has theoretical justification insofar as it translates the insights gained by a theory of the nature of man into the language of obligatory purposes. As example may serve the Aristotelian translation: By theoretical insight the bios theoretikos is the full unfolding of human potentiality. Translated into a moral rule: man should strive to find this fulfillment in his personal existence. Rule of natural justice: society should be organized in such a manner that the fulfillment of the purpose is possible, at least for those who wish to attain it. [p 81-2].

The end to be attained by law and society is the completion of the unfolding in the mature man: the spoudaios. [p 74] Although he expresses it in a conditional form, Voegelin believes "it is the purpose of human existence to bring this [human] nature to its full realization . . ." [p 66].

Such a view of the nature of man is distinctly at odds with a society intensely focused on physical pleasure and contemptuous of the idea that the law or the state has anything to do with the soul. Richard Posner declares in The Problems of Jurisprudence: "The law is not interested in the soul or even the mind. It has adopted a severely behaviorist concept of human activity as sufficient to its ends and tractable to its means. It has yet to be shown that law changes peoples attitudes toward compliance with social norms, as distinct from altering their incentives." In this view, man is little more than ragged claws, responding to external stimuli; the law is stimulus, using pleasure and pain as incentive. In contrast, Voegelin describes punishment as having a larger, more complete function: "While punishment, for example, certainly has the function of protecting the members of a society against the disorganization of their lives by the disturbing actions of their fellow members, it also has the purpose of restoring the personal order in the soul of the delinquent and, as far as that is possible, of reconstructing him as a person. A utilitarian philosophy of criminal law would obscure the problem that, in the order and disorder of society, the Ought in the ontological sense is at stake and that this Ought has its seat in the person of every single man." [p 64].

Validity

Voegelin uses the term validity in several senses. First is the straightforward positivist sense, validity as signifying duly enacted. A law is valid if it has been enacted or promulgated in conformity with a positive rule, say the Constitution. For example a statute on discharges of substances into water would be valid if it was approved by a majority of both houses of Congress and not vetoed by the President. No Positivist would find fault with this use of validity. He expands upon it by observing that validity comes and goes as statutes are enacted and then repealed. The law is in part a flowing stream of these rules moving in and out of validity; a legal order is an aggregate of valid rules. He introduces the uncertainty over the laws content by recognizing that the law may not be known until it is declared by a judge in a particular case.

However, Voegelin goes beyond Positivism in his use of validity. For Kelsen, the top of the legal hierarchy was the human-norm-beyond-which-there-was-no-norm, which he termed the grundnorm or basic norm. For Voegelin, the hierarchy continues to God:

The hierarchy of valid rules has as its top stratum the divine and natural law; under this stratum move the statutes of the prince; then follows customary law insofar as it is not in conflict with the royal statutes; next come the decisions of the magistrates, moving within the law as fixed by the higher strata; and at the bottom come the legal transactions of the subjects -- their buying and selling, their labor contracts, marriages, wills, and so forth. The hierarchy of lawmaking authorities, in reverse order, begins with the subjects, rises through magistrates and the king, and culminates in God. [p 27]

Voegelins critique of Positivism, as Positivism was reflected in Kelsen, is that it cuts off the hierarchy before it reaches its pinnacle:

With the constitutional procedures, however, we have reached the top of the hierarchy of rules. There is no constitution above the constitution that would link a series of constitutional aggregates into one legal order in the manner in which the statutory sub-aggregates are linked by the constitution. We have arrived at the border at which the problem of validity no longer can be solved intra-systematically through regress to a procedurally higher aggregate of rules. We are faced with the phenomenon that the validity of the law has its origin in extralegal sources. [p 31]

Voegelin goes on to discuss this in a subsection entitled The Components of Validity.

Ontological

The term "ontology" has been put to a variety of tasks in philosophy, principally embracing a concept of being. It has moved from being a synonym of metaphysics to Christian Wolffs essences of beings to Kants analysis of existence to Heidegger and Quine. Voegelin uses "ontological" in a somewhat special way that suggests to me that he wishes to confirm his belief in the existence of the thing to which "ontological" attaches, as we might speak of the ontological object as opposed to the epistemological object; or perhaps the point at which the Idea is instantiated (we might think for example of Beauty being instantiated in a sculpture). Thus he speaks of "The Ought in the Ontological Sense" [p 42]. By this I think he means the "ontological Ought", the ought that has a genuine existence. And he goes on to state:

The norms, thus, acquired the character of projects for the concrete order of society; and at the core of this order we found the Ought in the ontological sense, the tension in society that requires the elaborate efforts to create and maintain the order and, with the order, the very existence of society.

If now we position ourselves at the ontological center of the tension, we see that the lawmaking process is only one among several types of efforts to project and realize the order of society. [p 49].

Observe that he does not speak of the creation or establishment of order in society but rather the projection and realization of the order of society, as earlier we noted he speaks of law as articulating the true order.

The Ought

With this term, we again find a Voegelin adaptation of a word used in philosophy. He gives it his own special meaning, perhaps. The classic problem of natural law thought is the difficulty of moving from "ought" to "is". In Part I, Of Virtue and Vice in General, of Book III, David Hume makes his well-known distinction between "is" and "ought". At the end of Section I of Part I, Book III, where Hume argues that moral distinctions are not derived from reason, and before moving on to argue that they are also not derived from a moral sense, Hume declares:

I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remarkd, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprizd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, tis necessary that it shoud be observd and explaind; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention woud subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceivd by reason.

Hume follows Hobbes in the separation of law and morality by sharply differentiating "is" and "ought"; never do the two meet. Both writers display another characteristic of legal positivism by stressing the absolute need for all real things to be found in sense experience. In this they are empiricists. Empirical or scientific knowledge is the only genuine form of knowledge. The claimed existence of a thing beyond sense experience can have no bearing upon what people accept as real. With Bentham we see this attitude most pithily expressed in his famous declaration that natural rights are nonsense, "nonsense on stilts."

Rejecting these Positivists, Voegelin declares the existence of the Ought. This Ought is the order underlying mans existence. It is much like the Natural Law for Aquinas in the Summa Theologiae:

Question 91 -- Second Article

Wherefore, since all things subject to Divine providence are ruled and measured by the eternal law, as was stated above (A. 1); it is evident that all things partake somewhat of the eternal law, in so far as, namely, from its being imprinted on them, they derive their respective inclinations to their proper acts and ends. Now among all others, the rational creature is subject to Divine providence in the most excellent way, in so far as it partakes of a share of providence, by being provident both for itself and for others. Wherefore it has a share of the Eternal Reason, whereby it has a natural inclination to its proper act and end: and this participation of the eternal law in the rational creature is called the natural law. Hence the Psalmist after saying (Ps. iv. 6): Offer up the sacrifice of justice, as though someone asked what the works of justice are, adds: Many say, Who showeth us good things? In answer to which question he says: The light of Thy countenance, O Lord, is signed upon us: thus implying that the light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the Divine light. It is therefore evident that the natural law is nothing else than the rational creatures participation of the eternal law.

Voegelin sounds the same theme in The Nature of the Law:

Man has the experience of participating, through his existence, in an order of being that embraces not only himself, but also God, the world, and society. This is the experience which can become articulate in the creation of symbols of the pervasive order of being, such as the previously indicated Egyptian maat, or Chinese tao, or Greek nomos. He furthermore experiences the anxiety of the possible fall from this order of being, with the consequence of his annihilation in the partnership of being; and, correspondingly, he experiences an obligation to attune the order of his existence with the order of being. Finally, he experiences the possible fall from, and the attunement with, the order of being as dependent on his action, that is, he experiences the order of his own existence as a problem for his freedom and responsibility. Within the range of society, the realization of the order of being is experienced as the burden of man. When we refer to the tension in social order, we envisage this class of experiences. In order to link them more closely with the problem of normativity in legal rules, we can speak of them as the Ought in the ontological sense. [pp 43-4]

The Ought, he says, it discloses itself in the experience of tension between empirical and true order.

To me, the central problem of philosophy is whether universals have existence. And here we perhaps get the significance of Voegelins phrase, "the Ought in the ontological sense", for we can append the statement I have just made with Voegelins phrase: "the central problem of philosophy is whether universals have existence, in the ontological sense." Let us take the universal "beauty". Does "beauty" have a real existence or is the use of the term "beauty" merely an expression of ones feelings? If I say a painting or a flower is beautiful, am I describing a quality of the painting or am I merely describing my own state of mind, an affection rather than a perception? In the same way, we ask whether just or unjust is actually a quality of an act or event or is the use of the term just or unjust merely a statement of an opinion that is personal or conventional in that it is shared by a number of persons? If right and wrong, just and unjust are merely personal and conventional, then we are free to change our mind, our attitude, about a matter from say fear of flying to love of flying. Voegelin would have rejected this.

Whether we think of Voegelin as accepting Platos universalia ante rem (before the thing) or Aristotles universalia in rebus (in things) Voegelin was a Realist, and a central feature of his legal thought was the Reality of the Ought: "the Ought is a reality in the experiences we have outlined."[p 66]

One commentator has observed that The Nature of the Law does not take up the subject of ethics, with ethics being concerned with the order of the soul. Perhaps. But I would offer the proposition that this was neither oversight nor neglect on the part of Voegelin. Rather, it perhaps reflects his quarrel with Positivism. The Positivists and most modern legal scholars would demand a sharp demarcation of law and morality or law and ethics, the one binding the other only a matter of conscience. They do this to separate law from not-law. And they do this because they often are very skeptical about the genuine existence of rules of ethics or morality, indicating instead that expressions of moral principles are merely expressions of personal liking or disliking.

Hobbes perhaps is the figure who first took us down this path:

But whatsoever is the object of any mans Appetite or Desire; that is it, which he for his part calleth Good: And the object of his Hate, and Aversion, Evill; And of his Contempt, Vile and Inconsiderable. For these words of Good, Evill, and Contemptible, are ever used with relation to the person that useth them: There being nothing simply and absolutely so; nor any common Rule of Good and Evill, to be taken from the nature of the objects themselves; but from the Person of the man (where there is no Common-wealth;) or, (in a Common-wealth,) from the Person that representeth it; or from an Arbitrator or Judge, whom men disagreeing shall by consent set up, and make his sentence the Rule thereof.

For Hobbes the terms just and unjust only signified what the state had declared just or unjust: "Lawes are the Rules of Just, and Unjust; nothing being reputed Unjust, that is not contrary to some Law." . . . . "where there is no Common-wealth, there nothing is Unjust." . . . "before the names of Just, and Unjust can have place, there must be some coercive Power."

We find more recently John Austin saying:

Now, moral obligation is an obligation imposed by opinion, or an obligation imposed by God: that is, moral obligation is anything which we choose to call so, for the precepts of positive morality are infinitely varying, and the will of God, whether indicated by utility or by a moral sense, is equally matter of dispute. This decision of Lord Mansfield, which assumes that the judge is to enforce morality, enables the judge to enforce just whatever he pleases.

To separate law and morality (or ethics) is to separate empirical or positive law (i.e. human law, binding law) from non-law.

Now the further agenda of the Positivists and many modern legal philosophers is not only to separate law and morality into separate spheres for analytical purposes and to determine what is binding and to be applied by judge and jury, but also to say what cannot or should not become law. Once a subject is identified as a matter of morality, it is said to be off-limits to positive law; rather it should be a matter only of conscience.

For Voegelin, human law and morality draw from the same underlying source, the true order in which human potential unfolds and is fulfilled. This is seen in his statement:

[T]he true order of society is the order in which man can unfold fully the potentialities of his nature. The nature of man, his Logos, becomes the central theme of a science of social order; the science of human nature, philosophical anthropology, becomes the centerpiece of political science; and the nature of man, as it unfolds in the existence of the philosopher, as well as in the disordered human existence of the surrounding society, becomes the empirical material for the inquiry. The true order of society is living reality in the well-ordered soul of the philosopher, brought to sharp consciousness by the philosophers refusal to succumb to the disorder of his environment. [p 52]

Positivists must still have an organizing principle to provide a basis for law. They have their own self-evident propositions. For Hobbes, it was the keeping of Covenant. For John Stuart Mill and many contemporary law scholars, law is to forbid that which causes harm to others. Few people today have actually read John Stuart Mill. But his perspective holds sway. In On Liberty he asserts:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

A natural corollary of Mills libertarian proposition of individual sovereignty is that society may not prohibit those things that people do together through consent. The basis for all this is the underlying concept that all notions of right and wrong (of "ought"), except as it pertains to harm to others, have existence only in the affections. In After Virtue, Alasdair MacIntyre has observed that today "all moral judgments are nothing but expression of preference, expressions of attitudes or feelings." Voegelins The Nature of Law preceded many of the legal developments that reflect this rather widely held view of moral judgments but we may with confidence surmise what his reaction would have been. The editors introduction observes: "The Nature of the Law may be characterized as a reasoned invitation to restore holiness to the legal order."

Conclusion

The profound difference between Voegelin (and many other adherents to the natural law tradition) and the Positivists is the view of the nature of man and his place in nature. The argument over the nature of law is as much an argument over the nature of man. For Voegelin law is part of an order that permits and guides the fulfillment of human potential, both rational and spiritual. For that order to have temporal efficacy, it must work through human instruments, including positive law. The philosophers special role is in developing the standards from the true order by which the empirical law can be measured. Those of us who teach legal philosophy may find much to admire in Voegelins belief that we philosophers are as much lawgivers as those in the legislature or on the bench.

The philosophers develop projects of order that they do not expect to be enacted as valid rules through the lawmaking process of their society. The work is done when the dialogue or treatise is written; the projection of the true order is finished. If conditions should arise historically under which such an order could be enacted by an empirical society, all the better, though neither Plato nor Aristotle expects to see these conditions fulfilled. The philosopher, thus, becomes the lawmaker of the true order in his own right, rivalling the lawmaker of the empirical society with its order of dubious truth. [p 53].

According to Voegelin, Plato and Aristotle were unsuccessful, as their own societies disintegrated around them, even as Voegelin saw society disintegrate around himself. The philosopher is a Promethean figure, the bringer of Order, who finds himself rejected by society and in the end rather solitary: "The true order of society is living reality in the well-ordered soul of the philosopher, brought to sharp consciousness by the philosophers refusal to succumb to the disorder of his environment." [p 52] One calls to mind another figure engaged in heroic struggle, the melancholy Dane, no doubt reflecting the contemplative frustration of his creator: "What a piece of work is a man! how noble in reason! how infinite in faculties! in form and moving how express and admirable! in action how like an angel! in apprehension how like a god! the beauty of the world, the paragon of animals! And yet to me what is this quintessence of dust?"