1
Our life acquires furrows and lines through our labors, through our productivity in work and profession. My home as teacher and researcher is in two areas of legal scholarship, international law and constitutional law. Both disciplines belong to public law. Work in these areas is about publicity in the strongest sense of the word. It concerns questions bearing upon domestic and foreign policy. Thus it is directly exposed to the danger of the political. The jurist in such fields cannot escape this danger, not even by disappearing into the nirvana of pure positivism. At best he can temper the danger either by establishing himself in remote borderlands, under historical or philosophical camouflage, or by developing the art of qualifications and obfuscations to the highest degree of perfection.
In quiet times neutral zones and comfortable parks are established for the protection of nature, intellect, and memorials. In troubled times this ceases. Then the danger immanent to all free thinking becomes acute. The researcher and teacher of public law suddenly finds himself pinned down and categorized as a result of any unguarded word and thought, and this by people who have never had an unguarded thought in their lives, to whom any freedom of the intellect is essentially foreign. But this is not all. The academic work of a scholar of public law, his writings themselves, place him in a particular country, among specific groups and powers, and in a particular time period. The material he assembles his concepts from and relies upon for his scholarly work binds him to political situations whose favor or disfavor, good or ill fortune, victory or defeat also encompasses the researcher and teacher and decides his personal fate.
This reality becomes most palpable in times of open or latent civil war. A civil war involves something particularly ghastly. It is a war between brothers, because it is fought within a common political entity that encompasses the opponent within one and the same legal order, and because both sides of the struggle simultaneously assert and deny this common political entity in absolute terms. Both place the opponent absolutely and unconditionally in the wrong. They suspend the rights of the opponent, but they do so in the name of justice. Submission to this jurisprudence [Jurisdiktion] of the enemy1 belongs in the essence of civil war. Thus civil war has a narrow, specifically dialectical relation to law. It cannot be other than righteous in the sense of being self-righteous and becomes in this way the ur-type or prototype of righteous and self-righteous war.
More dangerously than in any other kind of war, each party is forced ruthlessly to presuppose its own rightness and, just as ruthlessly, the wrongness of the opponent. One side asserts a legal right, the other a natural right. The former confers a right to obedience, the latter a right of resistance. The interference of legal reasoning and institutions poisons the struggle. It makes the conflict escalate to the most extreme severity insofar as it transforms the means and methods of the judiciary into means and methods of annihilation. One sits in judgment without ceasing to be an enemy. The establishment of revolutionary tribunals and people’s courts is not intended to diminish the terror but rather to sharpen it. The public, legal defamations and discriminations, the public or secret blacklists, the acts of declaring individuals enemies of the state, of the people, or of humanity do not mean granting the opponent the legal position of an enemy in the sense of a belligerent party. On the contrary, they are supposed to deprive him even of this last right. They amount to a total disenfranchisement in the name of the law. The enmity becomes so absolute that even the age-old sacral distinction between enemy and criminal dissolves in the paroxysm of self-righteousness. Doubt about one’s own righteousness [Recht] counts as treason; interest in the opponent’s reasoning is perfidiousness; and an attempt at discussion becomes consorting with the enemy.
All these are expressions and manifestations of the dialectical relation between civil war and law. There are different kinds of war. There are holy wars, just wars, and wars as duel [Duellkriege]. The holy war and the war as duel both retain something of the original character of a judgment of God. The just war, in contrast, places judgment in the hands of human beings. In the age of modern positivism, justice is transformed into a law made by people for people. It makes of law a settlement of settlements [eine Setzung von Setzungen]. To the same degree it deprives just war of the last vestiges of a sacral thought. The goddess of justice opens Pandora’s box, and there appear not only the snares of intricate trials but also the judicially clothed terrors of bloody civil wars.
2
What becomes of legal scholarship in this tragic dialectic of law? What becomes of the legal scholar if every potentate turns into a pitiless dogmatist?
In terms of great and heroic world history, this difficult question is easy to answer. In the twelfth and thirteenth centuries the spirit of Roman law was born anew out of terrible partisan struggles in the cities of middle and upper Italy. In the confessional civil wars of the sixteenth century names such as those of John Story on the Catholic side and Donellus on the Protestant side shine forth among those persecuted and expelled. The church has now given us a patron saint in Thomas More. I will speak later of the founders of public law, of ius publicum Europaeum. Since their era, the age of heroes, of course, the jurists have been thoroughly officialized and absorbed into the bourgeoisie. In the nineteenth century the risks of their profession seemed to grow even smaller than those of other occupations. Viewed in this way, the response of the larger history of the world is rather simple. Briefly stated, it runs as follows: times change; in bad times, many perish; a few become martyrs and even saints; and, out of suffering and adversity, new generations draw the motivation for new achievements.
This response is cruel and comforting at the same time. It bears the double countenance that all answers and oracles of the Hegelian World Spirit carry. We know this. World history is not the soil of happiness. We do not wish to scorn its comfort, but this comfort is summary and sweeping. The sufferings that human beings bring upon one another are terrible. We cannot simply turn away from them. But how are we to bear the sight of them? How, in particular, should a person for whom knowledge about right has become a part of his existence bear the naked fact, indeed the bare possibility of a total disenfranchisement, regardless of whom it strikes in individual cases? And if it strikes him personally, then the situation of the disenfranchised jurist, of the lawyer declared an outlaw,2 of the legal expert placed hors-la-loi in fact acquires an especially bitter supplement [Zusatz] on top of all the other physical and psychic ordeals, a thorn of knowledge that inflames the burning wound ever anew.
3
The last asylum of the person tormented by other human beings is always a prayer, a prayer cried out [Stoßgebet] to the crucified God. In the shearing of pain [Schur des Schmerzens]4 we recognize Him and He recognizes us. Our God was not stoned by Jews as a Jew and was not beheaded by Romans as a Roman. He could not be beheaded. He no longer had a head in the legal sense, because he no longer had any rights. He died by crucifixion, the death of a slave imposed upon him by a foreign conqueror.
Sometimes the doors of our captivity suddenly open, and a mysterious path appears. It leads inward, to many forms of silence and stillness, but also to new encounters and to a new present. As long as our consciousness remains bound to the labors of our earthly existence, a new connection with the past emerges from this, a personal coexistence with the thinkers whose situation corresponds to our own. There emerge contacts and conversations whose power moves the mountains of entire libraries and whose fire consumes the false authenticity of enormous piles of material. Souls and spirits speak to us personally, of us and of themselves. Here I do not mean the genies and spirits of the Renaissance and of humanism; I mean no Parnassus and no Olympus—also not the foaming goblet of the world of spirits from which the philosophy of German idealism thought to imbibe eternity. All of this is not my subject. I have poor, suffering people in mind, people in a solitary position of danger akin to my own and whose thought remains in this place, so that I may understand it well and may be sure that they understand me.
My work is dedicated to the scholarly clarification of public law. This is an area that extends far beyond the borders of a nation, and certainly beyond the positive legality of a generation. It is, nevertheless, not an unsituated generality or an undifferentiated matter pertaining to the entire world and to all ages. It is a creation of the European intellect, a ius publicum Europaeum, and remains bound to a particular epoch. It emerged in the sixteenth and seventeenth centuries from appalling European civil wars. This is its beginning and its principium [principle/beginning]. In this initial situation lies its relationship with the situation of our present time, an intellectual relationship that is more than an historical parallel—and also more than an analogy and something other than what Oswald Spengler termed a homology. There are identities of intellectual existence that extend even to the most personal destinies, even into the souls of all those who, with their thought and their concepts, strive to master such a situation intellectually and must bear the entire burden of this endeavor.
4
Some teachers of public law from the sixteenth and seventeenth centuries, the period of emergence of ius publicum Europaeum, became so famous that their fame itself has its own history, and thus offers an interesting theme for intellectual–historical observation. Francisco de Vitoria, Alberico Gentili, and Hugo Grotius belong here. I know them, their work, their lives and their fates, also the history of their fame up to the present day. I love them. They belong without a doubt to our camp.5 However, they do not belong in my barracks room. In immediate proximity to me are two others, who founded the law of nations upon the constitutional law of states: Jean Bodin and Thomas Hobbes.
These two names from the era of confessional civil wars have come to be, for me, names of living contemporaries, names of brothers with whom I have grown into a family across the centuries. For 30 years, the mysterious hand that steers us as we reach for books has had me open their books again and again, and each time at passages heavy with meaning; that was back then, before my library was taken away from me. Today I am forced to rely upon my memory. But the thoughts and formulations of both these figures are just as familiar to me as the thought and speech of a brother. They have kept my thinking alert and driven it forward when the positivism of my generation weighed down upon me and a blind need for security sought to paralyze me. In them I have found more topical answers to the questions of my time in international and constitutional law than in the commentaries on the Bismarckian or Weimar constitutions, or in the publications of the Geneva League of Nations. They stand closer to me than all the positivists of the status quo specific to these particular façades of legality. For this reason I would like to dwell on them here for a moment.
Both were entirely formed by civil wars. But they are as different from each other as two human individuals could possibly be. Bodin is an eager legalist, sometimes too eager and somewhat humorless. He is very erudite, both as a jurist of the school of Bartolus and as a humanist of the school of Jacques Cujas, but he stays within the limits of his practical profession. From this position he approaches economic, philosophical, and theological questions. He often ventures into the line of fire of the domestic policy of his country and of his time, gets involved in perilous situations, finds himself in mortal danger and changes over to the wrong side at the wrong moment, shortly before his death. In this way he undid the practical gains of his life’s work. He is neutral in the hopeless dogfight of theological argument. He sees what is specifically political between the two parties of the confessional civil war as residing in a conciliatory neutrality and tolerance. From the impulse for public peace, security, and order there emerge, in his head, the first juridically clear concepts of European constitutional law. He becomes the first modern critic of religion and of the Bible. But in his own person he remains pious and devout to the point of superstition, so that the dogmatism of the contending theologians fails to make belief altogether too difficult for him. He believes in witches and demons and even has a secret protective spirit, a spiritus familiaris, who warns him about murderers and protects him from them. He delineated the decisive concept of ius publicum Europaeum, that of the domestically and internationally sovereign state, with incomparable success. He is one of the midwives of the modern state. But he did not yet grasp the modern Leviathan that appears in four shapes, the fourfold combination of God, animal, person, and machine. His desperation was not overwhelming enough for this.
Hobbes, by contrast, understood it all the better. After a further century of theological conflicts and European civil wars, his desperation was infinitely deeper than Bodin’s. Hobbes was one of the great solitary figures of the seventeenth century, all of whom knew one another. He grasped not only the fourfold essence of the modern Leviathan but also how to deal with it, as well as the behavior advisable for an independently thinking individual who engages with such a dangerous theme. For Hobbes, the political is no longer neutrality but the clear delimitation made by the line of friendship. He already lives in the age of the amity line,6 the age of successful pirates and buccaneers. He thought, spoke, and wrote about these dangerous things in the inalienable freedom of the intellect and always with good personal cover, always either on the run or from some inconspicuous concealment. He was no practitioner and no public figure, and not once did he personally expose himself. At the private personal level as well, he remained aware of the basis of all law; and, for him, this was the mutual relationship that results from protection and obedience. On this point the man without illusions was even less susceptible than usual to being deceived. He went to those places where he could count on the cessation of civil war and find effective protection. He did not envisage running onto the knives of the rulers and dogmatists of his age. Thus he secured his observation post and achieved a systematic construction of the most lucid conceptual coherence. He lived, in fear and caution, beyond the age of 90 and led the life of an independent mind. From him as from Bodin there came strong impulses for religious and biblical critique. But, while Bodin remained theologically pious and even superstitious, Hobbes is already a figure of the Enlightenment and an agnostic.
One should not speak too much of one’s friends. Each of these two is my friend, different as they may be in other respects: one so pious and superstitious, the other so disenchanted and Enlightenment-oriented. And I do not deny myself a prayer for their souls. Jean Bodin, who himself prayed so much and so fervently, would take it for granted. He would be amazed if I did not. But Thomas Hobbes would hardly think ill of me either. He renounced speaking of such things, but was in favor of prayer when it really leads to peace. The civil war stoked by theologians and sectarians drove him to despair. Nevertheless he was not an Enlightener in the style of the eighteenth century, not to speak of the nineteenth. His Enlightenment is not yet arrogant. It is a bitter fruit, plucked in fear and worry, the fruit of an age of confessional civil war and murderous dogmatism.
5
Sometimes, in our deepest humiliation, we are suddenly struck by pride in our godly origins. That is a blissful moment. Not a dream or a childhood memory and no paradise, but rather an image of the most intensive copresence of centuries of historical efforts, in which we ourselves feature, with our poor life’s work. We hear the contents of the discussions of an entire epoch in simple, clear words, and see our own reality in a moment of concrete localization and triangulation [Angulierung]. A single second teaches us where we actually are, where we come from, and where our path of suffering is going. I want to try to speak of one such moment, although I know that I cannot reproduce the image of instantaneous copresence. I must lay it out discursively, in strands [Linien] from the history of ideas and the sociology of knowledge, and must translate its words into a language entirely different from that of an immediate simultaneity.
We are aware of jurisprudence as a specifically European phenomenon. It is neither just practical intelligence nor only a handcraft. It is deeply enmeshed in the adventure of western rationalism. It comes as spirit from a noble parentage. Its father is the reborn Roman law, its mother the Roman church. Separation from the mother was finally completed after many centuries of difficult dispute in the age of confessional civil war. The child held to the father, Roman law, and left the mother’s home. It sought a new house and found it in the state. The new home was princely, a palace of the Renaissance or the Baroque. Jurists felt proud and far superior to theologians.
This is how ius publicum Europaeum emerged from the confessional civil wars of the sixteenth and seventeenth centuries. At its beginning stands an antitheological slogan, a call for silence that a founder of modern international law directs to the theologians: Silete, theologi, in munere alieno! [“Keep quiet, theologians, on alien territory (sc. on matters outside your remit)!”]. This is what Albericus Gentilis shouted against them, on the matter of the just war debate.7 I still hear him shout today.
The jurists’ withdrawal from the church was no secession to a holy mountain, rather the reverse: an exodus from a holy mountain to the realm of the profane. On leaving, the jurists took some holy trappings [Heiligtümer] with them, whether openly or secretly. The state decorated itself with some simulacra of ecclesiastical ancestry. The power of earthly princes was augmented by attributes and arguments of spiritual descent. The jurists of ius publicum Europaeum came into positions that had been occupied by theologians until that time. They inherited something of the potestas spiritualis [spiritual domain] of the Christian church of the Middle Ages. In long disputes with worldly rulers, medieval clerics had developed well-considered doctrines of just war and just resistance against tyrants. They formulated [fanden] sentences of such indestructible currency that one can only cite them in Latin, such as the great chapter titles of Policraticus:8 tyrannum licet adulari [“one is allowed to praise a tyrant”]; tyrannum licet decipere [“one is allowed to deceive a tyrant”]; tyrannum licet occidere [“one is allowed to kill a tyrant”]. The sequence speaks for itself.
These theologians of the Christian Middle Ages passed on to later and very different periods the ancient designations for an enemy of the human species: hostis publicus and hostis generis humani. But with such teachings and concepts they were firmly on the ground and within the institutions of a well-organized system of auctoritas, even of potestas spiritualis. They were themselves, with their entire existence, bearers of the potestas spiritualis of the Roman church. Their doctrines of the right of resistance, of just war, and of tyrannicide were, in terms of their significance, not instruments of civil war but rather of an existing, recognized, superior ordering power, which by no means shirked its duty to preserve order.
This was lost with the separation from the Roman church. Nevertheless, the jurists of public law developed further the doctrines and concepts of the sovereign state. Thus they succeeded in purifying the doctrine of just war from the elements of civil war, insofar as they separated the question of iusta causa belli [the just cause of war] from that of iustus hostis [the just enemy] and restored awareness of the old distinction between enemy and criminal. That was their great achievement and became the core of a new international law: ius publicum Europaeum.
These jurists revealed themselves to be protectors of their own tradition. They formed their own order [Stand] with at least an intellectual authority, if not a spiritual one. They were not just technical specialists at the disposal of the potentates and dogmatists of their age. In this way they found themselves in a dangerous in-between position. They eliminated the influence of theologians and freed themselves from religious institutions. Thus they joined the side of the Enlightenment and of progress. Yet they remained protectors of their own tradition and authority, and in this sense they were conservative. Their authority was secularized, but still far from being profane. When they carried the holy trappings from the church into the state, they did not intend to profane and destroy these symbols; they wanted to save what could be saved from the fury of the confessional civil war. They did not mean to steal from the church; they thought only of rescuing precious articles. But we know what happens with rescues. Their intention was good and honorable, though the historical repercussions took a different course. The jurists were rationalists, but not in the sense defined by the subsequent centuries and not in the sense of positivism and of pure technicity.
The two great founders of public law, Bodin and Hobbes, are outstanding figures and bearers of this transformation of a potestas spiritualis and of an intermediate position. Both are in bitter conflict with the theologians. Both emerged from this conflict to become the most effective founders of a religious and biblical critique. Nevertheless, both hold to the belief of their forebears, and not merely in a superficial way. They did not go over to the state out of arrogance, but rather out of desperation, when they saw that the dogmatism of theologians and sectarians stoked the civil war anew. The thought never occurred to them to ground a new religion, certainly not one of secularism and positivism. Thus arose their intermediate position. They stood between the very old and the very new and were therefore reviled and defamed from both sides. To the theologians, they were atheists; to the radical philosophers of the Enlightenment, they were merely opportunistic hypocrites. Victor Hugo, the great figurehead [Großkophta] of secularism, called poor Bodin a crocodile. Hobbes was considered the prophet of the Leviathan and for this reason was infamous and ostracized even back then, since most people are far too primitive to distinguish a diagnostician from a prophet.
The intermediate position was not limited to antagonism between the Christian confessions, to Rome and Geneva. It expanded and deepened into an antagonism between tradition and revolution—and did not stop even there. Its ultimate significance was the alternative of a complete profanation. Of course this did not become clear so quickly, since an intermediate epoch of liberalization intervened, a time of fabulous prosperity that could easily afford the luxury of conservative feelings and attitudes. During this epoch things went very well for the jurists. They now lived only part of the time in the house of the state. The better situated ones were quartered in society, no longer in a palace but in an even more comfortable hotel. The holy trappings faded away by comparison to philosophical or historical jewelry. Yet they were still of antiquarian or decorative interest, and in the great hotel there was also room for certain traditions, robes, and wigs. It was the consistently technical age that first eliminated them and completed the profanation without remainder. This age laid bare with inexorable logic where jurisprudence stands, namely between theology and technique, and placed the jurists before a difficult choice, in that it immersed them in the new objectivity of pure technicity. The traditional holy trappings now become nonobjective and old-fashioned. Instead of a comfortable hotel, the bunkers and barracks of the technical age open up. Now it is the jurists who receive a call to silence. Now it is to them—should there still be enough Latin—that the technicians of potentates and dogmatists can shout: Silete jurisconsulti! [“Keep quiet, lawyers!”]
These are two remarkable calls for silence at the beginning and at the end of an epoch. At the beginning lies a call for silence that emanates from jurists and is directed at the theologians of just war. At the end lies a demand, directed at jurists, for pure—in other words completely profane—technicity. I do not wish to discuss here the connection between the two orders of silence. It is merely good and salutary to recall that the situation was no less brutal at the beginning of the epoch than it is at its end. Every situation has its secret, and every scholarly discipline bears its secret [arcanum] within itself. I am the last knowing representative of ius publicum Europaeum, its last teacher and researcher in an existential sense, and I experience its ending as did Benito Cereno the journey of the pirate ship. Silence is appropriate to this place and time. We need not fear it. By being silent we reflect upon ourselves and upon our godly origins.
6
I have spoken of myself here, actually for the first time in my life. A person who thinks in a scholarly way prefers to speak of factual matters. A researcher who makes historical observations sees himself in the framework and in the waves of historical forces and powers—in church, state, party, class, profession, and generation. A jurist who has trained himself and many others to objectivity evades psychological selfportrayals. The tendency to literary confession is spoiled for me by ugly examples such as those of Jean Jacques Rousseau and poor August Strindberg. As an expert in constitutional law, however, I have a highly interesting fellow sufferer [Schicksalsbruder] in constitutionalibus [in constitutional matters], one who has achieved astounding feats in personal reports and confessions: Benjamin Constant, the protagonist of the doctrine of liberal constitutionalism. He was not only a brilliant constructor of constitutions but also the author of the first psychological novel, Adolphe,9 as well as of a surprising journal intime and countless letters. I find him more likeable than the two self-tormenters just mentioned. Yet not even his example could bring me to literary confessions. Whoever wishes to confess, go and present yourself to the priest.
In any case, today we have to answer enough questions for ourselves, which are posed by the most disparate parties. The reason for questioning is usually to call us into question—our very selves and our existence. I am not speaking here of agencies and offices that ask us all manner of things that do not relate to our essence but concern merely points of attribution for liabilities and detentions. Nor am I speaking of the questions posed to us as one would set snares and traps. This sort of thing still belongs in part to the realm of the old Leviathan, which I know well; it is in part the hunting ground of the head forester we know through Ernst Jünger.10 How a person is supposed to behave in the position of hounded game is a sad problem in itself. I will say no more of it.
What I say here is intended neither as a form of journalism nor as an apology. It belongs neither on the street nor on the stage, neither in the forum nor upon the lectern. I speak because I want to send word to a few deceased friends, while I, for one, am still in the clutches of this earthly life; because I want to give a sign to some living friends from whom I am separated and to loyal students in all countries; and, finally, because I think of my daughter Anima and my godchild Carl Alexander. Speaking with them violates no secret [arcanum]. We are all bound together by the stillness of silence and the inalienable secret of the godly origins of humanity.
Summer 1946