Notes on the Ius Commune – Part I: The Hydra of Legal Positivism

Marx and Engels famously wrote in The German Ideology that «hundreds of earlier writers» (earlier, that is, than Max Stirner) agreed that «right originated from force» — i.e., from violence.

Anyone surveying the last 350 years of the history of jurisprudence may be excused for agreeing with them. It has been a history of monstrous heavings and shakings, where the law has been taken up and wielded as a tool for all kinds of delirious and utopian schemes. The common thread has been the demolition of the political-juridical principles of the prior order, which have been torn down, gutted, and redefined one by one. The justification for this razing of our juridical bastions has generally been connected to a claim that those old structures were offensive to the «rights of man». A claim about rights — a claim of justice — is thus at the heart of Modernity. But it is a claim of a perverted, defaced justice. «If the essence of “modern” culture is voluntarism (which is the intimate secret of rationalism)», wrote Cornelio Fabro, «one should not be astonished if the truth is then identified with action and right with force … The crisis of the world is a crisis of rights, in that it is first and foremost a crisis of their foundation, that is, of principles».1

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Meditations on the emergency

Today, it is common to discuss the state of emergency or the state of exception primarily with reference to the German jurist Carl Schmitt. One of his best known books, Political Theology (1922), begins with the pungent phrase, “Sovereign is he who decides on the exception.” But Schmitt is only one in a long line of jurists and philosophers—to say nothing of politicians—who have considered the problem of the emergency. Much of the fundamental work on the question was done, frankly, decades and centuries before Carl Schmitt. To discount the concept of the emergency or to attempt to conflate it with Schmitt’s problems (the most serious of which occurred for the most part after 1922) is, then, to depart from Catholic jurisprudence.

Consider the great discourse of Don Juan Donoso Cortés to the cortes on January 4, 1849. There one finds an important precursor to Schmitt’s Political Theology—a debt Schmitt frankly acknowledges at the end of his book. For Donoso, when society confronts mortal peril, if strict adherence to the law is sufficient to overcome the peril, then the law should be strictly adhered to. However, if such strict adherence to the law is not sufficient, then one must look beyond the letter of the law. This then is the emergency, articulated by a Catholic politician and political theorist beyond reproach. 

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