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
Continue reading “Notes on the Ius Commune – Part I: The Hydra of Legal Positivism”