Roman and canonical law matured for almost 2000 years, then
international law began to separate from private law. The successive separation of law from metaphysics, i. e.
philosophy, the divorce of philosophy from morality, the parting of morality
from religion are not steps in the direction of progress, but steps in the
direction of an increasing poverty of ideas and the narrowing of one's horizon
in regards to posed problems. A "de-Romanized" international law, a
philosophy of law "cleansed of metaphysics", a "science liberated
from morals", and a "detheologized philosophy" seem to
characterize the time from the "Enlightenment" to the present and
thus are manifestations of progress in the sense of advancing time, but
not in the sense of increased profundity, expansion and exaltation of these
concepts, ideas and ideals. Just the opposite is true: The dominating tendency,
especially since Kant, of a "clean separation of fields" did result
in a separation of almost all fields from one another – a separation carried so
far that professors of different faculties have so little to say to one another
that they depend on the fodder delivered by the daily news. This process
occurred at the expense of the general spiritual and intellectual culture. Up
rises Wagner, the famulus – down sinks Faust, the doctor.
When carried through to its ultimate conclusion, this
tendency of separation will simply become a process of disintegration –
i. e. death – of the true intellectual culture. For if one does not stop
at this point – and why should one? – having separated philosophy from
religion, ethics from philosophy, science from philosophy and ethics, then the
next step would be to separate science from logic, that is from judgement and
conclusions; and subsequently from all abstract concepts, to finally end up
playfully working only with the sum total of concrete concepts, perceivable by
the senses, just like toddlers! The absurdity of following this tendency beyond
the limits reached today is obvious – and still there is a desire, and efforts
are being expended in the direction of extinguishing that which is higher in
favor of that which is lower. In jurisprudence, for example, one is not
satisfied with the already accomplished extinction of the two higher levels –
divine law and natural law – of the formerly complete law which consisted of
three levels, but one wants to eliminate even the concept of law itself,
in order to let stand only a "law" without "law
itself", i. e. leaving only absolute positivism as the arbitrary rule
of the power of each state.
The legal proverb "Law is what has been established as
legal."[1]
expresses that kind of legal concept in jurisprudence, which has renounced law
in favor of what has been established. Here we can see a very advanced degree
of this trend towards separation: At first, law became separated from what is True
and Good itself, i. e. God, and divine law was extinguished in humanity’s consciousness;
then the remembered echo of this divine law, engraved in human reason and
morality, i. e. the so-called “natural law”, was extinguished – until
ultimately, the concept of law itself, which originated in the time of natural
law and which lived on as the heir of established (positive) law, was
eliminated in favor of an attitude without principles and without a foundation:
"Law is what has been established as legal."
But what if we would have taken the same route, for example
in philosophy, and renounced the concept of truth, proclaiming the sentence:
"Truth is what has been established as true”? It would be the last nail in
the coffin of philosophy, because it would mean the renunciation of the goal,
the direction and the criterion for reason itself and thus would spell the end
of philosophy. The same holds true for jurisprudence devoid of a concept of law:
It stops being a science, i. e. a methodically maintained knowledge
if it is not married to law itself as its goal, direction and criterion. As
there can be no mathematics without "number and magnitude",
i. e. quantity, there can be no jurisprudence without law. The
tendency to eliminate the ideational in favor of the phenomenal, so that the
"liberated" remaining field may be treated as a "separate
science" will ultimately become absurd.
In this work we take the other road, namely the way of union
of all which belongs together according to its nature. We will treat law
as inseparable from justice; justice, in turn, as an inseparable part of
morality; and morality as united with its ideals and tasks, i. e. religion.
We will consider international law as part of the realm of laws and justice, and
in its organic context to the general realm of laws and justice, morality, and
religion. Sure, it is a specialized field, but it is a field where streams of
humanity's intellectual culture as a whole flow together – not a field separate
from the totality of intellectual life, like a glass flask housing an
artificially created homunculus. The
problem of international law which has been put so seriously before us by the
catastrophic events of the two world wars, is not a mere juristic, political,
and economic question, but also a moral and religious question. It is a total
question of human culture – and one has to give a total answer,
i. e. an answer which considers the totality of the question and points
out a legal system for humanity suitable to save and preserve humanity's
culture, and to enable its future development, for it is in mortal peril.
The only possible and permissible method which we will
follow is the synthetic one, i. e. we will use an approach that
does justice to the organic unity of the intellectual realm, in contrast to the
purely analytical approach which first dissects the whole, and then proceeds
to treat each artificially isolated piece as a separate world. Of course, a classification
is necessary in order to scientifically penetrate a subject; but only as a
preparatory process to enable recognition of the whole as a structured organism,
because otherwise it would appear as an indeterminate nebulous form. Analysis
proceeds synthesis: It lines up the elements which are to be grouped together.
In this sense, classifying the whole realm of laws and justice, for example,
into private law, public law, and international law can serve a valuable
purpose if it is done solely for the theoretical purpose of clarifying the
details and that which is unique. It serves a darker purpose when one takes its
results and then feels permitted to single out one field and take it
seriously, while at the same time neglecting all the others.
If the objective of the analytical process is to serve
the synthesis then it leads to methodical perspicuity and clarity, but if analysis
becomes an end in itself, then the criterion by which to judge, one’s ability
to orient oneself and to judge, based on reality, are lost. The analytical
process bears fruit only as the servant of synthesis, as its precursor. If it
is an end in itself it is the death of ideals, ideas, and concepts. It leads to
that shallow lack of ideas where a scientist can barely be distinguished from a
stamp collector.
--Valentin Tomberg, Foundations of International Law as Humanity's Law
Available from Grail Guides, 1225 Vienna Drive, #404 Sunnyvale CA 94089 USA; email: jhipsley@igc.org.
--Valentin Tomberg, Foundations of International Law as Humanity's Law
Available from Grail Guides, 1225 Vienna Drive, #404 Sunnyvale CA 94089 USA; email: jhipsley@igc.org.
[1] Where the applicability of the rules of international
law as well as of domestic law is concerned, one searches in vain for generally
valid concepts. In both cases we must depend on the statement "Law is what
has been established as legal." (Th. Niemeyer, Völkerrecht, p. 39, 1923,
Göschen collection)
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