(The Frankfurt School's flagship journal, the Zeitschrift für Sozialforschung, began appearing with its 3/1939 issue under the English title Studies in Philosophy and Social Science. Due to the German invasion of France, this issue could not be published in Paris as had preceding issues, and was actually published in New York in 1940.)
During the Second World War, Neumann, a Jewish emigrant from Nazi Germany, worked for the Office of Strategic Services (OSS). Neumann was the dissertation advisor to Raul Hilberg on the pioneering study that later became Hilberg’s The Destruction of the European Jews, the first book-length study of the Holocaust published.
Neumann's essay surveys the history of Natural Law theory in modern times. As he explains early in the essay, Hegel criticized Natural Law in its "empirical" forms with the philosophies of Jean-Jacques Rousseau (1712-1778) and Thomas Hobbes (1588-1679), and in it "critical" forms with Immanuel Kant (1724-1804) and Johann Gottlieb Fichte (1762-1814) Fichte. Hegel, in Neumann's summary, "discloses the dogmatic and arbitrary character of the traditional Natural Law doctrines." But he also notes:
But in every Natural Law doctrine there is one element which Hegel, incorporating it in his Philosophy of Right, recognizes as progressive, as the emanation of reason possessing true universality. We must, therefore, be careful not to confuse the many criticisms of Natural Law. If Hume rejects it because there can be no rational justice, if George Sorel denounces it because of its arbitrariness, or if counter-revolutionists attack it because it contains revolutionary elements, they attack it because they deny the possibility of a rational theory of justice. That is quite different from a theory of law which (like Hegel's) asserts the possibility of constructing a rational theory of right and justice but which merely denies that the historic forms of Natural Law have fulfilled this possibility.And with that, Neumann is pointing to a key aspect in theories of Natural Law (he capitalizes the letters) important for the Frankfurt School's "critical theory" perspective:
If every doctrine of Natural Law is based upon men as an individual [sic],either autonomous or subject to the lawfulness of external nature, then man must be considered as a rational individual. That in turn implies the recognition of the essential equality of human beings. And this again leads to the universality of the Natural Law doctrine which is the central view common to all doctrines. It also follows that no theory of Natural Law can accept facts as they are and because they are. Natural Law doctrines are thus fundamentally opposed to traditionalism and historicism. Each human institution is open to critical reason, none is exempt from it. Finally, Natural Law doctrines cannot be reconciled with anti-rational doctrines, such as Vitalism, Universalism or the theory of Charismatic Leadership. If Life is an original datum, irreducible and not open to critical examination; if the Whole stands categorically before the individual; if obedience is owed because a leader is endowed with superhuman, God-like qualities; then reason is excluded. It is true that attempts have been and will be made to reconcile anti-rational political theories with Natural Law. Such attempts appear to be meaningless. The protagonists of anti-rationalism [he mention Pareto in particular here] have themselves acknowledged the incompatibility of their position with Natural Law doctrines, whatever form they may take. [my emphasis]Neumann was coming from a Marxist/socialist viewpoint that considered philosophical liberalism insufficient. But the work of the Frankfurt School was deeply influenced by the experiences of it practitioners with the Third Reich. And they gave close attention to the ways that fascism and National Socialist (Nazi) ideology rejected liberalism wholesale, both in its parliamentary and theoretical forms. There were parts of classical liberalism which Neumann, Herbert Marcuse and others of the Frankfurt School defended and which formed a central part of their own perspectives.
Here, the insistence on reason as a measure of the validity of political, philosophical and scientific claims is the one stressed by Neumann. He doesn't embrace the concept of Natural Law completely. As he warns, "The doctrine of natural rights may very well be used for entirely reactionary aims, namely for the sabotage of democratic processes. The insistence upon the primacy of a liberal as compared with a democratic Natural Law is often the first stop of a counter-revolution." But he doesn"t want to throw out the proverbial baby with the bathwater. "But though reactionary, even this perverted doctrine of Natural rights does at least contain elements of a rational theory of law." And, "The democratic theory of Natural Law is ... on the whole, a truer one than any other since it provides for the rational justification of the State."
Neumann also summarizes it this way:
Although the absolutistic theories of Natural Law sacrifice human rights to the need for establishing a central coercive authority, they are predominantly rational because they base the authority upon the consent of man. They, too, must therefore recognize the essential and indestructible rationality and equality of man. [my emphasis]Thomism provided theological justification for medieval feudal rule and is, in Neumann's words, the "representative conservative doctrine." Thomas Aquinas recognized Natural Law (lex naturalis). The thomistic concept of Natural Law included obligations for the rulers and therefore implicitly provided a basis for the rejection of illegitimate rule. But, in practice, Aquinas and his followers could pretty much accept the entire structure of feudal practice, and even slavery, as being compatible with their concept of the lex naturalis.
Neumann writes that the absolutist theories of the English Tudor and Stuart claims against which Thomas Hobbes argued rejected Natural Law as the basis of the King's authority in favor a personalist doctrine. He quotes William Tyndale expressing this Tudor perspective: "The King is, in this world, without law, and may at his lust do right or wrong, and shall give accounts but to God only."
In the United States today, we know that theory in the very similar form of Dick Cheney's Unitary Executive Doctrine. For Cheney, it's the American President instead of the King. And the Cheney Doctrine doesn’t figure God, conscience or morality into the mix at all.
Neumann explains that John Calvin (Jean Cauvin;1509-1564) rejected the doctrine of Natural Law explicitly. To Calvin, Natural Law implied an authority not providentially given by God and therefore had no part in his theology. Calvin did recognize a right of resistance to unjust authority. But its scope and meaning are unclear. Neumann notes that John Knox may or may not have followed Calvin’s theological doctrines "in attacking his Catholic queen." But if Knox is to be seen as having acted within Calvin's theological system, it would be in the form of a:
... "saviour of his people," the latter concept playing a decisive rôle in Calvin’s system. The stress which has always been laid on the right of resistance [in Calvin] has tended to over shadow another means of overthrowing established government outside the framework of the constitution. Calvin maintained that God may send the people a providential saviour. He may appoint one of his servants and send him out to punish an unjust ruler and deliver the people from oppression. It is again characteristic that the deliverance of man from despotic rule is entrusted to a charismatic leader. The oppressed themselves are never allowed to revolt [in Calvin’s theology]. The only freedom left to the oppressed is to obey either their ruler or their saviour. The anti-rational and anti-Natural Law is thus apparent not only in Calvin’s doctrine of authoritarian rulership but equally in his doctrine of revolution. [my emphasis]In Neumann’s historical account, Natural Law no longer formed an adequate basis for claiming the legitimacy of royal authority in the 16th century and following with the outbreak of the Protestant Reformation and the Wars of Religion. Thomas Hobbes introduced an authoritarian version of the Social Contract theory of the state:
In spite of its absolutistic character, Hobbes’ theory is, however, at its core democratic. The democratic starting point is clearly expressed by Hobbes himself. The "people rule in all governments," because every government, when first established, was necessarily a democracy. The democratic kernel and the inherent revolutionary dynamics were clearly perceived by the Court and rejected by the ruling classes, who were afraid and ashamed of that outspoken philosopher whose materialism allowed no veiling ideology. "I never read a book which contained so much sedition, treason and impiety" exclaimed Charles II.Neumann points to a number of Natural Law theories that are revolutionary on their face, but served more in practice as material for demagogues, including the Albingensian heresy, William Ockham’s defense of King Ludwig of Bavaria and those of the "Catholic monarchomachs Jean Boucher and Guillaume Rose."
The counterrevolutionary theorists of the late 18th and 19th centuries rejected Natural Law completely. He briefly discusses the cases of Joseph de Maistre (1753-1821), Louis Gabriel Ambroise de Bonald (1754-1840), Juan Donoso Cortés (1809-1853) and Friedrich Julius Stahl (1830-1854). He quotes Stahl, "Natural Law from Grotius to Kant is the scientific foundation of revolution." And for Stahl, that was the opposite of a good thing. Donoso Cortés argued that democracy would produce a "gigantic, colossal, universal, and immense tyrant." "For de Maistre and Bonald," writes Neumann, "Natural Law and social contract theories represented everything which was execrable in this world. They were responsible for the French revolution and they ran counter to the very principles upon which the world rests and must continue to rest."
Tags: critical theory, frankfurt school, frankfurter schule, franz neumann
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