Two Different Perspectives of the Totalitarian Phenomenon: Kelsen and Voegelin

There is a common opposition to totalitarianism with both of these authors, even if the remedies chosen to counter it are radically different. Both were victims of Nazism – Kelsen because of his Jewish origins and Voegelin because of his writings which led to him being placed on the Gestapo’s blacklist. Both left Austria after the Anschluss and went into self-imposed exile in the United States, Voegelin in 1938 and Kelsen in 1939. In this study, we intend to analyze their dealings with each other through the prism of the totalitarian phenomenon in order to understand the obvious incomprehension each of them had of the other’s theories and reveal their respective presuppositions.

To understand this controversy, it is first important to grasp the radical difference in their scientific methods. It results in conflicting definitions of what they consider as “scientific” and the “ideologies” they are fighting. Simply put, what is “scientific” for Kelsen cannot be metaphysical otherwise it is a pseudoscience, or an “ideology”; whereas for Voegelin, what is “scientific” must not be dissociated from metaphysics at the risk of becoming an “ideology”. In other words, what is scientific for one can only be ideology for the other, since each of them gives a different meaning to what is scientific. Kelsen’s rejection of the metaphysical leads him to adopt a positivist and formalistic approach to law and political regimes. As for Voegelin, he rejects Kelsen’s position; he is against his rejection of metaphysics, and accuses positivists of being responsible for a scientific deterioration by not taking into account Man’s transcendent or metaphysical dimension. This difference in methodology can be understood in terms of the classic duality between Enlightenment and Romanticism. It is clear that if Kelsen followed (explicitly) the path of the Enlightenment’s rationalism, Kantianism and positivism; Voegelin followed (more implicitly) that of the Romantics, metaphysics and theology.

Kelsen’s Formalist Perspective of Totalitarianism

Some thought they saw an internal contradiction in Kelsen’s work between his theory of law and his political theory, for on the one hand his theory of law is meant to be axiologically neutral (objective), and on the other, his political theory supports a particular type of regime by openly defending democracy. However, for Kelsen, the neutrality of his pure theory of law, which is characterized by its rejection of natural law, is close to the scepticism and relativism that democracy presupposes. Legal norms can only be judged in terms of legality and not in terms of absolute values, and similarly, intangible values cannot be associated with democratic theory. In other words, Kelsen defines democracy in formal, not substantial terms. This theory of law, like his theory of democracy, is therefore “formalist” and “procedural”; it is not interested in the content but in the procedure for achieving it. In his own words, “democracy is a ‘form’ of government”[1].

Autocracy-absolutism versus democracy-relativism is the fundamental dichotomy for Kelsen. It structures not only his theory of law but his political theory too. The fact of believing or not in the existence of truths and absolute values allows Kelsen to draw a clear line between two radically different conceptions: the metaphysical-absolutist conception and the empiricist-relativist conception of the world which according to him corresponds to the democracy-autocracy antithesis. Kelsen draws from this opposition of philosophies of values an opposition of fundamental political attitudes. For Kelsen, there is de facto solidarity between two philosophical positions and political orientations. It is one of the main features running throughout his political theory: the binary classification of forms of government with autocracy on one side and on the other democracy, which he defends.

For Kelsen, democracy is characterized by the principle of autonomy, for men obey their own will and are therefore in this sense autonomous, whereas autocracy is characterized by the principle of heteronomy because under such a political regime men are subject to a foreign will. Kelsen makes this principle of autonomy (or political freedom) the ultimate foundation of democracy. Democracy is therefore a government by the people, and not a government for the people as is the case with the Soviet conception of democracy[2]. According to him, it is impossible to defend democracy through non-democratic procedures. He wrote:

“a democracy which attempts to hold out against the will of the majority, which tries to do so through violence, has ceased to be a democracy. . . that is to say those who are for democracy cannot become entangled in a disastrous contradiction and resort to dictatorship to save democracy. One should stick to one’s colours, even when the ship is sinking . . .”[3].

Voegelin’s Substantialist Perspective of Totalitarianism

The characterization of totalitarianism as a “political religion” is now a commonplace in political theory. But Voegelin should not be denied the credit for putting his finger on a real issue. He very clearly shows that his thesis requires a “broadening of the concept of religiousness”[4]. If religiousness consists in believing in a Realissimum (a supremely real being), of considering it as “sacred”, then the State or the human community is one of the potential candidates for this accession to the “sacred” or the “divine”, and so obtains cult status. So a “secularization” process is at work in history. However, this secularization is not favorable or beneficial in the sense of a positive emancipation with regard to religion and the Church. On the contrary, he sees it as the cause of 20^th century totalitarianism. It is very clear that for Voegelin, “political religions” are a perversion, a corruption of “true religions”. So it is hard to understand how Voegelin has “broadened” the concept of religion as he claimed to, since these “religions” do not really deserve to be called as such.

Regarding the Pure Theory of Law, Voegelin criticizes Kelsen for his abstraction, that is to say the fact of separating by thought what is in reality a mixture. For Voegelin, this criticism amounts to a rejection of the radical separation made between the domains of that which should be and that which is (domains which are always mixed in reality), that is to say the Sein/Sollen dualism (Kant) which constitutes the sine qua non condition of Kelsen’s methodological purity. Furthermore, Kelsen identifies the law with the State. This identification enables him to define the State as a legal order, and therefore to bring political science back to legal science. But Voegelin presents the inconsistency of a purely formal theory and the danger of “fetishism with the norm”. In this way, Voegelin sees in Kelsen’s abstraction a “flight from reality”[5].

Voegeliin condemns the disastrous political consequences of Kelsen’s legal formalism, which led to Hitler’s rise to power in Germany. He shows that the procedural democracy he defends is dangerous for it enables extremist factions to rise to power through the front door of legality. The formal rules of democracy could negate the content of democracy. This is why Voegelin underlines the suicidal nature of formalistic democracy, which to a certain extent causes its self-annihilation. So, he decided to support the authoritarian regime established by Dollfuss in order to fight against the exploitation of parliamentary institutions by antidemocratic parties. For him, saving democracy from totalitarianism requires passing through authoritarianism. He reckons that if totalitarian regimes are also authoritarian and antidemocratic regimes, authoritarian regimes are not necessarily totalitarian. One might think that Voegelin’s support for this regime expresses a certain realism through the consideration of concrete conditions which make a democracy alive and hence even vulnerable– a realism which Kelsen did not necessarily have. His position is interesting as he confronts the democratic regime with its internal vices.

The Notion of Secularization

An important difference of interpretation of totalitarianism concerns the notion of secularization and more precisely the interpretation of totalitarianism as a “secular religion”. The term secularization can be tied to a descriptive conception, in the sense of a Western historical process, mainly involving European and North American societies and which takes place over the long term. It coincides with what is referred to as “modernity”. This process consists of emancipation from religion which loses its influence over social life, a “decline of transcendence”[6] to use Blumenberg’s words. This does not necessarily mean a decline in beliefs or religious practices, even if it is an undeniable fact for Western societies which, with the exception of the United States, are experiencing a desertion of the Churches and a crisis of vocations. It is indisputably more to do with the fact that religion and the Church which represents it as an institution are no longer in control as they were in the past in all areas of social life (law, morality, education, art, science, political systems, etc.). This idea more or less corresponds to what Marcel Gauchet calls the “exit from religion”[7] for Christianised societies which are de-Christianising. The explanatory use of this concept refers to a “modern ideology” which seemingly is without religious content, but which in reality is just a ‘secularized’ religion”. This conception seeks to prove that the “modern” theory is not what it claims to be; that without knowing it, it is still dependent on ancient beliefs, that it has not completely achieved its emancipation from religion, in the sense of the descriptive conception of secularization. That is to say that it still contains hidden relics. Such a conception is tantamount to pronouncing “the hidden continuation of a theological-political substance in the post-religious age”[8].

The two terms are in this sense interconnected and complementary: the descriptive conception of secularization refers to the general process of “exiting religion”, and the explanatory conception seeks to show that the process has not been completely successful. The explanatory conception is in fact based on the idea that the religious past still greatly influences our modernity for our unconscious remains steeped in religion, so that we repeat some of its aspects without being aware of it. Speaking of “secularized” religion often veils a judgement of value, and even a wish to denounce, expose, in one word, discredit. For example, saying that Communism is, or has become, a “secular religion”, is to totally discredit it, showing that this pseudo-scientific, materialistic and atheist theory has turned into the equivalent of an old religious belief and has also regained its major functions: giving hope and illusion to those who are suffering, and preserving an unjust social order by legitimizing it. Furthermore, this concept is deeply ambiguous because of an interpretative dualism: in it can be seen both a loss which would give rise to regrets and “lamentations” from a religious point of view (theological conception of secularization), and a gain in the sense of man’s emancipation and the triumph of the Enlightenment (secularized conception of secularization). Similarly, the expression “secular religions”, in its pejorative connotation may have two totally distinct and even conflicting aspects. Either secular religions are rejected because they are “secular”, that is to say they distort “authentic religions” which are exempt from criticism (this is the case with Voegelin), or they are condemned because they are still religions and have the fundamental characteristics of religions: dogmatism, intolerance, no respect for freedom of thought, etc. This is the case with Raymond Aron.

Voegelin’s explanations seem to have taken Schmitt’s idea literally – that all the concepts of modernity are secularized theological concepts – in order to draw exaggerated conclusions from it. Voegelin thinks that it is justified to reduce all political phenomena to corrupt religious or sectarian movements, by referring to totalitarianism as Gnosticism for example. But it still seems feasible, for, as Comte shows in the first lesson of his Course in Positive Philosophy (1830), the first form of human thought is religion. It is what he calls the “theological state”. As everything begins with theology, it is very easy to find it behind all the phenomena that follow. Since all areas of thought and human activity have been marked by religious control, it is not difficult to then relate any phenomenon to religion and claim to give it an “explanation”.

The easy and somewhat all-purpose nature of the explanation by secularization is admirably noted by Pierre Manent:

“It is quite worrying to notice that the further the role of religion decreases in the life of modern man, the further this role increases in the interpretation he gives of his past. The more atheist man is, the more the historian believes, the more he believes at least in religion’s formative historical power. Nearly all the great phenomena of the modern world – from mathematical physics to capitalism and democracy – have been attributed to the direct or indirect causality of ‘Christianity.’ ‘Christianity’ for the historian is almost as creative as God himself for the Christian. . . .  The ‘secularization of Christianity’: it mops up all the difficulties and is always at hand for the historian engaged in piecing together the genealogy of the modern world”[9].

There is no better way of underlining the fictitious nature of such an “explanation”, its ready-to-be-used and often irrelevant character. In a way, this criticism seems to apply quite well to Voegelin.

In Secular Religion (written in 1964 and only published in 2012), Kelsen continues the debate started with Voegelin. This book is directed against the many attempts to interpret important works in social philosophy, history and political ideologies as degenerate or disguised theology, that is to say as “secular religions”. The key idea of his critique could be summed up as follows: comparison is not reason. If the comparative method used in theoretical works seems legitimate to him and even useful, it still presents two major dangers, for the tendency to find common ground may lead to an overestimation of the similarities and an underestimation or even an unawareness of the key differences – of seeing identity where there is only the appearance of an analogy because the same terms are used for different meanings[10]. For him, there are two ways of interpreting history which are impervious to each other: history is either interpreted as the accomplishment of the will of man (philosophy of history), or as the accomplishment of the will of God (theology of history), but the two cannot be combined[11]. So that talking about “secularized” religion or theology, for him is tantamount to using contradictory expressions in the terms: “a “secular religion” is a dereligionized religion, which means no religion at all”[12]. He claims that a religion without God is a contradiction and a religion with God is a pleonasm[13].

To conclude, Kelsen’s rejection of any explanation through secularization perhaps reveals a certain anti-religious bias, and would call for a few reservations. In fact, the analogy between on the one hand the Nazi and Communist regimes and on the other hand religious beliefs does not seem meaningless. It is even very enlightening. Kelsen could willingly accept this notion of “secular religion” as it supports his analysis as to there being a deep solidarity between beliefs in absolute values and autocratic regimes. This work is far from being flawless. Because of the systematic analysis he uses, this book is overburdened by repetitions. Björn Thommassen also observes that by adopting a unilateral type of analysis, Kelsen is trapped by his own inflexibility and lacks historical and conceptual reflection. He even deduces from it that this exchange is “utterly futile”[14], and to a certain extent he is right. The debate was futile for Kelsen and Voegelin, since neither of them managed to change his opponent’s point of view. Like two separate monolithic blocks, their theories seem to be incommunicable. However, this debate is not futile from a historical and metatheoretical point of view since it reveals the impossibility of reconciling certain approaches whose foundation is the rejection of others: in this case, religious-antipositivist thinking (Voegelin) versus positive-antireligious thinking (Kelsen).

 

Notes

[1] Björn Thommassen, “Debating modernity as Secular religion: Hans Kelsen’s futile exchange with Eric Voegelin”, History and Theory, Volume 53, October 2014, p. 440.

[1] Hans Kelsen, “Foundations of Democracy”, in Verteidigung der Demokratie, Mohr Siebeck Tübingen, 2006, p. 254.

[2] Hans Kelsen, “Foundations of Democracy” in Verteidigung der Demokratie, op. cit., p. 251.

[3] Hans Kelsen, “Verteidigung der Demokratie”, Blätter der Staatspartei, 1932, vol. 2, p. 98, trad. R. Baumert.

[4] Ibid, p. 30.

[5] Ibid, p. 217.

[6] Ibid, p. 12.

[7] Marcel Gauchet, Un monde désenchanté ?, Agora Pocket, 2007, p. 144.

[8] Daniel Schulz, “L’âge moderne et sa légitimité. Sur la controverse entre Hans Blumenberg et Carl Schmitt”, laviedesidees.fr, 2008, p. 3.

[9] Pierre Manent, Enquête sur la démocratie, Tel, Gallimard, 2007, chapitre XXIII « sur la notion de sécularisation », p. 423.

[10] Idem.

[11] Ibid,p. 20.

[12] Ibid, p. 21.

[13] Ibid, p. 28.