[00:00:01] HOST:
Ladies and gentlemen, the Bernard Moses Lectureship was established in nineteen hundred and thirty-seven in honor of a scholar who was, at the time of his death, uh, one of the oldest and most considered members of the faculty. Bernard Moses was born in 1846. He joined the University of California in 1876, retired in nineteen hundred and eleven, and died in 1930.
He was a distinguished American, but he received a doctor’s degree from the University of Heidelberg. He was a political scientist, but in his day, the political scientist, the historian, and often also the economist, were closely allied, and scholars in the social sciences had some competence in all these disciplines. He was also an administrator in that he served as a member of the Philippine Commission of the United States government from 1902 to 1904, an appointment which he probably received because of his interest, his special interest in Spain and in the Spanish colonies.
It was in recognition of a long and creditable life that the Regents set up in 1937, the Bernard Moses Memorial Lectureship. The lecturers, according to the instructions embodied in the supporting fund, are to be chosen from among the most distinguished men in the fields normally included under the designation social sciences. This selection is to be made by a group of members of the university faculty.
So organized, the lectureship has been filled by men of high quality in history, economics, law, and in some other subjects also. A recent lecture upon international law by a dean of the University’s School of Law may have a bearing upon the subject of tonight’s address. Uh, so also may a slightly earlier lecture, lecture by an eminent mathematician upon hypothesis and practical judgment in economics and ethics.
The appointment of a lecturer upon the Moses Foundation is not a casual act. It is a recognition of scholarship and constructive thought in an area of great importance. The university presents to you this evening, um, as memorial lecturer, a scholar of character and ability, and a colleague whom we are glad to honor.
The speaker is a citizen of the United States. He is also a man with rich experience in other countries. Professor Kelsen was born in Prague.
He was a student at the University of Vienna, and he has taught at Vienna, Cologne, Geneva, and Prague, to say nothing of his connection with several American universities in recent years. He was for nineteen years Professor of Public Law and Jurisprudence at the University of Vienna. For nine years, a member of the Supreme Constitutional Court of Austria, and for seven years, Professor of International Law and Jurisprudence at the University of Geneva in Switzerland.
While Dean of the Law School at Vienna, he drafted the Austrian Republican Constitution at the end of the First World War. He holds honorary degrees from Utrecht, Harvard, Chicago, California, and the National University of Mexico. He was named honorary professor at the University of Rio de Janeiro in nineteen hundred and forty, and at the University of Vienna in nineteen hundred and forty-seven.
All this is a formal and partial record of Professor Kelsen’s past activities, and I might add to this account a long list of his written publications. I will not do this. I think that it is more appropriate to remind you that when Professor Kelsen speaks to you tonight on justice, he will address you with feelings stirred by long and intimate association.
He has had contact with a world where justice has been interpreted in ways which we do not understand. He is aware of perplexities which have created a need for encouragement and guidance to a degree which few generations during the last hundred years have known. We shall welcome tonight all that our compatriot and colleague can give us based upon his experience and upon his thought.
Ladies and gentlemen, Professor Carlson.
(applause and cheering)
(applause)
[00:06:05] HANS KELSEN:
Mr. Chairman, Ladies and gentlemen. When Jesus of Nazareth was brought before Pilate and admitted that he was a king, he said, “It was for this that I was born, and for this that I came to the world to give testimony for truth.” Thereupon Pilate asked, “What is truth?”
The Roman procurator did not expect, and Jesus did not give an answer to this question. For to give testimony for truth was not the essence of his divine mission as the messianic king. He was born to give testimony for justice, the justice to be realized in the kingdom of God.
And for this justice, he died on the cross. Thus, behind the question of Pilate, what is truth, arises out of the blood of Christ. Another, still more important question, the eternal question of mankind: What is justice?
There is no other question that has been discussed so passionately, no other question for which so much precious blood, so many bitter tears have been shed. No other question to which so much intensive thinking has been devoted by the most illustrious thinkers from Plato to Kant. And yet, this question is today as unanswered as it ever has been.
It seems that it is one of those questions to which the resigned wisdom applies that men cannot find a definite answer, but can only try to improve the question. Justice is primarily a possible but not a necessary quality of a social order, regulating the mutual relations of men. Only secondarily it is a virtue of men, since a man is just if his behavior conforms to the norms of a social order supposed to be just.
But what does it really mean to say that a social order is just? It means that this order regulates the behavior of men in a way satisfactory to all men. That is to say, that all men find their happiness in it.
The longing for justice is man’s eternal longing for happiness. It is happiness that man cannot find alone as an isolated individual and hence seeks in society. Justice is social happiness.
It is happiness guaranteed by our social order. In this sense, Plato, identifying justice with happiness, maintains that only a just man is happy and an unjust man unhappy. It is obvious that there can be no just order, that is one affording happiness to everyone, as long as one defines the concept of happiness in its original narrow sense of individual happiness, meaning by a man’s happiness what he himself considers it to be.
For it is then inevitable that the happiness of one individual will at some time be directly in conflict with that of another. To give an example, love is one of the most important sources of happiness as well as of unhappiness. Let us suppose that two men are in love with one and the same woman, and each believes, rightly or wrongly, that he cannot be happy without having this woman exclusively for his own wife.
However, according to law, and perhaps also according to her own feelings, a woman can be only the wife of one of them. Hence, the happiness of the one is inevitably the unhappiness of the other. No social order can solve this problem in a satisfactory, that is to say, in a just way, guaranteeing the happiness of both.
Even not the famous judgment of the wise King Solomon. He decided, as you know, he decided to divide into two parts a child, which each of two women claimed as her own. That he was willing to attribute the child to the one who should withdraw her claim in order to avoid the death of the child.
Because, so the king assumed, she truly loved the child. If the Solomonic judgment is just at all, it is so only under the condition that one woman only loves the child. If both love the child, which is quite possible and even probable, since both wish to have it and both withdraw their claim, the dispute remains undecided.
And if, in spite of the fact that both women waive their claim, the child is attributed to one of them, the judgment is certainly not just since it makes one party unhappy. Our happiness very often depends on the satisfaction of needs which no social order can satisfy. If justice is happiness, a just social order is impossible if justice means individual happiness.
But a just social order is impossible even on the supposition that it tries to bring about not the individual happiness of each, but the greatest possible happiness of the greatest possible number of individuals. This is the famous definition of justice formulated by the English philosopher and jurist Jeremy Bentham. But Bentham’s formula is not applicable if by happiness is meant a subjective value, and if consequently different individuals have different ideas of what constitutes their happiness.
The happiness that a social order is able to assure cannot be happiness in a subjective, individual sense. It must be happiness in an objective, collective sense. That is to say, by happiness, we must understand the satisfaction of certain needs recognized by the social authority, by the lawgiver, as needs worthy of being satisfied, such as the need to be fed, clothed, housed, and the like.
There can be little doubt that satisfaction of socially recognized needs is very different from the original meaning which the idea of happiness implies. That idea has, by its very nature, a highly subjective character. The desire of justice is so elementary and so deeply rooted in the human mind because it is a manifestation of man’s indestructible desire for his own subjective happiness.
The idea of happiness must radically change its significance in order to become a social category, the happiness of justice. The metamorphosis of individual happiness into satisfaction of socially recognized needs as the meaning of justice is similar to the transformation which the idea of freedom must undergo in order to become a social principle, and the idea of freedom is sometimes identified with the idea of justice, so that a social order is considered just if it guarantees individual freedom. Since genuine freedom, that is, freedom from any kind of social authority of government, is incompatible with any kind of social organization, the idea of freedom must cease to mean absence of government.
It must assume the meaning of a special form of government, government exercised by the majority, if necessary, against the minority of the governed individuals. The freedom of anarchy turns to the self-determination of democracy. In the same way, and for the same reason, the idea of justice is transformed from a principle guaranteeing the individual happiness of all into a social order protecting certain interests socially recognized by the majority as worthy of being protected.
But which human interests are worthy of being satisfied, and especially what is their proper order of rank? That is the question which arises when there exists conflicting interests. And it is with respect to the possible conflict of interests that justice within a social order is required.
Where there is no conflict of interest, there is no need for justice. A conflict of interest exists when the one of these interests can be satisfied only at the expense of the other. Or what amounts to the same, when there is a conflict between values, and when it is not possible to realize both at the same time, when the one can be realized only if the other is neglected, when it is necessary to prefer the realization of the one to that of the other, to decide which one is more important, or in other terms, to decide which is the higher value, and finally, which is the highest value?
The problem of values is in the first place the problem of conflicts of values. And this problem cannot be solved by means of rational cognition. The answer to these questions is a judgment of value determined by emotional factors and is therefore subjective in character, valid only for the judging subject, and therefore relative only.
I want to give some examples. According to a certain ethical conviction, human life, the life of every human being, is the highest value. Consequently, it is according to this ethical conviction absolutely forbidden to kill a human being, even in war and even as capital punishment.
This is, for instance, the opinion of so-called conscientious objectors who refuse to perform military service and of those who repudiate in principle and in any case the penalty of death. However, there is another ethical conviction according to which the highest value is the interest and the honor of the nation. Consequently, everybody is, according to this opinion, moral, morally obliged to sacrifice his own life and to kill other human beings as an enemy of the nation in war, if the interest or the honor of the nation requires such action.
And it is justified to kill human beings as criminals in executing capital punishment. It is impossible to decide between these two conflicting judgments of value in a rational, scientific way. It is in the last instance our feeling, our will, and not our reason, the emotional and not the rational element of our consciousness which decides this conflict.
Another example, let us presuppose that it is possible to prove that the economic situation of our people can be improved by so-called planned economy So essentially, that Social Security is guaranteed to everybody in an equal measure, but that such an organization is possible only if all individual freedom is abolished. The answer to the question whether planned economy is preferable to free economy depends on our decision between the values of individual freedom and Social Security. A man with a strong self-confidence may prefer individual freedom, whereas a man suffering from an inferiority complex may prefer social security.
That means that to the question of whether individual freedom is a higher value than social security, or social security a higher value than individual freedom, only a subjective answer is possible. No objective judgment, as for instance the statement that iron is heavier than water and water heavier than wood. But this is a judgment about reality, verifiable by experiment, not a judgment of value which does not allow such verification.
Plato, as I pointed out, advocates the opinion that a just man, that means in this connection a man who obeys the law, and only a just man is happy, whereas an unjust man, that is a man who violates the law, is unhappy. Plato says, I quote, that the most just life is the most pleasant. Plato, however, admits that perhaps in one case or another, the just man may be unhappy and the unjust man happy.
But, asserts the philosopher, it is absolutely necessary that the individuals subject to the legal order believe in the truth of the statement that only the just man is happy, even if it should not be true, for otherwise nobody would obey the law. Consequently, the government has, according to Plato, the right to spread among the people, by means of propaganda, the doctrine that the just is happy and the unjust unhappy, even if this doctrine be a lie. If this is a lie, says Plato, it is a very useful lie, for it guarantees obedience to the law.
I quote: And even if the state of the case were different, Could a lawgiver who was worth his salt find any more useful lie than this, or one more effective in persuading all men to act justly? If I were a legislator, says Plato, I should endeavor to compel the poets and all the citizens to speak in this sense, namely, that the most just life is the happiest.
The government is fully justified in making use of a useful lie. Plato places justice, and that means here what the government considers to be justice, that is lawfulness. Plato places lawfulness above truth.
But there is no sufficient reason not to place truth above lawfulness and to repudiate as immoral a government which makes propaganda based on lies, even if it serves a good purpose. The answer to the question concerning the value of life and freedom of the nation and of the individual, to the question concerning the order of rank of the different values such as freedom, equality, security, truth, lawfulness, et cetera, is different according to whether the question is answered by a believing Christian who holds his salvation, the fate of his soul in the hereafter, more important than earthly goods, or by a materialist who does not believe in an afterlife. And it will be just as different according to whether it—the decision is made by one who considers individual freedom as the highest good, that is, by liberalism, or by one for whom social security and the equal treatment of all men is rated higher than freedom by socialism.
And the answer has always the character of a subjective, and therefore only relative, judgment of values. The fact that value judgments are subjective and hence very different value judgments are possible, this fact does not mean that every individual has his own system of values. In fact, very many individuals agree in their judgment of value.
A positive system of values is not an arbitrary, uh, creation of the isolated individual, but always the result of the mutual influence the individuals exercise upon one another within a given group, be it family, tribe, clan, caste, profession, and under certain political and economic circumstances. Every system of values, especially a system of morals and its central idea of justice, is a social phenomenon, the product of society, and hence different according to the nature of the society within which it arises. The fact that there are certain values generally accepted in a certain society in no way contradicts the subjective and relative character of these judgments of value.
That many individuals agree in their judgments of value is no proof that these judgments are correct, that is to say, that they are valid in an objective sense. Just as the fact that most people believe or used to believe that the sun turns around the Earth is or was no proof of the truth of this idea. The criterion of justice, like the criterion of truth, is not dependent on the frequency with which judgments about reality or judgments of value are made.
In the history of human civilization, quite generally accepted value judgments have often been replaced by quite different value judgments, no less generally accepted. In ancient times, blood revenge based on collective responsibility was generally considered as a just institution. But in modern times, the opposite idea prevails, that only individual responsibility is compatible with justice.
And it is by no means impossible that in the future, in case socialism should become victorious, a kind of collective responsibility again may generally be considered as adequate. Although the question as to whether the individual or the nation, the material or the spiritual goods, freedom or security, truth or justice represent the highest value cannot be answered rationally, yet this subjective, and hence relative, judgment by which these questions actually are answered is usually presented as the assertion of an objective and absolute value as a generally valid norm. It is a peculiarity of the human being that he has a deep need to justify his behavior, that he has a conscience.
The need for justification or rationalization is perhaps one of the differences which exist between human beings and animals. Man’s external behavior is not very different from that of animals. The big fish swallow the small ones in the kingdom of animals as well as in the kingdom of man.
But if a human fish, driven by his instincts, behaves in this way, he wishes to justify his behavior before himself as well as before society, to appease his conscience by the idea that his behavior in relation to his fellow men is right. If man is more or less a rational being, he tries to justify his behavior, motivated by his emotions of his fear and desire in a rational way. That is to say, through the function of his intellect.
This, however, is possible only to a limited extent, only to the extent that his fear or desire refers to means by which some end is to be achieved. Is a relationship of cause and effect, and this can be determined on the basis of experience, and that means in a scientific, rational way. To be sure, even this is frequently not possible if the means to achieve a certain end are specifically social measures.
For the actual status of social science is such that we have no adequate insight into the causal nexus of social phenomena and hence no sufficient experience which enables us to determine how certain social aims may best be attained. This is, for instance, the case when a legislator has to decide the question of whether he should provide capital punishment or only imprisonment in order to prevent certain crimes. This question may be formulated as the question of whether capital punishment or imprisonment is a just punishment.
To decide this question, the legislator must know the effect which the threat of these different penalties has on the mind of men inclined to commit the crimes the legislator wishes to prevent. But unfortunately, we have no exact knowledge of this effect and are not in a position to acquire such knowledge, since this is possible only by experiment, and experiment in the field of social life is possible only to a very limited extent. Hence, the problem of justice, even as thus restricted to a question of the appropriate means to a presupposed end, cannot always be rationally answered.
And even if it could be answered, the answer could not constitute a full justification of our behavior, that justification which our conscience requires. By most appropriate means, most inappropriate ends may be achieved. Think of the atomic bomb.
The end, it is true, justifies the means, but the means do not justify the end. And it is the justification of the end, the end which is not itself a means to a further end, the ultimate end, which is the final justification of our behavior. It is important to be aware of the fact that the assumption of ultimate ends is indispensable if we want to justify something, especially to justify a certain pattern of human behavior.
For if something is justified as a means to a certain end, the inevitable question arises whether this end is justifiable, and this train of ideas must finally lead to the assumption of an ultimate end, which is the very problem of morality in general and justice in particular. If some human behavior is justified only as an appropriate means to a presupposed end, the human behavior in question is justified only conditionally under the condition that the presupposed end is justifiable. Such a conditional, and in this sense, relative justification, does not exclude the possibility of the opposite.
For if the ultimate end is not justifiable, the means to this end is also not justifiable. Democracy, for instance, is a just form of government only because it is a form of government by which individual freedom is preserved. That means that it is a just form of government under the condition that individual freedom is presupposed as an ultimate end.
If instead of individual freedom, social security is presupposed as the ultimate end, and if it can be proved that social security cannot be established under a democratic form of government, then not democracy, but another form of government may be considered as just, since another end requires another means. Hence, democracy can be justified only as a relatively, not as an absolutely just form of government. Our conscience may not be satisfied with such a conditional, and that means relative justification.
It may require an unconditional, an absolute justification. That is to say, our conscience may be appeased only if our behavior is justified, not merely as an appropriate means to an end, an end, the justification of which is doubtful, but as an end, an ultimate end, or what amounts to the same as an absolute value. However, such a justification is not possible in a rational way, because a rational justification is justification as an appropriate means, and an ultimate end is, by definition, not itself a means to a further end.
If our conscience requires absolute justification of our behavior, and that means the validity of absolute values, human reason is not able to fulfill this requirement. The absolute in general and absolute values in particular are beyond human reason, for which only a conditional and in this sense relative solution of the problem of justice as the problem of justification of human behavior is possible. But the need for absolute justification seems to be stronger than any rational consideration.
Hence, man tries to attain the satisfaction of this need through religion and metaphysics. That means that absolute justice is transferred from this world into another transcendental world. It becomes the essential quality and its realization, the essential function of a superhuman being, of God, whose qualities and functions are, by definition, inaccessible to human cognition.
Man must believe in the existence of God, and that means in the existence of absolute justice. But he is unable to understand it. Those who cannot accept this metaphysical solution of the problem of justice and nevertheless insist upon a rational solution by so doing deceive themselves with the illusion that it is possible to find in human reason certain fundamental principles from which the ultimate ends may be deduced, which in truth are determined in the last analysis by the emotional elements of their mind, or are but empty formulas by which any social order whatever may be justified as just.
Hence, the many doctrines of justice that have been expounded from the oldest times of the past until today may easily be reduced to two basic types: a metaphysical-religious and a rationalistic, or more exactly formulated, a pseudo-rationalistic type. The classical representative of the metaphysical type is Plato. The central problem of his whole philosophy is justice.
And for the solution of this problem, he developed his famous doctrine of ideas. The ideas, as you know, are transcendental entities existing in another, in an ideal world. They represent the absolute values which should be, but never can be realized entirely in this world.
The main idea, the one to which all the others are subordinated, and from which they all receive their validity, is the idea of the good. And the idea of the good plays in Plato’s philosophy exactly the same role as the idea of God in the theology of any religion. The idea of the absolute good implies the justice that’s the cognition of which almost all Platonic dialogues aim.
The question as to what is justice coincides with the question as to what is good. Plato makes numerous attempts to approach this problem in a rationalistic way, but none of them leads to a final result. If some definition seems to be reached, Plato immediately declares that it cannot be considered as definitive, that further investigations are necessary.
Plato speaks frequently of a specific method of abstract thinking, the so-called dialectic, which, as he maintains, enables those who master it to grasp, or rather to get a sight or vision of the ideas. But he himself does not apply this method in his dialogues, or at least he does not let us know the results of this dialectic cognition, Of the idea of the absolute good, he even says that it is beyond all rational cognition. And in one of his Epistles, in the famous Seventh Epistle, where he gives an account of the inner motives of his philosophy, Plato declares that the vision of the absolute good is possible only through a specifically mystic experience, which only very few are able to attain by divine grace, but that it is impossible to describe the object of their mystic vision, the absolute good, in words of human language.
Hence, there can be no answer to the question of what is justice, for justice is the secret which God reveals, if at all, only to a few select persons who cannot communicate it to others. It is quite interesting to note how near Plato’s philosophy of justice is to the teaching of Christ, whose main concern too was justice. After having rejected the rationalistic answer of the Old Testament that justice is retribution, the principle of like for like, he proclaims as the new justice, the love of God.
This love of God is, of course, not the human instinct we call love, for it is supposed to be compatible with the cruel and even the eternal punishment of the sinner in the last judgment. Jesus did not and could not explain this contradiction. For it is a contradiction only for the limited human reason, not for the absolute reason of God which is incomprehensible to man.
Hence Paul, the first theologian of the Christian religion, rejecting expressly any philosophical, and that means rationalistic approach to this problem, declared justice, the love of God taught by Jesus Christ to be a secret, one of the many secrets of faith. The rationalistic type, the one which tries to answer the question by defi-by defining the concept of justice by means of human reason, is represented in the popular wisdom of all nations as well as in some famous philosophical systems. To one of the seven sages of Ancient Greece, the well-known saying is attributed that justice is to give to each his own.
This definition has been accepted by many outstanding thinkers, and especially by legal philosophers. But it is easy to show that this is a completely empty formula, because the decisive question, what is that which is everybody’s own? This question is not answered, and hence the formula is applicable only under the condition that this question is already decided by a social order, legal or moral, established by custom or legislation.
That is to say, by positive morality or by positive law. Hence, the formula “to each his own” can be used to justify any such order, whether it be capitalistic or communistic, democratic or autocratic, which probably explains its general acceptance. But which shows that it is completely useless as a definition of justice, as an absolute value, different from the merely relative values guaranteed by positive law or positive morality.
The same holds true with respect to the principle which probably is most often presented as the essence of justice, like for like. That is good for good and evil for evil, the principle of retribution. This principle is meaningless unless the answer to the question what is good and what is evil is presupposed as self-evident.
But the answer to this question is not at all self-evident, since the ideas of good and evil are very different among different peoples and at different times. The principle of retribution expresses only the specific technique of the positive law, and hence any positive legal order corresponds to this principle. The question of justice, however, is the question of whether a positive legal order attaching to the evil of the crime, the evil of the punishment is just.
Whether that which the lawmaker considers to be an evil to society is indeed an evil, a behavior against which society should justly react, and whether the sanction with which society actually reacts is appropriate. To this question, which is the very question of the justice of the law, the principle of retribution is no answer at all. Not very different from this principle of retribution is the famous golden rule: to do, or not to do to others as we would or would not have them do to us.
What everybody wants that others shall do to him is that they shall give pleasure to him, and what everybody wants that others shall not do to him is that they shall not inflict pain on him. Hence, the Golden Rule amounts to the norm: Give pleasure to others. Do not inflict pain upon them.
However, it frequently occurs that it is somebody’s pleasure to inflict pain upon another.
(laughter)
If this is a violation of the Golden Rule, what shall be done to the violator in order to prevent such violation as far as possible? This is the question of justice. If nobody would inflict pain upon another, no problem of justice would exist.
Now it is quite evident that the golden rule, if applied to cases of its violation, must lead to absurd consequences, for nobody wants to be punished, even if he has committed a crime. Hence, according to the golden rule, nobody should punish a criminal. Somebody might not mind at all that others tell lies to him, since he rightly or wrongly thinks himself to be clever enough to find out the truth and thus protect himself against the liar.
Then, according to the golden rule, he is allowed to lie. The golden rule taken literally results in the abolition of law and morality. But its intention is evidently not to abolish, but to maintain the social order.
If interpreted according to its intention, the golden rule cannot, as its wording pretends, establish a merely subjective criterion of the right behavior, the right behavior of the individual being the behavior that he wishes to get from others. Such criterion is incompatible with any social order. The Golden Rule must establish an objective criterion.
Its true meaning is: behave in relation to others as the others shall behave in relation to you. But how shall they behave? This is the question of justice.
And the answer to this question is not given. It is presupposed by the Golden Rule. It is given by an established social order, by any such order, whether just or unjust.
If the subjective criterion of the right behavior implied in the wording of the Golden Rule is replaced by an objective criterion. If the meaning of the Golden Rule is that each individual shall behave towards the other as the others shall behave towards him, then this rule amounts to the principle, behave in conformity with the general norms of the social order. It was evidently the golden rule interpreted in this way, which inspired the German philosopher Immanuel Kant to his famous formulation of the categorical imperative, which is the essential result of his moral philosophy and his solution of the problem of justice.
It runs as follows: Act only on that maxim whereby you can at the same time will that it should become a universal law. Its meaning is that one’s acts should be determined only by principles that one shall wish to be binding on all men. But which are these principles of which we shall wish that they be binding upon all men?
This is the decisive question of justice. And to this question, the categorical imperative, just as the golden rule, its model, is no answer. If we examine the concrete examples by which Kant tries to illustrate the application of his categorical imperative, we find that they all are precepts of the traditional morals and the positive law of his time.
They are not, as the doctrine of the categorical imperative pretends, deduced from this principle, for nothing can be deduced from this empty formula. They prove only to be compatible with it, and any precept of any established social order is compatible with the principle that says nothing else but that the individual shall act in conformity with general norms. Thus, the categorical imperative, just as the rule to each his own or the golden rule, can serve as justification of any social order, and this possibility explains why these formulas, in spite of or rather because of their complete emptiness, are still and probably always will be accepted as a satisfactory answer to the question of justice.
The metaphysical as well as the rationalistic type of legal philosophy is represented in a school of thought which was prevalent during the 17th and 18th centuries and which, although repressed more or less during the 19th century, has again an influence in our time. It is the doctrine of natural law. This doctrine maintains that there exists a perfectly just regulation of human relations emanating from nature, nature in general, or human nature, the nature of man as a being endowed with reason.
Nature is conceived of as a legislator. By an analysis of nature, we find, according to this doctrine, the immanent norms prescribing the just conduct of man. If nature is supposed to be created by God, the norms immanent in nature, the natural laws, are the expression of the will of God, then the natural law doctrine has a metaphysical character.
If, however, it is the nature of man as a being endowed with reason from which the natural law is to be deduced, if it is supposed that the principle of justice can be found by an analysis of human reason, in which this principle is immanent, The natural law doctrine pretends to assume a rationalistic character. But from the point of view of science, neither the one nor the other view is tenable. Nature, as a system of facts connected with one another according to the law of causality, has no will, and hence cannot prescribe a definite behavior of man.
From facts, that is to say, from that which is, or actually is done, no inference is possible to that which ought to be or ought to be done. In-, insofar as the natural law doctrine tries to deduce from nature norms of human behavior, it is based on a logical fallacy. The same holds true with respect to human reason.
Norms prescribing human behavior cannot emanate from human reason. They can emanate only from human will. Hence, the statement that men ought to behave in a certain way can be reached by human reason only under the condition that by human will a norm has been established prescribing this behavior.
Human reason can understand and describe such behavior but cannot prescribe it. To detect norms in human behavior, of human behavior in human reason is the same illusion as to deduce them from nature. Hence, it is not astonishing that the various followers of the natural law doctrine deduced from nature or found in human reason the most contradictory principles of justice.
According to one of the leading representatives of this doctrine, Robert Filmer, the autocracy of an absolute monarchy is the only natural, and that means just form of government. But another likewise outstanding philosopher, John Locke, proved by the same method that absolute monarchy is no form of government at all, and that only democracy can be considered as such, because only democracy corresponds to the intention of nature. Most of the writers of this school maintained that individual property, the basis of the capitalistic system, is a natural and consequently a sacred right, because it is conferred directly by nature or reason upon man; and that, consequently, communism is a crime against nature or reason.
But the propaganda for the abolishment of private property as the source of all social evils and for the establishment of a communistic society as the only just social organization was based during the eighteenth century and at the beginning of the nineteenth century on the same natural law doctrine. If the history of human thought proves anything, it is the futility of the attempt to establish in the way of rational considerations an absolutely correct standard of human behavior. And that means a standard of human behavior as the only just one, excluding completely the possibility of considering the opposite standard as just, too.
If we may learn anything from the intellectual experience of the past, it is the fact that only relative values are accessible to human reason. And that means that a judgment to the effect that something is just can never be made with the claim to exclude the possibility of a contrary judgment of value. Absolute justice is an irrational idea, or what amounts to the same, an illusion.
One of the eternal illusions of mankind. From the point of view of rational cognition, there are only interests of human beings and hence conflicts of interests. The solution of these conflicts can be brought about either by satisfying completely one interest at the expense of the other or by a compromise between the conflicting interests.
It is not possible to prove that only the one or the other solution is just. Under certain conditions, the one; under other conditions, the other may be just. If social peace is supposed to be the ultimate end, but only then, the compromise solution may be just.
First, that the justice of peace is only a relative and not an absolute justice. Now, you may ask, what then is the moral of this relativistic philosophy of justice? Has it any moral at all?
Is relativism not amoral or even immoral, as it is sometimes maintained? I do not think so. The moral principle involved in a relativistic philosophy of justice is the principle of tolerance, and that means the sympathetic understanding of the religious or political beliefs of others without accepting them, but not preventing them from being freely expressed.
It stands to reason that no absolute tolerance can be required by a relativistic philosophy of values. Only tolerance within an established legal order. guaranteeing peace by prohibiting and preventing the use of force among those subjected to the order, but not prohibiting and preventing the peaceful expression of ideas.
Tolerance means freedom of thought. The highest moral ideals have been compromised by the intolerance of those who fought for them. And the stakes which the Spanish Inquisition set on fire for the defense of the Christian religion, not only the bodies of the heretics have been burned, but also one of the noblest precepts of Christ has been sacrificed.
Pass no judgment upon others so that you may not have judgment passed on you. If democracy is a just form of government, it is so because it means freedom, and freedom means tolerance. If a democracy ceases to be tolerant, it ceases to be a democracy.
But can a democracy be tolerant in its defense against anti-democratic tendencies? It can. It can do to the extent that it must not suppress the peaceful expression of anti-democratic ideas.
It is just by such tolerance that democracy distinguishes itself from autocracy. We have a right to reject autocracy and to be proud of our democratic form of government only as long as we maintain this difference. Democracy cannot defend itself by giving itself up.
But to suppress and prevent any attempt to overthrow the government by force is the right of any government and has nothing to do with the principles of democracy in general and tolerance in particular. Sometimes it is true, it may be difficult to draw a clear boundary line between the mere expression of ideas and the preparation of the use of force. But on the possibility of finding such a borderline depends the impossibility of maintaining democracy.
It may be that any such borderline involves a certain risk. But it is the essence and the honor of democracy to run such risk. And if democracy could not stand such risk, it would not be worthy to be defended.
Because democracy is by its very nature freedom, and freedom means tolerance. There is no other form of government which is so favorable to science, for science can prosper only if it is free. And it is free if there is not only external, that is, external freedom, that is independence from political influence.
But if there is also freedom within science, the free play of arguments and counter-arguments, no doctrine whatever can be suppressed in the name of science. For the soul of science is tolerance. Ladies and gentlemen, I started this lecture with the question as to what is justice.
Now, at its end, I am quite aware that I have not answered the question. My only excuse is that in this respect, I am in the best of company. It would have been more than presumptuous to make you believe that I could succeed where the most illustrious thinkers of mankind have failed.
And indeed, I do not know, and I cannot tell you what justice is, the absolute justice for which mankind is longing. I must acquiesce in a relative justice, and I ca– I can only tell you what justice is to me. Since science is my profession and consequently the most important thing in my life, it is that justice under the protection of which science and with science, truth and sincerity can prosper.
It is the justice of freedom, the justice of peace, the justice of democracy, the justice of tolerance. I thank you.
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