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CULTURA 2012_263867_VOL_9_No1_GR_A5Br.indd 1 CULTURA mote theexplorationofdifferentvalues andculturalphenomenain ted tophilosophyofcultureandthestudyvalue. Itaimstopro- www.peterlang.de are ding thevalues andculturalphenomenainthecontempo that research original on based judged tomake anovelandimportantcontributiontounderstan- manuscripts of submission the contexts. international and regional and ulture C F ounded in2004, ISBN 978-3-631-63867-5 ISBN xiology A hilosophy of hilosophy P of ournal J International ultura. C isasemiannualpeer-reviewed journaldevo- T he editorial board encourages encourages board editorial he rary world.

2012

International journal of of 1 and CULTURA CULTURA 2012 and axiology of philosophyculture Internat i onal journal journal onal Vol IX Peter Lang 24.07.12 15:37:38 Uhr No 1 No CULTURA 2012_263867_VOL_9_No1_GR_A5Br.indd 1 CULTURA C F www.peterlang.de are ding thevalues andculturalphenomenainthecontempo that research original on based judged tomake anovelandimportantcontributiontounderstan- manuscripts of submission the contexts. international and regional mote theexplorationofdifferentvalues andculturalphenomenain ted tophilosophyofcultureandthestudyvalue. Itaimstopro ounded in2004, ulture and and ulture A xiology C ultura. International International ultura. isasemiannualpeer-reviewed journaldevo- T he editorial board encourages encourages board editorial he J ournal of of ournal P hilosophy of hilosophy ­rary world. - 2012

International journal of philosophy of 1 culture and axiology CULTURA CULTURA 2012 and ax of ph Internat i losophy ofculture i ology i onal journal journal onal Vol IX P eter 24.07.12 15:37:38 Uhr L No 1 No ang CULTURA

INTERNATIONAL JOURNAL OF PHILOSOPHY OF CULTURE AND AXIOLOGY Cultura. International Journal of Philosophy of Culture and Axiology E-ISSN (Online): 2065-5002 ISSN (Print): 1584-1057

Advisory Board Prof. dr. Mario Perniola, University of Rome “Tor Vergata”, Italy Prof. dr. Paul Cruysberghs, Katholieke Universiteit Leuven, Belgium Prof. dr. Michael Jennings, Princeton University, USA Prof. Emeritus dr. Horst Baier, University of Konstanz, Prof. dr. José María Paz Gago, University of Coruña, Spain Prof. dr. Maximiliano E. Korstanje, John F. Kennedy University, Buenos Aires, Argentina Prof. dr. Nic Gianan, University of the Philippines Los Baños, Philippines Prof. dr. Alexandru Boboc, Correspondent member of the Romanian Academy, Romania Prof. dr. Teresa Castelao-Lawless, Grand Valley State University, USA Prof. dr. Richard L. Lanigan, Southern Illinois University, USA Prof. dr. Fernando Cipriani, G.d’Annunzio University Chieti-Pescara, Italy Prof. dr. Elif Cirakman, Middle East Technical University, Ankara, Turkey Prof. dr. David Cornberg, University Ming Chuan, Taiwan Prof. dr. Carmen Cozma, Alexandru Ioan Cuza University Iassy, Romania Prof. dr. Nancy Billias, Department of Philosophy, Saint Joseph College, Hartford, USA Prof. dr. Christian Möckel, Humboldt University of Berlin, Germany Prof. dr. Leszek S. Pyra, Pedagogical University of Cracow, Poland Prof. dr. A. L. Samian, National University of Malaysia Prof. dr. Dimitar Sashev, University of Sofia, Bulgaria Prof. dr. Kiymet Selvi, Anadolu University, Istanbul, Turkey Prof. dr. Traian D. Stănciulescu, Alexandru Ioan Cuza University Iassy, Romania Prof. dr. Gloria Vergara, University of Colima, Mexico Prof. dr. Devendra Nath Tiwari, Banaras Hindu University, Varanasi, India Prof. dr. Massimo Leone, University of Torino, Italy Prof. dr. Christian Lazzeri, Université Paris Ouest Nanterre La Défense, France Prof. dr. Asunción López-Varela Azcárate, Universidad Complutense de Madrid, Spain

Editorial Board Editor-in-Chief: Co-Editors: Prof. dr. Nicolae Râmbu Prof. dr. Aldo Marroni Faculty of Philosophy and Social- Facoltà di Scienze Sociali Political Sciences Università degli Studi G. d’Annunzio Alexandru Ioan Cuza University Via dei Vestini, 31, 66100 Chieti B-dul Carol I, nr. 11, 700506 Iasi, Romania Scalo, Italy [email protected] [email protected] Executive Editor: PD Dr. Till Kinzel Dr. Simona Mitroiu Englisches Seminar Human Sciences Research Department Technische Universität Braunschweig, Alexandru Ioan Cuza University Bienroder Weg 80, Lascar Catargi, nr. 54, 700107 Iasi, Romania 38106 Braunschweig, Germany [email protected] [email protected]

Editorial Assistant: Dr. Marius Sidoriuc Designer: Aritia Poenaru Cultura International Journal of Philosophy of Culture and Axiology Vol. 9, No. 1 (2012)

Editor-in-Chief Nicolae Râmbu

PETER LANG Frankfurt am Main · Berlin · Bern · Bruxelles · New York · Oxford · Wien Bibliographic Information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the internet at http://dnb.d-nb.de.

Umschlagabbildung: © Aritia Poenaru

ISSN 2065-5002

ISBN 978-3-631-63867-5 © Peter Lang GmbH Internationaler Verlag der Wissenschaften Frankfurt am Main 2012 All rights reserved. All parts of this publication are protected by copyright. Any utilisation outside the strict limits of the copyright law, without the permission of the publisher, is forbidden and liable to prosecution. This applies in particular to reproductions, translations, microfilming, and storage and processing in electronic retrieval systems. www.peterlang.de

CONTENTS

CULTURAL ILLUSIONS

Danial YUSOF 7 Parallels between Contemporary Western and Islamic Thought on the Discourse of Power and

Andrei CORNEA 29 Relativity and : On a Failed Analogy

Andityas Soares DE MOURA COSTA MATOS 43 A Western Cultural Illusion: State and Law or State as Law?

Steven CRESAP, Louis TIETJE 57 Irreconcilable Foundations: An Analysis of the Cultural Environment Facing Moral Educators

Liudmila BAEVA 73 Existential Axiology

Paola PARTENZA 85 Mary Wollstonecraft: Ideology and Political Responsibility

Dan-Eugen RAŢIU New Theoretical Framework for Approaching Artistic Activity: the 101 Principle of Uncertainty. Pierre-Michel Menger’s Sociology of Creative Work

Frederic 123 Cultural Illusions

Dennis IOFFE 135 The Notion “Ideology” in the Context of the Russian Avant-Garde

Abdul Rashid MOTEN 155 Understanding and Ameliorating Islamophobia

Seungbae PARK 179 Against Moral

Reena CHERUVALATH 195 Analyzing the Concept of Self-Deception in Indian Cultural Context

Alexander BAUMGARTEN 205 Li/toij ferome/noij. Notes towards Plotinus’ Semiology of Heaven

Morten Ebbe Juul NIELSEN 215 The Duty to Recognize Culture

Madalena D’OLIVEIRA-MARTINS 235 The New Feminine Emotional Codes in Hochschild: New Perspectives for Modern Social Studies

Vilmos VOIGT 249 The Bridge in Semiotics

10.5840/cultura20129120

Cultura. International Journal of Philosophy of Culture and Axiology 9(1)/2012: 43–55

A Western Cultural Illusion: State and Law or State as Law?

Andityas Soares DE MOURA COSTA MATOS Universidade Federal de Minas Gerais (UFMG) Av. João Pinheiro nº 100 – Bairro Centro Belo Horizonte – Minas Gerais CEP 30130-180 BRASIL [email protected] [email protected]

Abstract. Considering the basic assumption that the modern Law and State theory does not only bear similarities, but also draws true epistemological parallels to the constructions of Theology, Hans Kelsen intends to lay bare the ideological meaning that lies at the very core of the traditional dualism which constitutes Law and State into autonomous entities. Taking into account Kelsen´s original perceptions – which are seconded by more recent contributions from Claude Lefort and Hans Lindahl’s political and symbolic concepts and from Carl Schmitt’s notions on political theology – our intention is now to demonstrate the highly conservative role played by the duality of the Law/State structure, whose aim is to remove, from under the sway of legal control, a considerable part of the State’s actions. Herebelow, therefore, we will analyse the very legitimacy of the so-called “Public Law,” which seems to point to a trend towards shunning the legal power regulation. Finally, based on the functional method pioneered by , legal institutions such as “collective will” and “public interest” will be problematised, in order to ascertain whether they contain theological, conservative and authoritarian traits incompatible with the conceptual and substantial unity intrinsic to the Rule of Law. Keywords: law and state, symbol, theology, public law, criticism

After denouncing the dualism State/Law in various papers, published in the 1920s, Hans Kelsen reaches the pith of the issue in 1923 with his most ambitious essay, God and State. In this work Kelsen demonstrates the relationship between the pseudo-problems of the theology and the State’s theory. Both disciplines sustain the of dualisms not with the purpose of explaining the , but to legitimize conservative political purposes. Whether, according to Schmitt, the metaphysical image, that certain era depicts of the world is the result of its political organization (Schmitt, 2006: 43), is of ultimate importance questioning the bonds between politics and religion – and also about the ways of the rupture (Lefort, 1986: 277) –, which Claude Lefort does by using the concept of symbol

43 Andityas Soares De Moura Costa Matos / A Western Cultural Illusion

as a core element to the comprehension of the sacred genealogy of the political thought. By using the concept of symbol, the philosophers and political scientists are entrusted with revealing the process of the transition from the Middle Age to the current times regarding what is continuous and what is already finished. By doing that, the concept of Modern Age as an absolute start of this process becomes relative. From this point of view, Kelsen foreshadows the work of epistemological clarification done by Lefort to whom both the political and the religious dislocate the philosophical thought to the symbolical sphere; which governs with its internal articulations our access to the world (Lefort, 1986: 261). The Middle Age’s theology had laid the foundation of its conservative mysticisms on the dualism of God/nature. Similarly, the traditional State’s theory established its basis insisting on the idea of separation between the State and Law. This, therefore, reveals profound connections between social and religious ideas, both that take place on the hiding place of the deepest strata on the human’s psyche. As well as this, the individual feels like a non-autonomous part of the whole society to which they ought to obey, beliefs that springs up a intimate feeling of dependence, in the same way they are made to believe the transcendental authorities that establishes the reality that we live in. From this inicial point of view, Kelsen concludes that both society and God demands from the individual an absolute obedience, fulfilling the psychological space that should be occupied by the moral (Kelsen, 1989a: 244). The essence of the religious existence arranges a social moment and the core of the social existence, a religious moment, both founded in the authoritarian basis (Kelsen, 1989a: 246). Engels comprehended this concluding that: “the essence of the State, as well as the religion, is humanities’ fear of itself” (quoted in Schmitt, 2006: 47). Due to this, Durkheim could identify God and the society, in a famous research entitled Les Formes Élementaires de la Vie Religieuse. Thereby, the society is nothing but an expression of God, that is to say, it is the religious and authoritarian existence that characterizes the social field (Kelsen, 1989a: 247). This verification is confirmed by the constantly reported image of Hegel’s Law’s Philosophy: “The State is the walk of God in the world” (Hegel, 1952: 336, § 258). Similarly to Hegel, Plato demonstrates an accurate comprehension of the mystic authorities’ basis. He expels the

44 Cultura. International Journal of Philosophy of Culture and Axiology 9(1)/2012: 43–55 poets from his perfect state because he knows how prejudicial the can be for the absolutes (Platão, 2001: 449-474, 595a-608b). The poet represents a factor that may desestabilize creeds and in the Plato’s authoritarian republic. Capable of ridicule and mocking the gods, the artist subverts political authority and makes the individuals less susceptible to the desmobilisation of his individual conscience. If Plato and Hegel have similarities when they connect God and the State by valuing it, however, as a necessary and positive link, Kelsen found an unexpected allied in Nietzsche to whom the State is an idol that occupies God’s place, once He was murdered by the moderns. Now, tired of fighting, the winners of the old God serve the new divinity that will give them everything, since them – the others, the meaningless – adore the new absolute (Nietzsche, 1998:76). Urges the State: “There is nothing in the world bigger than me; I am God’s finger that organizes the world” (Nietzsche, 1998: 75). Differentiating from the actual enemies who criticize Kelsen, Schmitt has read his books carefully. He recognizes that “to Kelsen we owe the identification, since 1920, with his proper accent, of the methodological connection between Theology and Law” (Schmitt, 2006: 38). Besides the fact that the consequences of this perception in Kelsen and Schmitt are different, it seems surprising that both – contraries in all the other things – partake in this polemical thesis. In Political Theology – a paper from 1922 that entitled one of his most famous books – Schmitt says that all the concepts of the Modern State theory are nothing but secularized theological ideas. This conclusion is valid if not only we consider the historical origins of the State, born due to the transfer of God’s omnipotence to the legislator, but also considering its systematic structure (Schmitt, 2006: 35). The modern State interferes in all the spheres, perceived by Schmitt. In certain circumstances, it behaves like a deus ex machina, miraculously transforming the concepts and the norms; sometimes it is like a gentlemen demiurge, demonstrating its superiority from the individual by liberating him, by giving indults and amnesty and from normative obligations (Schmitt, 2006: 36-37). If we consider that a miracle figures breaches nature’s laws, it is possible to legally understand the same phenomenon as a rupture within the common rules of the State, when takes place in an exceptional State, in the presents of a dictator. In both cases, a direct intervention reestablishes order: the arrival of God, when

45 Andityas Soares De Moura Costa Matos / A Western Cultural Illusion

it comes to a theological dominion, or to the dictator, when it is refers to the juridical area (Schmitt, 2006: 35). Nevertheless, the resemblance between Schmitt and Kelsen ends here, since the first criticizes the second due to the pretension of building a Law system immune to the juridical miraculous action. Therefore, Kelsen’s theory is incapable of describing and living in the exceptional moments. Thus Kelsen, from Schmitt’s point of view, practices a juridical science compromised with the illuminist and the mathematical , with modes of knowledge that disown the exceptional and prefer general and universal structures of thought (Schmitt, 2006: 39-40). As explained in Freud’s works, it is the psychological’s identity that unifies the religious attitude and the social , which is derived from a common source and is the ambiguous relationship between the father and the son. The State obtains the submission of the individual only because it is capable to show itself as a symbolical father and, in this way, propitiate emotions that convert adults into children, removed of their will and opinion (Kelsen, 1989a: 248). This is one of the Weber’s mistakes, which restrained the State’s specifical coercion to its physical aspect, reserving the psychological coercion to associations with a dominion of the hierocratic type, as like the churches (Ordóñez, 1989: 178). Truly, because it contains sacred, majestic and authoritarian elements, whereas the idea of the State demands the psychological coercion, which grows in the individual as a love of obedience. So, this “love of obedience,” is an ambiguous explanation that is linked to the childish expectations of security and forgiveness of the primal hate that the primitive children feel – in Freud’s model – for the original father. However, the “love of obedience” is only maintained in collective contexts. Due to this, religion is a social phenomenon. An individual’s religion, like the one of Nietzsche’s Zaratrusta, is impracticable. Both in society and in religious matters, it is not enough for a person to submit himself. It is necessary that also the other people do so to. The desire of submission represents only one side of the story. The other is the anxiety regarding the submission of all men (Kelsen, 1989a: 248). There is not a religion – maybe except Buddhism – that limits itself to regulate only, the relationship between the believer and their god. The believer is slaved by the religious alienation, who wants to suffocate all the other men making sure that there is no one superior to him. Hypothetically, in this way, everyone would be equally a slave. A

46 Cultura. International Journal of Philosophy of Culture and Axiology 9(1)/2012: 43–55 similar phenomenon occurs in the society: we repress our individual self to save us from the repression of the others, building a group that finds realization only in the glorification as a whole, no matter if it is named God or State. Furthermore to realize this intent, violence is the most effective manner. Kelsen compares the fanatic that fights for his State, god or nation with the primitive that, once they are wearing the mask of a totemic animal, it allows them to experience the wild part of himself, practicing acts that commonly are prohibited to him (Kelsen, 1989a: 249). All the human history is nothing more than a quest between the ambition of submitting and the desire of self-determination, which not only does reflect in the political sphere, but also in the history of ideas (Kelsen, 1989c: 224). Religion, State and nation are totemic masks, i.e., ideologies that hide real facts. It is not the State that mangles human bodies in wars. This is a dirty work of human , especially the ones we are used to be celebrated as heroes in our History’s books. It is not God who arrests and tortures political dissidents, but the general X and his accomplices. Kelsen would never disagree with Luhmann, to whom society is not composed by people, but for the purpose of communication. Kelsen is an ultra-realist thinker and an iconoclast who understands that there is no reality besides the real individual in flesh and blood. Inevitable is the comparison to Nietzsche’s thought that: “Annihilators are who set a trap to the most of people and call it State; moreover suspend upon them a sword and one hundred covetousnesses” (Nietzsche, 1998: 75). It is against mysticisms like that, which allows the emersion on one side of, Nietzsche’s irrationalism, and, on the other side, the positivist science, that intends to destroy the totemic masks and view the undressed movements of our souls and bodies, in its causal determinations (Kelsen, 1989a: 250). From Kelsen’s point of view, the Law configures a social technique that deals with juridical norms and elements that drives the dominated to the behaviour the dominators want (Correas, 1989: 11). Therefore, they are willing acts that confer sense to the conducts, essentially representing ways of domination (Correas, 1989: 13). This is what is taught in the Pure Theory of Law. Nothing less, nothing further. The reason for this is because it is highly hated; for showing us our true face, which is never attractive. On the contrary, the traditional theory personifies the State by conceiving it as a unit capable of shaping the multiplicity characteristic of

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juridical relations. Just like God creates the world unifying it, the State creates Law centralizying it. Both – God and State – are uncontrollable and can argue reasons that are not reported in the codes of the world or of the Law. The idea of absolute, from which is born the notion of sovereignty, is understood as an unlimited power that binds to the assumption of an almighty God. According to Lindahl, Kelsen sees in the concept of popular sovereignty the undisguised political continuity between the Medieval and Modern Age. God and the abstraction called “sovereign people” fulfill the basic functions of the symbol as described by Cassirer, consisting of approach and withdrawal (Lindahl, 1996: 70). It is the symbol’s job to be a mediator who makes possible our passage through the world of sense (Lindahl, 1996: 54-55). This thesis is proven by the notions of sovereignty offered by Laband and Jellinek, who describe it as a symbolic representation of the unified power of the ruler, making the State, in Schmitt’s words, “(...) almost an abstract individual, a unicum sui generis with its monopoly of power coming from ‘mystical production’” (Schmitt, 2006: 38). As they are symbols of the absolute, both God and sovereignty admit only to negative definitions. It is impossible to define God by using positive preaching, since His full knowledge is something impossible for humans to grasp. We can only say what God is not, as taught by the neoplatonic negative theology. In addition, the sovereign power is negatively defined as is not subordinate to any other (Kelsen, 1989a: 254). The sovereignty – ideology that ensures the absolutism and the deification of the State – is revealed as a legal construct, characteristic of a that sees in the State a supraindividual reality, irreducible to the humans who give it reality. In this context, the State is not a simple form of social organization, but rather a mystical entity who realizes its absolute values (Kelsen, 1989c: 235). The notion of sovereignty fills the original locus of the individuals’ freedom on the pretext of protecting it (Kelsen, 1974: 27). In the same way, God is a possibility for realization of human freewill, as well as its denier, by requiring absolute submission to his creature. According Frosini, Kelsen moves away from the theological reading of sovereignty because it defines this phenomenon as a mere legislative hypothesis, i.e., an ideological abstraction typical of jurists who, like Schmitt, sees on it a “factual situation” (Frosini, 1991: 66).

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The parallels between the traditional State theory and theology are endless. The following paragraph will expand upon this. Theology must deal with the problem of error evaluation by their farmers and the State, who need to explain the injustice. In both cases, we resort to a final concept capable to transform error into truth and arbitrary decision on a legally valid decision. According to Adolf Merkl, in the theological area, this “magic” operates through the dogma of papal infallibility; on legal thought, through the res judicata idea (Kelsen, 1989a: 263). In parallel, the individual is treated by both theology and the State theory as an insubstantial . His physical concreteness is negated and he becomes part of an ideal and conceptual world. An immortal soul created in the image and likeness of God is a construct that corresponds to that particular social ideology that operates with the notion of persona in the legal sense (Kelsen, 1989b: 324). Both fictions make it much easier to disregard the real conditions of man’s existence. As a concept, he did not suffer, bleed or die. These ideas abstract who we really are – biological and psychological unities – and perceive us as souls and entities, allowing the State theory and the theology of designing the same way relations between individuals and society on one hand, and, on the other, individuals and God. This gives way to universalism and , common attitudes to political and theological theories that claim that the individual should be dissolved in the whole – the position of fascism and the absolute theism – or affirmed as a particular essence against the whole – characteristic of liberalism and Christianity (Kelsen, 1989a: 264). The practical consequences of the theoretical dualism State/Law are of great importance, given that underlying social systems, in which there are “reasons of State,” invoked by governments when the statutes they do not seem advantageous. It is a general and observable psychic trend, common to both primitive men as civilized, which is to pursue the collective interests as the justification of individual interests (Kelsen, 1989b: 321). Constructs as “collective will” and “public interest” are just euphemisms used by those in power to evade the due obedience to the Law. All legal orders, even the most despotic one, expressed – in a greater or lesser degree – require certain commitments (Kelsen, 1989a: 260), and thus can generate serious limitations to the interests of rulers, who use then personifications without any reality – God and State – for to impute them the anti-juridical actions they practice. During characterizing, in political-theological terms, in the seventeenth and

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eighteenth centuries, the specific times of the Absolute State, Schmitt argues that the notion of divine transcendence integrates the concept of God just as the transcendence of the monarch in relation to the State – or Law, in Kelsen theory – is part of the State Philosophy of this centuries (Schmitt, 2006, pp. 45-46). Convert an act of force in a juridical act, and prompt legal right of non-right. This is the metamorphosis that those in power need to accomplish. For both, there are certain magic words to be sung like sacramental songs: “Public Law,” “Prince’s fact,” “collective interest,” “social peace,” “public order” and others. The traditional legal doctrine teaches that political power captures the collective interest, diffuse in society, and translates it into legal standards that ensure social possible happiness. The process, however, is quite different. Indeed, the governors wish to ensure their own interests. So, they drag it with vague and imprecise concepts at the same time they impose legal rules that can be achieved by their aspirations. Of course, the excuse is always that the collective happiness should be guaranteed, paternalistically, by the State. There are two very clear – but unconfessable – roles for the dualism Public Law/Private Law: 1) insulate the private relations of the socio- political domains, as well as the strengthening the ideas of freedom of choice and parental authority, the central archetype for the construction of the “love of obedience”; 2) justify the political and anti- juridical acts of the government, which is free of any conventional normativity to stand under the diaphanous Public Law’s cloak (Kelsen, 1957: 140). A Public Law is radically different of a Private Law, because it is derivated from the special nature of the personified State, which represents only certain political postulates that, for expressing desires and private interests that are allowed by Law, must be clothed in legality (Kelsen, 1989a: 261). One example amongst many, is the romanistic [i.e., relative to the Classic Roman Law] distinction between Public Law and Private Law. It was adopted by German legal science in order to benefit the ruling princes, removing them from the scope of any juridical control by using the formula: princeps legibus solutus est (Manero, 1989: 143). A conception of a God separated from his creation would be incomprehensible to a Greek or a Roman, or even to a consistent and honest modern thinker like Spinoza, who used to refer to Deus sive natura – God, or the nature (Spinoza, 1985, I, prop. 29, esc.). The dualism God and nature is a specifical conception of the medieval theology, devised to

50 Cultura. International Journal of Philosophy of Culture and Axiology 9(1)/2012: 43–55 try to explain the problem of evil. Indeed, why does evil exist in a universe created by a being not only omnipotent, but also infinitely good? Similarly, those who believe in a personified State wonder ask why he allows the existence of injustice. The theological question was resolved by Gnosticism and the Jewish Kabal in a radical way, sometimes denying the authorship of the universe by God, since the material world would be a product of a fallen demiurge – it is the central thesis of gnosticism (Jonas, 1963; Layton, 2002; Willer, 2010) – and sometimes explaining the example of Isaac Luria, an important medieval kabalist. According Luria, to preserve human freedom, God exiled himself from the world after create it. Therefore, he is not responsible for the excesses of his creatures (Gelman, 2005: 58-60). The answer offered by the medieval orthodox theology is different and requires an unbridgeable dualism between God and the world, which is reinforced by the notion of miracles (Schmitt, 2006: 35). The theological concept of miracle translates the freedom of God in face of physical laws he created, as well as the notions of “Public Law” and “reasons of State,” which are there to liberate the political authorities of any inconvenient legal obligation (Kelsen, 1989a: 262). God and State are originally conceived as omnipotent realities that imposes himself to a limit at some point (Somek, 1989, p. 766.). Hence arose some external, diferente and weak realities: the physical laws and the legal Constitution, less powerful than the realities they govern. At any time, they may be denied by the miracles or the reasons of State. Meanwhile, the Pure Theory of Law takes no dualism. According Kelsen’s thesis, State is centralized by Law, nothing more (Kelsen, 1989a: 259). According to the adherents of the traditional theory, the transformation of the State into Law is similar to a religious mystery. They say the creator – the State – preceded the Law – the criature – and with the French Revolution it was able to control his creator. In this point of view, the unity of the State-Law – an essential concept to the legal – is understood as a merely historical expression (Kelsen, 1989a: 258). To explain this curious metamorphosis, the tradictional doctrine uses the self-obligation theory (Kelsen, 1989a: 257), under which the State imposes a limit to himself when it split the roles of power and creates a Constitution. The medieval theology used similar procedures to explain the incarnation of Christ, a figure that would express the unity world-God strenuously denied by the orthodox,

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to whom the coming of Christ to the world would be just a historical fact that will not affect the absolute separation between men and its creator. However, it is known that certain heretical pantheistic sects believed that God lives inside each man. Thus, the unit God-world is constantly affirmed. Furthermore, there is no alienation of the creature in relation with his creator, but the gradual revelation of our divine essence, which obviously does not apply to the Church’s authority, jealous of their privileges as a needed mediator between God and humans. Just as the concept of God is dissipated in the whole notion of nature, proposed by , a State independent of Law is unthinkable in Kelsen’s theory, which dissolves it in the normative structure of legal order (Bobbio, 1989: 73). The Pure Theory of Law – monistic and antimetaphysical by vocation – is similar, with regard to legal doctrine, to the heresies fought by the Roman Church. This is a beautiful image: a pure theory of Law as heresy. In addition, there is no greater heresy than , whose simile in the State theory lies in the notion of . Both – an atheist and an anarchist – do not believe in the existence of absolutes that oppress humanity (Kelsen, 1989a: 264). Surprisingly, Kelsen qualifies himself as an anarchist in the sense of obtaining critical knowledge. It is almost unbelievable to those who have merely undertaken superficial readings of Kelsen’s works. For the ignorants, the noun “Hans Kelsen” has always evoked, almost automatically – like everything that is false – authoritarian political overtones, normative blindness and insensitivity in legal . Although absurd, this “interpretation” of Kelsen is not unexpected if we consider the testimony of Correas, for whom the jusnaturalistic success against Kelsen rests not on the chairs of Law Philosophy, but in Civil Law and other non-critical legal disciplines (Correas, 1989: 7-8). Now, we can speak about an anarchist Kelsen. Kelsen did not deny the existence of legal orders. Similarly, an outright atheist is not obliged to deny the existence of moral ideas that govern the world. Indeed, Kelsen sees in the Law a temporary product of politics, interpreting it as a mechanism, but without the naïve anarchist’s ideas to simplify his beliefs (Correas, 1989: 13). Transforming a function – the centralization of normative plurality – in a personification – State and Law – is a procedure that has served throughout history to anesthesize and maintains social

52 Cultura. International Journal of Philosophy of Culture and Axiology 9(1)/2012: 43–55 divisions. So follows all the religions and their irate gods. As Kelsen has done in the essay devoted to understanding the State, through the theoretical constructs of social psychology, he concludes that to construct a pure science of Law – or of the State, it makes no – it is essential to overcome the substantial hypostasis plague, like the concept of immortal soul characteristic of psychology and the concept of force, typical of the classical physics (Kelsen, 1989b: 320). In fact, one of the characteristic features of primitive thought is the need for substrate materials to represent abstract ideas (Kelsen, 1989b: 327), as happens today in most of the social sciences. In traditional legal science, the personified State is similar to the foundation of psychology and to the force of classical physics. The idea of State must be eliminated and replaced with a functional concept. Just as the new physics is physics without forces and the new psychology is a psychology without souls, the legal science should build upon knowledge of the Law without the personified of the State typical in the traditional doctrine. The Pure Theory of Law is radically anarchist and humanist. The methodological purity in Kelsen’s theory is revealed in the requirement to describe its object through scientific perspectives that outweigh the legal mythologies sustained for 2,300 years in the field of doctrine. The Pure Theory of Law denies the theological method which assumes a God as a creator of nature, but at the same time sees Him as an independent element from nature. Same reasoning characterizes the conservative State Theory, which seeing the State as a metajuridical instance, aims to make comprehensible what is legally incomprehensible, and leading us to believe in the “legal miracle” (Kelsen, 1989a: 262.). Against this alienation of legal conscience stands the building of the Pure Theory of Law, a State theory without the State and, moreover, is contrary to authoritarianism. Although it is pure – i.e., capable of describing any legal context, autocratic or democratic –, Kelsen’s theory, by representing an expression of objective knowledge with uncompromising ideologies and social mythologies, can only flourish in democratic environments. As Kelsen himself admits, democracy – with its reliance on technical procedures, rationalization of social ties and commitment to the legal security – connects itself with positivist scenarios, those in which reality is understood as a set of facts and positions empirically quantifiable (Kelsen, 1989c: 231). In turn, the autocracies need to surround themselves with mystic-religious ideologies

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(Kelsen, 1989c: 232). Autocracies do not believe in the possibility of a science free of political interests and the ideal of objectival knowledge, which is abandoned in favor of others, such as the domain (Kelsen, 1989c: 230). When trying to move away from ideology – even if they have to become ideologies without ideology – and approaching to the objective knowledge, theories of democratic framework such as the Pure Theory of Law become mere social narratives disrobed of all metaphysical justification. In contrast, autocratic legal theories – such as Plato’s and Schmitt’s – treat society and knowledge through fundamentally theological methods (Kelsen, 1989c: 237).

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