The Tyranny of Values - Carl Schmitt

Introduction

This introductory essay[1] is a jurist’s contribution to a discussion on “Virtue and Value in the Theory of the State,” that followed a paper read by Professor Ernst Forsthoff at Ebrach, on the 23rd of October, 1959. On that occasion, Professor Forsthoff showed that while virtue still had a place in the system of absolute monarchy, the legalism of the bourgeois legal state no longer knew what to do with such a word as virtue and its meaning.

The term “value” offered itself as a kind of substitute. Notwithstanding, even before WWI, pains had been taken to rehabilitate “virtue” by means of a philosophy of values (Max Scheler, 1913). After WWI, such notions and trains of thought, peculiar to the philosophy of values, were driven into the theory of state and constitution that stood behind the Weimar Republic and its Constitution (1919–1933). The intention was to provide a new interpretation of the constitution and its legal basis. Nevertheless, the legalistic vocabulary regained its ground eventually. Only after WWII, however, did the German justice make good its decisions on a large scale by assuming the perspectives of a philosophy of values.

Thereby, practically speaking, the issue has ever since been about a new, fully systematic interpretation of human rights, the so-called third effect, and the unmediated value of civil law, as well as the resulting interpretation of the term “social” in Article 20, 28 of the Bonn Basic Law of the 23rd of May,1949. In this way, the problem of the ratification of the Constitution in the light of the theory of the legal state emerges in all its magnitude. Professor Forsthoff has made known his stand on the matter in several papers and articles that have been gathered together into a book entitled Rechtsstaat im Wandel: Verfassungsrechtliche Abhandlungen 1950–1964 [The Constitutional State in Transformation: Essays in Constitutional Law, 1950–1964].[2] There, he puts his finger on the heart of the whole matter conclusively, in a singular and clear-cut sentence: “Value has its own particular logic.”

I.

The system of justice of the Federal Republic of Germany has relied on the interpretation of the Bonn Basic Law, without giving much thought to the logic of values. That is not yet to say that the logic of values has recovered legal and juridical force by us, in the direction of adopting a ranking mechanism that is also binding, such as the jurisprudence of the highest German tribunal, or in other words, a German “judge-made law” principle. In this respect, the German federal legislators would hold themselves back on each and every occasion. Under such circumstances, a judge who is serving justice, needs an objective grounding of his decisions and sentences. Instead, nowadays, he has a multitude of philosophies of values to choose from. The question is whether such a broad variety is capable of providing the desired, all-convincing, objective premises. It is quite likely that he considers himself less a federal judge than a pioneer of finite values. Nonetheless, in practical life, he may actually hesitate to present himself as a promoter of force, power, targets, and interests, a stand which in his case bears the official endorsement of a philosophy of values. Not mistakenly, but rather according to the particular logic of values, he would dare to dismiss the issue as a mere wrangle about words. As a practical, law-abiding jurist, he will soon find out from experience that the strongest oppositions in the decisive moment are a wrangle about words. On the other hand, as a theoretician, he would distinguish between the force of law, the good of law, and the value of law, and would not dismiss them as meaningless pedantry. As a historiographer of law, he knows that in the beginning, property was the thing itself (rea mea est), then it turned into an objective “right to the thing,” and that nowadays it has been reduced to a mere value.

Even the law-giver, whose statutes in normal conditions must define the calculable boundaries of the full scope of a free logic of values, may, in his official statements, fall back upon the vocabulary of one of those many philosophies. Thus, for instance, the premise tor the draft of the “Law for the Reorganization of the Civil Procedure for the Protection of Person and Honor”[3] starts as follows: “In the true democracy, man’s dignity is the highest value. It is indisputable.” The value, however, remains open-ended, undecided.

Perhaps, something very special and topical makes itself manifest in such a formulation: a multiple, that is to say, overdeveloped pluralistic society, made up of a great many heterogeneous groups that are integrated in it, must transform its corresponding openness into a drilling field for the exhibitions of the logic of values. In such a society, group interests appear as values to the extent they make out of any value system that suits them essential legal categories for the values of their positions. The transformation into values, the “valuation,” renders the unmeasurable measurable. Quite unconnected goods, targets, ideals, and interests, some derived from the Christian churches, others belonging to the socialist corporations, agricultural, medical, charitable, philanthropic, and trade associations, families with many children, and so on and so forth, differentiate themselves by that process and render themselves capable of compromise, in order that a quota in the distribution of the social product could be calculated. All this as its good purport, as long as the specific conceptual peculiarity of value remains known and its concrete meaning is sought there where it belongs, namely, in the economic sphere.

Nowadays, a transformation into values, an over-all valuation, is in progress in all the spheres of social life, and makes itself evident in the official language of its most exalted planes, as proven by the translations of the social encyclicals of Pope John XXIII, Mater et Magistra, of the 15th of May, 1961. There, the Latin word bonus (good) is translated into Italian as valore and into German, as Werth.[4] Quite often, this linguistic transformation rightly does away with the notion altogether: the Latin terms are no longer able to keep up with the rhythm of the modern industrial-technological development. In the Declaration of the Second Vatican Council about “The Relation of the Church with the Non-Christian Religions,” of the 28th of October, 1965, they are indeed called valores socio-culturales, after the manner of bons spiritualis et moralia, as recognizable to and also acknowledged by the followers of non-Christian religions, and which should be guaranteed and applied into the practice of everyday life.

II.

As a matter of fact, the Latin word valor has retained the meaning of force, fortitude, and virtue in the Romance languages to a larger extent than the German word Werth. In music and painting valeurs have their aesthetic significance. They can “unfetter,” that is to say, they become absolute, fertile colors no longer confined by the frame, or as music, no longer bound to words. In the German language, a hundred years of rapid industrialization turned Werth into a mainly economic category. Nowadays, Werthhas become so economic and commercial in the public consciousness, that one cannot retrace one’s steps and reimpregnate it with the other meanings, least of all in an age of industrial progress and of growing wealth that is continuously redistributed. A scientific theory of values belongs under economics. It is there that the logic of values is in place. That is made obvious by the law of restitutions. As Lorenz von Stein says, the principle of restitutions rests “on the separation of good from value, which is possible only in the context of national economy.[5] Economy, market, and the stock exchange, all share a common basis, namely, what one specifically calls a value. All the higher “values,” beyond the economic, rest upon the economic basis only as a superstructure, and which could be understood correctly only by means of the principle of infrastructure: superficies solo cedit. This not “Marxism,” but rather a fact with which Marxism may associate itself fruitfully.

The irresistible process of economization is perhaps not only a consequence or merely a concomitant phenomenon of capitalism, that has turned everything, even human labor, into wares, values, and price, for which money is “the universal, self-generating value of all things,” while the rest, people and nature, “rob it of its singular value.” A thoroughly anti-capitalistic philosophy of labor works into the same direction, in the sense that it takes capitalism with its specific logic at its word and follows that logic to its end. Human labor may be treated as commodity. All right. But what follows, when instead, it is treated as value, in order to raise its price? Only labor creates the real value. All right. If that is so, value still belongs first and foremost to the economic sector, and has its home base in it, as long as one can still talk of “home” and “base” without transforming them into value or commodity. And on top of all that, still another word, and none else than “surplus value”! As industry and technology develop, the surplus value assumes fantastic dimensions. The social product grows from year to year. Who is now the true creator of this surplus value which grows wildly and beyond any measure? Who can afford to figure out the profit yielded causally adequate by this immense wealth and the series of economic miracles? In concrete terms: who is the legitimate distributor of the social product and who actually assesses the shares in practical life? As long as the issue is about value, all such questions must above all be formulated as economic questions.

III.

The logic of the economic notion of value has thus a rational sphere in the law of exchange, the justitia commutativa, and can develop from it meaningfully on the premise of a stable currency. From the point of view of jurisprudence, it is the sphere of the law of debt and trade, of restitution for property damage, of fiscal law and of household law, and in particular, of insurance law. From the point of view of the cultural sciences and the sociology of knowledge, the insurance system is a matter in which the representation of value is not simply absorbed by the market economy. The very symbolic payments in cash for wounding someone’s honor, for fictional or affective values, are instances that may be judged only within the framework of the practical order. The Weregeld taxes of the primitive penal law estimate the body and the life of the noble or of free men in substantive and not in charter money. All that, however, has nothing to do with a philosophy of values which should rescue the good, the true, and the beautiful from the causal thinking of a value-free natural science.

IV.

Nowadays, each time the word “value” is used knowingly or unknowingly by the two opposing camps, they unfailingly steer it into the economic sphere. Both capitalism and anti-capitalist socialism do it, even if the latter is more polemical though no less effective. The same thing happens, almost automatically, whenever one adopts a third stand, apparently quite different from the other two. Since 1848, there has been a syncronism as remarkable as it is shocking, a simultaneity, an osmosis and symbiosis between the philosophy of values and the philosophy of life. This should not be regarded as an academic event, belonging exclusively to the history of philosophy, such as, for instance, the foundation of the philosophy of life by the great Wilhelm Dilthey. The historical contemporaneity of word and notion is of greater interest to us as a fact that disregards the quarrels of the schools and of the dogmas and has been able to bring about a common alignment of opposite, nay, antagonistic, ideas and trends.

Life is if not the highest, still one of the higher values of every philosophy of life. For over a hundred years now, the twin pair life-value/value-life makes its presence felt in a tightly interwoven contemporaneity and features in German books under an alternate, unintendedly symptomatic, and often quite naive title of an altogether different provenance. The series stretches from Eugen Dühring’s Der Werth des Lebens [The Value of Life], 1865, for instance, to Heinrich Mittel’s Der Lebenswerth der Rechtsgeschichte [The Life Value of Law History], 1947. In the value system and the vocabulary of racial world outlooks, value and life appear intimately bound on a higher plane. Thus, while addressing the Press on the 10th of November, 1938, Hitler spelled out an “incomparable value” for the benefit of everybody, and indeed, of the Germans: the German people was “the highest value that there is on this entire earth.” Alfred Rosenberg saw in “the service to the highest values” the “mark of true genius.”

The various philosophies of life presented themselves as a conquest of materialism, or in any case, they readily claimed it. That does not change anything: their valuations, revaluations, and explanations of disvalue have been emptied into the over-all secularization stream, where they have only hastened the tendency to unlearn, which is a neutralizing process, after all. The transformation into a value is but a transposition into a system of rank values. It makes possible lasting revaluations of entire value-systems, and also of parts of one and the same value-system, through enduring changes in the value-scale. Likewise, through this transformation, fantastic possibilities are opened for the valorization of the valueless and the elimination of disvalue.

Hence it does not follow that religious, spiritual, and moral values will be placed on a higher rung of the value scale, and that the vital values, as Max Scheler called them, will range higher in value only against material values, while on the other side, they are held to be inferior to the spiritual values. It is decisive to range all values, from the highest to the lowest, along the same value-scale. The ranking and the placement are of secondary importance; the logic of value works above all with values, and only secondarily with the positions along the value scale. With the sequential integration into a system of values, even the highest value does change into a value, the position of which will be assigned within that system. Hence whatever it is, or whatever it has been until now, it turns into a value. What always may be rated as the highest value — God or mankind, the individual or freedom, the greatest happiness of the largest number, or the freedom of scientific research — is a value firstly and above anything else, and only afterwards, it is the highest value. Were it not a value, it would not appear on the value-scale at all. No value-system can acknowledge a super-value that is not a value to start with. Thus only the disvalue remains, and for its part, it must be left out of the value-system, while at the same time, the absolute negation of the disvalue is a positive value. God may be the highest value for value thinking, but also nothing else. On the other hand, in the atheistic value system, from which he is not absent, indeed, God becomes an absolute disvalue. A pessimist, in the ontological sense of the word, such as Eduard von Hartmann, would turn existence itself into disvalue, as Max Scheler would say.[6]

Some jurists, philosophers, and theologians hope for a philosophy of values that would save their existence as jurists, philosophers, and theologians from an irresistible and pervasive value-free treatment, characteristic of the natural sciences. Those are idle hopes. Universal valorization can only hasten over-all neutralization, in the sense that it transforms into values the very basis of the juridical, philosophical, and theological existence, as well. The error, on which all those hopes rest, is similar to the mistake made by the noble horseman who saw a guarantee of his knightly existence in the fact that his horse would recognize him every time the horse saw him. The error is that modern energetics and its technology still reckon in terms of horsepower.

The general neutralization puts an end to all traditional contradictions, including the opposition between science and utopia, so successfully worked out in his time by Friedrich Engels while putting together his essay on “The Evolution of Socialism from Utopia to Science” (1882). Nowadays, at long last, science and utopia have blended. Utopia has become scientific: “quels savants que les poètes!” It was the great mathematician Henri Poincaré (d. 1912) who had already said that at a time when he could not have even divined the present actuality of Jorge Luis Borges, the prize-winner of 1961.[7] Science has become utopian as it is made evident particularly by the assertions of well-known biologists, biochemists, and evolutionary geneticists.

As a consequence, values of all kinds place themselves at the disposal of each and every social and biological utopia. Value and the logic of extra-economic values prove to be engines of utopia. Within the framework of such comprehensive topic as “Secularization and Utopia,”[8] it should be easy to point to some practical, legal consequences of the logic of extra-economic values. From the same it follows closely that the contribution to the discussion about the tyranny of values in its time-bound wording, as it would be referred to here time and again, has ensued from the report delivered by Forsthoff on “Virtue and Value in the Theory of the State.”

V.

The interest in a value-philosophical grounding, shown by German jurisprudence after WWII, went hand in hand with a revival of natural law. Both were the expression of the general effort to surmount the empty legality of juridical positivism and to lay the groundwork for an acknowledged legitimacy. In the eyes of some of the jurists, the philosophy of value enjoyed the great advantage of scientism and modernity over the Thomist natural law. Only a material theory of values was adequate in the conditions of the impending transition from positivism and legality. The purely formal theory of values of the neo-Kantian school of thought was too relativistic and subjective to be able to offer what one was looking for, namely, a scientific substitute for a natural law that was no longer yielding any legitimacy. The phenomenology of Max Scheler’s incipient material value ethics was produced ever so emphatically as the substitute. The very title of his major work had already signaled what one was looking for: Formalism in Ethics and Non-Formal Ethics of Values (1913-1916). As Scheler saw him, Max Weber was a lawyer, a nominalist, and formally, a democrat. “The scientific ideal of a value-free science is in fact bound to modern democracy.” It is this very formalism that Scheler wanted to overcome by means of his material value-ethics. Then history, so he said, would not shoot forward through democracy, but rather through elites, minorities, leaders, and individuals.[9] As a matter of fact, Max Weber had never discovered in “value” the last word or the wisdom of the last conclusion. He welcomed the theory about values as long as it gave him the scientific means to take his historical and sociological insights farther, despite the restrictions and the misgivings of “purely causal” thinking. To him, “value” was first and foremost an instrument for his scientific work, a tool that gave free scope to his “ideal types.” In rest, he thought it quite possible that one “would indeed reject the expression ‘value,’” as soon as it becomes downright earnest and penetrates the “very concreteness of experience.”[10]

Debates such as those at Ebrach, in which theologians, philosophers, and jurists would participate, surge time and again from the opposition between the formal and the non-formal approaches to value and will always swear by the two names that represent this opposition: Max Weber and Max Scheler. Given our juridical topic, the reinterpretation of fundamental rights and of the constitution in the light of a value-system, the third effect of the basic rights and the transformation of the implementation of the constitution into a value-enactment, it means therefore that the implementation of the constitution must change from an implementation of norms and decisions into an enactment of values. We must keep in mind, for this very reason, that the logic of values gets warped as soon as it abandons its adequate sphere, namely that of economics and of justitia comutativa, and goes on to transform the like of economic goods, interests, targets, and ideals into values and then valuate them. The higher value than justifies incalculable claims and statements of depreciation. The unmediated enactment of values destroys the juridically meaningful implementation which can take place only in concrete forms, on the basis of firm sentences and clear decisions. It is a disastrous mistake to believe that the goods and interests, targets and ideals here in question could be saved through their “valorization,” in the circumstances of the value-freedom of modern scientism. Values and value theory do not have the capacity to make good any legitimacy; what they can do is always only to valuate.

The distinction between fact and law, factum and jus, the identification of the circumstances of a case, on the one hand, appraisement, weighing, judicial discovery, and decision, on the other, the discrepancies in the report and the votes, the facts of the case and the reasons for decision, all that has long been familiar to the lawyers. Legal practice and legal theory have worked for millennia with measures and standards, positions and denials, recognitions and dismissals. Nowadays, when legitimation of it all is sought in a philosophy of value, what is kept on and what is added to it?

What is kept on is the search for a way out of a critical situation in which it landed, in the wake of the scientific claim made by the cultural sciences during the advancing natural scientism in 19th-century Europe. In other words, the philosophy of values is a reaction against the nihilistic crisis of the 19th century. What is added is somewhat negative, but neither in the arithmetical sense of plus and minus, nor in the sense of a dialectical “negation” of the negation: rather, a certain supplement of degradation, discrimination, and also justification of annihilation. One should no longer allow oneself nowadays to be misled by the memories of preindustrial meanings of the German word “Werth” that quite often still have a sedative effect. To do so is to evade the claim to juridical relevance and the enactment. Each and every enacted valuation outside its adequate economic sphere becomes negative in its statement as it singles out those of inferior value and explains disvalue with the purpose of excluding and eliminating it. By comparison, the simple elucidation of the valueless leaves open several possibilities. Thus, it may squeeze out the entire disinterestedness of the valued; it may also keep open the opportunity for a further revaluation (“revaluation of the valueless”), and finally, it may proceed towards the elucidation of disvalue. The handling “value” assumes the appearance of factuality, objectivity, and scientism, characteristic of the economic sphere of an adequate value-logic. This should not dissemble the fact that outside the economic sphere, the assessment remains negative and the logic of higher and the highest values outside economics rests on disvalue.

“It is the relation to the negation that is the criterion by which one thing and not another belongs to the sphere of values.”[11] Heinrich Rickert explains this sentence by implying that there is no negative existence, but only negative values, indeed. The inherent aggressiveness (“the point of attack”) of the reflection upon values is by and large a step backwards for the jurist, whenever he has to deal with strongly formal, neo-Kantian theories of value. From the very beginning, the emphatic subjectivity and relativity of the purely formal theory of values gives the impression of a boundless tolerance. The strict dogma of the excessive value-enactment excludes any emphatic legal positivism and normativism. Nevertheless, whenever the logic of values applies, its immanent aggressiveness is only shifted (it never disappears). We need not go into detail about that here, but only as far as the two opposite aspects of “Verstehen”[12] must be taken into consideration. Its practical result may be an “over-all forgiveness” (comprendre c’est pardonner), but also an “over-all demolition” (comprendre c’est detruire), if the person who understands affirms to understand the object of his understanding better than the latter understands himself. As regards our juridical problem of valuation, we are dealing in German jurisprudence nowadays with those philosophies of values that have prevailed over formalism and now proffer material[13] and objectively obtainable values. For that reason, it suffices to reveal the negative and aggressive background of the philosophy of values by referring to Max Scheler’s value axiomatics, and to set straight the widely disseminated idea that all that is bad in the theory of values is due to its formalism. Max Scheler says: “Therefore, the ultimate meaning of a positive statement such as, for instance, ‘there ought to be justice in the world’ or ‘indemnity ought to be paid,’ also and necessarily implies a disvalue, or more accurately, the absence of a positive value.”[14]

Thus, this material theory of values makes sense only in a continuous and necessary relation to a disvalue. Scheler goes on saying that: “indeed, more than ever, the negative statement presupposes the presence of a disvalue.” It is worth quoting on, word by word: “The absence of a positive value is a disvalue. From this it follows (syllogistically) that the positive statements too are bound to negative values.”

According to Scheler, the negativity belongs to the axioms of every material value-ethics (“partially already made evident by Franz Brentano”). Relatedly, the editor of Max Scheler’s collected works[15] could not decide whether “disvalue,” as a separate catchword, should be listed incidentally only under “commands,” or should also appear under “value,” in the otherwise exhaustive index which he compiled for the occasion. Despite all the textual illustrations, the index, though excellent, does not even let the reader to divine the central position occupied by disvalue, to which attention has been drawn here by means of a few quotations, as the most important point in the discussion about the concepts of the philosophy of values.

The analogy or the parallel by means of which Scheler elucidates the characteristic consistency of the material and objective values are also relevant to the problem of value enactment. The existence of values is, in his opinion, independent of things, goods, and circumstances; all values are substantive qualities which have a determined order from top downward, one under the other, and all that, independent the form of being which they become part of.[16] In the autonomy of colors (the red of the apple, for example), he found the analogy or parallel which he drew to explain the autonomy of values. For quite a long time, modern painting had been effectively practicing the autonomy and independence of color. But the freed color, which had been tamed by such outstanding modern artists as Emil Nolde, Wassily Kandinsky, or E. W. Nay, on canvas within the frames of paintings, would stop being an independent value in legal practice and in public administration. Thus, for instance, it would let the freed values of the theory of the constitutional state and those of the welfare state recoil each upon the other. According to Scheler, all commands are grounded in values, and by no means, the other way round, that is to say, values are grounded in commands. The command, however, “gets,” rises from a disvalue. A dialectical negation does not suffice to this material value-logic because it does not lead to the absolute elimination of the disvalue, with regard to which this logic of values retains its meaning. The wolf, that gobbles up the lamb, confirms the superiority inherent in the nutritional value which the lamb “holds” for the wolf, as distinct from the inferiority of the life-value which the same lamb “holds,” when compared to the wolf’s life-value. At no time does the wolf negate the nutritional value of the lamb: he does not kill the lamb only to destroy it. Only the definition of the lamb in terms of an absolute disvalue would have supplied him with the value-syllogistical motivation for an otherwise meaningless annihilation.

Some of us jurists remember the booklet published in the 1920s and entitled Freigabe der Vernichtung Lebensunwerten Lebens [License for the Annihilation of Life-Deprecating Life]. Only Karl Binding, the great scholar of penal law, could have been one of its authors, because in his unfailing, positivistic reliance on the state, he regarded it from the position of a legislator, a judge, and an executive. He never thought of it in terms of an autonomous, self-sufficient value-enactment.[17]

VI. 

The discussion at Ebrach, on the 23rd of October, 1959, took place with the participation of theologians, philosophers and jurists. The catchword “tyranny of values” surfaced on the occasion, in the concluding remarks made by Professor Joachim Ritter of Munster and Dr. Konrad Huber of Freiburg. Ritter stated that the notion of value becomes manifest as modern natural science demolishes the notion of nature; value would occupy the emptied nature and impose itself upon the latter. In turn, Huber drew distinctions among virtue-ethics, value-ethics, and the ethics of justice. Relatedly, he recalled that Max Scheler was the true representative of value-ethics, and expressed his opinion that Scheler would not have allowed himself to be frightened by the word “terror” — an allusion to the famous word which the French Jacobins used instead of virtue, and which had also been mentioned by Forsthoff in his report. Both contributions to the debate, that of Joachim Ritter, and also that of Konrad Huber, are full of ideas and reintroduce such catchwords as “to occupy,” “to impose,” and “terror,” but in no way, limit themselves to those terms. Nevertheless, they were still hesitant about quoting from “The Tyranny of Values” and referring to the opinions that ensued during the discussion, as any attentive reader of the proceedings would notice. Juridical self-consciousness should appropriate such expressions as “to occupy” and “to impose,” which are philosophical notions, for its own field. Given today’s scientific activity with its division of labor, methodologically still so pure. Forsthoff’s report alone contains a lot of sound philosophy. All sound philosophy cannot help but bring about sound jurisprudence, and that should be made evident by the Jacobin word derived from “terror” in Nicolai Hartmann’s formulation of the tyranny of values.

In spite of all that, it is to be feared that the discussion might degenerate into a sterile tug of war about subjective and objective, formal and material, neo-Kantianism and phenomenology, the theory of knowledge and existentialism, Max Weber and Max Scheler, while the specific juridical topic would be missed altogether. As early as 1923, Ortega Y Gasset pitted phenomenology against the neo-Kantian theory of knowledge and was full of praise for Scheler’s material ethics as a new, firmer science based on quasi-mathematical evidence, on the one hand, while he dismissed the neo-Kantian philosophy of values as uninteresting, on the other. Scheler recorded with satisfaction that “adhesion” of Ortega’s.[18] The danger of such complications as concerns the various schools of thought may be avoided, though, and best by reference to Martin Heidegger’s opinion on the matter, which is as expert as it is peremptory, in “Disquisition upon Values and the Thinking in Terms of Values.”[19] There, Heidegger approached the issue from a phenomenological standpoint, and not from a neo-Kantian one, while considering the frame of such a debate from his position as academic philosopher.[20]

VII.

Thus a jurist’s reflections upon the tyranny of values are reproduced below, as a contribution to the debate. They had been revised and printed privately as a 16-page pamphlet with a circulation of 200 copies that had been made available to the participants in the discussion at Ebrach and to several friends. The subtitle stresses the fact that it deals with “the reflections of a jurist upon the philosophy of values.” The dedication: “To the Participants in the Ebrach Symposium of 1959” testifies to the author’s intention not to exceed the frame of that discussion in his own considerations.

In Spain, the Revista de estudios politicos [Review of Political Studies][21] published a revised translation of the privately printed pamphlet, which it linked to Ortega Y Gasset’s enthusiastic reception of the phenomenological philosophy of values, as mentioned above. Thus, it became evident once more that an international discussion of the issue of the philosophy of values has hardly any unsurmountable linguistic difficulties to grapple with. In France, Professor Julien Freund of Strasbourg, author of such an important work as L’Essence du politique [The Essence of the Political][22] has published four of Max Weber’s essays on the theory of science, as part of the series Recherches en sciences humaines [Studies in the Human Sciences] (No. 19).[23] He concludes his highly instructive introduction to it by referring to the text of my privately printed article. He has fully mastered the linguistic difficulties that the controversies about methods and the theory of knowledge keep adding, and as a result, has made the practical aspect of the problem clearer, too. As an edifying example in this respect, one should mention the way Julien Freund translated “Wertfreiheit” [value-freedom] by “neutralité axiologique” [axiological neutrality]. Raymond Aron, in his turn, has spoken of “indifference aux valeurs” [indifference to values].

In Germany, though, my privately printed text has met with an unusual fate. Four years after its presentation, it started all of a sudden to catch on, and through a newspaper of world-wide circulation,[24] it was dragged out and torn to pieces by controversial debates. What had been said in a circle of some 40 people and then as a privately printed booklet, brought to the attention of 200 people at most and always within the framework of a discussion about virtue and value in the theory of the state, found itself shouted out loud before an altogether different audience, and quoted by some hundred thousand readers who had but the slightest idea of the sense and the context of the original discussion. My modest vehicle, of an almost vintage form, would be overhauled all of a sudden by a gigantic machine, built to increase the speed of sound. It would break the sound barrier. The uproar set in motion by such a procedure could not contribute in the slightest to the elucidation of the difficult topic. It would only demonstrate anew that value has its own logic.

The contribution to the discussion at Ebrach regarding the tyranny of values is reproduced below, unchanged, from the privately printed text of 1960,[25] as a document. The attentive reader will not fail to notice that the basis for the further elucidation of the thoughts expressed here has already been laid out, and its accessibility is secured by a question in the text set before him, namely the question about the order-value of value-freedom. A consistent philosophy of values, that concerns itself with freedom, cannot be content only to proclaim freedom as the highest value; it must mean more. Not only is freedom the highest value for the philosophy of values, but also value-freedom is the highest freedom.

Value has its own logic. In the constitutional state that is most clearly recognizable in the enactment of its constitution.

Notes

[1] Carl Schmitt wrote the essay as an introduction to the collective work, Säkularisation und Utopie, published in honor of Ernst Forsthoff, on the occasion of his 65th anniversary, in 1967.

[2] (Stuttgart, 1964).

[3] Deutscher Bundestag, 3. Wahlperiode, Drucksache Nr. 1234. [The German Bundestag, 3rd Voting period. Publication No. 1234].

[4] See the new translation printed on the initiative of the German body of bishops in the Herder-Korrespondenz, Nos. 175/176, September 1961, p. 551: higher and highest values, spiritual values, the highest value of life.

[5] Verwaltungslehre [Administrative Science], vol. 7, Stuttgart, 1868, p. 76.

[6] See the English translation Formalism in Ethics and Non-Formal Ethics of Values (Evanston, Ill.: Northwestern University Press, 1972), p. 101n. Eduard von Hartmann (1842-1906), German thinker whose theory of knowledge included the notion of the absolute unknown (absoluten Unbewusten).—Trans.

[7] Here Schmitt refers to the International Publishers’ Prize which Borges shared with Samuel Beckett in 1961.—Trans.

[8] Säkularisation und Utopiewas the general title of the work to which this essay served as an introduction.—Trans.

[9] See Gesammelte Werke [Collected Works], 2nd ed., vol. 8, Bern & Munich, 1960, pp. 430f, 481.

[10] Weber illustrated the deterioration by quoting what a man had told a woman: “At the beginning our relation was only passion, now it is a value.” See his essay on the meaning of value-freedom in Gesammelte Aufsätze zur Wissenschaftslehre [Collected Essays on Theory of Science] (Tübingen, 1951), pp. 492f; the French version, edited by Julien Freund (Paris: Plon), pp. 426f. (See also Max Weber: The Methodology of the Social Sciences [Glencoe, Ill.: The Free Press, 1949], p. 16.)

[11] System der Philosophie [The System of Philosophy], 1st part (Tübingen, 1921), p. 117.

[12] For a more elaborate discussion of “understanding” through direct observation and motivational interpretation, see Max Weber: Economy and Society, vol. 1 (New York, 1968), pp. 8-15.—Trans.

[13] With only two exceptions, the German term “material” was translated as “material” (the opposite of “ideal”), meaning also “substantive,” in preference to the solution offered by the American translators of Scheler’s Formalism in Ethics, who translated “material” by “non-formal” most of the time.—Trans.

[14] See Formalism in Ethics, p. 209.

[15] Volume 2, 4th edition (Bern, 1954), pp. 102, 233.

[16] Gesammelte Werke [Collected Works], vol. 2, p. 40. (See also Formalism in Ethics, pp. 17-18.)

[17] The closest translation of the title in the present context is “License for the Annihilation of Life-Deprecating Life.” Nonetheless, it has been widely and wrongly understood, and rendered, as “License for the elimination of the biologically unfit” or “License for the elimination of biological disvalues” and so, offhandedly, the book came to be regarded after WWII as a legitimation of genocide. Hence Schmitt’s keenness to set matters right and exonerate its authors.—Trans.

[18] Gesammelte Werke [Collected Works], vol. 2, p. 24. (See also Scheler’s Preface of 1926 to Formalism in Ethics, p. xxxiii.) Ortega, who had read philosophy at Marburg, knew the Neo-Kantians well, and was well aware that nothing could be got from them as long as it regarded a material value ethic. In the Ethik des reinen Willens [Ethics of Pure Will] by Hermann Cohen (1st ed., 1904; 2nd ed., 1907; reprint, 1921), value appears in the theory about virtue, in Chapter X, in connection with the virtue of justice, but with the clear understanding that “value belongs to the category of circulation,” while the use value belongs with the exchange value (p. 611, the 1921 edition).

[19] “Die Rede von den Werten und das Denken in Werten.”—Trans.

[20] See the article “Neo-Kantianism” by Hermann Lübbe in the Staatslexicon der Görres-Gesellschaft [Political Lexicon of the Görres Society], 6th ed. (Freiburg, 1960), pp. 1005-1012.—Trans.

[21] No. 115, January/February, 1961.

[22] (Paris, 1965).

[23] (Paris, 1965).

[24] Frankfurter allgemeine Zeitung, June 27, 1964.

[25] Although written late in 1959, Schmitt’s paper was in effect printed only the following year.—Trans.