Nowhere to Go but Back, Nowhere to Go but Forward the Circular Stance of the Law in the Thought of Hans Kelsen
In: Telos, Heft 131, S. 126-151
ISSN: 0040-2842, 0090-6514
Explores how radical democracy can be construed from liberal democracy, focusing on the thought of 20th-century liberal democratic theorist Kelsen. It is asserted that Kelsen saw positive law & natural law ultimately closing in on themselves & becoming essentially circular structures of argument, "ratifying in their conclusions what the outer limits of their not-further-probeable premises allow." Kelsen's natural law-positive law relationship is seen as evocative of Leo Strauss's religion-philosophy relationship, & his version of circularity, at least regarding positive law, takes on a Kantian direction. David Hume supplies Kelsen with the overt rhetoric of contrast between positive law & natural law. Noting how the moral psychology in Hume's relation between reason & the passions is suggestive of circularity, attention is given to Hobbes's nominalism & theory of truth. Hobbes & Hume offer the philosophical infrastructure for building an argument about the basic attractiveness of liberal democracy as a form of political governance, & from this, discussion returns to Kelsen's ideas with a consideration of his agnosticism, thought on the "non-contradictory unit," & critical positivism. Brief remarks are offered on the theory of truth & its relationship to politics, justice, rights, & political obligation, & some discussion is offered of Maimonides & his negative theology to ponder human action.