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SCIENCE-THEORETICAL QUESTIONS RAISED BY THE PHILOSOPHY OF HISTORY

In document The Paradigms of Legal Thinking (Pldal 164-176)

What we usually term as philosophy of history is by no means a natural formation, although it may seem so at the first glance.1We ought merely to recall the degree to which, during the times of regurgitating the parlance of MARXism, we became accustomed to the thesis formulated by FRIEDRICHENGELSin Anti-Dühring, claiming that freedom is nothing but recognised necessity.2As is known, this

state-1 For a general overview of the topic of the philosophy of history, see Georg G. Iggers The German Conception of HistoryThe National Tradition of Historical Thought from Herder to the Present (Middletown, Conn.:

Wesleyan University Press 1968) xvi + 388 pp.;Deutsche Geschichtsphiloso-phie in dem kurzen 20. JahrhundertAusgewählte Abhandlungen hrsg. Zoltán Kalmár (Veszprém: Veszprémi Egyetem Társadalomtudományi Tanszéke 1996) 604 pp.; Philosophy of History and Action ed. Yirmiahu Yovel (Dordrecht: Reidel & Jerusalem: The Magness Press [of the] Hebrew University 1978) xi + 243 pp. [Philosophical Studies Series in Philosophy 11], especially part II dedicated to the philosophy of history and part IV dedicated to the debate launched by Raymond Polin’s ‘Farewell to the Philosophy of History?’; as well as—for a partial treatise—Robert Vincent Daniels ‘Fate and Will in the Marxian Philosophy of History’Journal of the History of Ideas XX (1960), pp. 538–552 and Bernard Moss ‘Marx and Engels on French Social Democracy: Historians or Revolutionaries?’

Journal of the History of IdeasXLVI (1985) 4, pp. 539–557.

2 Quoting HEGELon that “Necessity is blind only in so far as it is not understood.” (Encyclopedia of Philosophical Sciences, para. 147, addendum), he concluded by stating that “Freedom therefore consists in the control of ourselves and over external nature, a control founded on knowledge of natural necessity; it is therefore necessarily a product of historical develop-ment.” (Engels Anti-Dühring, pp. 140–141.) Cf. Andrzej Walicki Marxism and the Leap to the Kingdom of FreedomThe Rise and Fall of the Communist Utopia (Stanford: Stanford University Press 1995) xii + 641 pp., para. 2.5.

»Freedom as ‘Necessity Understood’«, pp. 167–179, quotes on p. 172.

ment leads us back through historico-philosophical tradi-tions to BARUCHSPINOZA, famous for, among other things, having been one of the characteristic representatives of the more geometricotype of axiomatic thinking.

There is something peculiar about the fact that all across Europe, philosophising on history became fashionable in the 18thcentury along the waves of Enlightenment, formulating theses on human evolution and the secluded reason thereof, the significance of history, its beginning and ending; and what it messaged it formulated as absolutely valid.Thereby, eventually, history itself has forged its own t r a n s -h i s t o r i c i t y . In t-he same way, THOMASAQUINASraised his theorising to ontological heights by the force of his God-proofs, thereby elevating theory to a position of a subject to and part of human existence itself. AQUINAS’ axioms, as known, are valid and they perform their function in and of themselves; and behind the eschatological history they summon our real history is breathing—while, strangely enough, we are barely expected to do anything else than listen to its messages.Thus, among other events, the story of our salvation with the strenuous development of parting good from bad simply happens to us, our only job in this dramatic course of events being to opt for a role. The brave baron Münchausen’s deed is repeated in the history of thought—the baron’s who lifted himself up by his hair in want of anything better. Yet we face a paradoxical situation in the philosophy of history, for the Enlightenment which intended to free humans from the oppressive effects of feudalism, actually resulted in the subordination of man by subjecting him to pre-selected abstract and speculative schemes, called laws of history.

Since no theory based on the recognition of predetermi-nations drawn from historico-philosophical presumptions can appreciate, in adequate depth, actual human achieve-ment and its formative role, let me recall that with MARXism, the basic feeling of complete human helplessness has re-surfaced again, claiming that it is solely history that has meaning, evolution and purpose—although h i s t o r y as such is always something of an abstract collectivity, and we,

History forges its own trans-historicity in the history of philosophy:

freeing the humans results in their subjection to laws

History conceived in abstract collectivity leaves humans passive and irresponsive

fallible humans, are just individuals. And personally, by having entered the earthly scene by chance from the perspective of history, we either fit into such an overall plan that history is itself, or not. As we could see: freedom for MARXism is nothing but recognised necessity.Therefore, the more we learn about reality and the more we control it, the more obvious it becomes that reality is something to which we, as random actors on the stage of history, may adjust at most, but still cannot interfere with the performance on the stage.We are thus left with nothing to do at all.

The idea that d e v e l o p m e n t and p r o g r e s s allow no alternatives for human decision, as it evolved in the rationalising movement of the Enlightenment, is especially interesting in the context of the methodology of thinking as there is another component playing a part in it, and of this we have yet to speak. It is the influence of RENÉ

DESCARTES and so-called CARTESianism. By analysing thought-processes, human observation, as well as laws and regularities deducible from observation, DESCARTES

contributed to laying the methodological foundations of empirical sciences, thereby also offering a framework for thinking that can already be characterised by m e t h o d -o l -o g i c a l c e r t a i n t y . He c-oncluded that humanity might have developed certain methods and by adhering to those we ought to arrive at certainties, independently of the inherent incidentalities.

DESCARTES’ achievement is particularly landmarking for the European culture since the entirety of our modern understanding of science and our trust in the methodolog-ical certainty of what can be acquired by cognition are built upon his magisterial views. The concept of reason also took definite shape with him. The modern ideals of l o g i c , r e a s o n and r a t i o n a l i t y also entered Western civili-sation with DESCARTES’ discourses. Logic, reason and rationality: these are factors, considerations and disciplinary filters that henceforth rule human intellectual activity.

Thereby DESCARTES was also a precursor to the ideal of Calculemus!, expressly formulated later by GOTTFRIED

WILHELM LEIBNIZ, who claimed that even disputes on

Idea of development and progess in the Enlightenment:

rule of logic, of reason and rationality

humane matters could be resolved by reducing them to logico-mathematical calculations, whereby we would arrive at certainties.

For example, even four decades ago—until CHAÏM PERELMAN’s relevant work was published3—the simple question of how to interpret the activity of a collegial body like the Supreme Court of the United States was still theoretically unanswered. A corporate decision is either unanimous or not. The unanimous decision does not raise any particular problems. But, what happens when the deci-sion is reached in the ratio of 6:3, or even 5:4, which happens in most cases? For example, if the majority vote is provided by five and four others stand for a dissenting counter-opinion, how will all of this be relevant from the perspective of the CARTESian methodological certainty? May we state that at least one part of the justices was surely wrong—either when choosing the premise, or when drawing the conclu-sion? Or, should we rather follow LEIBNIZ’s inspiration and claim that all of them were necessarily wrong? Were they wrong collectively, even when some—majority or minority—happened to be right? Since, LEIBNIZwould add, if they had been truly right, they themselves should have realised it and convinced all the others as well.

CHAÏMPERELMANwas the philosopher who searched for the resolution of disputes and conflicts by methodologically analysing the possible ways of solving the case. He won his fame by re-discovering rhetoric through describing the role

Is every decision that cannot convince others, an error?

Does our methodological certainty bear any relevance only within a limited terrain from the outset?

3 Chaïm Perelman’s first work, Justice et raison (Bruxelles: Presses Universités de Bruxelles 1963) 256 pp. [Université Libre de Bruxelles:

Travaux de la Faculté de Philosophie et Lettres XXV], was reviewed by the present author in Állam- és Jogtudomány X (1967) 3, and his collection dedi-cated to the above dilemma,Droit, morale et philosophie(Paris: Librairie Générale de Droit et de Jurisprudence 1968) 149 pp. [Bibliothèque de Philosophie du Droit VIII], in Állam- és JogtudományXIII (1970) 3. For a reprint, cf. Csaba Varga Jogi elméletek, jogi kultúrákKritikák, ismertetések a jogfilozófia és az összehasonlító jog körébôl [Theories of law and legal cultures: Critical essays and reviews in legal philosophy and comparative law] (Budapest: ELTE “Comparative Legal Cultures” Project 1994) xix + 503 pp. [Jogfilozófiák], on pp. 7–70.

reasoning and argumentation played in founding any kind of theorising, exactly by recognising how much our theoretical models, logics and certainties in cognition became detached from our everyday practice, and how uncertain is the basis in itself onto which (with reassuring confirmation in collective discourses) we place our crucial choices in our real lives. For exactly this reason, he saw law as an area in which these problems emerge in a most condensed way, so, as an exper-iment, he elaborated the various domains and aspects of legal reasoning and argumentation in a series of case-studies, with a possible clarification in view. He raised a question rather startling for the time: how far does the validity of DESCARTES’ claim extend? How far is it feasible and conceivable for us to reason within the range of methodological certainties? Where are the limits beyond which we can already state that the CARTESian formulation of methodological certainty no longer bears any relevance?

Or, more precisely: if we had not drawn the limits for rele-vance initially, would we be the ones to unjustifiably expand the area of relevance to terrains where there are no such certainties, or moreover, where they cannot be expected to be at all?4Before PERELMAN’s methodological question was raised, it had been the axiomatic way of thinking to provide the exclusive and incontestable ideal and pattern for human thinking.

It was the same axiomatic way of thinking that assisted, mainly in the age of Enlightenment, the formation of the ideological current later called ‘philosophy of history’.

The tradition of the philosophy of history is by and large made up from such and similar theses:

(1) there is human progress, and

(2) it has meaning. This deeper meaning draws a pro-gressive line which

(3) delimits certain sections, and the individual sec-tions

The tradition of the philosophy of history

4 For a general overview of his oeuvre, cf.Practical Reasoning in Human AffairsStudies in Honor of Chaïm Perelman, ed. James L. Golden & Joseph F. Pilotta (Dordrecht, etc.: Reidel 1986) x + 404 pp. [Synthese Library 183].

(4) follow one another forming unelusive steps, accord-ing to

(5) a linear progression.

Consequently,

(6) all phases of development must necessarily be traversed

(7) in and exclusively within a given sequence.

Some five to six decades ago we might have sensed it strange or thought it to have been sheer fatalism that, for instance, JOSSIFVISSARIONOVICHSTALIN—in relation to the modes of production—reduced human history to a set of eras, the Asian, slave-holder, feudal and capitalist forma-tions, all of which must be traversed in order to arrive at the ultimate era: communism; without the possibility of skip-ping any of these formations (which have to be artificially erected first, hadn’t they existed in the given—e.g., Afro–Asian—history). Today we are aware of that basically the so-called Enlightened ideas, dating back mainly to the 18thcentury, were to stand behind such re-activated revolu-tionising thoughts. Figuratively speaking, we may even add that the deviant was not STALIN himself but the fertilising inspiration drawn from the Enlightenment. STALIN’s share was only to proclaim outworn ideas and ways of thinking to enforce their implementation with a cruel Asiatic impa-tience, professing them as dogmas of modernisation with a vehemence almost in substitution to a state religion.

It is a similar atavism and intellectual retard that may explain why western scholarship simply cannot react to numerous presuppositions to which MARXism in Central and Eastern Europe has got used to living with intellectually.Thus, ‘slavery’, for instance, does not say much for the West, or says something basically different. They may sound to it as familiar from literature, from the history of society and economy, and from MARXism itself, of course, but such and similar categories are not applied for basic periodisation in historical sciences—all the more since Western humanities hold a devastating opinion of the MARXist concept on socio-economic formations, considering it more as an activist’s inven-tion, a simplifying thought-jacket projected back onto the past, than a descriptive tool, helping cognition. The same stands for ‘feudalism’ as The MARXism’

determinism:

(historical periodisation)

well. It is either not used, or used in plural, not pondering about the desire to use it for periodisation. SPINOZAalready knew that definition—

and periodisation is a kind of generalising definition—is dangerous from the beginning [definitio periculosa est]. And we must see the survival of axiomatism in how MARXism has formulated the need to firstly peri-odise, then afterwards to take its own p e r i o d i s a t i o n seriously so much as—just as if it were the fate of history to manifest itself by leaving further abstract speculations to us concluded therefrom in legacy—to actually adapt its investigations in practice to predefined schemes of such a periodisation by breaking the results into them subsequently.

The philosophy of history’s distinct way of thinking may be of interest not only because for a considerable part of the 20thcentury it represented the official basis for contempla-tion on social affairs through repeating KARL MARX’ and FRIEDRICHENGELS’ theses, but also because its foundations had been laid by the most outstanding traditions and clas-sical minds of German philosophy. For tradition led from the Enlightenment to GEORGWILHELMFRIEDRICHHEGEL

who, by adding an eschatological dimension (with roots in the Old Testament that might be freely adapted later on), provided inspiration for MARX.The enlightened tradition of the 18thcentury could thus be transmitted to and perpetu-ated in posterity over many centuries.

In the development of human civilisation, each new insight had the scope to free the human intellect in order to comprehend increasingly wider spheres of human knowledge by finding explanation with accentuating force to various correlations through the use of the indispensable minimum of the principles of explanation. In the given historical moment, the movement of Enlightenment has surely contributed actively and successfully to the freeing of human intellect. Certain tacit presuppositions have firmly built into our thinking, suggesting that

(1) something called ‘philosophy of history’ exists, and (2) mankind has some kind of mission, reason and purpose in history. We have thereby necessarily admitted that

(3) some sort of teleology is also inherent in history.

HEGEL+

eschatology = MARX

Teleology hypostasised in history

This is a primary goal towards the fulfilment of which we constantly advance. Well, in the secularised theology of the philosophy of history all such similar presuppositions have their roots in the 18thcentury. By the end of the 20thcentury, the English, American and Western European social sciences have mostly taken off their similar garments and thinking-crutches, and the ‘philosophy of history’, with an earthly theological devotion and rigour and with a hint of predes-tination, has become preponderantly a name for a past discipline.5

If we presume that humanity as such has both a g o a l and a particular and exclusive p a t h upon which it traverses within its era, awaiting realisation, then we obviously must by all means develop the i n s t r u m e n -t a l i -t y -tha-t would help i-ts realisa-tion. Therefore, we need an instrumentality that stands above all, and its use ought to be assured under any conditions, so that mankind can arrive at the point where history-philosophical speculations say it should arrive. By setting such a goal and by subordinating all other considerations and instrumentalities to it, we have

Subordination of instruments to predestined goals may lead to totalitarianism

[neoliberalism as a historico-philosophical Utopia]

5 Mainly in the United States, but also spreading quickly on the Euro-pean continent, the universalisation and expansion of the neoliberal credo as a trans-historically valid idea may have originally aimed at some gener-ally conceived historico-philosophical negation but arrived ultimately at a particular restoration of the philosophy of history. For a juristic and legal philosophical perspective, see, by the author, ‘Radical Change and Unbal-ance in Law in a Central Europe under the Rule of Myths, not of Law’ in his Transition? To Rule of Law?Constitutionalism and Transitional Justice Challenged in Central & Eastern Europe (Pomáz: Kráter 2008), pp. 9–25 [PoLíSz Series 7] & ‘Post-modernity in Politico-legal Transitions:Tempted for Radical Changes with Tradition Left Behind’Central European Political Science Review9 (2008), No. 33, pp. 87–103 and ‘Legal Scholarship at the Threshold of a New Millennium (For Transition to Rule of Law in the Central and Eastern European Region)’Acta Juridica Hungarica42 (2001) 3–4, pp. 181–201 & <http://www.ingentaconnect.com/content/klu/ajuh/

2001/00000042/F0020003/00400027> & in On Different Legal Cultures, Pre-Modern and Modern States, and the Transition to the Rule of Law in Western and Eastern Europeed.Werner Krawietz & Csaba Varga (Berlin: Duncker &

Humblot) = Rechtstheorie 33 (2002) 2–4: II. Sonderheft Ungarn, pp.

515–531.

already come to one of the intellectual roots of modern total-itarianisms.6

It is still extremely difficult to draw conclusions at this point.We may know from various faulty explanations of history that conceptual recon-structions or social distinctions built upon the moral dichotomy of

“good” and “bad” are seldom sufficient. As one conclusion from this panorama of the philosophy of history, we may realise that communist existence still has one meaning—making it pathologic, non-viable and not only depressing but also embittering others’ lives—what THOMAS

MANNalready described when characterising FREDERICK THEGREAT’s

with a missionary obsession indulging itself in some alien subject

[self-organisation being suspicious in both JACOBinism and socialism]

6 May I mention my discussions in 1987, somewhere around the Arctic Circle, on the way to Japan through Alaska. On grounds of old friendship, I took the liberty of talking to one of the country’s eminent men, an influ-ential representative of science-policy, as though to one sharing the same tasks, since we were rowing in the same boat. I desperately tried to convince him that the then reformist government in Hungary lacked not so much good will, as the admission that all of them were communists in mentality.

It may be true that beginning with the modern ages, parts of Europe fell

It may be true that beginning with the modern ages, parts of Europe fell

In document The Paradigms of Legal Thinking (Pldal 164-176)