The great theme that occupied Gerhart Niemeyer’s reflection over the whole of his career was political order. It was the subject of his early work in the theory of international law that culminated in Law Without Force1 and it was the subject of his later theoretical reflection on the nature of political ideologies and the “total critique of society”” that culminated in Between Nothingness and Paradise.2 Indeed, one can see those two works as the two peaks of his thought, around which are ordered his numerous articles and essays, as well as his more practical books on communist political thought and practice.3 The great question that moved him concerned the source of political order and the possibilities and strategies for its recovery in the time of troubles that was the twentieth century.
The question of the relationship between politics and nature is central to political philosophy because it is really the framework of all other important questions. Justice in distribution and rectification, the character and authority of law, the nature and limits of freedom: all are questions that turn on the relationship of man to nature and our access to and understanding of that relationship. Niemeyer approaches these questions from the perspective of a thinker concerned to understand the foundations of political order, not just as an intellectual enterprise, but also with a view to practice. Throughout Niemeyer’s career, his concern with questions of political philosophy was tied to his own practical political judgments and actions as an advisor to political actors, to government, and to the general public through his popular political commentary.4 His thought about the nature and sources of political order developed over time. In this paper I will trace that development using the notion of natural right as a touchstone.
The reference to the “”problem”” of natural right in my title is intentional, for natural right in Niemeyer’s work has the character of a problem. It is a theme that exhibits a kind of tension with the other problem that Niemeyer focused on: history.5 Both are related to the phenomenon of the sacred and to revelation itself. Here, I would like to explore this tension in Niemeyer’s thought about political order between nature and history by tracking his thought about the former. What emerges is a kind of dialectical engagement with the question of where the political theorist should take his stand relative to the political phenomena that are the objects of his inquiry: on the firm and unchanging ground of nature, or with a view to the process of history? This tension concerns not only the place of the political theorist, but also the nature of political inquiry, since it touches on foundational questions about the social sciences.
In what follows I first consider the place of nature in Niemeyer’s early inquiries into the theory of international law. Then I turn to his later work on political ideology and on what he came to see as the necessarily transcendent source of political order in both history and nature. I then look at his reconsideration of natural law theory in light of his conclusions about the transcendent source of political order. I close by discussing in more detail Niemeyer’s approach to political inquiry and his understanding of the character of the political philosopher.
The problem of natural right runs through all of these issues. Niemeyer was, I conclude, uneasy with the idea of natural right. His unease was not the result of the moral skepticism so commonly associated with the rejection of natural right. Rather, his unease concerned the extent to which the idea of natural right could capture the experience of the transcendent ground of political association and the extent to which it could be reconciled with the necessity to protect political order against the terrible forces ranged against it in the twentieth century—forces that, at root, constituted a rebellion against the very order of being. One can discern a course of thought that begins with a search for the immanent order of political life in the empirical consideration of political practice. The disorder of ideological political conflict after the Second World War led Niemeyer to abandon this search and to conclude that political order had to be sought in a transcendent order beyond the world of political institutions and practices. This conclusion, in turn, led him to focus on history as the form of order, but history understood from a theological perspective. This led him to formulate a kind of political theology both normative and interpretive, one that paid particular attention to culture. Natural right was understood by Niemeyer in this context.
The Search for Immanent Law
Law Without Force, Niemeyer’s first major work in English, is a large and complex book. Its immediate purpose is to offer a critique of the theory and practice of international relations in the wake of the collapse of the European peace that initiated the Second World War. But Niemeyer also offered a more general critique of legal and political theory as fundamentally inadequate to diagnose the political problem or to offer a plausible solution. The book’s three large parts include a historical account of the formation and ultimate breakdown of international law, a critical sociological discussion of the nature of the state and of political and legal inquiry, and a set of substantive suggestions on how to re-conceive international law. One can say that Niemeyer applies to problems of international law a general theory of law and state largely derived from the work of his mentor, Hermann Heller, about whom we will need to say more later.6
The thesis of Law Without Force was this: “”political reality has become unlawful, because the existing system of international law has become unreal.””7 Niemeyer’s historical discussion aimed to show that the collapse of international legality was not the result of discrete violations of legal norms, but rather the result of a fundamental incoherence in the international system due to historical contingency. International law had its origin in a set of categories derived from Roman law and Christian theology and its binding force was tied to essentially religious motivations. This context bled away over three centuries, depriving the categories and rules of their intelligibility and thus rendering them abstract and unreal. A largely secular natural law theory was constructed in the early modern period; its efficacy depended on residual Christian morality, and later, on the international web of relationships among individuals and business concerns that were so important to the world of the nineteenth century.
Where the nineteenth century was characterized by increasing individualism and the voluntary association of individuals for cultural, political, and above all economic ends, the twentieth century saw an increasing emphasis on collectivism and a concomitant expansion of state power. This was due mostly to economic developments (like the growing complexity of industrialized society and the crisis of national currencies) and the political after-effects of the First World War. These factors combined to produce in people an expectation that government would increasingly manage the affairs of society.8 Among the more destructive consequences of the Great War was a widening loss of faith in traditional morality, religion, and political institutions that left the “”average individual”” feeling “”isolated.”” “”[H]is mind became confused, he was incapable of coordinating his own existence to that of society and he lost the feeling of a fundamental community of national will which united him to other members of his people.”” “”Thus,”” Niemeyer concluded, “”the individual’s own consciousness ceased to work as an active agent of social union and social cohesion.””9
Into this void the state gingerly stepped. The state ceased to be an instrument of society and became its maker and master: the state now functioned not “”as the mere instrument of preconceived ideas and goals, but as the very source of the criteria of community.””10 From the perspective of international relations, the main significance of this transformation was that the state itself took on a kind of ultimacy as the source and guardian of meaning opposed to other states. The symbol of this ultimacy was the notion of an unlimited “”freedom of the state”” to fulfill its mission. Under the circumstances, international law ceased to exercise more than a trivial influence on international politics. Its central categories were a relic of a medieval worldview that had already ceased to represent political reality centuries earlier. The only source of binding authority to which it could appeal was conscience itself, which had little political caché in the frankly nihilistic atmosphere of the 1920s and 1930s. For Niemeyer, while the state was the unit of intelligibility in politics, its necessary precondition was a kind of cultural unity that the state did not itself create.11 This was a view that Niemeyer never abandoned, and just what the source of cultural unity was, and what was its particular relationship to political order, were questions he would pursue to the end of his career.
Niemeyer’s historical account of the crisis of international law was, then, in essence that international law had its origin in a set of categories themselves intelligible in a specific context of religious and moral ideas. As that context eroded over three centuries, the categories and the rules constructed around them became increasingly abstract and unreal. They took on the character of free-floating ideals so at odds with political reality as to discredit the very idea of international law. The political, economic, and moral chaos of the years following the First World War seem to have dealt a mortal blow to the ideal. The consequences of these events culminated in a new kind of political ideology that treated the state as the source of communal substance and the measure of human values. Niemeyer was among the first political theorists to recognize the distinctiveness of the phenomenon of “”totalitarianism”” and to see the threat to civilization that it posed.12 A way beyond this impasse existed only with a reconception of legal and political thought, which Niemeyer sought to provide in the second and third parts of the book.
Niemeyer’s central methodological and practical suggestion in Law Without Force is that an adequate understanding of politics must be sought not from the perspective of a neutral observer armed with an empiricist methodology, nor from what one might call a traditional moral perspective. The book, and Niemeyer’s overall perspective on the study of politics, is practical and intended to be thoroughly realistic.13 But a genuinely practical and realistic approach seeks standards by which to act. A correct understanding, then, is normative and not simply descriptive, on the one hand, and derived not from an external moral perspective, but immanently, on the other. By immanently, Niemeyer meant that the norms must be derived from an understanding of the way society actually operates.14 The approach seeks to transcend the conflict between natural law and legal positivism through the search for an immanent standard that Niemeyer ultimately ties to the notion of function.
Such an account of law is part of a more general social science, similarly practical, and thus in continuity with the classical approach to human affairs.15 That continuity may not be complete, however, since Niemeyer’s understanding of social science, while practical in its intention, was also linked to the conception of political inquiry as a “”cultural science”” (Geisteswissenschaft) that aims first at an interpretive understanding of human phenomena by reference to intersubjective meaning.16 Such meanings are conditioned by, if not rooted in, their time or epoch. Niemeyer’s inquiry is accordingly undertaken from a particular “”cultural orientation.””17 That orientation is rooted in that condition represented by Niemeyer in the phrase “”man coordinate”” as a description of the collectivist preference in post-First World War politics described above.18 This aspect of Niemeyer’s account is what lies behind his rejection of natural right in Law Without Force.
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Niemeyer’s opposition to positivistic jurisprudence and social science, and his intention to locate an “”immanent law”” of social and political organization, certainly has a kinship with natural right. After all, a crucial part of natural right, and an important cause of its rejection by modern moral and political philosophy, is its search for the “”ought”” implicit in the “”is.”” This is precisely the basis of the “”naturalistic fallacy”” articulated in Hume and expounded by Moore in moral philosophy and rejected in jurisprudence by Niemeyer’s contemporary, Hans Kelsen.19 Niemeyer, however, explicitly rejects natural right as the basis of his own “”functionalist”” theory of law. The reason is that, while a common standard of evaluation for international conduct can be located immanently in the realia of political life, these standards are and must be conditioned by history. Niemeyer refers to the “”attempt to establish values having no historical reality”” as the “”fundamental fallacy of the natural law philosophy.”” He goes on to write:
Laws of evaluation are features of social reality which can be observed in given historical situations. Some of these laws are of practically permanent duration and universal extension, simply because there is little or no change in the typical situations from which they arise. But others are restricted, being tied up with the emotional patterns which are only of local validity. While recognizing that the experience of constructive values obeys certain laws of transpersonal necessity, we must not be blinded to the fact that it is an experience of concrete individuals in a definite social and historical situation. Their ways of producing and creating are certainly not subjective or arbitrary, but they are relative to emotional patterns which may pertain only to their type of culture and society.20
Niemeyer here walks a fine line between a conception of immanent law that looks very much like a kind of jusnaturalism on the one hand, and a kind of historicism on the other—one that takes its stand relative to the “”community of values”” that exists in particular places and times and that consists of a “”common emotional structure”” or “”common pattern of culture.””
Later, arguing against the positivist thesis, Niemeyer stresses that legal rules are not so much commands as “”the element of orderliness which is inherent in the actual behavior of individuals.”” Thus, their function is not “”to restrict and limit the forces of social life, but to further their constructiveness, to indicate the path towards the highest fulfillment of their functions, to formulate the element of orderliness inherent in them.”” To talk of the inherent orderliness of social life again suggests nature, but Niemeyer explicitly repudiates the notion: “”It must be emphasized that it is not a natural, but a cultural orderliness to which this concept of law refers.”” He continues:
This means, on the one hand, that the element of orderliness is inherent in a social context because of its “”directedness”” toward specific ends. For culture is the transformation of natural material with a view to ends that are conceived by human minds. Therefore our concept of immanent order is a functional, not a natural one. On the other hand, this immanent orderliness of coordinate behavior is embedded in human culture as determined by time and space.21
While the centrality of inherent directedness to ends suggests an Aristotelian analysis entirely in the tradition of natural right, such a view is precluded by Niemeyer’s specification that the ends are “”conceived by human minds”” and molded by a particular culture, itself “”determined by time and space.”” He continues:
Former centuries had to believe in a natural law, i.e. a law emanating from a superhuman source of legislation, and therefore valid beyond human differences in time and space, because it seemed impossible to explain the existence of immanent rules of social order in any other way. Modern sociology and psychology, however, have enabled us to understand how human beings can realize the inherent “”lawfulness”” of some behavior, even apart from statute law and regulation, by virtue of their own sense of orderliness.
It is thus possible to “”realize that there is an inherent element of orderliness in social reality, and yet to conceive this immanent order as being conditioned by the pattern of a specific culture.”” “”In such a conception of law there is no place for abstract commandments hovering over time and space and enjoying a timeless validity separate and apart from concrete human experiences.””22
One should note two things about the passages just cited. First, Niemeyer’s rejection of natural right has the form of a rejection of a particular type of natural right teaching. He rejects first the modern natural law theories characteristic of enlightenment political philosophy, especially that of Grotius. He is, however, aware that there were earlier natural law theories, for example those of Suarez and Vittoria, that had a more direct connection to the medieval natural law theory of Aquinas and ultimately to classical natural right.23 Niemeyer associates the Suarezian theory, not without reason, with a kind of divine command ethics and considers Grotius’s secularized version to be less successful precisely because of its lack of connection to transcendent religious authority. His reason for rejecting the latter sort of theory is its inevitable culmination in a dualism of the real and the ideal that is precisely the source of failure in international law. His rejection of the former seems to be contingent on the empirical fact that Christian morality is less effective as a force for order in modern politics. The earlier Christian natural law theory did have the merit of connecting the ideal and the real in a way that made political order intelligible and that supported it practically.
Second, Niemeyer’s rejection of natural law is combined with his embrace of a “”functional”” analysis of law and politics. This functionalism, while related to the more general functionalist theories popular among social scientists in the middle decades of the twentieth century, is directly derived from the political and legal thought of Niemeyer’s mentor, Hermann Heller.24 It provides a kind of halfway house between a natural right view and a more historicist perspective. Moreover, functionalism as such is not incompatible with the sort of positivism that Niemeyer rejected. Indeed, a version of functionalism later became a major feature of behavioralist political science. Niemeyer’s functionalism, like Heller’s, was distinguished by its connection to normativity, by its practical intention. It is by studying the true functions instantiated in political practice, functions that are grounded in human nature—albeit nature that is culturally modified—that we derive the sorts of norms that can guide political practice. One might ask: Why start by conceding the cultural or historical modifications of nature rather than starting with nature as the necessary substratum of institutions and practices? I think the answer is to be found in Niemeyer’s concern to defend liberal social democracy.25
I noted above that one could refer to the basis of Niemeyer’s account as a general theory of law and state and that this theory was largely derived from the work of Hermann Heller. The phrase “”general theory of law and state”” reminds us of the title of the most characteristic work of Hans Kelsen, the most celebrated continental legal theorist of the twentieth century. Both Niemeyer and Heller were vehement critics of Kelsen’s legal philosophy.26 Heller and Kelsen, along with Carl Schmitt, played important parts in the debate among legal scholars over the critical issues that led to the demise of the Weimar Republic.27 Heller, Kelsen, and Niemeyer all emigrated as a result of the rise of National Socialism. Schmitt became a philosophical spokesman for Nazism. The most important difference between Heller and Niemeyer, on the one hand, and Kelsen, on the other, concerned Kelsen’s positivism, which Heller and Niemeyer rejected out of loyality to the political and cultural values of liberal democracy, values rejected by Schmitt. Heller, in particular, thought that Kelsen—himself a liberal—undermined his own substantive commitments by his positivism, and thus made politics vulnerable to the kind of irrationalism and ultimately fascism represented by Schmitt. It would seem to be precisely their loyalty to liberal social democracy that led both Heller and Niemeyer to reject natural right in favor of a combination of functionalist social science and what one might call a moderate historicism.
Beyond Functionalism
I concluded the last section by suggesting that Niemeyer’s understanding of world politics was colored by what could be called a liberal outlook in the 1940s. After the war, however, this clearly began to change. The change seems to have been connected with Niemeyer’s increasing sense that the principal source of disorder in political life was not so much an outdated legal architecture as it was an orientation towards the world both intellectual and spiritual. This orientation would eventually be analyzed by Niemeyer in terms of his concept of “”total critique.””
Niemeyer’s concern with political order, however, coexisted with his liberal social democratic political views and his study of international relations through the end of the 1940s. Two striking examples of this period are essays titled “”World Order and Great Powers”” (1944) and “”Faith and Facts in Social Science”” (1949). The first essay is remarkable for two reasons. First, because, even though it concerns the same subject matter as Law Without Force, the functionalist solution proposed in the book is wholly absent from the essay. Second, because the essay shows that Niemeyer’s understanding of communism at this time was essentially that of a conventional balance of power theorist. Niemeyer is still convinced that the entire international system is dysfunctional and that the cause is a kind of power politics. The only way to change the system, however, is through the postwar cooperation of the great powers: the United States, Britain, and Russia. Institutions must be created under the aegis of the great powers that will encourage and empower individuals in different countries to create forms of cooperation that transcend political boundaries and that oppose and limit the sovereignty of states. In this, Niemeyer anticipated the agenda of a great deal of internationalism to come. Nevertheless, we also find that Niemeyer is surprisingly optimistic about the role to be played by Russia. Russia’s foreign policy, far from being irrational as Niemeyer would later conclude, is here described as “”realistic,”” and Niemeyer concludes emphatically: “”we must trust Russia.””28
In “”Faith and Facts”” Niemeyer argued that one of the greatest problems in the social sciences, indeed one that posed threats to civilization itself, was a confusion about the relationship of faith and facts. By faith, Niemeyer meant the first principles by which one determines one’s actions. Niemeyer held that faith and facts were quite different, and their confusion with one another inevitably led to relativism, reductionism, or fanaticism. His position amounted to a strict distinction between facts and values, the former being a matter of causal generalization about empirical reality, the latter a matter of choice. Confusion of the two, when not leading to the pathologies just mentioned, led to a kind of indifference under the sway of which “”social scientists fail to meet the task which is rightly theirs: leadership in making moral decisions with greater clarity, intelligence, and reason, based on a deeper knowledge of facts and causal relations than other people have.””29 Such a situation promoted cynicism among students and the general public, a cynicism “”not at all incompatible with a virulent nationalism.””
This view is not unlike the view expressed by Max Weber some thirty years before in his famous essay, “”Science as a Vocation,”” albeit without the pathos that marked all Weber’s programmatic writings.30 While this view has been equated with relativism, one must also note that Niemeyer, like Weber, thought it the only view compatible with democratic politics and, indeed, part of a strategy designed to safeguard democracy from the dangers of political fanaticism posed by both right- and left-wing extremists. It is in this light that we must understand the distinction between faith and facts and Niemeyer’s commendation, in the largest part of the essay, of the thought of Karl Popper: The Open Society and Its Enemies, in its second edition, was the immediate inspiration for “”Faith and Facts.””
The great merit of Popper’s book was his “”strict separation of the inquiry into facts from that of moral choice.”” Moral choice is concerned not with facts but with norms, and norms are “”man-made.””31 While Popper’s discussion of the scientific method is favorably discussed by Niemeyer, the real attraction of Popper is the “”clarity and rationality of his moral principles.”” Popper “”stands squarely in the camp of humanitarian, liberal, and democratic ideals, from which we have been accustomed to hear only inarticulate protestations instead of clear directions.”” These principles are described a bit later as “”humility, brotherliness, and charity,”” and Niemeyer is particularly impressed that “”there is no relativistic weakness in the fight which he wages against the enemies of such values.””32
Popper, then, is a kind of model of the appropriate relationship between clear and distinct moral principles and rigorous scientific method. Such a relationship results in “”faith”” being “”placed . . . squarely in supreme command.”” This was in opposition to the varieties of rationalism and historicism that Popper criticized in The Open Society and Its Enemies as incarnate in the thought of Plato, Hegel, and Marx, and which Popper linked to the totalitarian ideologies of the twentieth century. For Niemeyer, there was also a connection between the confusion of faith and facts and other varieties of social thought:
Since the seventeenth century, rationality in politics has usually been equated with the rational knowledge of universal laws of human nature or universal laws of history. Popper has succeeded in showing that the insistence on knowing such laws, especially of the latter type, leads to the elimination of rationality from practical political life and to a revolt against reason in matters of everyday individual decisions.33
The reference to “”laws of human nature”” is doubtless a reference to enlightenment natural law theories of the sort Niemeyer rejected in Law Without Force. Nevertheless, what one sees in this essay is Niemeyer’s movement away from the methodological ideas found in that book. Niemeyer seems most concerned with protecting morality and privileging its status in social inquiry as a way of defending a relevant and engaged social science consistent with a defense of Western democracy in the face of the political fanaticisms of both left and right. Indeed, he sees Popper’s moderate reformism as “”building a bridge between the political wisdom of the conservatives and the humanitarianism of the liberals.”” He went so far as to commend the thought of Burke and Hooker, albeit noting their attachment to an “”apology for the existing order of things and especially for the ruling classes.””34 Where Niemeyer had diagnosed the critical problem in international relations in Law Without Force as the obsolescence of a certain understanding of law, he now saw it as a kind of misguided universalism whether grounded in nature or history. He would soon see it as indicative of pathologies that were spiritual and mainly manifested by international communism.
In the meantime, the reality of political extremism was already moving Niemeyer to a more nuanced view of political liberalism. We can see this in a 1950 essay on the doctrine of free speech. The common notion of free speech is justified as a method of arriving at the truth of things, Niemeyer writes, but also includes the idea that no truths are immune from further discussion, thus undermining insights already gained and resulting in an “”official skepticism”” or relativism.35 This phenomenon is of particular moment where moral truths are concerned: “”what we expect to emerge from free public discussion is, above all, truth regarding standards of conduct, i.e., moral truth.”” The doctrine of free speech in the relativistic atmosphere of liberal societies leads to “”moral agnosticism,”” on the one hand, and an inability to distinguish between disinterested and self-interested arguments on the other. Ideas thus become weapons, and the interest in truth is replaced by an intellectual warfare aimed only at the acquisition of power.36 In making this argument, Niemeyer clearly has totalitarian political movements in mind: “”While in an age of rationalism liberty of speech served the individual as a defense against tyrannical monarchs and majorities, in an age of relativism it turns into aggressive power in the hands of demagogues and dictators.””37
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Niemeyer never underrates the salutary qualities of free public discussion. He is critical of the Schenck and Abrams decisions for what he regarded as an unprincipled willingness to clamp down on free speech during times of crisis, while tolerating almost anything during normal periods.38 He denounces Holmes’s “”clear and present danger”” test as “”nothing but a circumstantial criterion”” empowering judges to restrict speech on no basis other than their own “”subjective fears.””39 Indeed, any such criterion would, in Niemeyer’s view, seem arbitrary for a deeper reason. Note that in the passage quoted above Niemeyer distinguishes between an “”age of rationalism”” and an “”age of relativism.”” He allows that free discussion does only good in the former age, while undermining its own premises and aiding those who would subvert them in the latter. He seems to accept essentially the doctrine of John Stuart Mill for one age, but reject it for another. This characterization is accurate only up to a point, however, since Mill never discusses the issue that for Niemeyer is paramount: the moral character of society and the orientation of public speech by the rational enterprise of discovering the truth about morals. In an age of “”indifference regarding absolutes,”” Niemeyer writes, free speech leads to “”moral agnosticism”” and the “”progressive dissipation of the moral core of public life.””40
This judgment seems less “”liberal”” than those made by Niemeyer in “”Faith and Facts,”” but there is an important continuity that presages a major direction in Niemeyer’s later thought. Recall that in the earlier essay Niemeyer held that the first principles of ethics and politics are matters of faith and that only on their basis can practical judgments and evaluations be made. It is precisely the confusion of faith and facts that leads to relativism. And relativism, widely disseminated in modern society, poses the dilemma for free speech that is the subject of Niemeyer’s essay on that topic. What Niemeyer is grappling with in the “”Free Speech”” essay, then, is nothing less than the problem of the moral basis of political community. The deep issue, which concerns the basis of political order in concrete political societies, requires raising the questions, what a political community is, what holds it together and makes it an intelligible whole, and what justifies its existence and its exclusivity.
Niemeyer had treated these issues rather formally in his discussion of the state in Law Without Force, concentrating on the problematic attempt to create cultural unity by totalitarianism. Here, his answer to these questions is more a series of suggestions or even delimitations. He begins by noting that free speech as a political idea is related to the process of forming public will, of deliberation with an eye to practical conclusions and action. The idea of a public will, however, or of “”a people,”” implies some kind of identity or boundary within which free speech makes sense as a contribution to the public good. It implies a restricted membership and some ordering assumptions among members:
Ideas that have a right to be heard in the assembly are characterized by a certain quality, the quality of public faith which the individual members owe to each other. Against the background of a fundamental will to stay together and to keep faith with one another, differences of opinion are held as valuable contributions to common wisdom. When differences develop to the point where they disrupt the bond of mutual loyalty, they constitute either treason or rebellion and involve forfeiture of the right to be heard peacefully. Thus the concept of “”the people”” seen in this light of the right of speech is a concept of exclusion and inclusion. It implies an element of moral obligation and moral qualification which is the basis for the authority attributed to it. Only within the limits of these qualifications do public utterances have a right to public hearing.41
It is precisely the tendency of the modern doctrine of free speech to obliterate these limits and qualifications and thus to undermine the very basis of an intelligible understanding of the doctrine. The modern doctrine of free speech rests on a conception of the political community as a “”mere physical multitude”” or a “”statistical concept.”” The doctrine, then, is in a sense anti-political. It denies the essential basis of free political discussion and tends to erode that basis where it exists. This does not lead Niemeyer to reject free speech as a practice. Rather, he calls on public officials to rebuild community by articulating moral judgments with “”resolution, clarity and determination.”” Such an attitude is also to be manifested with humility: “”Humility, unlike neutrality, is compatible with clear decisions and judgments according to moral standards, although such decisions should always be overshadowed by the knowledge of their provisional character.””42 What is the basis of such judgments? This question Niemeyer does not answer. It is clear, however, that he no longer has much interest in a “”functionalism”” that, although directed to practical judgments, shies away from explicit moral pronouncements. Niemeyer is now clearly in search of an account of political order that is (a) not relativistic, and (b) consistent with the plurality of concrete political communities existing in history, communities that are, in some sense, “”closed.””
Niemeyer’s reflections on the relationship of faith and facts in social science and on the doctrine of free speech thus manifest a concern with the nature of political order and how we come to understand it. He clearly has in mind his own experience of fascism and of the disorder in world politics that culminated in the Second World War. In the “”Free Speech”” essay, however, we also see him increasingly concerned with the problems presented to both domestic and international peace by communism. It was his detailed inquiry into the nature of communist ideology that led Niemeyer to a wider ranging inquiry into political ideology and the positive sources of political order that sustain civilization. During the 1950s and 1960s, Niemeyer came to understand communism in a way very different from the conventional great powers perspective that is expressed in the 1944 essay.
Niemeyer wrote in 1956 that the communist threat came not so much from Soviet military might, but from a “”mentality”” marked by a fundamental irrationality that he characterized in 1963 as “”profound and irremediable.””43 This mentality was in fact the product of a more general twentieth century phenomenon: ideological mass movements. Such movements could not be comprehended in traditional political categories—for example, those deployed by Niemeyer in the historical chapters of Law Without Force, and not even in the terms of Heller’s Staatslehre, with its essentially liberal perspective.44 A new political theory was required, and a new kind of resolution in political action was also required. The political science required was one that traced political phenomena to their spiritual roots in experiences of order and disorder. Practical political action had to be based on the realization that the theoreticians and leaders of ideological mass movements were not rational and could not be reasoned with. To see the role of natural right in Niemeyer’s later thought we need to look briefly at these aspects of the new reality.
Conservatism and Total Critique
By the mid-1950s Niemeyer had shed his social democratic views and was comfortable identifying himself as a conservative, even contributing to public discussions about just what the content of conservatism in America should be. He argued for caution in defining conservatism and against the formulation of any rigid ideology. He seemed to indicate that political ideologies, even conservative ones, were signs of ill-health: “”There were centuries without an explicit ideology, conservative or otherwise, because in a community that is alive to the goods of life within the frame of a political consensus, no theory is required.”” He concluded that conservatism has “”attempted to restate the understandings on which a given historical country actually was based”” and that “”such thinkers as we call conservative have pointed out the laws of spontaneity in the living order of a nation, lest impatient change seek channels of alienating force.””45 The qualified endorsement of Burkean politics made in 1949 became a celebration of Burke as “”this great teacher of what I should like to call the reverent view of politics, the view which sees politics essentially as participation in a transcending order of life.””46
Niemeyer’s endorsement of a “”reverent view of politics”” was matched by his diagnosis of its opposite. In a review article published in 1960, Niemeyer writes about the mentality of western Marxist intellectuals in terms of a detachment from the real world and a loyalty to abstractions the practical import of which was always destructive:
[I]t never occurred to them to inquire into the truth of being and of historical existence. They suspected and damned all who did not share their schemes of compulsory goodness; but they never asked whether human nature could support these schemes, or whether a given society was pliable enough to be re-made by them. They did not bother to look for evidence of an order built into the very essence of the Creation. In intoxicating enthusiasm with the rush of their own thoughts they behaved as if one could invent truth instead of discovering it.47
One should note in this passage Niemeyer’s concern with transcendent order not as a source of principles to be rigorously applied to judge reality, but as historically realized. One should also note the capitalization of the word “”Creation,”” an indication, I think, of the increasing importance of Christianity to Niemeyer not just personally, but intellectually. This essay is also remarkable because it is here that one first encounters a phrase that encapsulated a great deal of Niemeyer’s work on political ideologies and was the theme of his book, Between Nothingness and Paradise, published eleven years later: “”total critique.””
Total critique named a mentality roughly comparable to Camus’ concept of metaphysical rebellion.48 It was a rejection not simply of injustice or of some institutions, but of the whole order of society. Moreover, the rebellion was entirely negative, executed “”not in the name of a deeper insight gleaned from either science or revelation, but in the name of a restless, pretentious, intolerant quest of some unknown perfection.”” The most complete instance of this mentality was Marxism-Leninism: “”Communism, the principle of destroying the present in the name of a mythical future, naturally attracted these negative minds. But the necessary fruit of a total critique is Soviet inhumanity.””49 While the notion of total critique is itself a critical term used to analyze a type of political motivation, it implies a corresponding positive model. If total critique is an expression of “”the perennial no,”” there must also be a perennial yes, a political attitude characterized by what one might call metaphysical affirmation.
This affirmative part of Niemeyer’s account is evident in the passage quoted above with its commendation of “”a reverent view of politics, the view which sees politics essentially as participation in a transcending order of life”” and in that essay’s conclusion, in which he calls for “”a return of political thought to the realities of human nature, social order, and the universe of being.””50 Such a return, in Niemeyer’s view, had already begun in the work of his fellow émigré, Eric Voegelin, whose Israel and Revelation, the first of what would eventually be the five volumes of Order and History, Niemeyer had called a “”towering achievement”” and a “”great deed of the spirit”” that “”re-laid the foundation for a genuine science of politics,”” and this “”at a time when knowledge of political truth is a need almost greater than our daily bread,”” in 1957.51
Voegelin’s achievement was to reorient political inquiry towards a connection between political order and not just ethics, but ontology. Voegelin recalled “”the undeniable fact that every social order roots in transcending truths about being, life and death, the problem of things lasting and things transient.”” “”Behind political order, there is thus a rock-bottom reality of basic experiences of human life, shared in public knowledge and expressed in certain symbols of public standing.””52 Voegelin’s thought provided Niemeyer with an approach that he would deploy in his own scholarly investigations of political order and disorder over the next several decades, but also a grounding for his practical political orientation. In this there were both continuities and discontinuities with his earlier work. In a 1962 essay Niemeyer reaffirmed the superiority of limited government, echoing some of the ideas expressed twenty years earlier in Law Without Force. But now he connected this notion with Christianity and distanced himself from another part of his earlier work by contrasting this view with the modern liberal tendency to view politics in purely pragmatic or functional terms.53 He went even further than this, however. He argued, first, that socialism was “”a reaction meant to counteract the void left by a state limited on a purely secular basis, a void that left western man without any order or guidance for his soul and his spirit,”” and second, that “”the limited state makes sense only in combination with religious community”” since “”people can be united only by a shared view of the meaning of life.””54
Henceforth Niemeyer’s political inquiry was one directed at the connection between political order and transcendent truth and the disorder that results when this connection is ignored or forcibly broken. “”Human order,”” he wrote in a 1964 essay, “”is in the last analysis possible only as men are aware of participating in realms of being that transcend human purposes.””55 The quest for immanent law had led to a realization of transcendent order and this, in turn, provided Niemeyer with a similarly important foundation for his practical political analysis. In a 1978 lecture, Niemeyer linked political conservatism with the “”restoration of political theory””—which he attributed most centrally to Voegelin, and which made possible an adequate understanding of totalitarian ideologies and an affirmation of the transcendent sources of order. This awareness Niemeyer characterized as “”common sense”” and as “”political sobriety that is fully aware of human limits inherent in the human condition.””56
Transcendent Order and Natural Law
Niemeyer’s turn to transcendent sources of order in politics resulted in a reconsideration of natural right. This reconsideration, however, was connected to other elements of Niemeyer’s thought. We have already noticed his earlier criticism of natural law theory as overly abstract and a-historical. Part of the problem with natural law was that it was either part of a larger Christian view of the world that has now passed or part of an enlightenment rationalism that foisted hopelessly unrealistic moralism on an uncooperative political reality. Christianity, however, was now an important part of Niemeyer’s own perspective, something measured by the increasing importance of the thought of Augustine in Niemeyer’s writing.57 The very idea of limited government was inspired by an Augustinian Christianity, although it was taken over by a liberalism, the tendency of which was to undermine its own foundations. The recognition of transcendent order made possible a limitation of earthly political order: “”Essential to the Augustinian-Thomistic concept of order then is the limitation of government to the functions of peace, minimal justice, and defense.”” At the same time, however, government “”participates in the prime cause, the existential ground of all things, through the natural law that pervades its ordinances.””58 Political order is rooted in transcendent goods towards which the limited organs of earthly government point. The larger context of order both limits and renders intelligible temporal politics.
Two questions follow: (a) what is the character of the transcendent roots of order in the plurality of historical polities? and (b) how do we know it? The first question is important since Niemeyer rejected natural law earlier for its abstract universalism, which he took to be at odds with the variety of political phenomena in history. Rooting political order in a larger transcendent order seems to result in the same problem. What Niemeyer was searching for was a transcendent root for political order that was also adequate to the phenomena of history. While in Law Without Force he appealed to the somewhat murky notion of function, he now appealed to Christian theology. One drawback of classical thought, Niemeyer argued, was the inadequacy of its conception of nature to grasp the significance of the historical plurality of political orders. The idea of history as a “”unity of singularities”” was necessary to grasp that plurality, and such a notion was a product of Christianity, especially of the thought of Augustine.59 This Christian notion was definitive of western civilization: “”History is our symbolic form of consciousness.””60 The later enlightenment attempt to develop a secular “”philosophy of history”” is explicitly anti-Christian.61
History in the Christian context symbolized man’s movement towards and away from God in a larger eschatological scheme, one only intelligible in light of revelation.62 The secularization of history in the form of the modern idea of progress is a major part of the “”loss of reality”” entailed in the ideologies that led to “”total critique.”” That one needed an account of human affairs adequate to our experience of history Niemeyer took as established. But the only account of history adequate to the phenomenon and also consistent with political order was Christian, for it alone could reflect the universality of order and the particularity of discrete political communities. How history reflects the plurality of separate political societies is easy to see if one takes their differences as more important than their similarities and those differences as best understood temporally. Why history is essential to understanding the universality of order is less immediately clear. In Niemeyer’s view, however, this is so because of an aspect of human life grasped only by Christianity: the will. It is the will that explains how creatures with the same nature, created as good, can end up so badly. “”The movement of man’s existence, then, cannot be seen as pertaining to or even in analogy with, nature. It must be grasped as history. History belongs to the mutability of the rational creature made in God’s image who is capax dei and capax infiniti, but also capable of willfully botching this high destiny.””63 History, then, is concerned with human will and its response to divine love. Its proper intelligibility is narrative. Moreover, being itself, on this view, is movement, and in movement, an aspect of it not captured by nature.64 Here, one must keep in mind that this conception of history as movement comes in Niemeyer’s interpretation of the thought of Augustine and that it is only theologically intelligible. It is precisely the detachment of history from its theological context that leads to the secular philosophies of history that Niemeyer sees as connected to modern ideological politics in general and total critique in particular.65
The particularity of discrete political communities raises two other issues related to natural right. The first concerns the relationship of individual polities to one another. Even though there is one history revealed as the story of the relationship between God and mankind, there remains the essentially mysterious phenomenon of the plurality of human communities, each with its own story as part of the larger theological narrative. While Niemeyer had earlier entertained the possibility of a world government (albeit always with a certain skepticism), he later concluded that the plurality of political orders was part of the structure of reality, a part that could not be explained.66 The closest he got to explaining it was to say that the “”common good”” was by its nature particular.67 He distinguished between a “”politics of justice”” which referred to the internal order of a polity, and a “”politics of existence,”” which referred to politics between polities.68
This indicated a kind of built-in possibility of conflict between polities, one that could be mitigated, but not eliminated. Moreover, this possibility was a certainty by virtue of the existence and military power of polities ordered by totalitarian ideologies. “”As long as such people are effectively organized for political action,”” Niemeyer wrote in 1963, “”the world can have no peace.””69 What moral strictures apply to political action in such a conflict? In 1966 Niemeyer addressed this issue explicitly and began by clarifying what he meant by moral reasoning:
[N]obody today thinks of morality in terms of that caricature drawn up in the eighteenth century, a body of cut-and-dried abstract principles valid unchangeably for all times and places. Rather, we approach moral problems as Aristotle suggested: as the mature man’s rational response to morality, both the fundamental reality of being and his own nature, and the changing reality of time and place.70
We see here a skepticism about the relevance of abstract morality to the sort of “”politics of existence”” constituted by the Cold War not unlike Niemeyer’s doubts about natural law in Law Without Force. Nevertheless, he does embrace moral considerations as such. Traditionally, such questions were considered by reference to the doctrine of just war, but Niemeyer seems to doubt the applicability of this doctrine to the clash of ideologies in the twentieth century since the distortion of reality is so great in ideological politics. The totalitarian ideologies aim to destroy the very roots of social order, and so any lack of resolve against them threatens more than just one discrete political community. For pacifists who opposed the West’s development and deployment of nuclear weapons, “”sheer physical existence is preferable to the love of the good that constitutes a people.””71 That there is at least a problem about political morality between as distinct from within political communities was known to classical political philosophy, and just war theory was developed by and perhaps not fully intelligible outside the context of Christian theology. Niemeyer’s doubts about its applicability in the Cold War are certainly colored by the peculiar and unprecedented quality of that conflict. What about morality within political society? And what about our second large question of how we know natural right?
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In Niemeyer’s 1982 Natural Law Lecture, given under the auspices of Notre Dame Law School’s Natural Law Institute, we have his most detailed and sustained discussion of natural right.72 The lecture is revealing in that it does show a modification in Niemeyer’s understanding of natural law. Where he was often inclined to dismiss natural law as a dogmatic and abstract moralism earlier, he here treats natural law with great respect, if still with a certain skepticism as to its relevance. That skepticism concerns the efficacy of natural law concepts in contemporary political and moral discourse. The lecture really concerns the possibility of a return to natural law. The chances are not good because natural law stands for a set of experiences that have been relentlessly obscured or deformed in modern times. Calls for a return to natural law are unrealistic if they simply treat natural law as a doctrine or concentrate on the study of classical texts.
Natural law is, Niemeyer holds, a symbol invented by classical philosophers and intended to represent certain experiences given to human consciousness.73 The experience is essentially one of the “”order of goodness.””74 It is an experience of the intelligible order of the whole and a sense of participation in it rooted in what Voegelin called the “”primary experience of the cosmos,”” itself originally expressed in myth and ritual and later differentiated by Greek philosophers.75 To be more precise, natural law symbolizes an “”experience of man as a being who experiences the order of being and his own order as something in accord with it.””76 This experience encompasses three components: (1) the discovery of the mind represented by the symbol nous (intelligence, in Greek philosophy) as the sensorium of transcendence and thus as a link with the divine, also symbolized as nous; (2) a differentiation of things in the world from the experience of the beyond as presented to consciousness and represented symbolically by the concepts of immanence and transcendence; and (3) a sense that man has an order not merely as a natural organism, but “”with regard to actions, through participation in the transcendent reality of being,”” an “”‘inner justice’ of human order.””77
This specification of the experiences represented by natural law makes possible an understanding of the problematic character of a return to natural law. In the early modern period the symbol “”natural law”” was appropriated by thinkers who did not share the original experience and who, as it were, immanentized the symbol by detaching it from the transcendent parts of being. Niemeyer thinks this is the case with Grotius, Biel, Hobbes, and Locke.78 The symbol is nothing without the experience and Niemeyer thinks that the crucial experiences were gradually attenuated or obscured by modern philosophy and its scientific, political, and cultural consequences. Cartesianism and later the extreme empiricist reaction against it instrumentalized reason, depriving nous of its contact with its divine transcendent ground. Values were relativized, yielding an “”environment of thought and activity from which oozed a fog of meaninglessness.”” A concept of man was elaborated that reversed the order of priority between the soul and the body, destroying any reliable basis for a common good. All of this resulted in a dominant experience not of participation in a transcendent order of being but of “”alienation”” from that order.79
This experience of alienation has thus produced a whole culture, and under such conditions a simple return to natural law seemed unlikely and the attempt to do so through the study of classical texts unrealistic: “”An attempt to return to the natural law of Thomas Aquinas, for instance, would be tantamount to fetching from afar a text written in a language ‘not understood by the people.’ We could recover no more than the words.””80 The positive obstacles to such a recovery were, Niemeyer held, formidable, and included aspects, both good and bad, of the modern project of the mastery of nature and progress. Such obstacles included “”constitutional positivism,”” the “”political dogma of freedom as absolute goodness [that] tends to crowd out all other aspects of goodness,”” and even “”our material wellbeing”” (though he thought this shaky).81 An intelligible conception of natural law, then, one that was more than a mere slogan, was rendered problematic by our historical situation of a crisis in which Western culture itself was detached from its intellectual and spiritual roots.
Given Niemeyer’s pessimistic thesis about the spiritual emptiness of western civilization, where might some source of recovery be found? There would seem to be two obvious possibilities matching the two traditional sources of order: history and nature. One is struck by the gradual fading away of history as an option for Niemeyer. I am inclined to hypothesize that Niemeyer came to the conclusion that “”history”” as a symbol had been captured either by ideology or by secular philosophy of history to such an extent that it was unlikely to provide the sort of resource for recovery that was needed. Moreover, if history really was to be conceived theologically as a “”pattern of timeless moments””—to use the phrase of Eliot’s that Niemeyer admired—it is the experiences that need to be recovered, and in the spiritual emptiness of late twentieth century culture, the obstacles to the recovery of such experiences were many and stubborn. Indeed, when communism did begin to collapse, first in central and eastern Europe and then in the Soviet Union itself, Niemeyer wondered what kind of help the West could give to assist the rebuilding of a culture of responsible freedom. His answer was that we had very little to give apart from material assistance.82
The more Niemeyer reflected on the secularization of history, I think, the less useful and more dangerous he thought it. Having written a number of essays about how only the concept of history could make sense of certain phenomena, Niemeyer wrote in 1983, “”in no ways can history serve as a substitute for such a concept as, e.g., nature.””83 And that is the other obvious source of recovery. Here again, however, Niemeyer thought that nature and natural right were symbols standing for a certain kind of experience of transcendent order. And, again, in our time he thought that those experiences had become greatly attenuated and obscured.
In distinction to these two traditional sources, the possibility that Niemeyer returned to many times during the last two decades of his life was a radical one: suffering. The experiences engendered by suffering could, he thought, reconnect us to experiences of order that could in turn come to influence culture and politics. This possibility is related to the issues facing the ex-communist states since, here, Niemeyer thought that it was they who had something valuable to offer us. The experiences of the inmates of the gulag could contribute to some restoration. Paradigmatic in this respect was the person of Alexander Solzhenitsyn, “”a figure of fate,”” whom Niemeyer at times seemed to see as a modern-day Hebrew prophet.84 “”No recovery of order,”” he concluded, “”can be had by a merely intellectual tour de force: nothing short of a soul-shaking experience can stir up the ashes of lost truth.””85 But such an experience might provoke the sort of reflection to which Christianity might again offer a plausible solution.
Having looked at Niemeyer’s thought about natural law and having acknowledged that his view of it is more positive, one must also note that it is not without certain problems. Indeed, one must acknowledge that it is a defective account in several respects. For example, in the lecture just discussed, natural law is treated in terms of Aristotle and to a lesser extent Plato.86 Thomas Aquinas is mentioned only once and in what one might describe as a somewhat negative way.87 Niemeyer concentrates on Aristotle and Plato and then discusses modern natural law theories like those of Hobbes and Locke. There is no acknowledgement that Aristotle never seriously deploys a phrase that could be literally translated “”natural law,”” like nomos tes phuseos. Niemeyer simply translates phusei dikaion as “”natural law,”” where “”natural right”” or “”natural justice”” would be correct. The literal Greek that could be translated by “”natural law”” appears only rather late in Hellenistic and Stoic thought, and then is taken into Latin as lex naturalis by medieval theologians, culminating in the famous account by Aquinas in Summa Theologiae I-II,qq.90,94.88
It is not that Niemeyer is ignorant of the distinction between “”natural right”” and “”natural law.”” His concentration on Aristotle and his omission of Aquinas can only be explained by his knowledge of the difference and his preference for Aristotelian natural right. This preference is not simply personal or irrational. I think it can be explained by Niemeyer’s intention in the lecture and in much of his other work. We have already seen that that intention is the recovery of sources of transcendent order by which to oppose and repair the damage done to moral and political life by the ideological mass movements that emerged from the mentality of “”total critique.”” Such sources of order are rooted in our experience of order: just as the ideological mass movements are fundamentally the product of a certain mentality, so are the forms of true order. Niemeyer took these experiences to be spiritual and perhaps “”mystical”” in nature, and he held
