By ARI MARCELO SOLON & LEONARDO PASSINATO E SILVA*
For Kelsen, Platonic political doctrine is based on the philosopher's homosexuality, a circumstance that would explain a totalitarian tendency of Platonic philosophical project.
The approach to psychoanalytic themes is a relatively little-known aspect of the work of Hans Kelsen, the famous author of Pure theory of law. Quite interesting and peculiar are the texts dedicated by the Austrian legal philosopher to the psychoanalytic study of Plato: the article “Platonic Love”, published in 1933 in the magazine Imago, a periodical dedicated to the reflections of the psychoanalytic movement on the human sciences; and the book The illusion of justice, which takes up and expands Kelsen's ideas about the Greek philosopher, published only in 1985.
For Hans Kelsen, Platonic political doctrine is based on the philosopher's homosexuality, a circumstance that would explain a totalitarian tendency of the Platonic philosophical project, characterized, among other factors, by the projection of a will to power over heteronormative society; by the exclusion of women from public life; and by the epistemological dualism of the world of ideas.
“Platonic Love” was published in Imago in 1933, the same year in which the jurist left Germany, with the rise of Nazism. At that time, the Hitlerite SS and SA presented themselves as a continuation of the Germanic tradition of Manpower, male aristocratic military brotherhoods that existed at the time of the Second Reich, which included among their antecedents the military fraternities of the Spartan elite. These, incidentally, are referred to by Hans Kelsen as an example of homoerotic practice in Greece (1995 [1985], p. 88-90).
In his article “Kelsen and the maschile omosessualità”, Tommaso Gazzolo, professor of philosophy of law at the University of Sassari, argues that two contradictory influences coexist in Kelsen's analysis. On the one hand, there would be Hans Kelsen's sincere affiliation with the new psychoanalytic paradigm, in which it would be impossible to sustain the existence of “normal” or “natural” sexual tendencies in the abstract, since the object of sexual desire can only be determined at the level of individual history. On the other hand, there would be the persistence of a heteronormative conception of human sexuality, inherited from 19th century psychiatry, according to which heterosexual relationships would be a condition for the viability of human societies, due to their reproductive bias, which would make homosexuality an unnatural condition.
In this way, its role in the physical reproduction of the political body would define the social function of the heteronormative standard, which would explain its consecration by the legal system, which, according to Hans Kelsen, has sought to maintain homosexuality as a minority since Ancient Greece. Thus, for Tommaso Gazzolo, from the moment Hans Kelsen sets out the justification of legal heteronormativity through the argument of population maintenance, there would be a confusion between the being of the majority social-sexual practice and the ought-to-be of its normativity.
We understand, however, that the Italian academic's reading is mistaken in this regard, since Hans Kelsen is concerned with expressing a judgment of convenience about the norm, without endorsing it or considering it a basis for legality. One cannot see as Hans Kelsen's own position a justification of this normativity, that is, a transition from being heterosexual to the duty to be heterosexual, given that, in Kelsen's conception, the content of the normative order is a contingent factor of analysis.
Tommaso Gazzolo has the merit of highlighting the dimension of normativity, a key issue in Hans Kelsen's thought. However, when treating heterosexuality as a “norm”, Hans Kelsen does not himself establish a deontology, but only the expression of this sexual orientation as the socially predominant phenomenon. Especially in The illusion of justice, it is not a question of attributing a moral connotation to heterosexuality, nor of denying the homoerotic potential inherent in every individual, positions rejected by Hans Kelsen based on the results of psychoanalytic research (1995 [1985], p. 65).
Judith Butler had already observed a contamination of Freud's thought by the jargon of 19th-century psychiatry, whose framing of sexual pathology has Krafft-Ebing as its greatest exponent. In our view, however, there is a revolutionary core in the language of Freudian analysis, since, by using the terminology of the previous century, it subverts it by not understanding the so-called "deviations" under a pathological key.
Evidence of this is the well-known correspondence between Freud and parents of homosexual patients, in which the founder of psychoanalysis makes explicit his position on the non-pathological nature of homosexual orientation. Also the note added in 1915 by Freud to his Three essays on the theory of sexuality emphasizes the recommendation not to segregate homosexuals and the perception that the psychic mechanism of formation of heterosexuality, not just that of homosexuality, also requires explanation (2016 [1905], p. 34-35).
Hans Kelsen, therefore, is faithful to Freud. Kelsen's emphasis on the connection between Plato's supposed homosexuality and the alleged totalitarian inclination of his work does not arise from some intrinsic characteristic of homosexuality, but from a psychic response of the philosopher, manifested as a will to power, in the face of the need to sublimate eros in a homophobic society.
However, this cannot prevent us from recognizing significant problems in Kelsen's study of Plato. The first arises from a vulgar materialism, without dialectical mediation, since Hans Kelsen emphasizes Plato's aristocratic origins as sufficient evidence of his conservatism, accentuated by the manifestation of his homosexual eros. The second consists of a Nietzscheanism, also vulgar, in which the repression of Platonic Eros translates into a pedagogical claim identified as the will to power over society.
*Ari Marcelo Solon He is a professor at the Faculty of Law at USP. Author of, among others, books, Paths of philosophy and science of law: German connection in the future of justice (Prisma). [https://amzn.to/3Plq3jT]
*Leonardo Passinato e Silva He holds a PhD in Philosophy and General Theory of Law from the University of São Paulo (USP).
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