Leviathan and modern law

Image: Yayoi Kusama


Considerations on the concept of sovereignty

What is the relationship ofthe Leviathan with Modern Law? The book has just been published Leviathan in the first place is the expression of the Reformation (Erst Leviathan ist der Ausdruck vollendeter Reformation). This is the theory of Thomas Hobbes in his work the Leviathan. Thomas Hobbes lived in a time of religious wars, on one side there was the Stuart monarchy, preceded by the Elizabethan monarchy, and on the other side the Parliament with the Protestant dissidents, the independentists and Oliver Cromwell, who wanted to banish the monarchy from the Island, which they wanted to implant a free republic, the democratic state of law.

What is Thomas Hobbes' theory of sovereignty? It's the modern theory; in the theory of modern sovereignty it is not the Church that is sovereign as in the Middle Ages, it is the State. But what state? Therein lies the problem, we are in Modernity, not in the Middle Ages. Some states became Protestant, others Anglican, like the Stuart monarchy; others became Catholic, like Spain. This spawned an unprecedented religious war. What is Thomas Hobbes' theory? His theory is the separation of state and religion in a very tenuous way; he said that each State professes its official religion, but this is modern and has to do with its theory of its sovereignty: “Interior”, intimately, every citizen has the right to practice the religion to which he belongs.

For the first time in history, we do not have a theory of the secular State, but a theory of a State that has an official religion, but allows the mental reserve of the citizen; you must respect the monarch and his religion, but in your house you can practice his religion. But, for Carl Schmitt, this is the key to the theory of sovereignty: the theory of sovereignty is a theory that is not positivist, relativist or Nietzschean, it is a neutral theory, but one that guarantees individual freedom of conscience.

This did not exist in the Middle Ages. It is the Protestant theme. It is thanks to the Protestants that we have this new theory of sovereignty and who says this is Carl Schmitt, a conservative Catholic jurist. They neutralize religion wars by enabling: cuius regios, eius religions (depending on the king, this is the religion). This is a total neutralization, the Medieval Church does not agree with this, so much so that Thomas Hobbes calls it the Kingdom of darkness; she does not agree with this neutralization, she wants all of Europe to be Catholic. Here comes Carl Schmitt, and here we see why he is not a nihilist, and he says he has a common denominator of all these states: the Jesus is the Christ, Jesus is the Christ, he is the Messiah, whether you are Protestant or Anabaptist. This is the modern theory of sovereignty and it is what (Walter) Benjamin uses in the book Origin of the German baroque tragic drama.

What is the difference between a conservative jurist and an esoteric Marxist philosopher? Walter Benjamin uses this to characterize Modernity, he uses the example of Carl Schmitt: on the one hand, the modern sovereign, he had the king's sword, and, on the other, he had the symbol of the bishop, which is an inversion of the hierocratic image of the Medieval Church, which had the same thing, but on top the bishop and below the king. Thomas Hobbes puts both on the same side; there is no sovereignty of the Church superior to that of the monarch. But Walter Benjamin, as a Marxist, thinks that even modernity without melancholic eschatology, melancholic medieval dramas will turn into operas, expressionist literature and, in the end, a play by Bertold Brecht, a play that makes the audience take over. He sees hope, paradoxically, with the end theory of sovereignty.

Carl Schmitt says something that no one understands because he has to study economics at the Faculty of Law: this English concept of sovereignty, which is Hamlet's indecisionism, was like that because of the economic situation in England and a different concept of sovereignty was generated; the English concept of sovereignty is the pirate concept, that England is an island, no, a continental State with the scepter, it is a pirate ship. Why?

Jaime Stuart, who succeeded Queen Elizabeth, is the son of Mary Stuart, Catholic, but Elizabeth's inherited kingdom had defeated Catholic Spain, the Invincible Armada; James could not reconvert the kingdom, so he had to accept the Anglican Church as the official one. Mary Stuart was killed by a Protestant lover, and when Shakespeare did this play at the Globus Theater he made three editions: the first in which Hamlet soon avenges his father, the second in which he hesitates, and the third in which he hesitates even more. Why? Because the king was watching the play and he, Shakespeare, could have called James a sovereign who decides nothing, for he did not take revenge on his mother; it is the taboo of revenge.

Carl Schmitt was a Catholic jurist, like those of Opus Dei, but he was a great intellectual and made materialist analyzes of history, realistic but not dialectical, he had no hope, salvation or socialist revolution; then Schmitt spoke: Shakespeare's play in its three editions shows the insecurity of a king who cannot execute revenge, for he would be called a king without security. This is bourgeois materialism, which is not bad. Who is a materialist bourgeois? Carl Schmitt's teacher, Max Weber; the bourgeois materialist story is very good, it just doesn't have a happy ending. As Max Weber spoke about happy endings: anyone who wants to have lighting that goes to the movies. This is bourgeois materialism, which does not exist in Brazil.

To explain the title of the book. In the line of British independence, there are some who fled and founded America because they did not have religious freedom within the Protestant country, they were persecuted. In the biblical story, there is the Book of Job. Even those who criticize Bible says that there is nothing more perfect than the Book of Job, because it does not look like a biblical book, it is not known where it takes place. Job meant that he got a lot from God, and, in a certain monologue, he realizes that God is just, and he says: no one compares, no man on earth, to Leviathan. And what is Leviathan? It's a dragon, but Hobbes believes it's a whale. And there was another animal in the Book of Job called Behemoth (the symbol of the democratic revolt of parliament), a rhinoceros; the two were compared to see who was the best. Carl Schmitt was a bourgeois materialist, there is no happy ending for him. In the discussion to know who is the biggest biblical monster, Carl Schmitt says that Leviathan crushes Behemoth and this one does the same with both dying. he believes in Bible, but does not believe in the materialist dialectic.

In the theory of perfect sovereignty, Thomas Hobbes said, there is a State, either Protestant or Catholic, and the individual can profess his faith. Then came the esotericists, who interpreted the myth of Leviathan in the dialectical materialist sense. What does Spinoza say when interpreting Hobbes in the democratic and liberal sense? What becomes of the interior, which was free in Thomas Hobbes to profess his faith at home? What Antigone had, and could not exercise (make an DNA). What does this become for Spinoza? What did Napoleon give Germany that made Hegel happy? The psychic interior becomes law, the right of religious freedom, that is Spinoza's danger for Carl Schmitt, Spinoza took this interiority and concretely transformed it and extended it to all human rights.

This is the criticism that Carl Schmitt makes to'the Leviathan, the giant with feet of clay because he had a flank for the lefties to come in and turn this whale into a weak aquarium fish. Carl Schmitt agreed that there should be freedom (of belief), an inner freedom, in order to end the Wars of Religion, but later they transformed it into a fundamental freedom, the freedom of the democratic rule of law, which Schmitt criticizes. Deepening this leviathan wound: Marx. And further deepening this wound, Ernst Bloch. Afterwards, Carl Schmitt questions how a Marxist was listened to by Catholics and Protestants in theological matters.

(In short,) Hamlet is a drama of law. For Carl Schmitt, it is a drama of sovereignty rehearsed in England, but which does not work because the concept of sovereignty has been swept to the continent; the concept of sovereignty is not an essential concept of the state, it may or may not have it. According to Carl Schmitt, the sovereignty of Elizabethan drama was exported to Germany and England was left without sovereignty. Why? Who is the sovereign of England? What is Carl Schmitt's theory of England's sovereignty? Who runs England?

English sovereignty according to Carl Schmitt is the sovereignty of a pirate ship, this sovereignty will lead to the Industrial Revolution. Karl Marx does not disagree with this, he thinks that England does not have legal sovereignty, it has economic sovereignty. This whole theory of The Leviathan became the theory of continental states. Why did Thomas Hobbes' theory not work for England? the Leviathan it is the expression of the complete Reformation, this is Carl Schmitt's model of sovereignty, which is a neutral decisionist concept, but not a positivist one, that is, against the sovereignty of the Catholic Church. For Thomas Hobbes, the sovereign is not the Parliament (Behemoth), it is the Leviathan (the reign) because he puts a monarch that puts an end to the Wars of Religion, but allows an internal freedom.

Carl Schmitt is very happy with Hobbes, but criticizes this “but” because later Spinoza and Marx infiltrate the Leviathan through the feet of clay. Antigone's freedom was not a right, which only appears with Napoleon according to Hegel. Hegel says that Paul abstractly created a freedom, but not a juridical freedom, so much so that he ordered the slave to obey the master.

*Ari Marcelo Solon He is a professor at the Faculty of Law at USP. Author, among others, of books, Paths of philosophy and science of law: German connection in the development of justice (Prisms).


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