Eric Voegelin – a Legal Perennialist? Voegelin’s Ontology of Law

• In Event: Enlargement of Liberal Horizons

Abstract

The purpose of this abstract is to briefly introduce the issue of the ontology of law in Eric Voegelin's philosophy and attempt to classify it. It seems that indications of Platonic or juridical-naturalistic connotations of the work of the Frankrut thinker are valid, this may not be exhaustive. Voegelin, inspired in his deliberations by the thought of Plato and Aristotle, tried to answer the question: what is the essence of law? We can immediately point out that the law is a multi-layered phenomenon: social (i.e. the role of custom), linguistic (i.e. J. L. Austin's performative utterance) and psychological (i.e. sanity).
Voegelin is not alone in asking this question. Although not everyone, when looking for an answer to the inquiry – what the law is – obtains the same answers. For instance, phenomenologist Adolf Reinach's saw act of promise (analyzed on the basis of an apriorical theory of law) as a social act and declared impossibility of its reduction to simpler components. The act of promise is indicated as the source of the creation of a claim and an obligation, the starting point of legal transactions, the foundation of a fundamental bond of demand, without which no community can do without. Another German scholar and jurist – Arthur Kaufmann, who habilitated under Gustav Radbruch, saw law is a relation of being and ought, it never exists outside the process of interpretation or the process of 'actualization'. The law does not exist outside this process. Ultimately, this German scholar referred to the person as the ontological basis of the law. All German-born scholars had as their object of study, the modern positivist model of law. Pointing to these two examples allows us to see, the 20th century perspective of the German search for the essence of the law. Voegelin acted as an opponent of the positivist tradition; his interest in antiquity naturally led him to ancient Greece.
Voegelin – to answer this inquiry – referred, among other things, to the famous paradox of Achilles and the tortoise by Zeno of Elea. As a result of these considerations, Voegelin concluded that the essence of law cannot be found in any legal order, understood in a purely normative way. Consistently, to recognize the nature of law, he pointed to its heterogeneous (linguistic, social, psychological, etc.) nature and drew on ancient sources for understanding law as a kind of universal, substantive order of reality – in his view present in such words as Greek nomos, Egyptian maat and Chinese tao. Voegelin described these words as symbols through which ancient societies expressed the order of their existence. One may ask to what extent the notions of order, so often present in Voegelin's philosophy, have normative value.
These considerations provide an inspiring stimulus for reflection on law and society in general. Voegelin's research efforts correspond in some respects with the zeal of other thinkers, such as the German jurist Carl Schmitt, known for his research on nomos, which are rarely mentioned today. It can be said that there are ongoing efforts to answer fundamental questions about the nature of law. The feature that Voegelin and Schmitt have in common with other scholars is their orientation, in part of their research, to ancient times. Although Voegelin believed that the essence of law as a totality of phenomena is not exhausted either by legal statutes or, to use Georg Jelinek's words, by the apodictic force of facticity, he also did not accord primacy to either of these circumstances over the other. In typical fashion, he concludes that law has no ontological status of its own.

Author

• Jan Okoński, University of Lodz - Faculty of Law and Administration