Hans Kelsen and the reductio ad Hitlerum: reflections on the incompatibility between legal positivism and political totalitarianism
| Autor | Andityas Soares de Moura Costa Matos |
| Páginas | 9-29 |
Hans Kelsen and the reductio ad Hitlerum:
Reflections on the incompatibility between legal
positivism and political totalitarianism
Andityas Soares de Moura Costa Matos[1]
The ideological critique of Kelsen’s normativism – especially of
its method – is part of a broader context in which the postulate of
scientific objectivity was under attack. This postulate can be
presented with the aid of its most famous champion: Max Weber.
Based on the general Kantian distinction between “is” (Sein) and
“ought” (Sollen), Weber says that the empirical sciences are not
authorized to tell people what they should want, but only what can be
wanted, corresponding exactly to what is factually wanted (Weber
1964: 190). Accordingly, the role played by values and value
judgments in social sciences must be limited, despite the
impossibility – acknowledged by Weber – of achieving a satisfactory
degree of separation from the object (Voraussetzungslosigkeit).
Instead of desiring the banishment of values from the empiric and
scientific horizons, the Weberian method submits them to a severe
methodological control, attributing “freedom from value judgments”
(Wertfreiheit) to social scientists. Therefore, when dealing with
values, social scientists can perfectly recommend means for
accomplishing certain political/social ends, despite being meanwhile
prevented from judging the righteousness of the claim (Weber 1964:
188). In Weber’s view, this method separates scientific knowledge
from ideology, which jeopardizes his field of knowledge. Similarly, the
consequences of adopting certain ends can be the object of socio-
scientific research, since these ends are not judged on axiological
grounds. This method allows the analysis of value judgments as
isolated objects, and understanding the reasons of their constant
pursuit and recognition by society, under the condition that the
researcher must retain himself from recommending, imposing or
discouraging these values (Weber 1964: 189).
Having Weber’s work as a starting point, the Applied Social
Sciences (especially Sociology) have debated intensely the problem
of scientific neutrality. This debate is characterized by the early
polarization of opinions and the sharpness of accusations. The
nonaligned blamed partisans of putting science at the service of
power. The latter labeled the aseptic attitude of the nonaligned as
dangerous because sociopolitical neutrality means tacit connivance
to the established power, since qui tacet consentit (Demo 1995: 70).
The debate was even more urgent in Germany, where it became
clear, after the World War II, the fact that many sociologists had
prostituted their science, intending to effectively legitimize the social
and racial thesis of Nazism (Silbermann 1966: 13). But even before
World War II, Carl Schmitt defended that an apolitical posture means
a political decision, criticizing social scientist who denied taking sides
in front of a certain ideology (Schmitt 2006: 4). Moreover, as stated
by Demo, taking sides is pretending clever or naïve neutrality, since
the instrumentalized and subservient use of science is the worst
form of partisanship (Demo 1995: 83). Nevertheless, the same
author despises the “cheap activism” that has been desolating the
Applied Social Sciences, an attitude attributable to those who
forsake logic and theory, dedicating themselves to the acritical
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