Leo Strauss and Edith Stein in the Grip of the Theopolitical

1 An Analysis of Strauss’ Early Position on the Theopolitical

In the introduction to his 1953 book entitled Natural Right and History, Strauss provides a long quotation in German from Kelsen’s 1925 Allgemeine Staatslehre.^[12] The passage is supposed to illustrate the “disastrous consequences” that arise from the dismissal of natural rights. There, Kelsen claims that despotism cannot be legally abolished if it conforms with the Grundnorm (the Constitution). True, Kelsen does away with the notion of natural law, which he views as an instance of metaphysical assumption. Since nature has no will of its own from a scientific point of view, natural law implies “the will of God present in nature (which is his creation).”^[13] Still, Kelsen never denied that a moral assessment of the content of laws, including the Grundnorm, was necessary.^[14] Simply, he repeatedly emphasizes the distinction between the legal Sollen and the moral one. Nothing prevents statements pertaining to a specific category of a priori validity from being submitted to the scrutiny of principles pertaining to a different category of a priori validity. A despotic Grundnorm is not only legally reprehensible, but also morally reprehensible.

In Natural Right and History, Strauss’s advocacy of natural law, especially in its ancient Platonic-Aristotelian teleological formulation that Medieval theology (Aquinas) inherited, never translates into a concrete political proposal adjusted to modern democracy, despite the author’s relentless criticism of the latter’s flaws and dangers. Has Strauss always kept himself to this sibylline style, though?

Strauss’ controversial companionship with Schmitt in the Weimar years tells another story. It is a sad paradox that Strauss seems to have yielded to the “despotic temptation” of which he accuses Kelsen later on. When Strauss characterizes his way of thinking at the time as “in the grip of the theopolitical,” it might be a sophisticated manner of referring to such a temptation.

The fact is that a shared hostility towards the liberalism inherent in the Weimar Republic sealed the unholy alliance between Strauss and Schmitt. Even Strauss’ “political Zionism” aimed at countering what he called a “cultural Zionism” embedded in the Jewish liberal Weltanschauung. If Strauss’ Notes on the Concept of the Political, published in 1932 with the help of Schmitt, conveys a mild criticism of Schmitt’s views, this was all done to strengthen Schmitt’s theories – at least by Strauss’ admission. As is well-known, it was with the support of Schmitt that Strauss was able to emigrate in 1932, eventually pursuing his research on Hobbes’ political philosophy in Cambridge.

With Schmitt, Strauss identifies the spiritual illness of Weimar with liberalism itself. Of course, Strauss is not the first to claim that liberalism is an illness, but why does he believe it is spiritual?

In his Notes, Strauss writes that liberalism panders to the lowest aspirations of human beings. It reduces culture, morality, law, and art to entertainment or deprives all things of their seriousness. According to Strauss, Schmitt nailed down the core of the issue at stake when he characterized the essence of the political as what cannot be reconciled with the logic of liberalism or, equivalently, liberalism as the “the age of neutralizations and de-politicalizing (Entpolitisierung).” The command to sacrifice one’s life on behalf of the state is what brings seriousness to the world of human beings, and it requires that the power to determine the issue of who is the enemy be the exclusive privilege of the state.

If Strauss distances himself from Schmitt during these pre-Nazi years, this has more to do with the etiology of liberalism than the negative politico-spiritual nature of this phenomenon. The assessment of the wirkungsgeschichtliche impact of Spinoza and Hobbes on the genesis of liberalism is probably the nodal point of the divergence between the two thinkers. Schmitt repeatedly expresses his religious admiration for Hobbes’ political theory in the Concept of the Political.^[15] Naturally, Schmitt identifies Hobbes’ admission that no collective consensus will warrant social peace any longer with the advent of Modernity. Yet precisely for this reason, according to Schmitt, Hobbes is the one who understood the need to transfer the religious dimension from the sphere of social consensus to that of the personal ruler upon whose authority the social contract keeping the peace and stability of the kingdom is established. The rationally unmotivated decision to divide the city between friends and foes, a decision on which social peace hinges, remains undisputed as long as it partakes of the sacred – the Sovereign is God-inspired, a Deo excitatus.^[16] Though Hobbes is himself a product of the modern age, he is also, according to Schmitt, the one who offers the antidote to one of Modernity’s most ominous woes: parliamentarism.

Nothing could be further from Strauss’ view of Hobbes even if the Jewish philosopher, in the Notes, makes all possible efforts to offer an interpretatio benigna of Schmitt’s reading of the Leviathan ^[17] For Strauss, Hobbes is “the founder of liberalism;”^[18] he is “the anti-political thinker” (“political” is understood here in Schmitt’s sense).”^[19] While Schmitt understands Hobbes’ natural state of war as active within the political state, Hobbes construes the natural state as foreign and directly opposed to the bourgeois security and ease – the “ideal of civilization” – founded upon the Leviathan. According to Strauss, the truth is that Hobbes is the one who carves an intellectual space to the subsequent dreamers who conceive the state of nature as anchored in the goodness of humankind and civilization as an endless continuation of the state of nature. This assessment does not imply that Hobbes’ own political theory is compatible with the optimism inherent in liberalism. Strauss’ analysis is “historial” in Heidegger’s sense of Geschichtlichkeit, not historical in the ordinary sense of the history of ideas. For Strauss, the optimism of the liberal age could not have flourished without the oblivion of the state of war that the advent of the modern Leviathan theorized by Hobbes induced.^[20]

In his reconstruction of Modernity’s intellectual fate, the young Strauss contrasts Spinoza’s Tractatus theologico-politicus, a work about which Schmitt has paradoxically (given its title) little to say to Hobbes’ Leviathan. Of course, in his 1930 Spinoza’s Critique of Religion, Strauss emphasizes that Spinoza is a product of Modernity just as Hobbes was. Baruch is the one who dismisses the belief in the theopolitical state on the grounds of a “scientific” approach to Scriptures. However, he is also the one who justifies this belief as a political necessity. Indeed, commoners cannot be asked to attain the sublime truth of the vision of nature sub specie aeternitatis (“from the point of view of eternity”), as displayed more geometrico (“according to the laws of geometry”) in Baruch’s Ethics. In this situation, the closest thing to true philosophy is a religion that translates the conclusions of rational inquiry into myths capable of regulating the emotional-imaginative life of commoners. Practiced in this manner, religion preserves society from the disastrous effects of superstition; that is, from the destructive fiction generated by the unregulated emotional life of the masses. For the young Strauss, a return to the theopolitical in the midst of the modern age rests on this “Machiavellian” reading of Spinoza’s treatise.^[21]

Strauss’ re-evaluation of Spinoza’s theopolitical thinking, succeeding in his radical criticism of Hobbes as the founder of liberalism, opened the door to a reconsideration of the Jewish contribution to political thought.^[22] Strauss’ initial interest in Maimonides concerns the latter’s interpretation of the Torah in political terms. Through Al Farabi and Avicenna, Maimonides is heir to a theological concept of political law and a teleological concept of natural law that goes all the way back to Plato’s Nomoi (Laws).^[23]

Here surfaces, in my opinion, a significant, although unacknowledged by Strauss, difference between his and Schmitt’s understanding of the theopolitical. For Schmitt, theopolitical does not simply designate the religious understanding of social order associated with the medieval Catholic Church, no matter how regrettable its disappearance might be. It designates the creative adjustment of this medieval order to Modernity, a process that Schmitt discerns in such counter-revolutionary thinkers as De Maistre, Bonald, and Donoso Cortes. In contrast, Strauss persistently identifies the theopolitical with the heteronomous dependence of the political order on a teleological, divinely established, natural order – the very structure that characterized medieval times. In this sense, Strauss’ early advocacy for the theopolitical consists less in the “awakening” of a potentiality in the modern political order than in a cancellation of the latter – a neutralization of the “age of neutralization” – through a never clearly thematized “return” to a bygone traditional order.

Understanding the nature of this divergence between the two thinkers is decisive when it comes to answering the central question we are asking: To what extent did Strauss’ position in the discussion on the theopolitical manifest a sense of philosophical responsibility in relation to the looming political catastrophe? The fact is that Strauss has manifestly relied on his heteronomous concept of the theopolitical to disavow the connection between, on the one hand, his constant criticism of Weimar liberalism, his Schmidtian advocacy for a “sacral” status of the supreme authority in the state, and, on the other, the rise of the “pouvoir constituant” in its Nazi form. In a letter to Karl Löwith dated May 19, 1933, Strauss, at the time exiled and living in Rome, made clear that an authentic aspiration to a strong, anti-liberal regime should not be identified with Hitler’s political program:

…I see no acceptable possibility to live under the swastika, i.e., under a symbol that says nothing else to me except: “You and your kind, you are subhuman fusei and therefore true Pariahs.”… as to the substance of the matter: i.e., that Germany having turned to the right does not tolerate us, that proves absolutely nothing against right-wing principles. On the contrary: only on the basis of right-wing principles – on the basis of fascistic, authoritarian, imperial principles – is it possible with integrity, without the ridiculous and pitiful appeal to the droits imprescriptibles de l’homme, to protest against the money-grubbing bedlam (das meskine Unwesen). I am reading Caesar’s Commentaries with deeper understanding, and I think about Virgil: “Tu regere imperio… parcere subjectis et debellare superbos.” There exists no reason to crawl to the cross (zu Kreuze zu Kriechen), to liberalism’s cross as well, as long as somewhere in the world there yet glimmers a spark of the Roman thought (des römische Gedanke). And even then: better than any cross, the ghetto.^[24]

I believe that the allusion to the Canossa historical episode (“zu Kreuze zu Kriechen,” “to grovel before the cross”) has little to do with a criticism of the Catholic Church. The cross under which Strauss refuses to crawl is the Swastika, die Hakenkreuz (there is a pun here on the substantive and the verb Haken), but, as Strauss adds, it is also the cross of liberalism and its illusions. Strauss brazenly endorses the claim of Mussolini’s fascist regime to be heir to the Rome of the Caesars and turns it into a worthy alternative to Hitler’s anti-Jewish, “money-grubbing bedlam.”^[25] Understandably, the at the time unviolated ghetto of Rome did not seem like such a bad place to people exiled from Berlin. In sum, there is little doubt that, for Strauss, the source of fascism’s superiority over Nazism lies in embracing a definite set of heteronomous, transcendent values that Strauss finds entirely missing in the Nazi regime. We might see an explicit confirmation of this idea in the following lines written some twenty-six years later:

The crucial issue concerns the status of those permanent characteristics of humanity, such as the distinction between the noble and the base … It was the contempt for these permanencies which permitted the most radical historicist in 1933 to submit to, or rather to welcome, as a dispensation of fate, the verdict of the least wise and least moderate part of his nation… The biggest event of 1933 would rather seem to have proved, if such proof was necessary, that man cannot abandon the question of the good society …^[26]

In a nutshell, Schmitt’s indifference to a set of religious/transcendent values when it comes to taking the political decision, a position that Strauss characterizes as a liberal tolerance in reverse in his Notes,^[27] is what carries philosophical responsibility for the rise of Hitler to power. By contrast, the healthy form of fascism advocated by Strauss in his 1933 letter to Löwith would have prevented a catastrophe that was already taking shape. Its absence in Germany paved the way for Nazism as a natural consequence of the disintegration of the Weimar regime and its amorphic, illusory system of immanent values.^[28]

Strauss’ explanation conspicuously leaves aside the arbitrariness of the strong ruler’s decision in favour of teleological values at the expense of “immanent” ones. For Schmitt, this arbitrariness is a synonym for authentic, theopolitical sovereignty. In other words, the theopolitical remains unspoiled, whichever decision it makes as long as it is a sovereign decision. However, if one claims, with Strauss, that the authentically theopolitical depends on the decision in favor of transcendent values, then nothing can guarantee the taking of such decision as long as full, unaccountable sovereignty is concentrated in one man. Mussolini may decide to leave the Jewish minority in peace (his policy until 1942) but he also may change his mind without warning, depending on the circumstances. The fate of the once-welcoming Roman ghetto after 1942 eloquently demonstrates this situation. Transcendent values are acceptable, but, as Sartre would argue, nothing can eliminate the inherent freedom of decision of the one who makes them, something that goes without checks and balances in the strong-man regime the young Strauss advocates. By contrast, the superiority of a type of regime that Strauss scorns as weak, such as that of the Weimar Republic, becomes manifest with all the slowness and equivocations of parliamentarism, the logic of checks and balance together with the confrontation between mutually exclusive sets of values constrain seeking a consensus based on an elementary inclusion of dissenting minorities.

Ultimately, Strauss never separated his Jewish identity, his membership in the Jewish nation, from his theopolitical thinking. Whether this awareness led him to articulate a philosophically responsible political doctrine is questionable.

2 State and Religion According to the Young Stein

Stein seldom quotes her sources directly in the Inquiry. It is clear, however, that she has read Kelsen, and that their intellectual affinity is no less strategic than Strauss’ intellectual affinity with Schmitt. It might have supplied the rationale for Stein’s treatise. To understand why, I suggest examining the limits of Kelsen’s theory of the state.

One of the main objections against Kelsen’s “pure theory of law” has always been its concept of the state. Kelsen deliberately reduces the whole effectivity of the state to that of its laws – as such, the state is nothing but a functional concept that owes its existence to laws.^[29] From Kelsen’s perspective, when Schmitt anchors the sovereignty of the state in the realm of theology, he is explicitly admitting to the fundamental weakness of non-positivist state theory: the arbitrary postulate of “metaphysical” principles in a sphere in which only intra-legal considerations should be retained as valid. The sovereignty generally ascribed to the state derives from the Constitution, and this Grundnorm cannot be defined empirically, lest one overlooks Kelsen’s fundamental distinction between the legal “ought” and the factual “is.”

At a time when the foundations of Weimar’s model of the liberal state were the object of constant criticism on the part of Schmitt’s followers, it is hardly surprising that many found Kelsen’s concept of the state lacking. The refusal to engage with the issue of the state’s ultimate, meta-legal justification in the name of a neo-Kantian epistemology left the Weimar state, with Kelsen as its leading legal thinker, exposed to the attacks of those who questioned its very legitimacy. I want to suggest here that Stein’s treatise draws inspiration, at least partially, from the desire to offer a philosophical corroboration to Kelsen’s forcefully anti-Schmittian vision of the legal order.

The fact of the matter is that Stein found the elements that could supplement Kelsen’s positivist understanding of sovereignty in the writings of Adolf Reinach (who was her true mentor in the realm of phenomenology, in contrast to Husserl, the revered but never-fully adhered to Meister). Indeed, there is some decisive correspondence between Reinach’s legal theory and that of Kelsen. Reinach’s distinction between pure law and positive law in “The A Priori Foundations of the Civil Law,”^[30] which runs through Stein’s entire treatise, is close to Kelsen’s distinction between the Sollen of pure law and the sphere of empirical causality. Just as Kelsen, Reinach conceives pure law as a gnoseological domain of its own, fundamentally distinct from all other domains, be it that of nature and its physical laws or ethical norms. This last point is critical: just as law, ethics brings forth a “Sollen” – but it is essentially distinct from the legal one. This is not to say that ethical norms have no influence on legal judgments – but this is an “influence” of one domain of validity upon another domain of validity distinct from it. In this sense, “pure law” is by no means reducible to ethical norms via – or not – a theory of “natural rights.”

Still, there is an essential difference between Kelsen’s “pure law” and that of Reinach. For Kelsen, pure law designates the theory of positive law. As it merely describes the rules of production of legal content, it has no legal content of its own. By contrast, Reinach conceives pure law as the set of elementary relations to which a positive law must implicitly refer when it purports to belong to the realm of legality. That a specific type of promise creates obligations is neither an analytical proposition in the Kantian sense, a physical observation, nor a moral norm: it describes some essential, phenomenologically discoverable structure underlying our social universe. Nothing could be more opposed to the very principle of Kant’s philosophy and his epigones than positing the existence of synthetic propositions a priori, as Reinach consistently does.^[31] Fundamentally, the line that, according to Reinach, divides this legal a priori sphere from empirical realities separates pure law from positive law, whereas Kelsen contrasts the whole legal sphere, including positive laws, to empirical realities. Reinach’s theory, therefore, implies the non-overlapping of pure law’s ideal necessity and positive law’s practical enactment.^[32] The laws that are enacted can be “grounded in the essence” of pure law, according to Reinach’s expression, but they do not need to be so. A decree enforced by a dictator can infringe the sphere of pure law, despite its claim to ideal legality, but this does not make it less legal on a practical level.^[33]

Admittedly, despite their differences, Reinach’s theory is not exclusive of Kelsen’s. The former can be understood as describing a “metaphysical” level of reality – in a positive sense – with which the latter refuses to engage. In this sense, building a theory of the “pure state” on the foundations of Reinach’s theory of pure law could supply what is lacking in the understanding of society associated with Kelsen’s approach to the legal sphere. Seen in this light, the argument and goal of Stein’s Reinachian theory of the state become much more transparent. By defining the theoretical foundations of the Kelsenian state, Stein provides a powerful argumentation against the Schmittian critique of the Weimar type of liberal state.

So, what makes a state a state? Just like Kelsen, Stein argues that it is, basically, a constitution. However, Stein wrestles with what Kelsen dismisses as an extralegal, metaphysical issue; namely, the question of the origin of the state and the actual foundation of its legality. For Stein, such an analysis does not involve any empirical consideration – it is the first requirement of a “pure theory” of the state. What is implied in the essence of the state is an action that initially brings about its legality:

The establishment of a state is an act whose sense requires that it be an act of the state. Admittedly, the establishment of a state can be carried out only in the mode where a person or a body consents (sich dazu hergibt) to be an agent of the state (Organ des Staates). In that act of self-positing, the civil authority simultaneously defines its sovereign sphere and constitutes the state.^[34]

The effective constitution of the state that is required to formulate a constitution of the state could not be further from the self-designation of a leader. An agent of the state serves the state; he/she does neither own it nor rule it at will – this is why becoming a member of the civil authority (Staatsgewalt) implies free consent or a decision to let an instance higher than one’s personal will govern one’s actions.^[35] In addition, what makes this self-positing as agent(s) of the state possible is its counterpart on the side of those who recognize it; the unconstrained readiness of the future subjects of the state (the “sovereign domain,” Herrschaftsbereich) to obey the rules enacted and enforced by the civil authority.^[36] Thus, the necessity of the state must be freely accepted by all its components, be it in their capacity as agents or simple citizens, and this acceptance is manifested in the act of the civil authority’s self-positing that constitutes the state.^[37] As for the state’s Grundnorm, it consists of the form given to civil authority. The authority can reside in one single agent of the state, in many, or in all the citizens via a system of political representation.^[38] In this framework, Kelsen’s concept of legal derivation from the Grundnorm is preserved: “The first law that must be made and recognized so that further laws can attain validity is the right to make law. Every person who makes law thereby accepts the claim of this primary law."^[39] The principle of recognition (Anerkennung) that underlies the Grundnorm extends to all the laws and acts of governance that derive from it.

Stein’s analysis of the pre-legal nature of the state renews with the transcendent, supra-legal but still juridical personality of the state classically found among the theoreticians of the Rechtstaat (Laband and Jellinek), a “metaphysical” construct that Kelsen was desperately trying to avoid: “ … the state can choose, command, regulate, promise, commit itself, and so on.”^[40] At the same time, the concept of sovereignty Stein brings forward is fundamentally different from Schmitt’s anti-Kelsenian understanding of the transcendent, pre-constitutional state. For Schmitt, sovereignty resides in the one who, acting in the name of the nation, is the effective pouvoir constituant of the state and, therefore, cannot be constrained by the pouvoir constitué. For Stein, by contrast, sovereignty cannot be owned by one single individual because it is itself the result of a pre-legal act of recognition, the subject of which is the whole nation. Sovereignty does not exist in a nation without a state, and the state, not only initially, but continuously draws its sovereignty from the recognition of those who freely implement it and submit to it:

Only a formation that involves free persons can declare itself to be sovereign or can exhibit sovereignty in practice. The constitutive threshold for sovereignty is that the freedom of individuals is not destroyed by the will of this formation, or of the body representing it, but instead remains a condition of putting that will into effect…. “Unlimited civil authority" essentially subsists to the precise extent that it is recognized, and it can be wiped out at any moment.^[41]

The fact that those who submit to the state’s “unlimited authority” are the same who give it existence through their recognition of its agents, is the source of healthy pressure on this absolute power to continue to secure the recognition of those subject to it, lest it loses all legitimacy.^[42] True, there are situations – Schmitt’s “states of exception” – where the implicit recognition of the Staatsgewalt has become so problematic, hindering the normal functioning of the state, that, in order to preserve its purpose and mission, the state is constrained to temporarily suspend some of the laws and institutions defined by the Constitution or derived from it. Still, the fact that these dispositions are themselves defined and limited by a law duly enacted, like the art.48 of the Weimar Constitution proves that they do not infringe on the principle of sovereignty arising from the “communal realization of free acts (gemeinschaftlichen Vollzug von freien Akten).”^[43]

Thus, addressing an issue that “has become controversial in quite a number of ways,” Stein can show that “her arguments result in an answer to the question of who the carrier of sovereignty might be.”^[44] The source of political sovereignty does not reside in persons as such, be it an individual or a collectivity, but in what arises from the single act of recognition that continuously demonstrates the unity of the state both as an agent and as a subject of the law: “Sovereignty always presupposes a claim of control and its satisfaction through the recognition of those involved.”^[45]

This understanding of sovereignty has an immediate impact on the notion of the theopolitical. Kelsen claimed that any transcendent, pre-legal approach to the state would either introduce empirical considerations or appeal to metaphysical/religious principles, both of which are foreign to the sphere of law. However, Stein’s phenomenological analysis of the a priori essence of the state is neither empirical – it relies on the pure relationship that correlates with a very specific mutual act of recognition – nor metaphysical in a moral or religious sense. In fact, Stein’s analysis corroborates Kelsen’s emphasis on the autonomy of the legal sphere in its relation to ethics. Considered according to its a priori principle of formation, the state has nothing to do with a definite moral Sollen: “… as a state, the reign of Satan can be just as perfect as the reign of God.”^[46] Contrary to Schmitt’s notion of the theopolitical, sovereignty does not need to clothe itself in religion’s aura of transcendent infallibility since its legitimacy is intrinsic and has nothing to do with morals as an extrinsic source of authority.

The way Stein conceives the connection between the legal Sollen and the ethical one is very much in line with Kelsen, although it is reinterpreted according to the Reinachian distinction between pure law and positive law. With Kelsen, Stein points to the existence of a moral sphere, the norms of which do not govern the legal sphere, but can find their way into the latter, provided there is a will on the side of the legislator. At the same time, building on Reinach’s legal theory, Stein shows that it is the empirical character of the positive law that makes this integration possible.

One needs to understand that, according to Stein, the set of a priori relations (reine Rechtsverhälnisse) that define what the state is are not by themselves able to give an account of what the state does, something that pertains to the realm of positive law and concrete governance: “The state, as a social pattern that organizes itself on its own authority, calls for a creative power that lends content and direction to its organizing potential and confers an inner authenticity [upon it].”^[47]

Here is what Reinach calls the realm of “what obtains” or truly exists as states of affairs, in contrast to “legal objectities” (conceptual essentialities pertaining to the legal sphere) that may or may not be given existence depending on the circumstances. The “power” to which Stein refers here emanates from a particular social community shaped by a long series of interactions between human initiatives and unforeseeable events. To the established agents of the state, this community provides the living matter (needs, ideas, aspirations, all sorts of potentialities, etc.) they will have to process both in terms of legislation and concrete governance.^[48] Not unlike the relationship between form and matter in Kant’s first Kritik, this social “matter” is unable to secure unity and stability for the people without a state while the state remains an empty and clueless structure without this “social matter.”^[49] Moral norms, considered in themselves, could well be entirely a priori. Still, from the point of view of the agents of the state who are due to identify them and evaluate their legal relevance, they come as part of the external, empirical “matter” associated with the yet unregulated life of civil society. Considerations about justice, for instance, have a close affinity with pure law as they are also objectities related to behavior (in contrast to the logic of individual interests), even if a state can forgo them without ceasing to be a state.^[50] Actually, it behooves the agents of the state as persons to perceive moral values, as the state as such is incapable of feeling or perceiving, its quasi-personhood being limited to acts of governance.^[51]

From this perspective, there is no reason to associate these norms with the 17th–18th century concept of natural rights. Stein would resolutely oppose Strauss’ attempts to link the law of nature in its Platonic-Medieval sense with the normative concept of natural rights developed by thinkers such as Locke and Rousseau. Here again, Stein stands firmly on Kelsen’s side: one does not need to posit a teleological state of nature to give an account of the origin of the state, as in traditional theories of the social contract, since the state per se does not require ethical norms to exist and function.^[52] Actually, Stein argues that the supposition of a state of nature is absolutely unnecessary since socially organized communities preexist political states and can endure without them, although political states cannot exist, as mentioned earlier, without being anchored in such social communities.^[53]

The Steinian analysis of the state as arising from the need of an already existing community to self-regulate by the formal virtue of a constitutional act goes much beyond Kelsen’s positivism. Through a phenomenology of the different types of associations, it opens Stein’s theory of the state to the legacy of the German historical school (Hugo, Savigny) as well as that of the social/organicist school (Beseler, Gierke, Jhering, Heller) on matters of constitution and laws.^[54] It is incumbent on the sense of the state that the multifarious associations and collective entities that are the engine of civil society’s life might be fostered and protected. Besides, only a Volksgemeinschaft shaped by its history, even if it includes other ethnic entities besides the main one, can develop in a cultural cosmos, a spiritual force that provides the state with impetus and direction in the enactment of positive laws and policy decisions.^[55] It is not difficult to discern here a correspondence with the “organicist” concept of the state that, together with Kelsen’s positivism, is one of the main sources of the Weimar Constitution.^[56]

All the previous considerations help us to understand Stein’s position on the relationship between state and religion, i.e. the issue of the theopolitical, which Stein takes up in the last chapter of her treatise.^[57] At this point, it is clear that Stein follows Kelsen in dismissing an intrinsic connection between the foundation of the state in pure law and religious values: “The state has no soul.”^[58] In the last chapter of her treatise, Stein shows that a theocracy, a state where all political decisions would, as a result of historical circumstances, directly following the declared will of God, would tend towards self-disintegration. The legal and political sphere that the state brings with it would have become entirely subservient to a logic that is intrinsically foreign; namely, religion. It does not mean that God cannot empirically use a political state to serve the higher purposes assigned to His providential activity – but this inclusion of the state in God’s supreme design preserves the “fabric of the state,” both from the point of view of pure law and that of concrete governance.^[59]

For Stein, who quotes Matthew 22:21 (“render to Caesar the things that are Caesar’s; and to God that which is God’s”^[60]), the distinct character of the state’s logic from that of religious institutions is fundamental. From the state’s perspective, religion is part of the fabric of civil society, just as any other collective element defining the inner life of the Herrschaftsbereich. This position coincides with the concrete stance of the Weimar Constitution on religious matters (art.147). The notion of a state Church is omitted, and the Republik makes clear its intention not to meddle in the internal affairs of religious associations once they are recognized. Stein duly notes that there are areas where the interests of the state and those of religious institutions overlap, so the research of compromises between the two types of logic becomes necessary.^[61]

Still, it can happen that the state infringes upon the legitimate autonomy granted to religious entities within civil society. The sphere of what is “legitimate” or not from the point of view of the Staatsgewalt is circumscribed by pure law or what can be derived from the essence of the state. Since, as emphasized earlier, nothing in the mechanisms of enactment of positive law compels the latter to comply with pure law, there is always a risk that the agents of the state will, for some reason or another, lose sight of the higher goals that they are supposed to serve. In a situation where the consequences of the subversion of the” sense of the state” among its agents are damaging to religious institutions, it stands to reason that citizens will place the commandments of their faith higher than the current government’s policies. As much as the violence of the “state of exception” is acceptable because it is ultimately subordinated to the legitimate interests of the state, the violence perpetrated by corrupted or unhinged agents of the state is not because it has ceased to be “grounded in the essence” of the state.^[62]

Stein’s 1925 treatise sheds light on the theoretical premises of 1933 letter to the Pope, in which she beseeches him to publicly condemn Nazi persecutions against the Jews. Consistently, Stein argues that governmental institutions, having fallen in the hands of people filled with hatred against Jews (“sie jetzt die Regierungsgewalt in ihre Hände gebracht”), the anti-Semitic policies that are currently enforced infringe upon the sacrosanct principles of the Christian faith: “Is not this idolization of race and governmental power which is being pounded into the public consciousness by the radio open heresy? Is not the effort to destroy Jewish blood an abuse of the holiest humanity of our Savior, of the most blessed Virgin and the apostles?” Stein understands that public condemnation of the regime by the Pope would be tantamount to a call for civil disobedience, but her 1933 position is perfectly in line with her 1925 theory of the state. Rebellion against the state is allowed when the agents of the state betray the purpose and mission of the state. We see here how the profoundly anti-Schmittian concept of state sovereignty that Stein develops in her treatise deprives – by anticipation – the type of political decisions taken by the Nazi regime of any legitimacy.

3 Strauss vs. Stein: The Theopolitical and Philosophical Responsibility

In certain historical circumstances, it took more courage to opt for the rational, for moderation, for compromise, for plurality, for freedom, and for legal procedures than in others. The interesting question is: What made some intellectuals cling to liberal convictions in turbulent times when liberal democracy was not fashionable, when it was, in fact, regarded as an outmoded nineteenth-century model? A partial explanation is that a certain feeling of Jewishness, of Bildungsbürgertum, and of secular modernization enabled some thinkers to adhere to ideals that others threw overboard.^[63]

In my estimation, Jens Hacke’s unconventional appreciation of Weimar Jewish intellectuals’ political “engagement” fittingly applies to the comparison between Strauss’ and Stein’s respective positions on the theopolitical. Earlier, we started by asking two questions: (1) Did Strauss’ and Stein’s treatment of the theopolitical issue owe something to their connection to Jewish identity and culture? (2) Did this connection lead them to a correct understanding of the dramatic implications of this issue?

Like many of his peers, Strauss was among those who considered liberal democracy as an “outmoded nineteenth-century model” if, by the latter, one refers to the model of social integration associated with the German protagonists of the Haskalah. This does not mean that Strauss’ Jewish identity did not play a role in his early political philosophy. His unique quest for the “theo-teleological” element in the political thought of Spinoza and Maimonides is a witness to the contrary. Strauss refused to follow Schmitt’s amoral or meta-moral concept of the theopolitical. On a concrete level, though, Strauss found himself allied with all the critical – Protestant in general – voices denouncing in the Weimar Republik a “state without God.” Everything tends to show that Strauss was perfectly aware that his fascination for the theopolitical, no matter how “morally upgraded” it needed to be, would contribute to replacing the Weimar regime with an authoritarian one. Klaus Tanner writes:

It was not the suppression of religious and metaphysical questions that led to the demise of the Weimar Republic. In fact, the opposite is true, the models of legitimization based on religion and metaphysics had a de facto delegitimizing effect for the parliamentary democracy of Weimar.^[64]

As we saw, the problem with Strauss’ “moral” or “teleological” concept of positive authoritarianism lies in the fact that it offers no legal or administrative safeguard that would prevent the supreme leader from discarding the “good values” and replace them with much more doubtful ones at will. This theoretical difficulty is a necessary consequence of the Schmittian-Straussian apology for supremely personal authority at the exclusion of parliamentarism under any form. In sum, the idea that Strauss’s Maimonidean-Spinozian accommodation of political theology could have prevented the tragedy that followed the demise of the Weimar regime, was an act of theoretical self-delusion, supposed it was ever entertained as such by Strauss at the time (and not brought forward by way of retrospective justification at a later point).

The contrast with Stein’s position on the theopolitical could not be sharper. Stein’s philosophical justification of Kelsen’s views unfolds into a much broader theory of the state which, without being the exact portrait of the Weimar regime, falls in line with its main aspects: parliamentarism, presidentialism, admissibility of a state of exception, non-ethnic concept of citizenship, advocacy of national values, social integration of communities and associations, separation of state and established religion, etc. Judging by its rarity and considering by contrast the ideological or “apolitical” (Peter Eli Gordon) speculations of most contemporary Jewish thinkers, Stein’s philosophical plea for the existing political order certainly deserves Hackes’ qualification of “courageous.” In it, one can easily recognize the option “for the rational, for moderation, compromise, plurality, freedom, and legal procedures.” Still, the question reads: To what extent is this plea connected to the Jewish background of its author? Does it truly reflect a “certain feeling of Jewishness, of Bildungsbürgertum?”

The same year Stein published her Investigation, 1925, Mauritz Julius Bonn, an economist and political scientist, wrote a forcefully anti-Schmittian essay The Crisis of Democracy, where he pleaded for the parliamentary rule against totalitarian temptations of all sorts. As a Jew, Bonn spoke of the advantage of belonging “to a small, not highly thought-of religious community.” Due to his or her condition, the one who is less integrated into standard civil society is also the one who has less to lose when questioning the direction that the “crowds” are inclined to follow.^[65] It is likely that Stein, just like Bonn, was not ready to let the Weimar regime go without putting up a theoretical fight – it was simply too close to the materialization of the political emancipation educated German Jews had dreamt about and struggled to obtain since the time of Moses Mendelssohn.

True, many Catholics from the Zentrum Partei and a great number of Jews from the Deutsche Demokratische Partei, the party of which Stein was still an active member in 1925, had political interests in common, like the defense of the freedom of private associations and the abolition of the privileged position of the Protestant Church vis-à-vis the state. Both parties had been instrumental in the proclamation of the Republik as well as in ensuring its early survival. However, when it comes to the issue of the theopolitical, Stein certainly shows to be more indebted to the Jewish liberal tradition than to social Catholicism. While the Catholic Church was at the time slowly distancing itself from the proclamation of the intrinsic bond between state and religion (Mirari Vos, 1832; Quanta Cura, 1864), its new embrace of the different types of regimes as long as the norms of divine justice were paid due respect (Immortale Dei, 1885; Rerum Novarum, 1891), did not go to the point of approving liberalism, this “sullied product of a revolutionary age of man’s unbounded urge for innovation” (Libertas Humana, 1888).^[66] Stein’s emphasis on the legitimate distance between the sphere of the state and that of religion was certainly in line with standard Catholic teaching on modern democracies, but her complete severing of the state’s essence from the divine norms associated with a specific religion was still at the time totally foreign to Catholic political thinking.

Interestingly, Stein’s attitude towards the theopolitical issue as defined by the debate between Kelsen and Schmitt comes very close to Martin Buber’s Kingship of God (1932). Buber does not offer a theoretical treatise of political philosophy in this work. As Buber develops an exegesis of a series of passages from the Old Testament, his goal is to lay out the principles of an authentically Jewish understanding of the relationship between God and the state. From this point of view, Buber finds a fundamental opposition between, on the one hand, the authentic theo-politics of Israel, which consists of the free, living, and ever-adapting obedience of the nation to the One God who rules over them as a King, and, on the other, what he calls “political theology;” namely, the repeated attempts to transfer the attributes of the divinity to an earthly ruler or an institution, thus leading the nation astray from the memory of God and directly into the pitfalls of paganism and political servitude. Buber’s “authentically Jewish theo-politics” does away with Schmitt’s understanding of theo-politics the same way Stein’s treatise does – by denouncing the idea that the earthly authority should be relying on divine decrees as dangerously deceptive.

In sum, Stein’s liberal-Jewish understanding of the state provides a clear ground to denounce the decision of a government to identify a specific religious group with the “enemy.” It allows for civil disobedience in this case. This is not a matter of teleological norms of morality, as Strauss unconvincingly argued, but of defining the boundaries of the state’s legitimacy with essential precision.

This touches on the fundamentally distinct ways in which Stein and Strauss conceive the very activity of philosophical thinking. That Strauss carefully avoids using the Aristotelian terminology of essence and accidents goes to the heart of the matter. Being an unrepentant admirer of Heidegger, his former professor, Strauss thinks in terms of ontological destiny, Geschicklichkeit, not in terms of an-historical essences. Accordingly, Strauss’ negative valuation of modern political thinking and his pessimism regarding the emancipation of the political order from religion leave no room for a distinction between Modernity’s positive aspects and its flaws. For the young Strauss, the liberal state is an unconscious and ever-worsening fall from grace that gradually leads human beings to submission to their most gregarious instincts. In this framework, the only salvific option seems to eliminate the liberal state as a whole.

By contrast, the phenomenological approach that Stein developed under the influence of Reinach, an approach that renews the Aristotelian distinction between essence and accident (formulated now in terms of “pure” and “positive” states of affairs) enables Stein to draw the line between the “normal weakness” of the parliamentary state (its fragility due to the slowness of its processes of decision and implementation) and the “pathological weakness” caused by the subversion of these same processes by the very agents supposed to implement them. Had the citizens of the Weimar Republik learnt to cherish and take care of the inherent fragility of democracy instead of demonizing it in the name of God, there are good reasons to believe that the tragedy brought about by the demise of the regime could have been avoided.

Drawing a word of wisdom from this lengthy argument, I would say that if democracy in the form that we know today has some chance of survival and renewal, we must hope that the young Strauss was wrong, dead and lethally wrong, while the young Stein was brilliantly, although desperately, right.