The Conflict Of Gods And Demons In Modern Law And Politics

The conflict of Gods and Demons, that is, the conflict of pluralism of values and the concerned questions diagnosed by Max Weber deal with many domains of humanities and social sciences, and have many theoretical and practical effects. The proposition about the conflict of pluralism of values and its derivative propositions about the losses of significance and freedom diagnosed by Weber make severe challenges to the established polity centred on liberalism in the West. They question the project of liberal Rechtsstaat from the fundamental levels, such as the understanding of law and politics themselves, the relationship between liberality and democracy, the relationship between human rights and popular sovereignity, and so on. Max Weber, Hans Kelsen, Carl Schmitt, and Jürgen Habermas all focus on these questions, and respectively put forward their own solution in the complicated influential relationship of critique and inheritance. It is a pity that no one so far has examined the mutal relationship between their thought from this perspective, and this is what this essay wants to do.The main dissertation consists of four chapters, in addition to the introduction and the epilogue.Chapter 1 is the introduction of the whole dissertation, which concludes the confirmation of the subject, the status of the research, the limitation of the thesis, and the approach of the discussion and the framework of the dissertation's structure. The dissertation points out that to examine the question of how to solve the conflict of Gods and Demons , that is, the conflict of pluralism of values in modern law and politics from Weber through Kelsen and Schmitt to Habermas has great importance.Chapter 2 discusses what does the proposition about the conflict of Gods and Demons, that is, the conflict of pluralism of values pluralism in the context of modernity means from the perspective of Weber's theory. Firstly, this part explores Weber'methodology of social science. He constructs the concept of ideal type which is based on Neo-Kantian theories of value relevancy and the concept of elective affinities between ideal types, and then use them as the methodological ground of his whole research. Secondly, this part examines Weber'theory of modernity from the perspective of his religious sociology. He attributes modernity to the process of the disenchantment of this world which began from the beginning of the ancient Judaism and ended finally in the Reformation. And the protestant ethic which came about in the Reformation strongly motivated spiritually the capitalistic rationalization. Thirdly, this part focuses on Weber's idea of the conflict of Gods and Demons, that is, the conflict of pluralism of values in the context of modernity. Values contain subjective value orientations and objective cultural spheres of value which come up through the influence of values. The pluralism of values unavoidably conflict emboding concentratively the paradoxs of capitalistic rationlity. This part grounds the basic framework of the whole article, and the theories of Kelsen, Schmitt and Habermas all stand against the background of the diagnosis of the conflict of pluralism of values and the concerned diagnoses in the context of modernity. The successive parts investigate how Weber to solve the problem of the conflict of pluralism of values, and then how Kelsen, Schmitt and Habermas to come under the influence of Weber's thought, criticize and affect mutually to solve the same problem.Chapter 3 probes into how liberal legal and political thoghts centred on Weber and Kelsen to solve the problem of the conflict of pluralism of values. Firstly, this part discusses Weber's solution in twice. In the first place, this part exmaines how he to state the development and attributes of formal rational law and the role it plays of in the capitalistic rationalization, to respond to the challenges the capitalistic rationalization makes in his sociology of law, and to persist in a kind of disillusioned legal formalism as the solution for the problem of the conflict of pluralism of values in legal sphere. In second place, this part exmaines how Weber to produce the political decisionism as the solution for the problem of the conflict of pluralism of values in political sphere. What does this project means is that the charismatic statesmen should be electd in virture of plebiscitary democracy, make responsible decision, struggle with the bureaucracy and control its negative effects, exploit the elbow-room for individuals and nation, and accomplish the cultural mission of nation state, that is, Germany. Secondly, this part discusses Kelsen's solution against the background of Weber's proposition of the conflict of pluralism of values in three. In the first place, Kelsen criticizes theories of natural law against the background of Weber's proposition of the conflict of pluralism of values, and bases his whole theory on this critique. In the second place, Kelsen eliminates the ideological elements such as morality, value, and so on, criticizes Weber's sociology of law to eliminate the social factual elements in it and to preserve the formal properties of formal rational law, epurates the pure law, and constructs his theory of pure law as the solution for the problem of the conflict of pluralism of values in legal sphere, which is based on his critique of theories of natural law. In the third place, Kelsen further probes into the basis of worldview and structure of Rechtsstaat, produces the principle of legality to limit all powers of state, advocates the parliamentary democracy, and then advances his pure theory of Rechtsstaat to include the conflict of pluralism of values in framework of bourgeois Rechtsstaat, which is based on his pure theory of law.Chapter 4 focuses on the conservative Carl Schmitt to discuss how he to inherit Weber's thought and criticize Kelsen's thought dealing with the problem of the conflict of pluralism of values in legal and political spheres. Firstly, this part discusses how Schmitt to bring forward his idea of political conflict in virtue of Weber's doctrines of the conflict of pluralism of values and politics. In spite of Schmitt's opposition to"the tyranny of values"and his critique of Weber as one of main representatives of subjective doctrine of values, he still inherits Weber's fundamental idea that politics is essentially conflict among groups that hold different value convictions and spirits, and the friend-and-enemy distinction should be made to arrive at decisions, to thereby advance his concept of the political. Secondly, this part discusses how Schmitt to interpret the political form of Roman Catholicism to put forward his political theology to ground his solution for the problem of the conflict of pluralism of values in three. In the first place, Schmitt criticizes the liberal technical neutrality, and points out the crises which come up because liberalism does not have the capacity to decide when it is confronted with the conflict of pluralism of values. In the second place, Schmitt finds that Roman Catholicism Church as one kind of political form, that is, complexio oppositorum, not only has the representative capacity including the pluralism of differences in contrast with the bourgeois parliamentary democracy which is a kind of technical mechanism and does not have representative attributes, but has substantive rationality, authotity, and the volition to make political decision so that it is the ideal model of state. In the three place, Schmitt criticizes the romanticization of Roman Catholicism which is done by political occasionalism of political romanticism, to clear up the obstacles to his appropriation of Catholic resources in political theology. Thirdly, this part discusses how Schmitt to criticize Kelsen's legal and political thoughts bringing forward his solution for the problem of the conflict of pluralism of values in two. In the first place, Schmitt interprets Hobbes's thought from the perspective of the decisionic theory in political theology, advances his the decisionic theory of law criticizing Kelsen's thought, on the one hand; Schmitt borrows the French Catholic jurist Maurice Hauriou's institutionist theory of law, that is, the concrete oder theory of law, and produces his concrete oder theory of law criticizing Kelsen's thought, on the other hand. Through these two critiques, Schmitt appropriates respectively the resources that Roman Catholic Church as one kind of political form has to solve the conflict of pluralism of values from the viewpoints of the decisionic theory and the concrete oder theory. In the second place, for one thing Schmitt examines the losses of the monopoly for political decision and the representative capacity of political unity that sovereignity states have in the process of rationalization; for another thing he combines Jean Jacques Rousseau's theory of popular sovereignity, Emmanuel Joseph Sieyès's theory of constituent power, with the representative principle of Roman Catholic Church, puts forwards the democracy theory of plebiscite leaded by the political leaders, and reconstructs the strong state that has the political decision-making capacity and representative capacity by simulating the political form of Roman Catholic Church, to solve the conflict of pluralism of values.Chapter 5 investigates how Habermas to solve the problem of conflict of pluralism of values in three. Firstly, this part discusses briefly how Habermas to reconstruct Weber's sociological theory, and put forward his theory of modernity based on the theory of communicative action which points out that modern society can solve the problem of conflict of pluralism of values in the differentiation of plurality because the pluralism of values unleashed from it can be integrated in the higher level of intersubjective communication and discourse. Habermas points out the complexity and obscurity of the concept of rationlity that Weber has used when he has probed into cultural rationalization, on the one hand, the narrowness of the concept of purposive rationlity that Weber has used when he has probed into social rationalization on the other hand so that Weber had an insight into the problem in modern society, but couldn't offer a solution that be credible. Therefore, Habermas advances his concept of communcative action and explores the meaning of communcative rationlity. In allusion to the limit which happend when Weber applied directly the concept of purposive rational action to the analyses of social rationalization, Habermas brings forawrd the pair concepts of lifeworld/system, and uses them to reconstruct the propositions of the losses of significance and freedom diagnosed by Weber. Secondly, this part discusses briefly how Habermas to apply his theory of modernity centered on the theory of communicative action to the sphere of the philosophy of morality, and produce the ethics of discourse as the ground of solution for the problem of conflict of pluralism of values in legal and political spheres. He justifys the two principles of the theory of ethics of discourse directly and undirectly, that is, the discourse principle and the universalization principle. The ethics of discourse differentiates among the pragmatic discourse, ethical discourse and moral discourse, and thus shows that the suppressed plurality of differences and interests can be included on the more demanding procedural level of moral discourse. Thirdly, this part discusses how Habermas to apply his theory of ethics of discourse to legal and political spheres in twice, that is, reconstruct Weber's sociology of law and Kelsen's legal positivism producing the proceduralist paradigm of law, criticize Schmitt's legal and political thoughts producing his theory of constitutional patriotism, and thereby solve the question of conflict of pluralism of values. In the first place, Habermas reconstructs Weber's sociology of law and Kelsen's legal positivism, and suggests that there is a kind of internal connectioin that interpenetrates among law, politics and morality. Habermas applies the discourse principle to reconstruct the system of rights that have been put forward and developed in the constitutional practice of modern West, points that this system of rights are the procedural presuppositions that have constitutional meanning for citizens who exercise their public autonomy by way of legal form living toghther, thus attributes the legitimacy of law to the procedural conditions of moral significance, and finally applies the moral principle to his legal theory. Habermas makes use of the ethics of discourse to explicate the process of political opinion and will formation, and indicates that this process be a network of discourse and bargaing constrained by moral principle. Legalizing the process of political opinion and will formation, that is, framing the Rechtsstaat, thereby Habermas reconstructs the Rechtsstaat in moral procedural level, and puts forward the proceduralist paradigm of law that would surpass the paradigm both of bourgeois formal Rechtsstaat and of social welfare state. In the second place, Habermas associates the proceduralist paradigm of law with concrete common political culture, criticizes Schmitt's legal and political thoughts producing his theory of constitutional patriotism as the identity form in post-nation era, and solves the problem of conflict of pluralism of values domestically, on the one hand; he further develops his cosmopolitan theory, and solves the problem of conflict of pluralism of values globally.Chapter 6 is the conclusion of the dissertation, which analyzes and reflects all the claims discussed above, and concentrates on the three concerned question: the understanding of modernity itself, the relationship between universalism and particularism, and the relationship between decisionism and discursivism.