By Dr. Hans Karl von Zeßner-Spitzenberg
Translated by M. T. Scarince
Translator’s note: This is the second part in a series of posts translating the work of Austrian Legitimist philosopher Hans Karl Freiherr von Zeßner-Spitzenberg (1885-1938), an active member of the Kaiser-Karl-Gebetsliga and a martyr for the cause of Austrian independence from the National Socialist occupation. Read Part I, Part III, Part IV.
For the purposes of this work, the following system is briefly outlined:
1. Morality and Public Law
Public powers and public legal systems are also essentially subject to the same moral principles and stand within the framework of the same Divine world order as private rights, powers and authorities. Here also, human beings are their bearers, responsible for their institution and exercise. Here also, we are dealing with the powers of individuals or entire communities in the fulfillment of a profession, which, like every profession, must serve (after God’s glory) not only the beneficiary himself or the community which he serves, but also the good of his fellow men.
Indeed, the power-competence in this case is necessarily more strongly directed towards authoritative ordering power of the rights of others than it is elsewhere, on account of the main goal of public order; here also it is only within the framework of the Eternal order, which protects and recognizes the appropriate vested rights and inviolable jurisdiction of individuals. From the moral point of view, therefore, public law can be distinguished from private law in these matters only in its object and in its particular purpose, but not in general demands and basic attitudes.
2. The Lawfulness of Acquisition
For every possession of a right, the lawfulness of its acquisition is significant. It is the original basis for the rightfulness (Rechtmäßigkeit) of possession. Wherein does this rightfulness or legitimacy of possession consist – in light of the inevitable imperfection of all human knowledge and ordering in real practice? In nothing other than the fact that no better, stronger right to the same object is known, against which a given legal right would trespass. That is, in the fact that the acquisition happened without any demonstrable injury (direct or vicarious) to a better right. To give validity to the idea that the principle of the Seventh Commandment, “Thou shalt not steal,” should be applicable only to private rights and not equally or even in a greater capacity to the possession and holding of public power-competences is nonsensical, since to the principle of authority, capacity for power, and obedience, must be added the duty of respect given in the Fourth Commandment. But if mere personal property, which grants power over material good primarily for ordinary individual interests, is already morally protected by the concepts of lawfulness and unlawfulness, it is equally so for that right which primarily confers a power and authority over people and communities directly for the sake of the Common Good, and which in its bearing of authority carries in its hands a special reflection of Divine authority. And rightly so in community that is sanctified, such as that of a lawful paterfamilias in marriage and family- or on the basis of sacrilegious presumption, like the illegitimate father in concubinage, etc.. How much more is this the case when these bearers of authority affect entire forms of community life. How can law (Recht) rightly speaking be established, how can law and justice be practiced with full moral authority, by one who has unjustly snatched actual power from its rightful bearer, or from one who vicariously holds his power from that bearer? Thus Jarcke [Translator’s note, a 19th century Prussian convert to Catholicism and Austrian Jurist strongly influenced by Karl Ludwig von Haller] aptly says:
What is true of every good is also true of the highest sovereign lordship, which, according to the principles of Christian-Germanic constitutional law, is just as much a property and a chance good as any other. Whoever, therefore, unjustly takes this right from the family to which it belongs, by trickery or force, is as much a thief or robber as anyone else who alienates any property from its rightful master. The importance of the stolen thing does not mitigate the criminal nature of the act; it is and remains a crime, and the possession of the Crown (or more precisely, of the supreme public authority) resulting therefrom is illegitimate or unlawful.
Thus: Even for the possession of the highest powers, for its lawfulness and legitimacy, acquisition without violation of a better right, and legal derivation from such a right, is a morally necessary prerequisite. Even ancient Christian canonists and jurists already taught that good earthly authority has two characteristics that prove it to be from God: legitima institutio (i.e. lawful institution) and iustitiæ moderatio (i.e. the guiding principle of justice), whereby the basic requirement of legitimacy for the full moral exercise of public authority is clearly given.
3. Original and Derivative Acquisition
This legal acquisition of public powers is either mediated (derivative) — which today is a general rule— or immediate (original) — which is much rarer.
Both types of acquisition are subject to a double condition for their legitimacy: 1. the acquisition must be made in a way that is permissible in itself and in accordance with the rights of human nature (positive requirement) and moreover, 2. without violating a conflicting better right (negative requirement).
Legitimate ways of acquiring sovereign (kingly-, princely-) power are: 1. the extension and formation of paternal power of the patriarch into monarchical power, probably the most original, most frequent and most natural, as soon as the seed of statehood within the extended family blossoms to full life; 2. acquisition of authority by a means other than fatherhood, as for example by authority of bravery, of wisdom, or of prosperity, for the sake of which the others accept and sometimes even demand leadership from the authority bearer in the likeness of a father, that is to say, by way of election; 3. every so often, through a formal contract; 4. finally by appointment on the part of an existing higher power. This original acquisition of concrete supreme power, the seizure and exercise of which corresponds to a natural law and moral urge of man in himself, as ens sociale [a social being], necessarily stands at the cradle of every state formation since prehistoric times. However, it can still occur today by entering the territory of a new state (for example: the settlers on the Mayflower) or as a right of necessity where a legitimate power, without any order of succession, ceases to exist.
For the rest, in the widely branching formation of public law today, usually only the rightful accession to power through legal derivation, by way of legal continuity in a predetermined order of the appointment for the successor to the highest office of authority, comes into consideration as a legitimate mode of acquisition, be it that an unique authoritative act or a permanent order of succession to throne or office objectively determines the bearer of succession, or that he be subjectively determined through the choice of those objectively appointed for his election. The unanimous lawful assumption of power, this legal continuity of at least the highest bearer of authority (personal legal continuity), is a high legal good and a cornerstone of order for the whole people and their Common Good; a moral postulate wherever an order for the future transition of the highest power was legitimately established. In the demand for formal legal continuity, i.e. for every individual state order to flow seamlessly from preceding fundamental order- see especially the Kingdom of Hungary’s consistent rejection and redress of every ex lex condition- it becomes a further requirement of moral perfection of the state , which, as often as human imperfection violates it, must nevertheless be more and more recognized as a moral postulate. While its realization is a problem in itself, here we shall speak exclusively of the legal continuity of personnel in the chief authority of the state.
It is clear that positive human law is able to ever more sharply circumscribe the legitimacy demanded morally in this sense and to concretely condition and shape it.- Yet one thing should not be forgotten: all these concrete rules (orders of succession to the throne and electoral regulations) for the transfer of powers in no way transfer public authority. They merely determine the one who can lawfully hold it. The transfer of powers only takes place when those powers are taken up. Power is always taken (“I accept the election,” “I ascend the throne of my fathers”), but the legitimacy of this action must lie in realities outside the sphere of will of the party taking it, in the rules and norms of the legal derivation for the taking of power, i.e. in the norms of the right of succession to authority (Gewaltträgerschaft).
4. Actuality and Lawfulness: The Moral Consequences of Both
Just as the act of taking of power in itself must be distinguished from the lawfulness of this event, the fact from the right to it, so also the mere actuality is to be distinguished from the legitimacy of the possession of supreme power. Accordingly, the moral consequences and rights flowing from mere external actuality of power and its relative protection are not to be confused with the moral and legal consequences of what is also internally lawful, and with its (often absolute) protection. This is all too often forgotten by those who do not know how to distinguish between the moral consequences of an actuality, which flow from the purely external natural fulfillment of purpose on the one hand, and the moral entitlement to legitimately acquired powers derived from well-defined jurisdictions of rights and duties on the other hand, which are not only natural according to purpose, therefore intrinsically, but also ordered according to their concrete manifestation, i.e. legitimately.
As in the case of the possession any right and any power, so also in the case of the possession of actual public power, it is true that from the fact of its existence certain actual consequences flow, these in turn create certain moral obligations and duties, and from these arises a relatively protected jurisdiction. The owner of stolen property is also protected against third parties who have no right to the property and has obligations and rights arising from the property, insofar as it creates relationships with others. Even paternity and maternity established by sacrilege and adultery have their actual and moral consequences, create in the child a duty to obedience and submission, and establish duties toward him. Even concubinage, which lacks the consecration of legitimate matrimony, especially when there are children, is relatively the lesser evil compared to a new illegitimate union; indeed, even entering into a new legitimate union, though not unholy, can create a most serious injustice.
And in spite of this relative protection of the actual relationship from interference by unauthorized third parties, and in spite of the new rights and duties flowing from it, the owner of illegitimately acquired property, and indeed his own perfectly lawful legal successor, must give way to the owner of the thing who asserts his better right to it; likewise illegitimate paternity or maternity, in spite of the sacred rights of the child to the parents, cannot prevent the obligation to return to the broken legitimate marriage, even if this marriage has hitherto been denied the fundamental purpose of every marriage, the progeny. Why should the only exception to this moral rule be the possession of supreme power? After all, one does not object: “because the common good and public order as the purpose of public authority, if they are served by the latter, legitimize any actual authority through necessity.” This would mean confusing the relative consequences of the external actuality, which in itself materially corresponds to a natural order, and which arise – despite the immorality of the act founding it in this special case- with the internal legitimacy, which also exists in this case, and the absolute legal consequences flowing from it. It would mean to let the end and merely natural fulfillment of that end in the case of public authority sanctify also the immoral means aiming at the purpose, indeed to assume that immoral consequences of illegitimate seizure of power are annulled by it, to accept the doctrine of the right-creating might of the accomplished facts. And then a similar argument could then equally be made to object to the right of the owner and the legitimate spouse in the case of every material possession and every sexual union. For the natural and intrinsically moral purpose of material dominion is to serve the owner and thereby humanity for use; the natural and intrinsically moral purpose of sexual union is offspring; therefore, also here this natural and moral purpose of the relationship would have to protect the better managing thief against the worse managing owner, a child-rich concubinage or such an adulterous relationship against the right of childless legitimate already concluded marriages.
Thus we then easily understand the difference between legality and legitimacy of an existing state power as the difference between the mere actuality of an orderly, purposeful supreme power and the lawfulness and, rightfulness which surpasses its mere existence.