By Dr. Hans Karl von Zeßner-Spitzenberg
Translated by M. T. Scarince
Translator’s note: This is the third 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 II, Part IV.
Legal refers to a state power which actually exists as a state power, as legislation and guardian of the law, which operates as such and as such has de facto asserted itself in public life. It fulfills the basic moral purpose of the state, the maintenance of public order, and thus the care of the Common Good by means of the basic element of the state’s power of order (i.e. by means of the positive legal regulation of social relations); namely, when it keeps itself bound to the positive legal order given and represented by it, when it sets the predetermined legal ways and measures in place of arbitrary acts of violence. These two moments, the actual establishment of order and one’s own commitment to it, are what make a force legal state power, in contrast to arbitrary and violent rule on the one hand and to revolutionary, adventurist, street-thug or tyrant rule on the other, which do not guarantee the moral original purpose of state power: public order and the Common Good through positive statutes.
The literature does not always make a sharp distinction here and often uses “legitimate” in the sense of “legal“; that is, synonymously for the two concepts of, say, external material legitimacy, which is “legality” in our sense, and internal formal legitimacy, which is legitimacy in our particular sense.
This legality undoubtedly gives the power in question a certain position, which morally does not remain without legal consequences, since with it de facto there came into being the carrier of an inherently natural, inherently moral power, itself originating from God. That which it carries, the principle which it serves, but not it itself, is sacred. Like the parental power and authority of adulterous or illegitimate parents against their children, like the right of possession of the unlawful owner against uninvolved third parties, this sense also applies without restriction to the merely legal power of the state: “There is no authority except from God, but those that exist are ordained by God” (Romans 13:11). So it was also true for Pilate, the foreign governor, who stood in the way of the legitimate king of the Jews: “You would have no authority over Me if it were not given to you from above.” In this sense, Christian duty binds to obedience to the legal actually existing force. Only power itself in its moral purpose of order, ipsa potestas, as St. Thomas says, is always from God. Not so its bearers. The power of the state is a natural necessity for the common purposes of the human beings, for their relations of super- and sub-ordination, thus, it is always of God, as is every fatherhood and every human power (Macht) over subservient natural objects. According to St. Thomas, it is the form, the formative principle, this super- and sub-ordination alone that is the meaning of St. Paul’s words: ipsa potestas. The attainment, the origin, and the holding of the power must be distinguished from this; the former is sometimes from God, namely, if it came in lawful way; sometimes not from God, if in reprehensible way, e.g., per ambitionem (by presumption). After all, such power is in the service of God if it is handled justly, but the rule of the unworthy may sometimes to be understood as a permitted punishment.
To fight against the public presumption of power by the usurper, the subversive who uses force or trickery to seize a supreme command to which they have no right, is the right, in part even the duty of everyone; in any case, as far as resistance can be offered without causing disproportionate harm. But if the unlawful power has asserted itself, by consent, toleration of the ruled, and by virtue of a superior authority that authorized it, it becomes the actual bearer of order, the legal power, then the order supported by it, serving the Common Good, is obviously that principle which is willed by nature, which comes from God; hence the duty of obedience in all permitted things, hence the right and partly the duty to cooperate with these powers for the Common Good (the form-giving principle). It was in this sense of legality, the great social Pope [Translator’s note: Leo XIII] could demand the acceptance of the actually existing power, the Republic, from French Catholics. In this sense, the public authority of destructive town hall or parliamentary majorities is to be recognized as a ruling power, as “from God”, as much as one may, indeed must, legally strive to eliminate it. In this sense, for the sake of its salvific mission, the Church of God can, indeed must, allow its Head to enter into relations in international diplomacy with all the legal powers that de facto exist.
In this sense we know it is false, because formal Legitimism does not accept it, to grant the claim to subordination in permitted areas only to the legitimately assumed legitimate power and yet not to the legal power actually fulfilling the state’s purpose, because it sees the source of the duty of the subordinate in the lawfulness of the acquisition of the authority to bear the power and does not consider that the duty of the subordinate already flows from the natural ordering function of the public power. In the same way, the illegitimate mother would have to be denied all maternal authority, the illegitimate owner of a thing all protection of possession against uninvolved third parties.
The actuality of the existence of a legal power creates in itself certain moral relations and consequences by virtue of the natural principle of super-ordination supported by it, even if wrongly acquired, by virtue of the power originating in itself from God. The bearer of the morality of this power is: Ipsa potestas, ac non potentes, i.e. the power in itself, but not the ruler.
Thus, legality is far from being equated with legitimacy nor has the principle of legitimacy has become meaningless through the legal order. Rather, the demand for legitimacy also exists vis-à-vis the legal power, for the actual and moral consequences of the existence of a legal power refer only to the momentary relationship between the actual ruler and the ruled – and, moreover, only in permitted matters. This actuality does not affect the moral value or lack thereof in the acquisition of power and the consequences flowing from it, any more than it affects the moral relationship between the displaced lawful ruling authority and the new usurping and unlawful holders of power, just as a certain protection of possession for the illegitimate owner against uninvolved third parties does not yet confer a right of ownership, and the parental right of the illegitimate mother over her child does not otherwise confer on her the position of legitimate motherhood.
The usurpation of public authority, whether by overpowering or by outwitting, is a grave breach against the Seventh and Fourth Commandments. It is an injustice to the holder of power, who has a personal right to this authority as a sacred possession and vocation in which he devotes himself to the public good; is an injustice against every individual who has gained protection from this order of authority and has built his existence on it; it is an injustice against the Common Good, because it shakes and confuses the framework of order in the most serious way and, by its success in power of injustice and subversion, always encourages and incites new subversion. The greater the injustice, the larger and more important the sphere of cultural goods that were or are the task of the shaken order to protect. It remains an injustice, even if its success speaks on behalf of the overthrow. The accomplished fact of the overthrow of power and the reestablishment of new usurped power does not erase existing law and does not elevate past injustice to the rank of law. The external consequences of the merely natural material fulfillment of the purpose of public power, are by no means enough to sanctify the illegitimate use of usurped power or the means used to gain it, namely the displacement of the legitimate holders of power, nor is the usurper lifted out of the moral order in such a way that the he would now be beyond good and evil and would be exempt from all obligations to make restitution.
There follows a twofold conclusion: For one thing, it is a fact that the right of the legitimate authority of the state is not annulled and eliminated by actual suppression alone, but merely remains dormant; secondly, that the injustice done, like every injustice, calls for atonement and reparation.
These findings follow from the logic of fundamental moral principles applied to state life. Nevertheless, even in Catholic circles there are now many attempts to argue that the principle of legitimacy is not based on moral necessity, that it is not a morally relevant principle; rather, the purpose of the state power, which actually guarantees the common good, even if it has come into being in a revolutionary manner, alone establishes the full legitimacy of the new power, thus rendering the claims of the displaced legitimate bearer of state power invalid as soon as the new order has prevailed, or at least after a relatively short lapse of time. One therefore thinks that a Catholic must accept the actually existing legal power unconditionally, fully and completely as a legitimate authority, further concluding that this is also the policy of the Vatican. But it is precisely the Vatican’s policy that moves along the hair’s breadth line of distinction between actually legal and morally legitimate The fact that the Holy See also enters into diplomatic contact with those powers which, according to our terminology, are merely legal but not legitimate, is, in view of the Church’s mission of salvation towards all people and all communities, no proof of a statement against the principle of legitimacy. Rather, it corresponds completely to what we have called the moral consequences of mere legality; the same applies to certain exhortations to cooperate as much as possible in the existing legal orders for the protection of the Church’s interests. But insofar as the Holy See itself is considered as a secular sovereign, as a displaced Head of State of the Papal States, i.e., is itself under the moral norms of sovereign right and sovereign duty, it moves just as perfectly along that line which results from the our version of the legitimacy principle. The “Pope-King” has never revoked the now more than fifty year-old protest against his secular dethronement, but rather keeps it up by symbolic actions, as a prisoner in the Vatican. He still ostentatiously surrounds himself with the organs and status-symbols of secular sovereignty, which by no means flow from his spiritual dignity, however much they are compatible with and subservient to it, such as the Secretariat of State, or even more clearly his guards and police forces. All this despite the fact that Italia unita and its state power have been carrying the Common Good even in the Eternal City of the popes for decades now, thus undoubtedly fulfilling the elementary purpose of the state. It is not possible to say that this is simply a different case, because it is about the spiritual interests connected with the Patrimony of St. Peter. Certainly, it is these interests that cause the pope to take this stance and not mere worldly imperiousness. But could the Pope-King, even for the sake of spiritual interests, hold on to these legitimate secular rights of sovereignty and claims to rule, even in a theoretical gesture, if the legal function of the actually existing (though originally usurped) state power had already become legitimate in our sense solely through the fulfillment of the Common Good, and if herewith the claims of the displaced legitimate power would necessarily be extinguished, be it immediately, be it through the lapse of time, automatically from the moral standpoint of the purpose of the state? No! Never! For then the assertion of the rights to the Patrimony of St. Peter for the sake of spiritual interests would lack the necessary moral substrate in the area of secular state life.
Thus, it is precisely the Vatican’s current attitude towards the Roman Question that is a practical and illustrious affirmation of our principle of legitimacy, a vindication of our distinction between legal and legitimate, a reinforcement of dethroned dynasties in their adherence to legitimate law. Certainly, the Pope-King may also, for higher reasons of expediency sooner or later formally or by implied acts definitively renounce the Patrimony of St. Peter, reconcile himself with the Italian legal power in Rome and thus raise it to a legitimate power. But the fact that he did not do so for more than fifty years — longer than the present French Republic has been in existence — is a commitment to the our principle of legitimacy, both as a Catholic-sociological doctrine, but also based in the theological verdict of the Syllabus of Errors, in particular Theses 61 and 63.
7. Suspension or Statute of Limitations?
If the lawful but displaced state power is inhibited in its effect, it remains dormant. Its bearer and the person lawfully appointed to succeed him no longer possesses the power of the state, but he has a lawful claim to its recovery, namely: because of his personal right to it, for the sake of the public interest and the Common Good in the continuity of law, and for the sake of the moral demand that force and cunning should not take precedence over law. Admittedly, the method of asserting his right, as well as the choice of time and means pose for him serious problems and duties of conscience, for he must assert his right only in such a way that the Common Good does not suffer and only if there is a prospect of success. But must not the prolonged suspension of the exercise of state power by its legitimate but displaced holder lead to a lapse of his right to it? We believe that there is no question of a statute of limitations, because the statute of limitations is a purely legal positivist institution. As long as there is no recognized authority for questions of legitimacy under international law or any other authority above individual power in this instance, and as long as there is no positive human right to atone for the illegitimate usurpation of power, there can be no talk of the statute of limitations for legitimate claims to power. Admittedly, a similar via facti process can be observed, by the removal and displacement of the legitimate power, due to which the ordinary rules for the transmission of powers are temporarily suspended (Cf. Leo XIII). This is the case as long as the Common Good requires it or as long as the displaced authority is not able to regain a firm foothold. Over time, however, it can also happen that the legitimate rules governing the transfer of powers become completely inoperative. This occurs, of course, as soon as there is no one left who could make a legitimate claim, or as soon as all those entitled to succeed have finally and bindingly renounced their claims.
But even apart from this, the claim for reclamation of the suppressed legitimate power can lose more and more in strength and significance, the more it loses resonance in the public, the smaller the circle of those becomes who, free of obligations to the new powers, can openly and uninhibitedly stand up for the suppressed legitimate power, the more, therefore, the usurpatory powers become rooted in the Common Good and general recognition. This is indeed a pure question of fact, which in itself cannot abolish the existing better right, but in fact can make it more and more unenforceable. If legitimate restoration has become practically impossible in this way — it usually takes several ages — the authority to assert the claim to it may well have also diminished. The superseded legitimate right itself has not expired, but has become de facto unenforceable.
From this mere fact, of course, the moral question must be strictly distinguished whether and to what extent it is morally right to cooperate consciously and systematically in such a de facto strangulation of the enforceability of the claim of a repressed legitimate power, whether and to what extent it is morally irreproachable to weaken and lull to sleep the resonance of the repressed legitimate legal claim because of day-to-day politics or other motives instead of openly professing them out of moral principles. This question is overlooked by many who strive to act in a strictly moral and genuinely Catholic manner. What is the current situation in an usurpatory democracy? In our opinion, as a rule, it is permissible here to participate in an illegitimate actually established legal power in all permissible things in the service of the Common Good and for the victory of the Good, and at times this participation can become a sacred duty of conscience. However, the duty of loyalty to the displaced legitimate power requires that this should not be done without (direct or indirect) legal remonstrance, or without personal commitment to the principle of legitimacy and an internal will to make amends, so as not to be complicit in the strangulation of a better right. This duty to profess loyalty is both a singular and a communal duty, thus affecting individuals as well as public corporate entities and political parties. From this we see what weight must be placed on the profession of legitimacy, especially from the moral point of view!
Every injustice demands atonement, reparation. If this is not established voluntarily, the compensatory justice in history sends the necessary atonement. The temporal promises of the Fourth Commandment also apply to the protection of the authority of legitimate public power. The best reparation is without question the restitutio in integrum, the restoration and reinstatement of the displaced lawful state authority, or more precisely, its legitimate bearer. Legitimacy is easier to determine in the case of individuals than in the case of entire representative bodies; here, the principle of appointment will be more important than their personal identity. It is incoherent to claim that the postulate of reparation should not apply to the forms of public life, just as it is self-evident that its concrete realization must have its special rules appropriate to its object. This moral postulate of reparation must be applied because of the violation of the personal sphere of rights belonging to the authority bearer himself, but even more so in order to protect the very idea of authority, as an indispensable precaution against new usurpation of power by unauthorized persons, and as an element of stability for the Common Good itself. It is the Common Good itself that ultimately issues the most significant calls for legitimacy and the revival of the rightful exercise of power. If one leaves the path of relentless consistency, there is no stopping and one necessarily ends up with a law based solely on accomplished acts, the pure doctrine of might, with the law of the strongest, the most unscrupulous. This requirement of reparation is an indispensable sanction of the Commandment of authority. Even the protection of property and conjugal rights does not protect the bearer of these rights as a mere individual for his own sake, but primarily for the sake of the social, moral functions for which these legal relations exist, and of which he is the bearer. It is precisely for the sake of the future tranquility of these functions that the disorderly, law-breaking intrusion of usurpers must be repaired, even if they as individuals function better than the original rights-holders. Law is not an individual order of utility and opportunity, but a principle of welfare through fundamental objectivity and predetermination. Precisely because public authority directly serves the principle of order in the use of power for the Common Good, “being properly called to it”, the avoidance and atonement of every breach of law must be demanded and safeguarded in public life far more strictly than in so-called “private” relationships. The concrete realization of this proposition requires special consideration, above all because the currently prevailing legal positivist conception of sovereignty practically blocks the way forward. Because of this positivist conception, the public holders of state power feel sovereign and unaccountable. If the idea of a League of Nations really creates recognized and legitimate authorities, from which public sovereign powers must also accept legal claims, then the protection of displaced or endangered legitimate powers and, similarly, not only the personal but also the formal continuity of law can be truly served. The prerequisite for this remains: the legitimate emergence of such movements and their protection from the fundamentally wrong attitudes of a legal Positivism; or, in other words: the anchoring of this highest international law in the moral teachings of the Eternal Divine order. The surest guarantee for such institutions can be only be found in the inspiring example of the Vicar of Christ on Earth.
Until such a tribunal is created, where and how the moral postulate of the restoration of legitimate authority displaced by injustice can be fulfilled remains a matter of policy, feasibility, morally applicable force to be determined on a case-by-case basis.
This does not mean, however, that in the face of a fait accompli, one’s hands must be placed on one’s lap, lips must be closed and all demands for restoration must die.
It must not be forgotten that the ideal, the open and consistent commitment to idea and principle, is the greatest and most compelling force in the long run. Therefore, first and foremost, we must have an open and clear commitment to the principle of legitimacy.
9. The Duty of Restoration
But who now is the proper subject to carry out the duty of Restoration? First and foremost the usurper himself, and also his legal successors in state power (who may have been completely uninvolved in the breach of law itself). The only mitigating and delaying factor lies in the consideration of possibility of truly opposing the interests of the Common Good; it must not be forgotten, however, that the reinstatement of an illegally ousted bearer of authority and the restoration of legal continuity or, at very least of the legitimacy of the personal derivation of the right to bear the power, is a fundamental aspect of the Common Good. — In a democratic republic, where “the law proceeds from the people,” where the people themselves are the formal bearers of sovereignty, this moral duty of restitution cannot be shifted to the consciences of the “people’s representatives” alone, as it is in monarchical or oligarchical forms of government where only the consciences of a few are burdened.
Here it is a matter for the people to reestablish the violated order of authority by at least recalling the personal holders of authority and by the simultaneously forming legitimate bodies of authority. But since the people are not the de facto sovereign, this duty falls on the de facto bearers of the public will, the political parties and their leaderships, which are in fact the forms of authoritative will today. As a member of the sovereign public, as a member of the de facto bearers of power and ideas, that is to say the party, everyone therefore participates in this duty of reparation. As a citizen of the state, as an object of the public authorities above him, one is not entitled to active attacks on legal authorities (as long as they yet remain legal bearers of state power). To what extent he is individually entitled or even obliged to assist the returning legitimate authority in a possible struggle depends on innumerable individual factors, above all on his previous position to the de facto public power, more than on merely intellectual theory and principle. It goes without saying that in individual cases it is a problem of the most serious nature, born of the particular gravity of the breach of law and order that lies in the displacement of legitimate authority and replacement by an arbitrary new authority.