My latest review over at the 3:16 AM Magazine “Hornbook of Democracy Book Reviews” is of Lars Vinx’s generous helping of translations of fascinating works by the Weimar-era legal scholars Hans Kelsen and Carl Schmitt on issues surrounding constitutional guardianship. Readers can watch in admiration as these two men battle over what constitutions are and what organ of “the people” should be charged with preventing them from being little more than dead letters–just a bunch of important sounding proclamations to which nobody has to pay much attention. (Saying how much you absolutely love your own particular constitution, or how amazingly brilliant the “Founding Fathers” were doesn’t count here.) Because of the many echoes of the breakdown of Weimar democracy in today’s world (for a good overview of similarities, see this), and because both Schmitt and Kelsen have very deep and interesting things to say about law, democracy, and society, Vinx has given us a very timely book.
While his work is sure to provide intellectual benefits to nearly everyone interested in the issues discussed, I hope my readers will forgive me for taking a moment here to note that I have personally received a particular reward from reading this book (if learning of one’s errors count as a reward).
In a blog entry here in September of 2023 (Where does the time go?!?), based on the idea of "CHOICE Voluntarism" that I developed in my book on democratic theory, I wrote that “humanness might be thought unnecessary as well as insufficient for voting status.” I elaborated this thought using the alien Vuvv found in M.T. Lawrence’s Landscape with Invisible Hand. My thought at the time was that, not only should Schmitt not have limited vote-entitled citizens to “friends” with nearly identical ethnic (etc.) characteristics who agree with each other about pretty much everything, but that there is no good reason to leave out aliens (or porpoises) so long as they have sufficient cognitive abilities. I thought (probably patting myself on the back as I did so) that even persons who disagree in and about almost everything ought to be treated equally: none should be thought better or worse than another and, therefore, all may share voting rights in the same group.
However. Reading Kelsen–and watching Vinx’s four excellent lectures on his book that are available on YouTube–caused me to come to think that I had been mistaken on that point. It’s not so much a moral issue, or that aliens (and porpoises) ought to be instantly counted as “enemies.” It’s not even a consequence of the “persistent minority” problem that suggested to Kelsen that the Hapsburg Empire, with its patchwork of languages and cultures, might not make a very good single democratic polity. It’s that the concept of equal treatment–something required by any authentic democracy–seems to depend on the similarity of average (organic) needs.
It's fine for some folks but not others to prefer pushpin to poetry, or as Everett Hall put it, to have different ideas about the relative merits of reading Bertrand Russell to enjoying a steak dinner; it’s that there may just be no commensurability regarding what various species need to survive–even for a moment. So, for example, if we imagine a quite kindly and intelligent alien (like the one depicted in the picture above) that simply could not continue to live without the daily consumption of 100 human beings, it's neither a moral nor an intellectual disability that's the problem: it's simply that there’s no good way to provide the sort of equal protection and equal treatment that every authentic democracy requires.
Live and learn.
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