Nature of Things or Essence of Matters? Being-As Werner Maihofer

Abstract

The fundamental feature of the contemporary epoque is the destruction of the great metanarratives. One of these great metanarratives was the classic natural law and human rights. The crimes of the Nazi’s and Stalinist’s powers have shown us evident, that the named phenomena were only rational presuppositions without any ontological core. But the opposite trend, the legal positivism as the most realistic and rational doctrine also has loose its reputation due to the outnumbered crimes, which were committed by the totalitarian power in accordance with the current legislation. In its turn, the legal theorists and legal philosophers after the II-nd World War tried to restore the ideas of natural law and the human rights by the way of its reconciliation with the new philosophical doctrines. The philosophical trends of phenomenology, existentialism and hermeneutics became the new methodological grounds of the legal philosophy. One of the such attempt – to think the law in the new way, as the existential-ontological phenomenon – is the work of the famous German legal philosopher Werner Maihofer. His works are dedicated to the new reasoning of the natural law. In contrast with the classical legal thought, when the natural law was understood as the pure deontological idea, Werner Maihofer tries to think law as the ontological phenomenon, which is rooted not in the ideal dimension of Ought, but in our Being-with-Others in the common world. In the similar way, human rights from the pure rational construction turn into the existential possibilities of the human Being. The origin of the similar – existential – law is not the official legal norm, which is issued by the state power. Also, the existential natural law is not derived from the laws of the Nature. Only responsible Human Being in the border situation of the free choice is able to decide, what the natural law as existential law is. So, on the place of the absolute legislator – God, Nature, State or something else arrives the Human Being as such, which is free as the Nominalist`s God Father. But in contrast to the God Father he is also responsible for the consequences of its choice. In this case, in the similar legal situation the human Being is “destined” for the freedom. And the destination of the human Being is to realize itself and at the same time to realize law. In the other words, the self-realization of the human Being is closely connected with the realization of the law. In this case, the existential possibilities of the common Being-with-Others are not just the transcendental conditions of our Being-in-the world, but present itself as the living natural law – existential law.