Rethinking the modern political-legal concepts: A search for a new perspective in the context of Spinoza?s philosophy of politics

This thesis consists of two chapters with the titles ?The Source of Law? and ?Post-Sovereignty?. In the first chapter the problematic of the source of law is discussed under three subtitles. In the first subsection the place of the concept of God in Spinoza?s philosophy is shown in its relationship with the notion of God in pre-modern thought. After the examination of the political and legal consequences of the critique of divine will doctrine which is implied by Spinoza?s concept, the theories of natural law, in general, are studied in the context of the problematic of the source of law. First the basic proposition of these theories is discussed: The source of positive law is the natural law. In other words, by men posited rules gain the normative quality, the quality of law by accordance with the norms of natural law which are accepted being universal and eternal. In this framework the birth and development of the notion of natural law and the theology based on human intellect in the context of the doctrines of Cicero and Aquinas are examined. By following this method some basic thoughts of the tradition of natural law are studied like the hierarchy between natural law and positive law, teleology, the belief in universal good and evil, the notion of justice, the privileged position of human beings in nature.Under the second subtitle of the chapter first Spinoza?s opposition to the tradition of natural law is examined in the context of the relationship of Spinoza?s philosophy with the concept of law. According to Spinoza the problem of the source of law is a problem of legitimacy. In this framework Spinoza?s approach to teleology as a mistake, his definition of law and Spinoza?s concept of ethics in its relationship with law and rights are discussed successively. Later the concepts of law and right in Spinoza?s philosophy are examined in the context of their relationship to each other. In this framework first the function, source and limits of law and Spinoza?s concept of right are studied. As a consequence of this study the proposition imposed itself that Spinoza developed an original legal positivism. In other words Spinoza was a thinker who has gone beyond the voluntary positivism of political modernity which has failed to ensure protection for the rights of the individual in the face of state?s law.In order to show the position of Spinoza?s philosophy in the view of the conceptions of law and right of political modernity, the voluntary positivism of political modernity is studied. In this third subsection first it is suggested that the political modernity at the same time overlaps with the intellectual break which had a completely different approach to the problematic of the source of law than the tradition of natural law. With the appearance of the doctrines of sovereignty and social contract the perception of the modern individual had ruptured from the tradition radically in the terms of thinking the source of law. Political modernity found a secular source for law. It wasn?t the accordance with natural law any more that gave the normative quality to positive law. In order to examine the foundation of the new approach to legitimacy it is needed to study the theories of sovereignty and social contract. Consequently in the third subsection first the theory of sovereignty is examined with the help of the critical approach of Léon Duguit. Later Hobbes? fiction of contract given in its masterpiece called Leviathan is studied in order to discuss the function of the theories of social contract in the constitution of the new legitimacy.As a consequent of this study it is suggested that the new approach to legitimacy and the concept of sovereignty as the modern source of law which is based on the voluntary act of individuals who alienate their natural rights with a rational agreement in order to pass from the state of nature to the civil state leave the problem of individual?s rights under the legal order unsolved. In this context the necessity of examining the relationship of law with human rights and consequently the theories of natural rights are discussed starting with the historical study of the birth of the concept of human right. Following the framework of Leo Strauss it is suggested that in the work of thinkers of social contract the emphasis has been shifted from natural laws to natural rights and a as consequent the natural rights of human beings has been started to be considered as a given reality before the emergence of political authority. On the other hand it is stated that the condition of the individual being the creator and also the subject of the modern state has formed the tense foundation of political modernity. In order to develop a conception of law and right which would put an end to this tension it should be questioned if it is possible to think a legal positivism which doesn?t have its roots in the thought of the alienation of natural rights. In this context first the concept of modern theory of natural law is criticized and later the discussion of natural law tradition and legal positivism between contemporary thinkers is briefly mentioned. As a consequence of this study it is stated that the renaissance of natural law tradition in the second half of 20th century showed incompetence in the terms of finding an ontological background to human rights which would ensure a better protection of them. The first chapter of the thesis ends with these statements: Spinoza?s philosophy contains the necessary tools to develop a legal positivism which doesn?t have its roots in the thought of the alienation of natural rights. However the existence of a discussion on social contract in Spinoza readings makes it necessary to inquire if Spinoza isn?t really a thinker who uses the social contract terminology.Consequently the second chapter of the thesis opens with the study of Theologico-Political Treatise in terms of terminology, Spinoza?s famous work which is placed in the center of the discussion on social contract by a great amount of Spinoza readings. In the first subsection the philosophies of Spinoza and Hobbes are studied comparatively. Especially Spinoza?s Theologico-Political Treatise and Hobbes? Leviathan are opposed in terms of the problematic of freedom and security, the subject of fear, human nature, monarchy and democracy and the notion of justice. Later the notion of society and the constitution of legal order in Spinoza?s philosophy are studied. As a conclusion it is stated that the contract terminology in Theologico-Political Treatise doesn?t refer to a fictional contract which constitutes the society and legal order in general, but it refers to the constitution of democracy as a special form of government. In this context especially it is examined which meaning some concepts have in Spinoza?s philosophy like the state of nature, reason, human nature, utility and government. This examination is followed by an inquiry on Spinoza?s approach to the problem of legitimacy in Theologico-Political Treatise in the context of themes like the limits of political power, theocracy and democracy, monarchy and revolution, democracy and transcendent law.The second subsection of the chapter contains a discussion on Spinoza?s Political Treatise in terms of contract theory. The discussion starts with an inquiry on the reasons why Political Treatise has become the most important text of Spinoza in recent Spinoza readings. In order to complete this task the thesis of Spinoza?s evolution by Alexandre Matheron is chosen as subject because of the inspiring quality of his work. With this thesis Matheron states that Spinoza?s philosophy evolved in the way from Theologico-Political Treatise to Political Treatise. By the study of this thesis first Matheron?s answers to the critiques directed to his thesis are discussed and later new critiques are added. After a detailed examination of Matheron thesis on state as an individual in terms of Spinoza?s philosophy, it is concluded that the main goal of Matheron?s Spinoza reading consists in explaining the origin of the state without using the contract terminology. However it is confirmed that Matheron?s reading fails to emancipate itself from the conceptual sphere of modern state and inherent paradoxes of the same sphere. The main reason lays in Matheron?s preference of placing a conception of fictional state of nature in the origin of state as a replacement of social contract. It has to be questioned if this approach would really transcend the contractual horizon. On the other hand Matheron explains the spontaneous birth of state referring to concepts like the imitation of affects, conatus, natural power which are developed by Spinoza in terms of individuals. As a consequent, Matheron?s explanation inevitably repeats the theories of anthropomorphic conception of the state and moreover is in contradiction with Spinoza?s most basic propositions. With the critique of Matheron?s reading finally it is stated that the two treatises of Spinoza, Theologico-Political Treatise and Political Treatise are incompatible and the latter cannot be used for a Spinoza reading which has the intention of going beyond the contractual horizon.The third subsection of the chapter is an inquiry on the possibility of a new conception of democracy with the help of Spinoza?s philosophy. In this context the Spinoza reading of Antonio Negri is chosen as subject, who folded the concept of multitudo as the spontaneity of power relations from Spinoza?s philosophy. His Spinoza reading was a success in terms of the enthusiasm which it created in Spinoza circles by placing Spinoza in the center of the actual discussions. On the other hand with Negri?s reading the leftist thought has found new intellectual tools in Spinoza?s philosophy to solve the left?s crises after having ignored Spinoza for a long time. In the context of his project of transcending liberal conception of democracy by renewing Marxist thought with Spinoza, Negri refers to the constitutive power of politics. For this thesis Negri?s reading is significant in this aspect. However the study of Negri?s work shows that his approach needs a double critique. On one hand it is needed to be questioned if Negri?s reading is loyal to Spinoza?s philosophy, on other hand it is necessary to discuss the dilemmas caused by Negri?s identification of the concept of politics and the conception of democracy.In this context first Negri?s Spinoza reading in Savage Anomaly and Subversive Spinoza are studied and criticized in terms of Negri?s themes like Spinoza?s materialist metaphysics, the crises of Spinoza?s project, the power of imagination, the opposition and relation between potestas and potentia, revolution and democracy in Spinoza. The critique opens to the problematic of the specificity of politics. Negri?s conception of democracy is founded by his project of constituting the autonomy of the political by its definition as a collective subject. By criticizing the legal function of the contract theory, Negri attempts to constitute a new legitimacy which is immediate by definition. In this approach the legal function doesn?t disappear but change hand and passes to collective conatus. As a consequent, multitudo identifies with the political and becomes a collective subject with autonomy which constitutes the foundation of political power. Sovereignty is the power of this subject. With these statements Negri attempts to show that the origin of the political power isn?t theoretical.The first critique directed to Negri?s approach in this thesis is the fact that in Negri?s reading the concept of multitudo has become a legal collective subject which plays a constitutive role for legitimacy. On the other hand this approach transforms the democracy to the foundation of the political likewise the function of original democracy in the contract theories. The identification of politics, democracy and multitudo in Negri?s thought creates a sphere where all kinds of forms of government can be legitimized by referring to the collective subject. In the context of this critique it is stated that the difficulties of Negri?s conception of democracy find their source in the fact that Negri disregards two basic differences. The identification of the legal-political with politics may cause that the specificity of politics which constitutes democracy and the specificity of democracy defined with the amplitude of the sphere of politics escape from the attention. Democracy doesn?t constitute the foundation of the political. On the contrary democracy is an extremely specific form of auto-regulation. On the other hand politics cannot be identical to the political. These are the main conclusions of this thesis. The reference to Hannah Arendt?s work strengthens the statement that the political and the politics aren?t the same. Finally it is inquired how Spinoza may give us the opportunity to think beyond the conception of democracy of political modernity by mentioning Spinoza?s concepts of right and democracy with his doctrine of freedom of expression. The necessity of emancipating from the conceptions of collective subjects as pure abstracts shows explicitly that for developing a new conception of democracy a new collective sphere is needed which is the politics where every kind of collective and individual act may take place.