Hans Blumenberg, The Legitimacy of the Modern Age: Part II, Chapter 2

Scholasticism destroys confidence in the idea of an orderly cosmos congenial to humanity. This 'disappearance of order' provokes a reaction, but not to restore belief in a world that is good for man -- that has been permanently lost. Rather, this reaction accepts the unreliability, the changeability of the world, but therefore sees the world as something which man can act on to make it better .

Blumenberg sees the modern advance in technical matters as a radical break, not as the acceleration of a gradual accumulation that dates to pre-modern times. This is a case that would have to be made in much more detail to convince me.

139: "If the 'disappearance of order' that was brought about by the disintegration of the Middle Ages pulled self-preservation out of its biologically determined normality, where it went unnoticed, and turned it into the 'theme' of human self -comprehension, then it is also the case that the modern stage of human technicity can no longer be grasped entirely in terms of the syndrome of the anthropological structure of wants. the growth of the potency of technique is not only the continuation -- not even the acceleration --of a process that runs through the whole history of humanity. On the contrary, the quantitative increase in technical achievements and expedients can only be grasped in relation to a new quality of consciousness. In the growth of the technical sphere there lives, consciously facing an alienated reality, a will to extort from this reality a new 'humanity.' Man keeps in view the deficiency of nature as the motive of his activity as a whole."

In positing art as a more radical imposition of human will against the world than science and history (which are beholden to the world insofar as they seek truths in it), Nietzsche at least correctly identified what the turning towards modern consciousness hinged on: the rejection of the belief that the world is good for man just as it is.

Hans Blumenberg, The Legitimacy of the Modern Age: Part II, Chapter 1

We get a brilliant sketch of the development of Western systems of thought from classical antiquity through Scholasticism seen through the lens of the origin of what is bad in the world.

Classical - There is a dualism of Idea or cosmos on one hand and of matter or necessity on the other. The world-forming demiurge attempts to shape matter in accordance with the order of Ideas, but perfect realization is frustrated by the limits of his ability to "persuade" matter into form. The defects of what exists are accounted for by this falling short.

Neoplatonic - posits greater distance between the classical principles of form and matter, and tends towards giving theological values to them. In the particular form given by Plotinus, the world results from the world-soul "falling" and getting trapped in matter; the soul can correct this loss of order by reversing the fall and liberating itself from matter.

Gnostic - radicalizes conflict of good and bad, and posits opposing agents behind them. In the particular form given by Marcion, the world itself is bad, as is the demiurge who creates it. The God who saves souls trapped in the world is not responsible for creating it; salvation in fact consists in the destruction of this world.

Augustinean Christian - Early Christianity is confronted by Gnosticism with the intolerable prospect of an evil world which shows no signs of going away. Augustine salvages the goodness of the creation (and the unity of the creating and redeeming Gods) by assigning responsibility for what is bad in the world to the free will of man, and particularly to the inherited stain from the original misuse of this free will.

Blumenberg makes passing reference to Gnosticism "reoccupying the positions" of Neoplatonism. But doesn't Blumenberg's account fit better with a scheme rooted in substantive historical constants? Is the recurrence of the issue of what is bad in the world a substantive historical constant?

Blumenberg took issue at the end of Part I with critics of the modern world who looked for some wrong turn in the distant past of Western thought to account for supposedly pervasive defects in the present. Yet in finding the origin of Scholasticism's crisis in Augustine's turn, he pursues an line of analysis which at least looks similar in form. What can be said to distinguishes these cases? Is it that the problems Blumenberg diagnoses in late medieval thought were less pervasive than those seen by contemporary critics of modernity? In other words, does his analysis simply lack the same totalistic pretensions?

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapter 9

We take an excursion through the literary uses of theological language (and vice-versa, for that matter). In brief, using religious vocabulary for dramatic effect shouldn't be confused with expressing religious ideas.


Towards the end, we have a tussle with other indictments of the legitimacy of the modern age; phenomenology and critical theory are brought into the dock for arraignment.

118-119: "Whether people's readiness to entertain assertions of objective guilt derives from an existential guiltiness of Dasein vis-a-vis its possibilities, as Heidegger suggested in Being and Time, or from the "societal delusion system" of Adorno's Negative Dialectics, in any case it is the high degree of indefiniteness of the complexes that are described in these ways that equips them to accept a variety of specific forms. Discontent is given retrospective self-evidence. This is not what gives rise to or stabilizes a theorem like that of secularization, but it certainly does serve to explain its success. The suggestion of a distant event that is responsible for what is wrong in the present -- a suggestion with which the secularization theorem also presents us -- is (not the only, but) an additional reason why the category of secularization is in need of a critique."

Deja vu (Paul Kennedy, The Rise and Fall of the Great Powers, pp. 240-241)

"Finally, no assessment of Russia's overall capacities in this period can avoid some comments on the regime itself. Although certain foreign conservatives admired its autocratic and centralized system, arguing that it gave a greater consistency and strength to national policies than the western democracies were capable of, a closer examination would have revealed innumerable flaws. Czar Nicholas II was a Potemkin village in person, simple-minded, reclusive, disliking difficult decisions, and blindly convinced of his sacred relationship with the Russian people (in whose real welfare, of course, he showed no interest). The methods of governmental decision-making at the higher levels were enough to give 'Byzantinism' a bad name: irresponsible grand dukes, the emotionally unbalanced empress, reactionary generals, and corrupt speculators, outweighing by far the number of diligent and intelligent ministers whom the regime could recruit and who, only occasionally, could reach the czar's ear. The lack of consultation and understanding between, say, the foreign ministry and the military was at times frightening. The court's attitude to the assembly (the Duma) was one of unconcealed contempt. Achieving radical reforms in this atmosphere was impossible, when the aristocracy cared only for its privileges and czar cared only for his peace of mind."

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapter 8

Even for Blumenberg, the arguments in this chapter tend toward the cryptic.

Carl Schmitt claims the concepts of modern state are secularized theological concepts.

Blumenberg first asks what Schmitt's position (in favor of absolutism, basically) gains from this assertion. Intelligibility by analogy, it appears. For from within the reference point of Enlightenment thought, there is no support for the existence of "exceptional" cases which require arbitrary authority.

Schmitt argues that Blumenberg is defending the legality of the modern age rather than its legitimacy. (Legality (for Schmitt): timeless justification with respect to a structure of norms. Legitimacy: demonstration of foundation within history.) Blumenberg concedes (I think) that the former corresponds to how modern rationality defines itself. He claims, however, that his project is not to defend this self-understanding but to demonstrate how it performs the (necessary) function of self-assertion against what preceded it.

98: "From the point of view of all kinds of requirements for legitimation, not only did rationalism make a disturbing and destructive entrance, but when the ground had been cleared and leveled, it proved to be sterile as far as new conceptions were concerned." I don't think I agree with this. Doesn't this read arguments for popular rule out of the content of modern political thought?

Introduction of concept of sufficient rationality, 99: "[T]his book's concept of rationality is neither that of an agency of salvation nor that of a creative originality either. On the analogy of the principle of sufficient reason, I would like to entitle this concept that of a sufficient rationality. It is just enough to accomplish the postmedieval self-assertion and to bear the consequences of this emergency self-consolidation. The concept of the legitimacy of the modern age is not derived from the accomplishments of reason but rather from the necessity of those accomplishments."

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapters 6 and 7

65: "What mainly occurred in the process that is interpreted as secularization, at least (so far) in all but a few recognizable and specific instances, should be described not as the transposition of authentically teleological contents into secularized alienation from their origin but rather as the reoccupation of answer positions that had become vacant and whose corresponding questions could not be eliminated."

'residual needs' as key factor in retention of systems of questions across changes of epochs

67: system of explanatory values of Christianity reaches its 'crisis' in Scholasticism -- an interestingly Hegelian framing

Christianity also was shaped by the requirements of a transition of epochs: it found itself in the position of providing answers to systems of questions inherited from the thought of pagan antiquity.

Example: classical philosophy had well developed ideas about the nature of 'happiness' (and thus, I think Blumenberg is saying, of a complete life); Christianity found itself expected to give content to the 'salvation' promised in immortality, and filled this with the classical philosophical ideal of beatific contemplation.

Questions about originality of the materials of Christian thought were also raised by its opponents at the time of this epochal change. The early Christian response focused on the idea that all true knowledge found in the classical sources was in fact originally borrowed from Biblical revelation. Along with this Christian thought set up a model in which the original ownership of an idea is constitutive of the sole legitimate right to use it. But the modern idea of knowledge as something which any subject can produce -- and, more importantly, reproduce -- dissolves the authority of original ownership, and makes the charge of secularization itself an anachronism.

The attribution of absolute infinity to God, along with omnipotence, created the unbearable contradictions of Scholastic philosophy, and thus led to the self-destruction of the medieval system (forgive me for again thinking of Hegel).

On infinity as an attribute of progress: in this context, it is seen negatively, as a resignation, not positively, as a form of praise, as it was in the medieval conception of god

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapters 4 and 5

Eschatology is itself a secularization of Christianity. Early Christians expected the the end of the world to come immediately -- within their own lifetimes, at least. But the world persisted, and Christians had to come to terms with it, to make a place for it in their thought. Eschatology, which stabilized the expectation of salvation while the actual day of salvation was postponed, was one response. Related to this was the institutionalization of the Church to administer this promise of salvation in the world. Further, this institution was distinguished from the political institutions not concerned with salvation, and the latter were identified as 'worldly' -- thus, 'worldliness' is created from the secularization of Christianity by means of eschatology.


Modern reason inherits a legacy of questions from medieval Christian thought which it is not really suited to answer, and overextends itself trying to answer them anyway. Thus it is that modern thought tries to extend the idea of progress into a philosophy of history to answer the inherited medieval questions about the shape of history (the question to which eschatology was the medieval answer).

53-54: "Augustine's explanation of the bad in the world as the result of human wickedness, as a species-wide quantity, made it necessary for any subsequent notion of progress that would undertake to diminish the bad in the world also to establish man's ability to lessen his culpability by his own efforts. The idea of progress, as was to become evident much later on, requires a reversal of the causal relation between moral and physical evils; it is founded on the assumption that in a better world it would be easier to be a better person."

Marquard - Modern philosophy of history takes on the function of theodicy. Here, Blumenberg's functional analysis of history actually provides a final foothold for the secularization thesis.

Blumenberg responds that philosophy of history as the story of progress cannot actually perform the function of theodicy. Theodicy requires a subject with perfect freedom to absolve God for the responsibility for bad things, but freedom is seen as the end of philosophy of history, not its presupposition. In any case, the functional analysis of philosophy of history seeks only to explain it as an ultimately unavoidable response to the provocation of medieval thought, it does not seek to justify it.

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapter 3

Lowith - uses secularization thesis to establish continuity between medieval and modern models of history, which are both linear, thus more effectively distinguishing both from pagan antiquity, and it's cyclical conception - Puts the great epochal shift between pagan antiquity and Christian middle ages

Blumenberg's critique - burden of proof to show a unity of substance between medieval and modern conceptions of history has not been met.

In particular, the modern idea of progress in history -- even in utopian variants -- has obvious discontintuities with Christian eschatology. Eschatology looks forward to an external event disrupting history, while progress is seen as a force immanent in history. Eschatology (by late middle ages) was a matter of fear and dread in the face of the arbitrary, absolute will of God, while the idea of progress expresses hope in what may be achieved by humankind.

32: "[T]he idea of progress is precisely not a mere watered down form of judgment or revolution; it is rather the continuous self-justification of the present, by means of the future that it gives itself, before the past, with which it compares itself."

33: "The idea of method is not a kind of planning, not a transformation of the divine salvation plan, but rather the establishment of a disposition: the disposition of the subject, in his place, to take part in a process that generates knowledge in a transubjective manner." (Consider consequences of replacing disposition with discipline in this sentence.)

Moreover, the idea of progress in history can be satisfactorily accounted for by already existing models -- e.g., the advances of astronomy and the rejection of the canonical status of classical literature in the querrelle des anciens et des modernes. Furthermore, the tranformation of progress in history into an infinite process was not the appropriation of a divine attribute for it; it was instead compensation for the failure of immediate realization of the fulfillment of progress and also a regulative idea protecting against misappropriation of the concept for absolutist projects.

Hans Blumenberg, The Legitimacy of the Modern Age: Part I, Chapters 1 and 2

diversity in uses of and attitudes towards concept of secularization - some intellectual shadow boxing, as his antagonists here are mostly unspecified and sometimes I can't even guess who they are


descriptive secularization - historical decrease in practice and influence of religion and possessions of religions institutions


interpretive secularization - explaining modern secular concepts and institutions by reference to a supposed religious source


crisis theology - positive valuation of secularization, as a liberation of religion from entanglements of the world


secularization and worldliness - Arendt's distinction between these noted - secularization does not return modern man to immedicacy of classical relationship to the world - instead an intensification of alienation from the world


dispute with Gadamer, who contends that concept of secularization performs legitimate hermeneutic function of revealing hidden meaning of the present - Blumenberg


leads into dispute over significance of secularization (i.e., expropriation) of church property as a metaphorical touchstone for use of secularization as an interpretive concept - reference to background metaphorics

Anthony Lewis, Gideon's Trumpet: Chapters 8 and 9

An interesting preliminary note: not only did Abe Fortas argue the case, but John Hart Ely drafted the brief as a summer law school intern.

Leading up to Gideon v. Wainwright, there were a few key Fourteenth Amendment cases bearing on the right to counsel for indigent defendants.

Powell v. Alabama (1932) required provision of counsel for defendants who had been unable obtain their own lawyers. It did not institute a general rule for provision of counsel, however. Leaving open the question of whether there was a universal requirement, it instead relied on a number of circumstances of that case -- a capital crime, a hostile public environment, and defendants incapable of conducting their own defense -- to find that lack of counsel had represented a denial of due process.

Johnson v. Zerbst (1938) required counsel to be provided for indigent defendants in all federal cases.

Betts v. Brady (1942) found that access to counsel for poor defendants was not a fundamental right secured by the due process clause's guarantee of a fair trial, while admitting that in some circumstances providing a lawyer was necessary to ensure fairness. In essence, it closed the door on a more expansive interpretation of Powell, making the existence of special circumstances a prerequisite for a due process entitlement to a lawyer.

Although Griffin v. Illinois (1956) did not directly address the issue of counsel for poor defendants, it invoked the equal protection clause of the Fourteenth Amendment to hold that a poor defendant could not be denied an appeal because of inability to afford a trial transcript.

The large number of recognized special circumstances under the Betts rule had provided a rich ground for appeals. In the years since Betts, the Court had reviewed a steady stream of indigent counsel cases, almost always ruling to overturn state court decisions where counsel had been denied. Fortas' brief used this history to turn the most potent objection to imposing a right to counsel on its head. He argued that the existing standard, far from being a bulwark of federalism, had instead required constant review and correction of the decisions of state judges. It had thus actually led to more federal interference in state courts than a straightforward requirement of counsel would.

Although overcoming concerns about federalism was the core of the case, there were a number of practical issues raised by a uniform requirement to provide access to counsel. Among these were the scope, timing, and retrospective impact of the requirement.

With respect to the first, Fortas' brief argued that the Court could exempt petty offenses.

When a lawyer should be provided was a more difficult issue, since Fortas thought a defendant really needed a lawyer immediately upon arrest. In the end, however, he only argued only for the necessity of providing a lawyer for the trial.

Finally, Fortas had to address the Court's hesitance to create grounds for overturning a large number of convictions. This was such a concern that it had even been mooted that the Court would prospectively overrule Betts -- that is, that it would let existing convictions stand while requiring counsel in all future cases. Fortas argued that states would still have the option to retry the cases if the convictions were overturned by the Court.

With regard to the concept of prospective overruling, I find it curious that Lewis does not draw the analogy to advisory opinions. In overruling prospectively, the Court decision would not be subject to the restraint imposed by the consquences of the case immediately before it, which seems to have the same dangers as the advisory opinions which the court has always abjured.

Anthony Lewis, Gideon's Trumpet: Chapter 6

Here we meet a couple of ideal types of Supreme Court justices. On one side, we have the justice as defender of constitutional liberties, seen as absolute principles before which practical considerations must give way. On the other side, we have the justice as apostle of judicial self-restraint, who temporizes Constitutional principles and defers to political leaders. Hugo Black is put forth as a representative of the former, and Felix Frankfurter of the latter, although the fit is a bit loose in both cases.

Judicial restraint in the mold of Frankfurter takes three forms. In the first place, a justice like Frankfurter grants wide latitude to legislators and government officials. There is not necessarily a faith involved that politicians will do the right thing, but there is certainly an attitude that they are better left to sort out their mistakes for themselves.

Another form of restraint is strict adherence to precedent. For all justices, the Court's past decisions guide their current jurisprudence. But here, that deference is often granted even when the Court's earlier decisions are acknowledged to have been in error. Finality trumps correctness.

Finally, there is deference specifically to state laws and officials. This is the principle of federalism. The key issue here by the time of Gideon's case was how much the Constitution limited the powers of state governments in light of the Fourteenth Amendment. For many decades, the Court declined to use either the amendment at all to impose the restraints of the Bill of Rights on the states. Since a 1925 case which upheld the right to free speech against state interference, however, the Court gradually conceded that some rights are so fundamental that they must also apply to state governments. Such rights were held to have been absorbed into the amednment's due process clause. The Court's advocates of restraint, however, were cautious about which rights could be absorbed.

For his part, Black was not satisified with the doctrine of absorption. He saw no firm principle to distinguish fundamental rights which should be absorbed from the others which should not. He saw too much latitude there for justices to make arbitrary decisions, and favored instead a simple, wholesale incorporation of the first eight amendments into the Fourteenth Amendment.

I don't doubt that Frankfurter is one of the great lights of the Court's history, but I can't muster much respect for his position here. Whatever it's uses for easing the path to enforcing Constitutional rights, the doctrine of absorption strikes me as nonsense on steroids. The privileges and immunites clause plainly applied the existing federal rights of citizens against the states, and if these rights were not those enumerated in the Bill of Rights then there really wasn't anything else for them to be.

Anthony Lewis, Gideon's Trumpet: Chapter 2

In Chapter 2, Lewis explains how the Supreme Court decides which cases to hear. It's clear and concise and worth summarizing.

Getting cases to the Supreme Court is hard. It doesn't seem like an exaggeration to say the Court works hardest at not deciding cases, and failing that at not deciding them on fundamental constitutional issues.


The first obstacle is jurisdiction. The Constitution limits the Court to hearing only a few types of appeals. The most important of these are cases where an issue of federal law or the Constitution is at stake. These are mostly cases that have been appealed from state courts (in fact, the Court's successful assertion of its right to review state court decisions regarding federal issues was an important early test of federal power).


Even if a federal issue is at stake, a number of precedents and statutes oblige the Court to reject some cases. In the first place, the case must be ripe. That is, federal law requires that all opportunities for appeal must have been exhausted at the state level before the Supreme Court can take a case. In any event, the federal issue must have been raised as early as possible in the case, unless state appellate courts have allowed it in at a later stage. Finally, the court will generally not review cases that were rejected in state courts on procedural grounds.


In addition to these requirements, a litigant must show a direct personal stake in the case. An adverse decision must be shown to have personally caused the litigant some injury. This shows that he or she has standing to bring the case.

All this may not yet be enough. For the Supreme Court is not generally obliged to hear an appeal, even if it meets all of the tests that would permit a review. The Judges' Bill of 1925 granted the Court discretion to choose among the cases it could legitimately take. The Court issues a writ of certiorari when it decides to hear an appeal, and denies the writ, usually without explanation, when it declines a case.

A refusal of certiorari doesn't always reflect satisfaction with the ruling of a lower court. A case with legal merit may be refused because members of the Court don't think, for one reason or another, that it presents the right opportunity to decide the issue. The facts of the case may be too confusing to serve as the basis of a clear decision. Justices may wish to see further exploration and development of the issue in other cases in lower courts before making a ruling. Sometimes a Justice who sympathizes with the claim will vote to refuse certiorari because of a fear that the case will lose, and so create an adverse precedent.