Unjustified Absence: Disobedience Facing Nazism

“The guiding principle of the a priori is the a posteriori”: according to Franz Neumann, this Hegelian formula perfectly synthesizes the impossibility to preventively “justify” disobedience within the political categories of sovereignty. As the fathers of modern rationalism already knew, under the state, disobedience can be legitimate only when successful. The only instance in society that could preventively judge its legitimacy is the sovereign, the very target of that disobedience. For the same reason, in the perspective of the modern state, it is impossible to claim a “right” to disobedience: if by “right” we mean “the power to act conceded by a positive law,” the right to disobedience can only be exercised collectively, by the people. In this way, however, the legitimacy of disobedience would have a de facto extrajuridical nature because it would take place in an exceptional situation of a mass uprising. Even supposing the existence of a positive law that recognizes the possibility of a single individual to legally resist the state's violation of the inalienable rights of life and liberty, such a norm would acquire real meaning only in the presence of a superior independent organ, a constitutional court, for example, responsible for deciding if the state has actually unjustly violated the rights of that individual.

According to Neumann, the modern individual raised under the shadow of the state finds himself or herself alone: lacking a “universally valid statement telling us when man's conscience may legitimately absolve him from obedience to the laws of the state,” the modern individual faces this problem in loneliness. In the state, in other terms, disobedience inevitably becomes conscientious objection, the manifestation of a moral question, the ethical duty to resist the government's control when our own consciousness forces us to do so, and an existential experience, the conflict between the “inner voice” and the precepts of positive law. In both cases, the individual (even when acting collectively) is exposed to the tragic risk of the choice and cannot invoke any “right”: “the strong state will be very lenient and tolerant toward those whose conscience makes it impossible to accept the state's orders. If it should not, the resister will, if his conscience urges him, resist and risk rather than obey and be safe.”