Introduction

Values have become increasingly important in constitutional discourse, especially after the horrors of the Holocaust and the Second World War. German constitutional law is exemplary in this regard, as here, soon after the enactment of the Basic Law, the latter came to be understood as establishing a value-based order, with human dignity as the foundational value. A similar approach has been adopted in many other jurisdictions, as well as in the emerging international legal order (Davis et al. 2015; Garlacki 2009–2010; De Wet 2006). In other words, despite numerous variations, values such as human dignity, freedom, democracy, and the rule of law, are viewed today as foundational to many national, transnational, and international constitutions and conventions, and play a key role in their interpretation. In the case of nation-state constitutions, these values moreover often play a role in the development of the legal system as a whole.Footnote 1 This relatively new central role of values has not been met with universal acclaim, as it raises questions about the subjectivity of judges in the interpretation and application of such values, as well as in dealing with potentially conflicting values, thereby raising the spectre of legal uncertainty (Jacobsohn 2012). As we will see below, Carl Schmitt was one of the first constitutional theorists to raise this critique, and he did so in a very powerful way, though undoubtedly for ideological reasons.

Value thinking is of course not a feature only within constitutional discourse, and it does not find its origin in the twentieth Century. Some view it as a characteristic of the modern age and as such, find the reasons for its development in the distinguishing features of modernity.Footnote 2 Friedrich Nietzsche, writing in the late nineteenth Century, appears to have had a key role in the development of value thinking, although he was very critical of the values of his time. He regarded these as weak values, hostile to life, characterised by the herd instinct, and called for their revaluation (Umwertung). For Nietzsche, these values pointed towards nihilism, that is, the loss of the ideal world. For Martin Heidegger, writing shortly before, and during the Second World War, Nietzsche’s reflections on values must be understood within the broader history of Western metaphysics beginning with Plato’s writings in the fourth Century BC. Nietzsche would be the last in this line of metaphysical thinkers, capturing the essence of the modern age through his thinking on values. Nietzsche manages to overturn metaphysics, but not to overcome it. Jacques Derrida in turn points out that Heidegger at the time sought to rescue Nietzsche from a Nazi appropriation and from an interpretation that made of him a mere poet philosopher. Heidegger’s strategy is therefore understandable, yet today we should reflect again on whether Nietzsche cannot instead be read as having found a way in which metaphysics can be overcome. This is not, as Heidegger has it, through a reflection on the meaning and truth of Being itself, but through Nietzsche’s reflections on life itself, which precedes Being.

We of course have an interest in this broader philosophical debate between Heidegger and Derrida on Nietzsche’s legacy, yet our main interest lies in the future of values within constitutional discourse. In the German constitutional law context, the move towards a value-based jurisprudence after the Second World War was likewise resisted from certain quarters (Stremler 2017, p. 510). As noted, Carl Schmitt in particular was very critical of this move, arguing that talk of values hides the war that is actually going on in the background. Schmitt was very aware of the broader philosophical debate about values, and cites with approval a long passage from Heidegger’s 1943 seminar ‘The Word of Nietzsche: God is Dead’ to explain the origin of value thinking (Schmitt 2018, p. 29). In this essay, we will start with a close reading of the Heidegger seminar, as well as sections of Heidegger’s four-volume text on Nietzsche (1936–1940).This analysis is essential to help us understand the origin, logic, structure, and operation of values. It will further assist us in understanding Derrida’s reading in Life Death and elsewhere of the Nietzsche/Heidegger intersection, as well as the reading of Schmitt undertaken here. After the discussion of Heidegger, we will thus, as indicated, move to Derrida, inter alia his Life Death seminars, examining his readings of both Nietzsche and Heidegger, and also reflecting on what happens to values in Derrida’s thinking in general. These texts, as noted, set the scene for the next section, that is, an unorthodox reading of Schmitt’s The Tyranny of Values, which could help us to move beyond constitutional values, as well as beyond metaphysics.

Heidegger Reading Nietzsche

Heidegger’s ‘The Word of Nietzsche: “God is Dead”’ dates from 1943 and is based on his more extensive Nietzsche Lectures from 1936 to 1940. As he does in the lectures, Heidegger (1977, pp. 53–112) presents Nietzsche here as the philosopher who, in his overturning of metaphysics, has reached the highest and final stage of metaphysics, but has not been able to overcome it. We are here specifically interested in what Heidegger says about Nietzsche’s thinking in respect of values, but also in how this connects to the will to power, the eternal recurrence of the same, nihilism, life, and Being. This is because, as noted, an understanding of these notions will assist us in comprehending the logic, structure, and operation of values that come to the fore in Derrida’s and Schmitt’s analyses. In what follows, these notions will each be explored briefly, as well as their inter-relation.

Heidegger (1977, p. 57) points out that Nietzsche’s thought operates under the heading of nihilism, which characterises his own century, as well as preceding centuries. Nihilism finds expression in the phrase ‘God is dead’. ‘God’ here is a reference to the Christian God, but also more generally to the supra-sensory, ideal, or meta-physical world that has since Plato characterised and dominated Western thinking. This ideal world has been regarded as more real than the sensory or physical world, which is a world of mere appearance (p. 61). The ideal world furthermore stands beyond earthly life and determines such life from above (p. 64). Thus, by announcing that ‘God is dead’, Nietzsche is arguing that the ideal world has lost its strength, that it has come to an end, which leaves the human being without anything to cling to, without orientation. Human beings are thus faced by the nothing, that is, by meaninglessness or by nihilism, which Heidegger (pp. 61–62) refers to with reference to Nietzsche, as ‘the most uncanny of all guests [der unheimlichste aller Gäste]’. Nihilism is not however to be understood as a phenomenon only of the nineteenth century or of modernity. It is what characterises the world-historical movement of Western thinking as a whole. When the belief in God dwindles, and its place is taken (in modernity) by the authority of conscience, reason, historical progress, the happiness of the greatest number, culture, or civilization, nothing of significance really changes, as the fundamental structure of metaphysics remains in place (p. 64). Earthly, sensory life remains under the control of supra-sensory goalsetting. Nihilism and the structure of metaphysics, understood here not as a particular discipline of philosophy, but the fundamental structure of that which exists (or that which is in being) as a whole, are therefore inextricable (p. 65).

Our main interest here however lies in values, and particularly in the relation between nihilism and values. A brief overview of The Will to Power in this regard would point out that Nietzsche here rejects the dominant values of the time as stemming from the Christian tradition. These values, according to him, stem from society, the masses. They are, as we saw earlier, weak values, hostile to life, mediocre and exhausted, characterised by a degenerate, decaying herd instinct. These values include pity, moderation, philanthropy, altruism, love of peace, tolerance, objectivity, freedom, equal rights, truth, and even justice (Nietzsche 1968, frr. 60, 62, 79, 86). The reign of these values and ideals ultimately leads to nihilism.Footnote 3 Heidegger delves deeper and brings Nietzsche’s discussion of values closer to the understanding of nihilism as set out above. He quotes in this regard The Will to Power:

What does nihilism mean? That the highest values (Obersten Werte) devaluate themselves. The aim (das Ziel) is lacking; “why?” finds no answer. (Nietzsche 1968, fr. 2)

Nietzsche understands values in a broad, yet fundamental sense.Footnote 4 Heidegger (1977, p. 66) points out that talking about and thinking in terms of values became prevalent in the nineteenth Century and was popularised by Nietzsche. This leads to value philosophy and the development of systems of value as well as the classification of values. Even God is now referred to as a value, as well as all those ideals, goals, and grounds that support and determine everything that exists (alles Seiende), specifically human life. Heidegger (pp. 70, 71) refers in this regard to Nietzsche’s thinking as a metaphysics of value. Being, that is, the being-ness of beings, that which determines their existence and essence, has in other words become a value, but a value that is without value.

When it has been recognised that Being has become a value, what should be done? Nietzsche sees two possibilities here, which he refers to as incomplete and complete nihilism. The first possibility would be to seek to fill the empty space left by the realm of the supra-sensory through new ideals such as world happiness or socialism. For Nietzsche (1968, fr. 28), this would however make the problem simply more acute and would amount to incomplete nihilism. Heidegger’s explication of Nietzsche’s alternative option, read closely, anticipates the analyses of Derrida and Schmitt below. Completed or classical nihilism, he notes, must eliminate (beseitigen) the place of values (Wertstelle) itself, the supra-sensory as a realm, and accordingly set values differently and revaluate or trans-valuate them (die Werte anders setzen und umwerten) (1977, p. 70). The whole way of valuing has to change (Das Umwerten wird zur Umkehrung der Art und Weise des Wertens). A new principle (eines neuen Prinzips) for such valuing is in other words required. The positing of values therefore requires another realm (eines anderen Bereiches), beyond the lifeless world of the supra-sensory. Nihilism, understood as a revaluation of values, Heidegger (p. 70) says, ‘seeks out what is most alive [das Lebendigste]’. This brings us to the important question of ‘life’.

Heidegger on the face of it seeks to link and limit Nietzsche’s understanding of life to metaphysics. He wants to show, as we have seen, that Nietzsche remains caught within metaphysics and does not succeed in overcoming it despite what Nietzsche says in this regard. In doing so, Heidegger posits a close relationship between life and values, as well as the will to power in Nietzsche’s thinking. In further analysing the concept of value, Heidegger points out that value is essentially a point of view, a seeing and representing in respect of the preservation and enhancement of life. The positing of value thus inevitably involves a reckoning, a counting (1977, pp. 71–72). Within the history of metaphysics, this marks a movement from eidos to perceptio. Whereas previously the ideal realm ruled over the sensory, this structure is now overturned. Life, for Nietzsche, is likewise determined by preserving and enhancing, by becoming, by the will to power (pp. 73–74). Life in its essence is thus value positing, and the latter finds expression in all spheres of life. This happens by way of the will to power: ‘The will to power is the ground of the necessity of value-positing and of the origin of the possibility of value judgment’ (p. 74). The revaluation of values must therefore take place by virtue of the principle of the will to power (p. 75).

The will to power here is more than a simple striving for power, and it does not proceed from a lack towards something to be possessed. In Thus Spoke Zarathustra, in the section on self-overcoming, Nietzsche (2003, p. 137) for example says the following about the will to power: ‘Where I found a living creature, there I found will to power; and even in the will of the servant I found the will to be master.’ The will to power, Heidegger (1977, p. 77) concludes from this passage, is the will to be the master (Wollen ist Herr-sein-wollen).Footnote 5 The will at stake here moreover does not involve a desiring or a striving, but a commanding (Befehlen).Footnote 6 This is not a mere ordering about of others, but a question of self-conquest (Selbstüberwindung), of gathering oneself together (Sichzusammennehmen) for the task, of obeying oneself. The will wills itself and exceeds itself. Nietzsche (1968, fr. 675) notes in this regard that willing means willing to be stronger, willing to grow. For Heidegger (1977, p. 78), this entails that power must constantly increase, otherwise it will go into decline. Mere preservation thus means decline; enhancement is required (p. 80). Heidegger describes the essence of power/force strikingly as follows:

Overpowering oneself (Übermächtigung ihrer selbst) belongs to the essence of power (Macht). This belongs to and originates from power itself, insofar as it is a command and as a command empowers itself to overpower the respective level of power…. Power … not only empowers itself to overpower the respective level of power simply to reach the next level, but solely to take control of itself in the unconditionality of its essence (in der Unbedingtheit ihres Wesens). (p. 78)

Will to power as enhancing and strengthening power refers at the same time to the means of doing so, and as noted, this happens through values. Heidegger (p. 80) refers in this regard to Nietzsche when the latter says that ‘[i]n all willing there is valuing (In allem Willen ist Schätzen)’. The will to power values insofar as it sets the conditions for preservation and enhancement. Living, will to power, and valuing are thus inextricably linked together (p. 81).

Heidegger also links Nietzsche’s eternal recurrence with the will to power. The discussion in this regard in ‘The Word of Nietzsche’ is brief, and we will have to expand it somewhat with reference to the Nietzsche lectures. The will, as we saw, seeks to overpower (Übermächtigung) itself. This entails an overreaching (Überreichen) of the will, which then returns to itself as the same (p. 81). Heidegger (1991 I, p. 4) understands the will to power as the essentia of beings for Nietzsche, that is, the essential structure of beings as a whole, or as an answer to the question ‘What is Being?’. The eternal recurrence, on the other hand, refers to the existentia of beings, the modality of existence of beings as a whole, their ‘how’ (Heidegger 1991, vol I, p. 19; vol II, p. 13; 1977, pp. 81–82). If one asks, ‘What returns?’, the answer thus is: the will to power. Although the will to power comes to Nietzsche at a later stage of his thinking, Heidegger insists that they involve a single thought, that they say the same thing.Footnote 7

In the remainder of ‘The Word of Nietzsche’, Heidegger seeks further confirmation of Nietzsche’s place within metaphysics by, inter alia, pointing to the relation between the positing of values and the search for certainty and permanent constancy within metaphysics since its inception. In Nietzsche, this finds expression by way of the link between the will to power and subjectivity, which finds certainty by turning the whole world into an object, by turning nature into an object of technology, as constant reserve (Heidegger 1977, p. 100). The role of values in this respect is to ascribe worth to things that are in being (p. 102). Value setting is in other words closely tied to calculation. In Heidegger’s reading, justice is understood in a similar (metaphysical) manner by Nietzsche by linking it to security, as the truth of what is in being, that is, what subjects represent to themselves (pp. 89–90). In this way, Being becomes a value (p. 102). To be is to have a value. Being itself therefore is deprived of the dignity of its essence, and withdraws (p. 103). Heidegger (p. 108) even describes value thinking as ‘radical killing’ (das radikale Töten), because of what happens to Being in the process of becoming a value. Although Being has been forgotten since the beginning of Western metaphysics, in becoming a value, it is done away with completely. Glossing ‘The Word of Nietzsche’ for a moment, in view of what Derrida (1978, pp. 141–143) has argued elsewhere, Heidegger appears to suggest here that the forgetting, withdrawal, dissolution, and meaninglessness of Being is inherent to its structure from the start, and therein opens the way for a different understanding of the relationship between the will to power and the eternal recurrence. This structure of Being may further explain, as a kind of pre-origin, and thus as condition of possibility, the dual structure of the will to power described above, that is—as not only securing the constancy and stability of itself as a value, but also its going beyond itself (Heidegger 1991, vol. I, pp. 60–61; vol. III, pp. 84–85). For the sake of brevity, we will halt here our reading of ‘The Word of Nietzsche’, although Heidegger’s analysis in the remainder of this essay of the relation in Nietzsche’s thinking between the values of truth and art, as well as Nietzsche’s definition of justice, and the link of especially art and justice with life, must at least be gestured towards. Together with the rest of Heidegger’s analysis in this essay, it lays the table for a re-conception of justice and of other ‘values’ that precedes and exceeds the will to power.

Derrida Reading Heidegger/Nietzsche

As noted earlier, Derrida does not, as Heidegger does, read Nietzsche’s thought as forming a unity, a singular thought. Rather, for Derrida, Nietzsche’s texts are heterogeneous, with tensions and contradictions. The same could be said of Heidegger’s texts and of other philosophers within the history of metaphysics (Derrida 2002, pp. 216–17). Nietzsche can in other words be read as having been in search of that which precedes metaphysics, and thus as looking for a way of thinking beyond Being (Derrida 1976, p. 143). This thought would, as noted earlier, entail a different kind of forgetting of Being that necessarily belongs to the structure of Being (Derrida 1982, p. 136; 1978, p. 143). Nietzsche nonetheless retains the language of metaphysics, whilst at the same time exceeding it (Derrida 1982, p. 179). Nietzsche’s focus on life and its relation to Being as well as to death is important in this regard. We saw earlier that Heidegger equates ‘life’ in Nietzsche’s thinking with beings as a whole, thereby situating Nietzsche within metaphysics. In Derrida’s reading, Nietzsche’s texts instead indicate that beings, beingness, and Being are effects of ‘life’ (Derrida 1987, p. 246; 2020, pp. 213–214). For Nietzsche (1974, sec. 109), life furthermore does not stand in opposition to death, but is instead a special and very rare type of being dead. Nietzsche (2004, p. 8) in this regard, for example, describes himself in Ecce Homo as both alive (like his mother) and dead (like his father). A certain self-destructive drive furthermore looms large in Nietzsche’s texts as a kind of pre-origin:

Physiologists should think again before positing the ‘instinct of preservation’ as the cardinal drive in an organic creature. A living thing wants above all to discharge its force: ‘preservation’ is only a consequence of this. [Die Physiologen sollten sich besinnen, den „Erhaltungstrieb“ als einen kardinalen Trieb eines organischen Wesens anzusetzen. Vor allem will etwas Lebendiges seine Kraft auslassen: die „Erhaltung“ ist nur eine der Konsequenzen davon]. (Nietzsche 1989, p. 21)Footnote 8

Nietzsche (1968, frr. 259, 372, 481, 697, 966) also recognises the complexity of these drives, e.g. with reference to their contradictory and excessive nature, the discontent that characterises them, as well as their desire to rule over others. If the discharge of force, which Nietzsche speaks of in the quotation above, is understood as a death drive, and it is linked to the eternal recurrence, as Derrida suggests, the relation posited by Heidegger between the will to power and the eternal recurrence would have to be rethought. The eternal recurrence would then involve the return of this self-destructive drive, with the will to power only a secondary effect thereof. The will to power cannot then provide a ground for the revaluation of values, as Heidegger has it, as it is itself without ground. Nietzsche’s notion of the will to power must thus be understood as necessarily differential, that is, ‘forever divided, folded and manifolded’ (Derrida 1978, p. 133). The will to power can be said to find itself within a field of force where ‘[f]orce itself is never present; it is only a play of differences and quantities’ (Derrida 1982, p. 17).

We already saw earlier how Heidegger, in reading Nietzsche, shows the close connection between and co-dependence of life and values. However, Heidegger’s understanding of ‘life’ in Nietzsche is at times too simplistic (Derrida 2002, p. 221). Nietzsche is particularly interested in how the ‘weak’ values managed to gain the upper hand:

Problem: how did the exhausted come to make the laws about values? Put differently: How did those come to power who are the last?—How did the instinct of the human animal come to stand on its head? (1968, fr. 54)

Here the drives, the differences between (life) forces, the relation between life and death, as well as the relation between the will to power and the eternal recurrence are all at stake. It is not simply, as one would expect after Darwin, a question of the survival of the strongest or the fittest. A strange inversion takes place here, making it possible for the weak to overpower the strong (Derrida 2020, p. 62; 2002, p. 226).Footnote 9 According to Nietzsche, as Derrida (2002, p. 226) points out, this happens in the cases of Platonism, Judaism, as well as Christianity. ‘[S]omewhere in life itself’, Derrida notes in analysing Nietzsche, ‘as life itself, a force of death’ appears to be at work (2020, p. 62). A strange logic is in other words at stake here where the will to power ‘selects to the advantage of the weakest, this transgression of the law by law itself’ (Derrida 2020, p. 62).Footnote 10 Elsewhere Derrida (2014, p. 142) refers to this law with reference to the Genealogy of Morals as producing a hostility to life or a principle of death, which is immanent to life itself. Life is in other words hostile to itself; it bears within itself a suicidal cruelty towards itself (Derrida 2014, p. 142). Those who do not see this inverse transgression are blind; they are blinded by the law of eternal recurrence, and want to be so blinded (Derrida 2020, pp. 62–63).

In Derrida’s reading, there is an arche-ethics at stake in Nietzsche’s analysis of morality and of values, that is, of a law preceding the ethical, the political, and the legal that explains it (Derrida 2002, p. 223). Nietzsche’s analysis of life and of values takes place in the name of this law or arche-ethics, which he seeks to affirm (Derrida 2002, pp. 223–224). Derrida (p. 225) points here also to Nietzsche’s discrediting of metaphysical opposition and his call for a logic of the ‘dangerous perhaps’, which creates chance and an opening towards the future.Footnote 11 Without this risk, without this ‘exposure to death in the interest of life’, there is only death, which is what Nietzsche seeks to warn against (Derrida 2002, p. 248).Footnote 12 Nietzsche’s demolition and reversal of values, Derrida further notes, ‘are always made in the name of a future that is promised’ (p. 225). The law of inversion referred to above, however makes the promise both strong and weak at the same time, ‘very strong in its weakness’ (p. 226). As soon as this inversion takes place, nothing can prevent the weak from becoming strong. When Nietzsche thus chooses the side of the strong who are weaker than the weak, he is coming to the aid of an essential weakness, which is also the location of the law or the arche-ethics mentioned above. Nietzsche’s seeming anti-Platonism, anti-Judaism, and anti-Christianity is thus at the same time a hyper-Platonism, hyper-Judaism, and hyper-Christianity (p. 226). It is about finding the law that explains their origin and operation.Footnote 13

How should the revaluation of values that Nietzsche calls for now take place? We saw earlier that in Heidegger’s reading of Nietzsche, the place of values, that is the supra-sensory as a realm, needs to be eliminated, that another realm is required, and that the whole way of valuing has to change. This has to take place according to a ‘new principle’, or as Derrida refers to it, a ‘law’, and Schmitt, as we will see, as a ‘logic’. Should one take account of this ‘law’ or ‘logic’, values are then no longer values strictly speaking. Taking heed of what Nietzsche/Heidegger says, we can provisionally refer to them as quasi-values, located in a quasi-transcendental realm (Derrida 1995, pp. 127, 152). We get a glimpse of their structure in Derrida’s analysis in various texts of, inter alia, justice, equality, freedom, the gift, forgiveness, democracy, responsibility, friendship, the political, peace, and hospitality. This analysis happens in conversation with, inter alia, Nietzsche, Heidegger, and Schmitt. In respect of justice, and in view of Nietzsche’s call for a new justice (Nietzsche 1974),Footnote 14 Derrida (2002, p. 254) clearly distinguishes it from law, with which it stands in a relationship of both differential force and deferral, that is, of différance. Justice is not to be understood with reference to the will to power, as Heidegger (1991, vol. III, p. 245) claims, but as the impossible, that is, the demanding of a gift without exchange, without economic circularity, without calculation and without rules, as well as heterogeneous to knowledge. It thus requires a certain madness in decision-making, that is, the offering of absolute hospitality by the (collective) self. Although justice in this unconditional sense forms part of the structure of every interpretive decision in law, it (justice) remains deferred. This is because the decision taken will always in the end involve calculation, economic circularity, rules, and knowledge. No good conscience would therefore ever be justified (Derrida 2002, p. 232). Nietzsche’s call for the revaluation of values can, in other words, be understood as an appeal to invent quasi-values that are affirmative of life, of its enhancement, and not mere preservation, of (an opening towards) the future, to the event. We find such quasi-values, as noted, in Derrida’s conception of justice beyond law, but also in incalculable equality, freedom as an exposure beyond mastery, incalculable dignity, the perfect gift, absolute hospitality, unconditional forgiveness, and the democracy to come.Footnote 15 These quasi-values recognise the structure and operation of life, and are at the same time open to the future and to the risk of the dangerous perhaps. They take a (non-)step beyond metaphysics.Footnote 16

Schmitt’s The Tyranny of Values

In the analysis that follows, the English translation of Zeitlin will not be followed in all respects.

To establish the implications of the above analysis for constitutional values, we now proceed with an analysis of Schmitt’s The Tyranny of Values.Footnote 18 It has been contended that this text should be understood specifically within the context of the Lüth judgment, where the notion of an objective order of values was laid down by the German Constitutional Court (BVerfGE 7, 198–230), even though Schmitt does not make explicit reference to the judgment in the essay (Zeitlin 2021, pp. 435–437; Schönberger 2011, pp. 62–64). The invocation of this order of values in Lüth, meant that fundamental rights would have an effect not only in public law, but also in private law, albeit in an indirect way. The whole legal system, as we saw earlier, effectively had to be aligned with the values of the Constitution. Schmitt appears not to favour this approach and Schönberger (2011, p. 57) reads Schmitt as saying that values cannot provide the required fixed foundation for the community or its law. Instead of creating common ground, values have a destructive effect. Value thinking can even be said to be to blame for the Nazi atrocities, Schmitt seems to suggest (Schönberger 2011, pp. 70–71). Schmitt (2018, p. 40) further states that it is the task of the legislature to mediate values by enacting calculable and enforceable rules, a statement which has been read as prescribing to legal formalism, thereby seemingly reversing the position he had defended in earlier years (Mehring 2014, p. 485; Smith 2021). In what follows, we will explore whether, in view of the analysis above of Nietzsche, Heidegger, and Derrida, a different reading of Schmitt’s The Tyranny of Values is possible.

Schmitt (2018, p. 4) starts the ‘Introduction’ by pointing out that values have come to replace virtue, a process that had started already before the First World War. Value-thinking gained entry in constitutional discourse during the Weimar period, although it was not yet recognised at the time in court judgments. After the Second World War, in Germany, there was a need to overcome legal positivism and mere legality, and value philosophy seemed to provide the answer. The invocation of values in the legal context, Schmitt (p. 15) contends, effectively amounts to a revival of natural law, but in a more scientific and modern way. Following Nietzsche and Heidegger, Schmitt (p. 28) argues that the origin of value thinking has to be sought in the nineteenth century crisis of nihilism. Schmitt (p. 29) notes in this respect that the causality thinking of natural science posed a threat to human freedom and to religious-ethical-legal responsibility. The philosophy of value was an attempt at meeting this challenge by positing a realm of ideal validity and thereby claiming the human being as free and responsible.

Schmitt (pp. 29–31, 35) further follows Weber in emphasising the subjective freedom involved in the positing of values, even when they are claimed as being objective. This is because values, according to Schmitt (p. 27), do not have existence, only validity. Values consequently have an urge for or drive towards actualisation (Drang zur Verwirkichung). They always require enforcement through the one who claims their validity. There is in other words always a person behind them, who posits such values (p. 31). In positing something as a value, something else is furthermore always devalued (p. 35). The positing of values is thus not a friendly, tolerant affair, but aggressive and happens through negation. It effectively amounts to a war, a war of all against all (pp. 29–30). It is even worse than Hobbes’s state of nature, because the war today is one of destruction and eradication that is fought with modern value-free technology (pp. 30, 35). Values stoke this war and stir enmity. Schmitt (p. 30) refers to this war as spectral (gespenstisch) in view of the fact that the old gods have now become mere values. In order to escape the nihilistic value-free nature of science, Schmitt says with a tint of irony, human beings throw themselves into the freedom of purely subjective values and therewith take upon themselves an unchained war of all against all. To protect certain values, its defenders are even willing and able to utilise atomic weapons (pp. 29–30).

Value thinking cannot logically prevent the value-free nature of science, which as we saw, value thinking seeks to overcome, from itself being posited and enforced as a ‘value’ or even as the highest value (pp. 35–36). Those who do this, that is, posit value-free science as value, also cannot logically be prevented from condemning value philosophy as unscientific, anti-progressive, and nihilistic. The attempt to overcome nihilism through the positing of values thus comes to ruin. It moreover results in the destruction of the world (ein grauenhaftes Pereat Mundus) (p. 36). This flows from the logic of values, which entails that no price is too high to ensure the enforcement of the highest value. No limitations (Hemmungen) are applicable here (p. 38). The positing of the highest value necessarily means the subjection of lower values and the destruction of non-values. The end justifies the means. It is thus justified to turn the earth into a hell in order to realise the paradise of values (p. 38). This battle between values is, as should already be clear, not restricted to the nation state. For Schmitt it finds its culmination in the notion of the ‘just war’. With this notion, the categories of the jus publicum Europaeum, that is, those of the just enemy, a just cause of war, and proportionality of means and course of action, are abandoned (p. 39). For Schmitt (p. 39) the urge (Drang) to posit values, now becomes an obligation/force (Zwang) of the direct enforcement of values (Wertvollzug). He refers here to the Nazi extermination as an example of such direct enforcement of values, as well as the seemingly less dangerous tendency at the time to ban books that portray opinions that are said to hold no value or are written by ‘unvalued’ authors (pp. 39–40).

In comparing the Platonic Ideas with the validity of values, Schmitt (p. 40) invokes a saying of Goethe about the Ideas, thereby echoing Nietzsche/Heidegger in speaking of nihilism: they always come into appearance as strange guest (als fremder Gast in die Erscheinung). For Schmitt, this also applies to values, which require mediation, far more so than the ideas. If they appear in naked directness (nackter Unmittelbarkeit) or in automatic self-execution, terror and disaster would be inevitable. As noted earlier, Schmitt (p. 40) contends that under a constitution that envisages a legislature and legislation, it is the legislature’s function to mediate values through calculable and enforceable rules, in order to avoid the terror of the direct and automatic execution of values. In the ‘Introduction’, Schmitt (p. 7) notes in this regard that the statutes of the legislature should draw calculable limits in respect of the play-space of a free value logic (Spielraum einer freien Wertlogik). Schmitt (p. 40) further points out that this is a difficult task, and refers here to the great legislatures of world history such as Lycurgus, Solon, and Napoleon who have become mythical figures. In the modern welfare state, such mediation is likewise a challenge. If the legislature fails in this task, there is no replacement for it, but merely temporary substitutes that will quickly become the victim of their thankless role (pp. 40–41). Schmitt seems to be alluding here to the courts and their role within the separation of powers. He points out that jurists who take on the role of direct executor of values should know what they are doing. They should namely reflect on the origin and structure of values and should not take lightly the problem of the tyranny of values and of the direct execution of values. They should come to terms with modern value philosophy before they make up their minds to become valuer, re-valuer, de-valuer, or un-valuer (Werter, Unwerter, Aufwerter oder Abwerter) (p. 41). The same applies when, as value-carrying and value-feeling subjects, they announce the positing of subjective or objective value-orders in the form of judicial verdicts with legal force.

At first sight, it appears as though Schmitt simply repeats Heidegger’s reading of Nietzsche in the context of constitutional values, and consequently rejects reliance on such values by the courts as simply expressions of the will to power. The Tyranny of Values should not however be read in isolation from Schmitt’s texts on the political, where he defines the latter with reference to the distinction between friend and enemy, with war as the most extreme consequence of this distinction (Schmitt 2007, pp. 28, 33). These texts of Schmitt, on values and on the political, critically discuss certain historical phenomena, yet at the same time seek to understand their ‘logic’ or structure. Of interest to us in this regard is Schmitt’s invocation of Forsthoff’s comment that values have their own logic (Der Wert hat seine eigene Logik) and his own reference to a free value logic (freien Wert-logic) (2018, pp. 5, 7). Schmitt (pp. 8, 9) further comments that values are most at home within the sphere of the economic. Yet, at the same time, he says that it would be unjust to reduce value to an economic concept and to dismiss therewith the whole of value philosophy. He rather wants to enquire into value philosophy as a phenomenon in the history of philosophy, to pose questions regarding its origin and place, and attempt to explain its incontestable success (p. 28). Something of the logic of values also appears from Schmitt’s reference to Max Scheler in respect of the enforcement of values in the legal context. Of interest here, is Scheler’s attempt to describe the independence and autonomy of values with reference to analogy. Scheler finds an analogy in colour that becomes independent from the painter, that is, of unleashed colours, colours running amok on the canvas in certain modern paintings. Applied to law, Schmitt (pp. 20–21) says, this would entail a clash between unleashed (entfesselte) values such as the rule of law and the social state. Some of Schmitt’s other terminology in speaking of the logic of values is also of interest to note, such as his reference to the potential or immanent aggressivity (immanente Agressivität) involved in the positing of values, including war (Kampf), enmity (Feindschaft), and battle (Streit) (pp. 33, 35–36).

A focus on the ‘logic’ or structure that Schmitt analyses, read with our analysis above of Derrida reading Heidegger/Nietzsche, opens the way to a different reading of Schmitt’s The Tyranny of Values as well as to a different approach to values. We saw in the above analysis that Schmitt speaks, inter alia, of the ‘spectral’ nature of the unchained war stoked by values, of values appearing as a ‘strange guest’, as well as to the destruction and self-destruction at play in the positing and enforcement of values. Schmitt describes the concept of the political in similar terms, noting, for example, the paradoxical intensification of hostility that takes place in the age of neutralisation and de-politicisation. In an age in which the enemy disappears, and is instead criminalised, the spectre of the total self-destruction of humanity thus looms (Schmitt 2007, pp. 54, 79). In Theory of the Partisan, Schmitt (2007a) seeks to draw a distinction between the original, telluric partisan and its degeneration into the world-revolutionary partisan, the latter who is associated with absolute hostility, which entails abandoning any limitations on warfare. In ‘Wisdom of the Prison Cell’, Schmitt (2017, p. 71) concludes that the enemy is the one ‘who can call me into question’, and the only one who can really do so is ‘I myself. Or my brother’. In his analysis of these texts, Derrida (1997, pp. 83–170) concludes that the destruction and self-destruction at stake in the concept of the political are symptoms of a play of forces in the unconscious. The ‘origin’ of the friend-enemy distinction of the political is consequently to be found in a force of self-destruction that Derrida (1997, p. 10) in ‘ethico-political’ terms refers to as ‘lovence’ (aimance), that is, an arch-originary friendship that involves no calculation, moderation, or measurement. Something similar can be said about value thinking as Schmitt analyses it in The Tyranny of Values.

Reading these texts together, constitutional values can, like the political, be said to have no essence. They have a ‘free logic’ or are ‘unleashed’, as Schmitt (2018, pp. 36, 37) puts it, which requires the drawing of calculable limits. As we saw, the origin and sense (Herkunft und Sinn) of value thinking inevitably collapses and the realisation of values threatens the destruction of the world. Schmitt’s terminology in this regard is again striking, speaking of ‘a value-destroying realisation of value’ (wertzerstörende Wertverwirklichung) (p. 37). Schmitt describes this phenomenon of auto-destruction or self-implosion in a way that makes it clear that the latter does not happen because of some external factor or event, some accident to, or perversion of, values. It instead forms part of the structure of value thinking. The logic of values as outlined by Schmitt thus suggests that an originary self-enmity functions as its condition of possibility. This self-enmity in other words precedes and makes possible the violent economic circularity characterising such values.

In view of this ‘logic’ of values, what is their future in constitutional theory? Schmitt, as we saw, says that ‘[a] jurist, who allows himself to become the immediate realizer of value, ought to know what he is doing’ (p. 41). He does not say here that this is a role that courts cannot or should not play at all, only that they should be very aware of what they are doing when they do play that role. This stands in contrast with the unthinking manner (ohne groβe Bedenken) in which the German courts had allegedly engaged with the logic of values (p. 6). In contemplating the role of the courts, it is important to look again at Schmitt’s insistence on the need for mediation (Vermittlung) in respect of values:

The idea requires mediation, and if it appears in naked immediacy or in automatic self-execution, terror is there and the disaster is terrible [wenn sie in nackter Unmittelbarkeit oder in automatischem Selbst-Vollzug in die Erscheinung tritt dann ist der Schrecken da und dus Unglück fürchtbar]. For that which one today calls value, the corresponding truth must be self-evident. This is perhaps to be taken into consideration if one wants to hold on to the category of ‘value’. The idea requires mediation, but value requires this a lot more (p. 40).

When read in view of the above analysis, this passage, and the notion of mediation, takes on a peculiar meaning. At stake in value mediation is clearly something terrible, abyssal, more so than in the case of the idea. It would entail a negotiation between the incalculable and the calculable. The incalculable here refers to the self-destruction inherent to the logic of values, their meaninglessness. This logic calls for the invention of figures of unconditionality, which do not simply repeat the values passed on through the tradition (Derrida 2005, pp. 48–49). An example of such a figure of unconditionality would be absolute hospitality, which has the same structure as justice, friendship, and the other figures of unconditionality mentioned above. Absolute hospitality would demand an unconditional welcome by the state in relation to, for example, political and economic refugees, without the imposition of any limitations.Footnote 19 This would of course entail the renunciation of state sovereignty and exposure to self-destruction. In order to remain a ‘host’, negotiation or mediation is at the same time required, which would necessarily limit such hospitality, whilst seeking to remain as hospitable as possible.Footnote 20 The judiciary indeed does not appear to be well suited for this mediating role as it inevitably means facing the abyss. The other branches of state are however not necessarily in a better position to engage in such a revaluation of values.

The Future of Constitutional Values

We saw in the above analysis how values have become central to constitutional discourse today, at the national level as well as the transnational and international levels. New values are furthermore being sought to face the challenges of the twenty-first Century.Footnote 21 This positing and re-positing of values can, following Schmitt, be said to partake in a ‘world war’ between conflicting values. This war plays itself out inside, as well as across, various jurisdictions in relation to, inter alia, the rights of the LGBTQIA+ community, gender equality, immigration, and the treatment of animals. In considering the future of values, we looked at the legacy of Nietzsche, as interpreted by Heidegger, Derrida, and Schmitt. We saw in reading Schmitt that he describes this war as spectral in nature and as without limitation, as destructive and self-destructive. The self-enactment of values would involve terror and disaster, and values, even more so than ideas, therefore require mediation.Footnote 22 We further saw that Heidegger recognises the close relation in Nietzsche’s thinking between life and values. Values are posited, not only to maintain life, but also to enhance life. The latter aspect has been neglected in value positing during the age of nihilism, but can now happen due to Nietzsche’s discovery of the will to power, which eternally recurs. According to Heidegger, Nietzsche reaches the highest point of metaphysics, but does not manage to overcome it. Derrida’s reading of Nietzsche takes account of the heterogeneity of Nietzsche’s texts and does not read them as a unity, as Heidegger does. Derrida sees a disjunction between the will to power and the eternal recurrence, the latter pointing to a step beyond metaphysics. Tying in with Schmitt’s analysis, the eternal recurrence entails an abyssal, self-destructive drive, which is inscribed in life from the start. Life tends to hide this truth from itself, to dissimulate this truth, and subsequently to draw a distinction between true and false values. An inversion furthermore takes place here, where the weaker values triumph over the stronger, a result of this self-destructive drive, and life’s tendency to deny it.

Despite their different contexts and arguments, one finds in the texts of Nietzsche, Heidegger, Derrida, and Schmitt the outlines of a certain law or logic of values that invokes their ‘origin’ and an attempt to explain their operation and structure. This ‘origin’ of values is located in a field of force, and compels us to move beyond Being and the ontological difference. At stake here is the relation between life and death, which precedes Being. This is not a relation of opposition, but of differentiation. Life, it appears, is death deferred. Death is located within life, not only as its end, but as there from the start, inscribed within life. Life as preservation in other words amounts to the postponement of death. If it however preserves itself too much, the result will be death, and the same will happen if it opens itself completely, as it is likewise programmed to do (Vitale 2018, p. 183). It is the relation between these forces that as a rule results in the positing of weak values to preserve the self, the nation, or the species. The enhancement and affirmation of life that Nietzsche, Heidegger, and Derrida speak of can take place only if life opens itself to its other, to death, to meaninglessness, in a moment of mad hospitality. The eternal recurrence brings about this disruption of the will to power, of metaphysics.

In view of the analysis above, there is a clear need to rethink or revaluate constitutional values. This requires taking into account the law and the logic of values, their origin in the abyss. A move is thus required beyond constitutional values that are hostile to life, decadent and weak, towards what can be referred to as quasi-values, or, following Schmitt, as ‘un-values’, or per Nietzsche as ‘trans-values’. In Derrida’s thinking, as we saw, these find expression in figures of the unconditional such as absolute hospitality, justice, and friendship. These un-values entail a certain measureless measure, a disjointedness, even a tyranny, a calculation with the incalculable. These are ‘strange’ or ‘uncanny’ guests that provide no ontological foundation for a decision and the responsibility attached to it (Derrida 1999, pp. 20–21). Their invocation in constitutional discourse could nevertheless play an important role, inter alia, in providing better protection to non-human animals, to the earth, as well as to address the various inequalities experienced by the marginalised, beyond the explicit wording and values of the modern constitution.