The “Tyranny of Values” as the “will to Power”: on the Genealogy and Effects of Value Discourse in Justice

Abstract

K. Schmitt’s essay “The Tyranny of Values” helps to clarify the genealogy and effects of the value turn in justice. The first part of the article explains the differences between the traditional judicial method, which operates with norms and the way judges deal with values. It is noted that judges’ methods of dealing with values are hermetic and irrational. The second part substantiates that the main object of Schmitt’s criticism was F. Nietzsche’s metaphysics of values in the analysis of which he follows M. Heidegger. Schmitt notes such a property of values as their subjective significance, as well as the interrelated punctuality and perspectivism of value thinking conditioning its aggressiveness. He omits the reference to the connection of value thinking with the Nietzschean concept of the will to power, but the assumption of such a connection is necessary to explain the aggressiveness of the logic of values. In the third part, several cases from case law of the European Court of Human Rights are presented. It is shown that the Court determines the value of an act of behavior not by correlating it with legally valid norms, but voluntarily. It is this mode of the judicial resolution of cases that Schmitt called the terror of the automatic realization of values unmediated by norms. In conclusion, it is noted that Schmitt’s essay points with varying degrees of clarity to the three implications of value discourse in justice, those of the methodological, political-institutional, and ethical.