THE HEALTH OF NATIONS Part 2 ppsx

the will to know and the will to power 29 ‘state of nature’ concept in social theory, pre-normative but haunting the making and breaking of all norms. It implies that conscious be- haviour is intrinsically repressive of something, that mental life is nec- essarily a struggle and it seems to define sanity (or what was once called ‘happiness’) as some sort of successful integration of the conscious and unconscious aspects of the mind, and that social life is, in some way, an unnatural suppression of our natural selves. 1.54 In short, the idea of an unconscious level within the human mind, which is surely confirmed by our own introspection and experi- ence, seems to imply that we have within us, as the ultimate source of our behaviour, a sort of hidden god or demon, wilful and inscrutable, acting as an ultimate explanation both of the need for social and moral order and of our relentless propensity to violate social and moral order. And, since the public mind of a society flows out from and back to the private minds of society-members, we may expect that human societies will reproduce on a large scale the structural characteristics and hence the pathological potentialities of the mind of the individual human being. 72 1.55 The Freudian scheme presents consciousness as dynamic, flow- ing from the past through the present to the future in a process of ceaseless self-re-creating. But it is the past which dominates the whole process, a past which is remembered or repressed or imagined. On this view, psychopathological conditions may arise from a relationship with the past which gives rise to existential problems in the present. A society has a specific relationship to its past. At any particular time, its own self-understanding, its own theory of itself, includes an idea of its own history, partly remembered, partly repressed, partly imag- ined. Very easily, a society’s self-idea can become distorted in a way which causes it to fail to adapt to the realities which transcend it, in- cluding its relationship with other societies and its relationship with the ideas and aspirations of its members (subordinate societies and reason as that we infer it from its effects –, but of which we know nothing.’ S. Freud, New Introductory Lectures on Psycho-Analysis (1932–3), in Standard Edition of the Complete Psychological Works of Sigmund Freud (tr. and ed. J. Strachey; London, Hogarth Press and Institute of Psycho-Analysis; 1964), xxii,p.70. 72 ‘Is it not, then, said I, impossible for us to avoid admitting this much, that the same forms and qualities are to be found in each one of us that are in the state? They could not get there from any other source.’ Plato, Republic, 435e, in The Collected Dialogues (fn. 52 above), p. 677. 30 society and law individual human beings). 73 And the eternal presence of a distorted past may lead, in societies as in individuals, to ‘repetition’ 74 – for ex- ample, re-enacting behaviour appropriate to imperial power, an ancien r´egime, an era of religious orthodoxy, or an era of unchallenged cultural superiority. 1.56 When social psychopathology takes the form of collective fantasy-thinking, repressing the unthinkable, believing the unbeliev- able, then social psychotherapy may be impossible if society succeeds in suppressing all alternative thinking. The discrepancy between the fantasy and the reality may be very great but the society will tend to in- terpret the discrepancy as a demonstration of the reality of the fantasy, as the paranoid mind finds endless confirmations of its special reality. Democracy and capitalism are remarkable examples of a reality whose axes are ‘liberty’ and ‘equality’ but whose lived experience is of intense social control and glaring inequality, so that another possible self-idea would be that they are systems designed to enable the few to dominate the many. Similarly, religious theories of individual salvation, expressed perhaps as a reward in an after-life, may generate, in practice, extreme systems of social control, physical and mental. 1.57 To tell a psychotic person that their fantasy of omnipotence is not a fantasy but is part of reality, and that they are right to believe that they are exempt from morality, legality and rationality, might be a reasonable course of action in a very short-term situation. To persist in such a course of action could only mean that you yourself had checked into the asylum. And yet that is what responsible people have told the masters of the societies called ‘states’. It is little wonder that the human world, in possession of such a reality, has been filled with the works of madness and evil which have characterised the history of so-called ‘in- ternational relations’ for the last seven centuries, including the madness 73 Mannheim discusses such distortions under the heading of ‘false consciousness’ through which a society’s particular ‘reality’, based on an ‘ideology’ inherited from the past, may not correspond with the new reality within which the society must exist. Ideology and Utopia (fn. 25 above), pp. 84ff. It is the overall contention of the present volume that this is exactly what has happened in the relationship between the theory and the reality of international society. 74 In accordance with Freud’s hypothesis that ‘all the organic instincts are conservative, are acquired historically and tend towards the restoration of an earlier state of things’. S. Freud, Beyond the Pleasure Principle (1920), in Standard Edition (fn. 71 above), xviii, pp. 37–8. the will to know and the will to power 31 and the evil of war and the madness and evil of socially organised human oppression and exploitation. 1.58 If a particular kind of society, say the ‘state’, is taught to see itself as being the ultimate source of morality, then it seems also to follow that that society as a whole is beyond moral judgement and, as a second corollary, that the inter se co-existence of such societies is beyond moral judgement. 75 If a society is taught to see itself as the ultimate source of law, then it seems to follow that society as a whole is beyond the rule of law, except to the extent that it consents, by agreement with other such societies, to submit itself to law-like constraints. 76 1.59 And, at last in the twentieth century of all centuries, the siren voice of professional philosophy whispers some interesting ideas into the ear of those who govern and those who are governed: (1) there is no rational ground for rationality; (2) the actual is necessarily rational; (3) the actual is always rationalisable; (4) truth emerges from actual practice; (5) truth proves itself in practice; (6) values are an epiphe- nomenal aspect of relations of power; (7) values are social conventions; (8) values are rhetorical conventions; (9) the mind is nothing more than a function of physiology and biology; (10) ends are justified means. 1.60 Morally sensitive human beings cannot find it in their hearts to judge, still less to condemn, those human beings who are afflicted with the terrible suffering of psychosis. Should we judge and condemn the sickness of whole societies, perhaps now even the impending sickness of the society of the whole human race? Should we, at least, judge and condemn those of us who fail to try to treat the sickness of human society, those of us who fail to try to make a better human reality? 75 ‘For the History of the World occupies a higher ground than that on which morality has properly its position; which is personal character – the conscience of individuals – their particular will and mode of action.’ G. W. F. Hegel, The Philosophy of History (fn. 3 above), pp. 66–7. 76 ‘International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to reg- ulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.’ France v .Turkey(The Lotus), Permanent Court of International Justice, series A, no. 10 (1927), pp. 18–32, at p. 18. The view that international law is simply an aspect of power relations is, ironically, known as ‘realism’. A locus classicus is H. J. Morgenthau, Politics among Nations: the Struggle for Power and Peace (New York, McGraw-Hill; 6th edn, 1985). 32 society and law Theory and Eutopia 1.61 In the light of all that has been said above, we can at least identify rather precisely the painful moral situation of anyone who does seek to make a better human reality. The essence of that situation is that the obvious means of making a better human reality are not available. (1) Religion, the sublime capacity of human self-transcendence, is not religion but religions. What seems like truth and moral certainty seen from within a given religion may seem like madness from outside that religion. For this reason, religions have proved to be a major part of the problem of humanity’s inhumanity. (2) Science and mathematics, which makes science possible, are the greatest achievements of the human mind. But they are a realm of means without ends. The purposes to which the ideas and the practices and the products of science may be put must be determined by other means, through the activity of other systems within the human mind. And the abuse of the fruits of science is another major part of the problem of humanity’s inhumanity. (3) Philosophy, the sublime potentiality of the human mind to im- prove its own functioning by means of its self-contemplating, has also proved capable of disabling that capacity and of assisting the mind in the exercise of its other power, the power to do great evil, and to convince itself that, in so doing, it is doing good. (4) The former intellectual class in society, of those who recognise a social and moral responsibility to use the power of the mind for the im- provement of human reality, has been marginalised and has marginalised itself, losing its self-confidence and even its self-consciousness in the face of the terrible events of the twentieth century and the rise of the overwhelming forces of mass-consciousness. (5) The universities, the realm devoted to the study of both ends and means, whose ideal function is to use the capacities of the human mind to their limits in human self-knowing and self-creating, and to convey that potentiality from generation to generation, have lost sight of that function, becoming either efficient servants of imperious socio- economic systems or else obsequious rationalisers of the social actual. (6) The common sense of the human species, the better voice of accu- mulated experience and self-evolutionary aspiration within each human mind, has been overwhelmed by another human voice, speaking through the will to know and the will to power 33 the mass consciousness of the public mind as it universalises humanity’s capacity for a form of thinking which is dehumanising, degrading and self-destructive. 1.62 And yet, how can any morally sensitive person, knowing what happened in the twentieth century and seeing the prospects of the twenty-first century, fail to recognise a heavy burden of moral respon- sibility to do whatever can be done to improve human reality? Must we deny our feelings of righteous anger at the social evil that plagues the human world, of pity for the immeasurable suffering caused by the acts and omissions of holders of public power, of invincible hope that a better human world is possible? 1.63 Thewilltoknowisawilltopower.Asweconceive what we perceive,sowespeak and so we become ( §§ 1.7ff. above). We think, there- fore we are. To utter a new kind of is-sentence is an act of power and, as an act of power, it necessarily engages our moral responsibility, our responsibility for the way in which we use our moral freedom, our re- sponsibility for the human world which we choose to make. We can, if we choose, undertake a new journey, the journey from Istopia to Eutopia, to a new human world filled with the idea of the ideal. 77 1.64 We have Immanuel Kant to help us, the master of all those who know, 78 the Virgil who may lead us out of a world without ends, out of a tragic phase in the long-running human comedy. Kant suggested that it is possible for the rationalising human mind to know the possibility of rational knowledge. 79 He suggested that, with our innate and inescapable knowledge of our own moral freedom, we can know that the duty which conditions our freedom is the duty to make our will into an agent of an hypothetical universal will. 80 And he suggested that, as organic systems, our life is the unfolding of purpose and, as thinking beings, it is open to us to determine our purposes in the light of values and ideals. 81 To recognise such ideas as a theory of theory within the making of human reality is to recognise a new potentiality and a new responsibility for human beings. 1.65 To reconceive human reality is to make a new human world and unmake an old human world. To affirm is to deny. To conceive of 77 On the Eutopian project, see further at §§ 5.63ff. 78 Dante said this of Aristotle: Divine Comedy – Inferno, canto iv, line 131. 79 Critique of Pure Reason (1781). 80 Critique of Practical Reason (1788). 81 Critique of Judgement (1790). 34 society and law theory as the capacity of the human mind to create and to re-create the human world is to deny the idea that theory is nothing more than an illusion generated by practice (the present chapter). To conceive of law as a complex form of rationality available to serve an unlimited variety of human ends is to deny the idea that law is merely an act of will of institutional power (chapter 2 below). To conceive of globalisation as the universalising of the potentiality of society-under-law is to deny the idea that international society is merely an aggregation of national societies (chapter 3). To conceive of society as the product of a process of human self-constituting-in-consciousness isto deny the idea that society is merely an institutional arrangement of social power (chapter 4). To conceive of a new human enlightenment is to deny that humanity is doomed merely to repeat its past (chapter 5). 1.66 To conceive of the European Union as a new kind of human society, intermediate between the state-societies and the society of all- humanity, is to deny the idea that the EU is doomed to be a tepid con- fusion of diplomacy and democracy (chapter 6). To conceive of the self-constituting of the EU as a dialectical struggle among different con- ceptions of society is to deny the idea that the EU is condemnedtobea super-state or to fail (chapter 7). To conceive of the EU as the product of a particular process of self-constituting within the historical experience of Europe is to deny the idea that the EU is merely an instrumentally determined institutional artefact (chapter 8). To conceive of the EU as a reconstituting of an accumulating European self-consciousness is to deny the idea that the EU is doomedtobemerelyasystemofEuropean government, an alien presence in the minds of the people of Europe (chapter 9). 1.67 To conceive of international law as the true law of a true inter- national society is to deny the ideas that international law is not law or is not the law of a society (chapter 10). To conceive of history as a possi- ble story of all human collective self-constituting is to deny the idea that there isnot, and cannot be,a history of international society (chapter 11). To conceive of the institutional arrangements of interstatal international society as possible institutions of an international society-under-law is to deny the idea that international government is merely the externalis- ing of national government (chapter 12). To conceive of the history of interstatal society as the history of the abuse of public power is to deny the will to know and the will to power 35 the idea that diplomacy is the natural default-system for organising a world of ‘states’ (chapter 13). To conceive of international society as the society of all human beings, and the society of all societies, is to deny the idea that the human world is a state of nature in which all human beings must continue to pay the terrible price of unsocialised power (chapter 14). 2 The phenomenon of law I. Making sense of the law. Lawyers and legal philosophy It is surprising that social philosophers and sociologists feelable to offer expla- nations of societywhich do notassign a central place tolaw. Itis surprising that legal philosophers and lawyerscan speak aboutlaw as if legalphenomena were self-contained and capableof being isolated from socialphenomena in general. Law seems to have a special status among social phenomena by reason of its forms, its rituals, its specialised language, its special rationality even, and its specific social effects. But, on the other hand, law is clearly embedded in the totality of the social process which is its cause,and on whichit has asubstantial determinative effect, not least in providing the continuing structure of society, its hardware programme. Legal philosophy is law’s own self-philosophising, another closed world, familiar to some lawyers, more or less unknown to general philosophers and social scientists. II. The emerging universal legal system. The law of all laws Law is a universal social phenomenon – or, rather, legal systems seem to be, and to have been, a characteristic feature of social organisation. The ancient debate about whether law is a single generic phenomenon with countless local specific forms has never been resolved. That debate is now being overtaken by new real-world developments. National legal systems are beginning to merge as a result of forces acting from two directions. On the one hand, there is a dramatic increase in interna- tional legislation and collective government, including socially sensitive law (international human rights law), socially transformatory law (international economic law and administration), and socially structural law (international public order law). 36 the phenomenon of law 37 On the other hand, the greatly increased volume of transnational trans- actions, especially economic transactions, means that national legal systems are operating more and more in relation to extra-national situations, and that the structures and substantive contents of national systems are tending to converge. III. Deliver us from social evil. International criminal law and moral order Our experience of extreme social evil is the most painful psychological bur- den that we have inherited from the twentieth century. Social evil arises as a totalised product of the functioning of social systems. The problem is that a social system is not a moral agent and, although particular in- dividuals who are principal actors in a social situation may seem to bear exceptional responsibility for social evil, it does not seem right to attribute that responsibility to them in isolation from the social situation. But human society, especially the international society of all-humanity, cannot begin to redeem itself unless it can find a way to reduce the incidence of social evil. There is a trend in international society which seeks to attribute to individ- uals, not merely moral responsibility, but someform of criminal responsibility, national or international, for extreme acts of social evil. The policies which justify the crudities of the criminal law in national societies – deterrence, retribution, rehabilitation – depend on ideas which are inseparably linked with the total value-system of a given society. International society is not ready for such a thing. Crude extrapolation to the global level of the criminalising of the anti- social conduct of individuals is a cynical distraction from the true problem, that is, the problem of the evil done by evil social systems. The solution to that problem lies beyond the proper limits of law and legal systems. I. Making sense of the law. Lawyers and legal philosophy Law’s reality 2.1 What is law? A mystery to many people who are not lawyers, the law is a puzzle to itself. The citizen is deemed by the law to know the law. 38 society and law Ignorantia juris haud excusat. 1 As a citizen, even the lawyer is deemed to know the law. As a lawyer, the lawyer knows that law is not a thing that can be known. All that the lawyer knows is forms of legal perception. To learn the law is not to learn law but to learn to be a lawyer. To be a lawyer is to live through a particular looking-glass, inside a law-world with its own law-mind and its own law-reality. 2.2 It is not easy to communicate any worthwhile concrete impres- sion of the elusive inner world of the law, which is the familiar everyday world of the lawyer. Consider the following five legal puzzles. 2.3 (1) Does section 1 of the (British) Criminal Attempts Act 1981 mean that you are guilty of an offence if you attempt to commit an offence which is impossible but which, at the time, you did not know to be impossible? In 1985 the House of Lords thought not. Professor Glanville Williams, of Cambridge University, disagreed strongly in an article in the Cambridge Law Journal. In 1986 the House of Lords changed its mind. 2.4 In the 1985 case the accused had bought a video recorder be- lieving it to have been stolen. In fact there was no evidence that it had been stolen. The House of Lords agreed with the magistrates, who had dismissed the case, that the mistaken belief of the accused could not turn her behaviour into the offence of dishonestly attempting to handle stolen goods. In 1986 the House of Lords upheld the conviction of a man for dealing with and harbouring a controlled drug. The man had believed that the substance in the suitcase which had been delivered to him was illegally imported heroin or cannabis. In fact the substance was snuff or some similar harmless vegetable matter. On this occasion it was evidently the accused’s own admission of his own mistaken belief that caused him to be convicted of a criminal offence. 2.5 (2) Do you commit the offence of conspiracy under the (British) Criminal Law Act 1977 if you take part in arranging the escape of some- one from prison with the intention to deceive your co-conspirators and to leave the country before the escape is effected, taking the money you have been paid in advance? 2.6 The statutory definition of conspiracy requires that the agree- ment among the conspirators must necessarily involve the commission of an offence ‘if the agreement is carried out in accordance with their 1 ‘Ignorance of the law is no excuse.’ [...]... aspects of being human We do good and we do evil because that is our nature 2. 62 The intellectual response to the problem of evil was taken further by the idealist-empiricist Kant and by the philosopher-biologist Freud For the one, the solution to the problem is to be found in the transcending of the autonomous self by the idea of the universal self For the other, the solution lies in the capacity of the. .. on the one hand, that the existing field of legal forces provides the possibilities of law It means, on the other hand, that, in perceiving the law, the lawyer modifies the future possibilities of law From the existing possibilities of law the lawyer determines the future possibilities of law The categories in which the lawyer knows the law-world are the forms of his perception of it and those forms of. .. eyes open Such was Spinoza’s way of denying what he believed to be a false idea of moral freedom, and his way of affirming the phenomenon of law 63 another idea of freedom, namely, the overcoming, through the power of the mind, of the decrees of the body Since mind and body are, for Spinoza, merely two ways of conceiving of humanity’s participation in the natural order of the universe, acting immorally... which extends across the whole of the law and, beyond that, to the whole structure of causation which determines the successive conjunctures of the particular 44 society and law field of forces which is the law The lawyer is the privileged observer within the field of legal forces It is the interaction of his perception with those forces which constitutes the reality of the law It is not the lawyer’s perception... multi-dimensional network of the law grows organically and exponentially in internal and self-organising complexity 2. 20 The ‘real’ reality behind the perceived reality of the law-world is thus, like one view of the reality of the physical world, a hypothetical reality which can never be known otherwise than as hypothetical The trouble is that the elusive hypothetical reality of the law produces dramatic... forces and the disposition of those forces are at the decision of Her Majesty’s Ministers for the time being It is not within the competence of a court of law to try the issue of whether it would be better for the country that the armament or those dispositions should be different In other words, the courts, rather than the government, should determine the legal question of what is prejudicial to the interests... of what Immanuel Kant had called the ‘purposeful purposelessness’ of organic systems 2. 17 Such immediate impressions would be correct impressions of the inner world of the law To the lawyer law is a series of possible representations of something in the past and a series of representations of possibilities in the future The superficial appearance of the law-world is, like the superficial appearance of. .. lives The redeeming of evil becomes an aspect of the functioning of social systems But, if society is to be the judge of evil, who is to be the judge of society? In the light of our experience of the long and tempestuous twentieth century, it is this question which has become the crux of a new form of the problem of evil 2. 65 We do evil socially We judge evil socially But what, in Spinoza’s terms, is the. .. rules of law have causes in society which cause the field of legal forces to take on transient states of actuality in the minds of lawyers, then those transient states perceived by lawyers act, in their turn, as very efficient causes in the world beyond the law, transforming the very non-hypothetical lives of very real citizens The door of the prison-cell is bolted The fine and the damages are paid The. .. the minds of lawyers The citizen is deemed to know the law He is not expected to know the mind of the lawyer And yet his life may be transformed by the mind of the lawyer To use Jeremy Bentham’s image, men are killed by judges for not having guessed the judges’ dreams 2. 22 Not all lawyers are aware of the strangeness of their enterprise Most lawyers feel no need to make any further sense of it But . self-consciousness in the face of the terrible events of the twentieth century and the rise of the overwhelming forces of mass-consciousness. (5) The universities, the realm devoted to the study of both ends and. causes in the world beyond the law, transforming the very non-hypothetical lives of very real citizens. The door of the prison-cell is bolted. The fine and the damages are paid. The keys of the house. merely the externalis- ing of national government (chapter 12) . To conceive of the history of interstatal society as the history of the abuse of public power is to deny the will to know and the