The constricted universalism of the nation-state

8 The constricted universalism of the nation-state A constitutional legacy of the Protestant reformers was the increasingly abso- lutist, territorial state, aided by the innovative legislative mentality. The univer- salist legal pluralism of Christendom fractured into states and territories claiming legal monopolies. Generally these monopolies were grounded in the natural rights of people living together in a territorial compact to protect themselves from both within and without. As late as the eighteenth century in France, the divine right of kings to govern still served this function. Out of that repression burst the French Revolution and codified rights universal in aim but national in applica- tion. Conventional legal and political theory locates the sovereign authority of the state in the social thought of the English and French Revolutions. International law at those times was universal to the extent that it tended to reflect a system of norms of the lowest common denominator in a schoolyard of states administered by bullies. Theorists continued to explore universal international and territorial authority, constricted by the relativism inherent in competing nation-states determined, like their constituents, to pursue their own economic and political aspirations. Thus the inquisitive child of our Introduction 1 can be told by the adult today that law is obeyed because it comes from the state and it is justified because it brings order to the pursuit of economic needs. In this chapter, we shall see how the aspirations of the nation-state ascended as a strategy for central authority, and how the ‘codification mentality’ assisted that purpose. Despite formidable codifiers preceding him – for example, God (via Moses) and Emperor Justinian – Napoleon was to find his people no more adept at accepting his law without expansion, reform, clarification and debate. 8.1 Universalism in a different guise In the dusk of the Holy Roman Empire and the Christian commonwealth (respublica Christiana) purportedly reflected in it, as early as 1598 the duc de Sully had planned a universalistic European League of Princes to override the ideological pretensions of the Holy Roman Empire, and to divide Europe along territorial lines into fifteen equal states with attributes of modern sovereignty. 111 See ch. 1, pp. 1–2 above. This prototypical League of Nations or European Union, meeting once a year in alternative cities from a list of fifteen, was to be united against ‘the Turk, laying down international law, settling disputes, preserving the peace, and pun- ishing transgressors’. 2 In its second edition, over one hundred years after the author’s death, it was republished for maximum European effect. It was predi- cated on establishing an equilibrium of strength and an acknowledgement that ‘peace is a function of power’, with free trade, pooled sovereignty and joint enforcement being contemplated. 3 The imagined imperial function of a European union can foggily be discerned: common security and conceptions of transgression; and a common ideological or spiritual enemy, then the Ottoman Turk (perhaps parallel to the illiberal nation-state of our times). The universalist order envisaged in such projects was slow in the coming. It would face increasing gravity from the nation-state and difficulty projecting itself beyond the totalising self-conception of nation-state sovereignty. The international order was to become more orientated to the self-direction of par- ticular states’ sovereign wishes before more universalist aims could be pursued in earnest. The system of particular nation-states was projected as a new uni- versalism. The previous Western universalism of our rhetorical holy Roman empire had obtained allegiance through common, moral, religious bonds and faith and the common Latin language, within the universalist political author- ity of Two Swords legal pluralism. That was the Christian commonwealth. What was, however, emerging was something different – the European public law system (ius publicum Europaeum). European public law conceived authority more juridically and politically in equally sovereign European states. Rather than the just cause (iusta causa) to unite the Christian empire against the infidel prince or empire, under the emerging European public law a state could be a legitimate enemy (iustus hostis) of another state in what might be thought of as a situation of European civil war. 4 Obviously in the days of medieval Christendom, princes fought one another; and the Catholic church would often side with one prince against another. The conception in the seventeenth century was different. Just wars were being justified according to the particular, self- determining will of the emerging nation-state. In the emerging era of the nation-state under European public law, the sov- ereign nation-state was its own justification unto itself. As will be seen in coming pages, the underlying authority was to evolve through a complicated, secularising, territorially bound process. Morality was consciously removed from the market in pursuit of free trade, and profound human rights were the- oretically developed for economically productive people within the territory. 174 A Wholly Mammon Empire? 112 Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University Press, 1999), p. 84. 113 Norman Davies, Europe: A History (London: Pimlico, 1997), pp. 662–3. 114 See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001), pp. 413–37, summarising Carl Schmitt’s conceptualisation. 8.2 The secularisation of international law: European public law In the de-universalising process of the emerging sovereign nation-state, Baron Christian von Wolff (1679–1754) contributed to the humanisation of the natur- alistic, idealistic rationalisations of international law, with his concept of ‘vol- untary law’. He envisaged a supreme world-state, sovereign over individual nations. This he considered a natural order. Such a natural order could be enforced as a matter of Realpolitik by the majority of the civilised (Western) nations, which was deemed to reflect the natural law, in a conservative justifi- cation of the status quo: ‘[t]hus, under the disguise of natural law, positive law triumphs over it’. Law – that is, positive law – was dependent upon states or nations for its moving force. Authority was moving from naturalistic reason to a more earthly, pragmatic positivism: Wolff’s work ‘can be considered as the first private codification of positive international law, which had the effect of spread- ing its acceptance and consolidating its rules’. 5 Although representing a shift away from the Christian metaphysical rationality of the natural law tradition, an earthly type of scientific rationality underpinned the ensuing Enlightenment transformation. The latter was a rationality which esteemed the normative power of the individual and the state to govern themselves through a socially contracted will. The universalism of the aspirations of the Enlightenment lay in the very relativism sought to be encouraged. Recognising the political import- ance of religion in an essentially Christian intellectual and social world, religion was relevant only as a matter of national policy. 6 As Christianity became the province of particular nations, the universalist legal appeal of Christianity had to fail, as the Christian commonwealth ceded to the model of European public law. Emerich de Vattel (1714–76) recognised the emerging particularity and rela- tivity of claims to legality made by different nations. He acknowledged the posi- tivism, divorced from a universalist rationality or natural law, which could seek to justify international norms. That is, states could assert their wills independ- ently of a higher, unifying universal wisdom or social logic. It was this particu- lar and relative authority of the individual state, supreme though within its own territory, which was ideally to be supervised by an international law which recognised and attempted to reproduce state legal norms at an international level. This represented something of an apology for the status quo. Vattel wrote that ‘A dwarf is as much a man as a giant is; a small Republic is no less a sover- eign State than the most powerful Kingdom.’ 7 Indeed, Article 2 paragraph 1 of 175 The constricted universalism of the nation-state 115 See Alfred Verdross and Heribert Franz Koeck, ‘Natural Law: The Tradition of Universal Reason and Authority’ in R. St J. Macdonald and Douglas M. Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (The Hague: Martinus Nijhoff Publishers, 1983), pp. 36–7. 116 See Wilhelm G. Grewe, The Epochs of International Law, trans. Michael Byers (Berlin: Walter de Gruyter, 2000), p. 288. 117 E. de Vattel, The Law of Nations (Philadelphia: T. & J. W. Johnson & Co., 1849), §18, p. 7. the United Nations Charter (‘The Organization is based on the principle of the sovereign equality of all its Members’) recognises Vattel’s doctrinal influence. 8 Vattel’s ideas reflected a Hobbesian idea of nature: rather than nature being idealised, nature was the actual state ‘of men in their presocial isolation, each self-dependent for survival and as yet uninhibited by the bonds of sociality’. Independent states were to obey the laws of nature which were akin to the natural laws of the Hobbesian presocial man in the war of all against all. 9 This idea of nature was heavily imbued with the philosophy of positivism: nature is what exists, as a matter of practice or fact. Vattel developed the view of diplo- macy and war as the total social process in international society. State govern- ments represented their own abstract entities in international law and not the individual humans who made up the society, leading to the ‘enforced alienation’ of the people from international law. 10 Wholesale international legal positivism was ushered in by Johann Jacob Moser (1701–85), who somewhat immodestly claimed to advance the only real- istic approach, recognising only ‘treaties and custom as sources of international law’. 11 In his view there was no longer a strong need to ground authority in reason, metaphysics and morality: politics and the cold, hard facts arising from international relations were the alleged source of international law. Yet there had still to be some ideological framework, which no human social system can deny of itself. That framework was fraught with the Enlightenment paradox of universal truth through individual perceptions of it within a territorially defined, economically productive, polity. Perceptions of ultimate reality and meaning were changing, amidst this emergence in the European public law period of what today is known as ‘international law’. Indeed, the term ‘public international law’ was invented shortly after this time by Jeremy Bentham, whom we shall encounter later in this chapter. 8.3 The secularisation of the economy The gospel opposition between God and Mammon assists the understanding, in stark symbolic terms, of the transformation in legal authority which took place in much of Western Europe around the time of the French Revolution and amongst Enlightenment philosophers. Initially I chose the word ‘Mammon’ in the phrase ‘Wholly Mammon Empire’ as a matter of poetic licence when seeking to compare the modern age with the Christendom of the loosely designated Holy Roman Empire. ‘Mammon’, being the ‘devil of covetousness’ or ‘wealth as an idol’ 12 is nonetheless an appropriate term to represent the theoretical 176 A Wholly Mammon Empire? 118 Verdross and Koeck, ‘Natural Law’, p. 38. 119 See Julius Stone, Visions of World Order: Between State Power and Human Justice (Baltimore: The Johns Hopkins University Press, 1984), p. 81. 110 Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990), [13.105]. 11 Verdross and Koeck, ‘Natural Law’, p. 39. 112 Shorter Oxford English Dictionary (Oxford: Oxford University Press, 5th edn 2002). opposite of the authority of Christendom. Christ taught that Mammon was opposed to God. 13 Adopting the insight of Karl Barth, 14 Mammon in the the- oretical extreme, or the liberal ideology of freedom of markets, may well be a belief in one type of God or theology as opposed to another type. All belief, for Barth, acknowledges some theology featuring its own god or gods as the object of highest desire and trust. Liberalism is a belief-system – something of a reli- gion. It emerged from Christianity. 15 Karl Polanyi has famously referred to the ‘Great Transformation’ of the eight- eenth century, concentrating upon England and France. 16 In the outgoing eco- nomic system of mercantilism, land had not been a commodity. Rather, it had been part of social organisation, namely a basis for representation and partici- pation in public life, in politics, law and the military. Similarly, labour was part of the general organisation of society, deeply imbued with custom and regulated by guilds. The state intervened to a great extent in the economies of these soci- eties. To ‘deregulate’ both labour and land would have been to subordinate society itself to the laws of the market. Unthinkable as it was prior to this time, it was to happen. Land and labour were fictitiously ascribed significance as com- modities – as being subject to unencumbered purchase and sale. Social historians have termed this eighteenth-century phenomenon a move- ment from a moral economy to political economy. In the moral economy, for example, customary noblesse oblige had dictated that grain markets were to be regulated so that peasants had access before the larger buyers purchased the grain to resell at a profit. 17 This was a welfare principle preventing, for example, a bulk purchaser from buying more cheaply than a small purchaser, it being against religion and humanity to allow such a thing. 18 Reading his reli- gion and humanity differently, parliamentarian Edmund Burke, despite being famously conservative, sermonised the case of the free market which would triumph. The moment that government appears at market, all the principles of market will be subverted . . . We, the people, ought to be made sensible, that it is not in break- ing the laws of commerce, which are the laws of nature, and consequently the laws of God, that we are to place our hope of softening the Divine displeasure to remove any calamity under which we suffer . 19 [italics added] 177 The constricted universalism of the nation-state 113 Matthew 6: 24; Luke 16: 13. 14 See ch. 3, section 3.1, p. 54 above. 115 It has been argued that liberalism lacks positive ideals (instead, its ideals are expressed in negative terms such as ‘freedom from . . .’) because it has been severed from Christianity: see Edward Skidelsky, ‘A Liberal Tragedy’, Prospect (January 2002), 14–15. 116 See Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1944). 117 See E. P. Thompson, Customs in Common: Studies in Popular Culture (New York: The New Press, 1993), chs. 4–5. 118 See C. J. Kenyon in R v Rusby, Peake Add. Cas. 189; (1800) 170 ER 241 at [192], also wishing that Adam Smith had been present to consider the evidence, at [193]. 119 Edmund Burke, cited in Douglas Hay, ‘Moral Economy, Political Economy and Law’ in Adrian Randall and Andrew Charlesworth (eds.), Moral Economy and Popular Unrest: Crowds, Conflict and Authority (Hampshire: Macmillan Press Ltd, 2000), p. 103. God was not now in the nobility which oversaw welfare initiatives; God had become manifest in Adam Smith’s ‘invisible hand’ which solved the economic problem by matching supply with demand in the liberalising market. The laws of commerce were the laws of nature which were the laws of God. The consequent de-moralisation of the economy represented the institutional separation of pol- itics from the economy, and the objectification of the market. A telling case of this new paradigm in England was Steel v Houghton. 20 The majority opinion held that no person had a right at common law to glean or take scraps from the master’s field. Although precedent and learned writing (including from William Blackstone) suggested that the poor did have a right to glean under the Jewish law of Leviticus 23: 22, those references were found unconvincing given that such a custom ‘would be injurious to the poor themselves’ 21 by the new logic. The liberal economic transformation was a movement from interior to pur- portedly more objective exterior references on the Space Axis of the Space–Time Matrix. Under the mercantilist and medieval precedents, government had acted in markets for moral (and not so moral) purposes in the economy. Under laissez- faire liberalism, the economy was left, where possible, to its own devices. In this Western European transformation led by England, the growth of credit and speculation required a transformed view of the future, on the Time Axis. People had to feel comfortable about their collective capacity to pay and perform their obligations in the future. The new ‘image of a secular and historical future’ appeared, according to which future generations too would be willing to repay debts including the collective ‘National Debt’. 22 This ideology was universalist and imperial – ‘the agent of a new world order, a new empire, which would be based not upon power and plunder, but upon reciprocity’. 23 An evaluation of the underlying transformation in authority can be conducted by reference to the French Declaration of the Rights of Man and Citizen and then the Civil Code. The French juristic vision facilitates an appreciation of the revolutionary legal dimen- sions of liberalism (not so obviously expressed in the earlier liberalised England). 8.4 The French juristic vision The French Revolution gave the Western world a profound set of norms. 24 A sophisticated concept of rights inspired a codification movement and juristic 178 A Wholly Mammon Empire? 120 1 H.B.L. 51; (1788) 126 ER 32. 21 Per Lord Loughborough at [53]. 122 J. G. A. Pocock, Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (Cambridge: Cambridge University Press, 1985), pp. 98–9. 123 Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France c.1500–c.1800 (New Haven: Yale University Press, 1995), p. 180. 124 The reasons for choosing the French over the American experience are fourfold: geographical location; the French Declaration was the product of an indigenous political history as opposed to a colonial reaction; France had the paradigmatic codification experience; and space constraints. This risks unfairness given the Anglo-American influences on the French: see Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History (London: Penguin, 2003), p. 585, referring to Jellinek’s research. discourse, linking law to a modified ultimate reality and meaning of life, popu- larly perceived. The ensuing Declaration of the Rights of Man and Citizen (the ‘French Declaration’) relegated God to the position of deistic creator who had set in train the physical laws of nature but who had withdrawn to leave humans in this world with their own lan and Citizen (the ‘French Declaration’) relegated God to the position of deistic creator who had set in train the physical laws of nature but who had withdrawn to leave humans in this world with their own laws. 25 Authority was even more demystified and secularised. The significance of the French Declaration is still being felt in the constitutional principles of the twentieth-century universal declarations, as will be seen in chapter 10. 8.4.1 Declaration of the Rights of Man and Citizen The Enlightenment aim of ‘liberté, egalité et fraternité’ was the motto of the revo- lutionaries in a time of crippling royal taxes, political oppression, and corpor- atism (privileges were based upon status, not contract). On 26 August 1789, the Declaration of the Rights of Man and Citizen, with its remarkable although not strictly legal authority, was accepted by the representatives of the French people, constituted as a National Assembly. The secular equivalent of All Souls’ Day 26 had arrived in France. All were equal in the eyes of God and now the market. Notably, the feminine was not embraced by the text, 27 although there was a drafting ambi- guity, for example, in separate articles referring to ‘man’, ‘person’, ‘citizens’ and ‘society’. The outmoded privileges of the ancien régime, together with the divine right of the monarch, were decapitated, in principle, at the execution of King Louis XVI in 1793. At his trial, the leading political actors had been called upon to justify their stances as a matter of political philosophy, in a forum akin to a modern Western constitutional convention, albeit one with deadly intellect. The revolutionaries were beneficiaries of the legislative mentality – ‘the exaltation of positive law and the weakening of all moral restraints on legislative authority’. 28 Humans took responsibility for the text of the Declaration, which set out the rights of man and citizen in France. It was created ‘under the auspices of the Supreme Being’, not God by the old name. Individualism was paramount – the fortune of a nation, no less, depended upon its recognition of the ‘natural, inalienable and sacred rights of man’, according to the Preamble. Although aspiring to universality, these were not the principles of a universe of meaning with an interconnected, preordained plan for everything in it. Rather, they were principles which universalised the ‘disconnectedness’ of humans from society and nature. 29 The main principles to emerge from the Declaration, which laid 179 The constricted universalism of the nation-state 125 See John Toland, ‘Christianity Not Mysterious’, in Peter Gay (ed.), Deism: An Anthology (Princeton: D. van Nostrand Company, Inc., 1968) and that anthology generally. 126 See ch. 5, section 5.2.2, p. 101 above. 127 See generally Sara E. Melzer and Leslie W. Rabine (eds.), Rebel Daughters: Women and the French Revolution (New York: Oxford University Press, 1992). 128 See Michael Walzer, Regicide and Revolution: Speeches at the Trial of Louis XVI (New York: Columbia University Press, 1992), p. 42. 129 See generally Thomas D. Barton, ‘Troublesome Connections: The Law and Post- Enlightenment Culture’ (1998) 47 Emory Law Journal 163–236. the foundation for the twentieth century emergence of human rights, may be summarised. 30 Equality ‘Men are born and remain free and equal in rights. Social distinc- tions may only be founded on public utility’ (article I). Along this line, public taxation ‘should be apportioned equally among all citizens accord- ing to their capacity to pay’ (article XIII). Equality is therefore linked with utility. Utilitarianism as a philosophy is oriented towards exploiting means to obtain ends. A chief measure of utility is in terms of economic productivity. Property ‘The aim of all political association is to preserve the natural and imprescriptible rights of man’, being ‘liberty, property, and security and resistance to oppression’ (article II). ‘All citizens . . . have the right’ to approve the purposes, levels and extent of taxation’ (article XIV). ‘Property being an inviolable and sacred right, no one may be deprived of it except for an obvious requirement of public necessity, certified by law, and then on condition of a just compensation in advance’ (article XVII). The goal of politics is directed firmly to earthly purposes of individuals, and not salvation. Property no longer represents a qualification for polit- ical representation. Sovereignty ‘The principle of all sovereignty rests essentially in the nation’ and ‘no body and no individual may exercise authority which does not emanate from the nation expressly’ (article III). ‘Law is the expression of the general will . . . the same for all, whether it protects or penalizes’ (article VI). Whatever universalist, non-territorial constitutional princi- ples may have existed under the church–state combination, those princi- ples were now to be politically limited to the nation as the natural social unit. Liberal Freedom ‘Liberty consists in the ability to do whatever does not harm another’ (article IV). ‘Law may rightfully prohibit only those actions which are injurious to society’ (article V). ‘No one may be disturbed for his opinions, even in religion, provided that manifestation does not trouble public order’ (article X). ‘Free communication of thought and opinion is one of the most precious rights of man’ allowing ‘[e]very citizen’ to ‘speak, write, and print freely, on his own responsibility for abuse of this liberty in cases determined by law’ (article XI). Law serves no articulated purpose other than to prevent injury, rather than to guide to virtue or salvation. Rule of Law ‘Every man [is] presumed innocent until judged guilty’ (article IX). ‘No man may be indicted, arrested or detained except in cases deter- mined by law and according to the forms which it has prescribed’ (article VII). ‘Only strictly necessary punishments may be established by law . . .’ 180 A Wholly Mammon Empire? 130 See The Declaration of the Rights of Man and Citizen, reprinted in Georges Lefebvre, The Coming of the French Revolution (Princeton: Princeton University Press, 1967), p. 221. and then not by retrospective legislation (article VIII). ‘Society has the right to hold accountable every public agent of administration’ (article XV). These rule of law notions have a lineage traceable to the English experience of Magna Carta in the thirteenth century and the 1689 Bill of Rights, although in the French Declaration they are clearly articulated in a modern, populist document. As with a good deal of law, there is hypocrisy and idealism when the reality of the social order is compared with the aspirations of a legal text such as the Declaration of the Rights of Man and Citizen. Advance had nonetheless been made by codifying the chief political ideals of the Enlightenment philosophers. Seeds of logic were scattered across transnational social soils – rocky, weedy and fertile – which could take hold and germinate, in time, as norms which were to prove authoritative in theory, even if often not in practice. Increasing conver- gence between these basic human rights ideals and social practice was to follow in the succeeding centuries in the West, reflected in both the statutes and case law reasoning which followed in the essentially constitutional areas of property law, freedom of speech and association, sovereignty and rule of law. What was the nature of this new constitutional authority? 8.4.2 The rational, contracting, productive individual The French Declaration was born into a time which was, in a new way, future orientated on the Time Axis of the Space–Time Matrix. In implementing their new humanist vision, the French ‘philosophes’ofthe Enlightenment displayed an obvious learning in the classics, although hostile to most of the achievements of Christian philosophers and theologians. The Jacobins urgently sought to achieve the French future even if by resort to terror in the last decade of eighteenth-century France. The future was to represent a complete break from the past. Time was being abstracted from custom into rationalised, intellectu- ally conceived impositions, reflected in the new calendar, which was deci- malised into weeks of ten days. 31 Similarly, the view of spatial relationships was radical: old local differences and customs would be obliterated by new jurisdic- tions for ‘the uniformly correct application of law throughout the nation, sub- ordinating local prejudice, hierarchy and oppression to nationally guaranteed ideals’, detracting from the sacredness and personality of everyday society. 32 This universality was, though, qualified. The ambition of this projection of uni- versality was limited to the territorial boundaries of the French nation. This was later unleashed further afield by Napoleon, at the same time as he militarily 181 The constricted universalism of the nation-state 131 See Eugen Rosenstock-Huessy, Out of Revolution: Autobiography of Western Man [1938] (Providence and Oxford: Berg, 1993), p. 213; Alfred Cobban, A History of Modern France, 3vols. (Harmondsworth: Penguin, 1963), vol. I, p. 225. 132 Richard T. Ford, ‘Law’s Territory (A History of Jurisdiction)’ (1999) 97 Michigan Law Review 843–930, 876–7. defeated the Holy Roman Empire in 1806 and thereby terminated its Christian universalism. Yet despite containing a universalist moral vision, the French Declaration was more concerned with state and citizen relations. 33 In this way, the French nation-state projected what might be termed a ‘con- stricted universalism’. Esteem of the nation and the state was the hallmark of the Declaration’s authority, legitimating the general will as opposed to the diverse associations of moral and cultural allegiance which had comprised society. Herein a tension is exposed: the tendency towards conflicting associ- ations of tight interior allegiance embodied in the pre-revolutionary estate system of clergy, nobility and the mainly bourgeois Third Estate remainder; versus the tendency towards a political super-association, created afresh with fewer lived references to the past and without strong moral and cultural bonds forged through time, upon which to build a new vision for the future. The polit- ical and economic starvation which had historically been suffered by the Third Estate could not be endured by the masses, inspiring a later tendency of root- less futurism. The ideal of this undifferentiated super-collective of function- alised economic beings was ‘the complete nation’ for the purpose of authority, in the words of the contemporary pamphleteer Abbé Sièyes. 34 Abolishing privilege and increasing political participation must be a good thing. An associated loss of identity and meaning should also be balanced, though, with such a change to the structure of the normative universe. Te chnological progress, in the form of the increased division of labour (alien- ating skill and pride through the repetition of meaningless but consuming tasks) and increased trade, undermined custom and social rank, creating an undifferentiated state. 35 Human associations lose meaning in the face of the increased functionalisation of social life, as humans expose only particular interests to the particular interest groups which comprise their social lives. 36 Economic specialisation also has a counterpart social specialisation. The modern Western human wears many different hats – work, home, hobby, family, church and more – in different, particular, uncommitted social worlds which crash and collide in cosmological confusion in a universe without per- ceived meaning. This is the antithesis of the universe of meaning in which existed the medieval society following the Papal Revolution. 37 The ‘General Will’ as the source of the sovereignty of the nation was, above all, presented as natural, 38 as was the individual’s right to pursue self-interest. The 182 A Wholly Mammon Empire? 133 See Joy Gordon, ‘The Concept of Human Rights: The History and Meaning of its Politicization’ (1998) 23 Brooklyn Journal of International Law 689–791, 729–35. 134 See Abbé Sièyes, ‘What is the Third Estate?’ in J. H. Stewart (ed.), A Documentary Survey of the French Revolution (New York: MacMillan, 1951). 135 See James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, 1995), pp. 67, 81–9. 136 See Roberto Mangabeira Unger, Law in Modern Society: Toward a Criticism of Social Theory (New York: The Free Press, 1976), p. 168. 37 See ch. 5, section 5.4, pp. 106–11 above. 138 Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990), [13.33]. [...]... to give the appearance of neutrality and predictability, as humans pursued their capitalist interests The ‘bugbear of the Enlightenment’ – arbitrary governmental action40 – required the depersonalisation of political power Government was further objectified, at the exterior end of the Space Axis The means for this abstraction of government from individual morality and input was the fiction of the ‘social... corporate articles of association, contracts of supply and credit contracts – all of these ‘bring about the inner order of the group of human beings that has its being within these economic associations’.86 These are examples of Ehrlich’s famous notion of the living law’ To attempt to codify and legislate those living laws is to encase them in exterior authority on the Space Axis and to separate them from... generally, see 187 The constricted universalism of the nation-state factually and followed There are two ways to do this A deductive theory of law proceeds by drawing a conclusion from a general proposition (as from a provision in code) applied to a particular circumstance (the case to be decided) An inductive theory, on the other hand, proceeds in the case law fashion by drawing a conclusion from the particularistic... of the virtue of the customary, historical nature of a people’s laws foreshadowed the stance adopted by the Historical School’ in Germany 8.4.5 Rebellion from the Historical School To understand how un-Roman and un-customary the codification movement was, one of the greatest ‘modern’ Romanist thinkers, Friedrich Carl von Savigny, assists with the ‘Historical School’ he founded.78 With the fall of the. .. End of the Second 185 The constricted universalism of the nation-state 8.4.3 The codification mentality A code, or not a code – that is the question! Whether ’tis better in the law to suffer The flaws and defects of numerous practiques, Or to take arms against a sea of troubles, And, by revising, end them! – To Prune – to change – No more! And by a code to say we end Abuses, and the thousand natural pests... as a ‘Schandfrieden’ – a peace of disgrace For many Germans, the codes represented ‘an expression of the modern era of economic individualism’ and the basis for the codification of German law and the unification of the Reich.79 For Savigny, though a proud German, the French influence and method became an object of odium (notwithstanding German principles being contained in the code).80 In opposing A F J... to achieve acceptance of Roman law in England He did, however, help to secure the position of the state legislature as the supreme law generating institution in the Western rule of law world Well within the function of the legislature was the power to obliterate, corrupt and re-declare law which had been established organically over centuries In this sense there is something of the codification mentality... without need of commentary.101 The very cosmopolitanism of Bentham, demonstrated by his generous interest in various states of the world and his desire to assist them by offering his services as a codifier to them, make him a significant jurist in the legal history of globalisation Bentham thought he was addressing the entire field of law as he sought to construct the first authentic system of “universal... Grewe, Epochs of International Law, p 289 194 A Wholly Mammon Empire? Prussia, Russia and France on mutual problems It also had the ideological purpose of suppressing the extremes of Jacobin-espoused liberty, notably in Germany through the Carlsbad Decrees of 1819 which restricted freedom of expression The flexibility of the consultative process, which, together with the statesmanship of Metternich... nor were the parts derived from the whole (deduction) The whole was in the parts interacting with each other.69 The deductive mindset is characteristic of the operation of civil law codes The method of classical Roman law was far from such civilian code systems which developed from the eighteenth century Roman law, being inductive, actually has more in common with English common law, given their inductive . demand in the liberalising market. The laws of commerce were the laws of nature which were the laws of God. The consequent de-moralisation of the economy. is the antithesis of the universe of meaning in which existed the medieval society following the Papal Revolution. 37 The ‘General Will’ as the source of