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Critical Theory of Legal Revolutions

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Critical Theory and Contemporary Society explores the relationship between

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Critical Theory of Legal Revolutions

Evolutionary perspectives

HAUKE BRUNKHORST

NEW YORK • LON DON • NEW DELHI • SY DN EY

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First published 2014

© Hauke Brunkhorst, 2014

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“Normative texts, particularly constitutions, can be established with

insincere intentions. But ultimately this is not done with impunity.

They can strike back.” (Friedrich Müller)1

“The ideas of 1789 have by no means always been on the banner of

liberalism and have even been sharply attacked by it.” (Herbert Marcuse)2

“Negativity is the price we pay for our emancipation from the illusion

of an unchangeable world.” (Michael Theunissen)3

1‘Norm- und besonders Verfassungstexte setzt man, mit unaufrichtigem Vorverständnis konzipiert, letztlich nicht ungestraft. Sie können zurückschlagen’. (Friedrich Müller, Wer ist das Volk? Eine Grundfrage der Demokratie, Elemente einer Verfassungstheorie VI. Berlin: Duncker & Humblot 1997, p. 56).2Herbert Marcuse (1934), The struggle against liberalism in the totalitarian view of the state, in: ibid., Negations: Essays in Critical Theory. London: MyFlyBooks, 2009, p. 5.3‘Negativität ist der Preis, den wir für unsere Befreiung vom Schein der Vorgegebenheit zahlen müssen’. (Michael Theunissen, Sein und Schein. Die kritische Funktion der Hegelschen Logik. Frankfurt: Suhrkamp 1980, p. 415).

Contents

Acknowledgements viii

General introduction 1

1 The evolutionary significance of revolution 9

2 Class conflict and the co-evolution of cosmopolitan and national statehood 59

3 Legal revolutions 83

Epilogue 467

Index 469

Acknowledgements

First I have to thank the friends and colleagues who read the manuscript or parts of it, gave important comments and discussed controversial points,

added crucial arguments and made me change a lot of things. Thanks to Matthias Albert, Patricia Barbosa, Samantha Besson, Micha Brumlik, Sonja Buckel, Rene Gabriels, Diana Göbel, Jürgen Habermas, Christoph Haker, Nils Heisterhagen, Tanja Hitzel-Cassagnes, Helge Hoibraten, Pablo Holmes, Marie Kajewski, Gertrud Koch, Regina Kreide, Cristina Lafont, Manfred Lauerman, Franziska Martinsen, Kjartan Mikalsen, Axel Mueller, Thore Prien, David Rasmussen, Anne Reichhold, Darrow Schecter, Rainer Schmalz-Bruns, Maryna Shchaveleva, Mujgan Senel, Chris Thornhill, Miguel Vatter, Tilo Wesche and Mark Zdarsky. Very important were 2 days in Hannover where I discussed the book and related topics with the post-graduate colloquium of Rainer Schmalz Bruns in September 2012. The same must be said about further workshops and seminars on my and other’s book manuscripts in Flensburg with Miguel Vatter, Anne Reichold, Thore Prien and Christoph Haker in February 2013, at Boston College with David Rasmussen and his graduate class in March 2013, at the IUC in Dubrovnik with Anne Reichold, David Rasmussen and Thore Prien April 2013, and again in Flensburg with Cristina Lafont, Tilo Wesche and Chris Thornhill. Of greatest relevance to me was a graduate class on American constitutional and international law that I taught together with Jean Cohen and Andrew Arato at the New School for Social Research in New York City in the winter term of 2009–10. In particular, I am grateful to Diana Göbel, who not only made important comments, but also undertook the polishing of my non-native English, or rather, the translation of German-English into English-English. Without Darrow Schecter’s initiative in inviting me to write a book in English for his Critical Theory series, this book would never have been written.

General introduction

Since Marx, Spencer and Durkheim, the theory of society has been a theory of social evolution. Therefore, I will first introduce a new framework for a

critical theory of the evolution of societies in Chapter 1.Critical theory is about the paradox of reason within an unreasonable,

brutish and random history. Methodologically, critical theory operates as an instrument to find the traces of reason and truth within a reality that as a whole is unreasonable and ‘untrue’ (Adorno). Because reason exists within this reality at best as a ‘Real Possibility’ (Hegel), critical theory has an unavoidably utopian dimension. With respect to law, this means that I try to defend the idea that law is freedom, which originates in the transcendental and idealist theory of law of the late eighteenth and early nineteenth century. With the advance of modern society, transcendence becomes more and more immanent, but the dialectic of transcendence and immanence does not vanish completely, as in deconstructive philosophy that accepts a bit too soon that law never can get rid of violence and domination.1 With the uncoupling of the constitution from the state at the end of the twentieth century, the old utopian and negative theological perspective of a ‘peoplehood without monarchy, of a people ruled by divine law, not the arbitrary rule of the state’2 in a way becomes actual again, but now as a secular and political project that must be performed from within the horizon of positive law alone.

Following synthetic or (Post-)Neo-Darwinist theories (Mayr, Gould, Eldredge), two different types of evolutionary change are distinguished. While incremental and cumulative change leads to an ever better adaptation of the social system to its environment, rapid and revolutionary change leads to new constraints on contingent and purpose-oriented adaptation, and in social evolution, these constraints are normative constraints.3

1See the critical adoption of the legal theory of Benjamin, Cohen and Rosenzweig by Daniel Loick, Kritik der Souveränität. Frankfurt: Campus, 2012, pp. 238, 242.2Robert N. Bellah, Religion in Human Evolution. From the Paleolithic to the Axial Age. Cambridge, MA: Harvard University Press, 2012, p. 323. The utopian perspective of critical theory, which goes back to the Axial Age, consists in the idea of a world ‘of absolute nonviolence, but also of social justice’ (p. 587).3Thanks to Regina Kreide and Rene Gabriels for their critique and discussions on the problematic relation of evolution and revolution that concerns the whole project.

CRITICAL THEORY OF LEGAL REVOLUTIONS2

The basic thesis throughout this book is that the organic constraints of natural evolution are replaced in social evolution by normative constraints. These normative constraints in modern societies are, in particular, legal constraints of constitutional law (written or unwritten, material or formal). They are the path-opening direction-givers of evolution. In social evolution, as in organic evolution, the ‘role of historical and structural constraints’ is that of ‘channelling directions of evolutionary change’.4 All great revolutions are legal revolutions that create a new level of normative constraints which are implemented through legal and constitutional norms. Insofar as the results of evolution consist in new normative constraints, they are internal to our rational expectations and the intersubjective justification of our actions and plans. We are, therefore, insofar responsible for them as we can argue for or against their validity. Because normative innovations are at the centre of all great legal revolutions, we can and must act as if we have made them, as if we have fought for or against them, and we can continue to argue and fight for and against them.5 However, the moral responsibility of actors – important though this is – is not that much of a critical factor for an evolutionary theory that (unlike Luhmann) takes normative learning processes seriously. On the contrary, the critical factor is that, once new normative constraints are established within the social and particularly the legal system, social actors have to cope with them – whether they want to or not, whether they accept them or not, whether they argue or struggle for or against them. Therefore, normative constraints function within social evolution as a kind of ratchet effect.

The overarching thesis of this book is that law that is modern enables both the stabilization of ever new forms of class rule and the continuation of the (legal or illegal) struggle against it, and each time from within the legal-political (or constitutional) system in question. I am particularly interested in this dialectic of enlightenment, which accompanies the evolution of modern law. Revolutionary legal advances are implemented in the course of incremental and gradual evolution together with a stabilization and augmentation of domination, exploitation and injustice through the same law. However, modern law is not only the result of morally neutralized, gradual evolutionary adaptation of social

4Steven Jay Gould, The Structure of Evolutionary Theory. Cambridge: Harvard University Press, 2002, p. 26; on the critique of ultra-darwinism, see Stephan S. W. Müller, Theorien sozialer Evolution. Zur Plausibilität darwinistischer Erklärungen sozialen Wandels. Bielefeld: transcript, 2010, pp. 203–4; Geoffrey Winthrop-Young, ‘On Species of Origin’, Muse 11 (2003), 305–94, at 336 Marc Amstutz, Evolutorisches Wirtschaftsrecht. Baden-Baden: Nomos, 2001, pp. 268–70.5For example, the people of Virginia in the eighteenth century were responsible for the human rights declared in their constitution, and the institution of slavery that was justified on their legal basis. But the people of Virginia were not responsible for the immense growth of administrative state power that was a completely uncontrollable and unintended (even sharply rejected) functional side effect of their successful struggle for human rights and self-government.

GENERAL INTROdUCTION 3

systems to their environment (and hence of the cognitive learning of social systems which do not care about their negative externalities), but also the outcome of class struggle and revolutionary change (and hence of normative learning processes of social groups who demand rights for the victims of history, but with ambivalent effects). Once evolutionary constitutionalization leads to forms of systemic adaptation which contradict the normative core of a particular set of revolutionary advances of modern society, a crisis of legitimization is hard to avoid, and either must be repressed by coercive power or becomes manifest in social conflicts and public social struggle. Therefore, I will describe this normative core in terms of the Kantian constitutional mindset.6 My thesis is that the Kantian mindset is effective in everybody’s daily political and legal praxis as a normative constraint on evolutionary adaptation. If the Kantian mindset were to become ineffective in the daily life of citizens and professionals, if finally it were to be forgotten, repressed and deleted, then the institutional praxis of democratic self-determination would collapse and trigger a (potentially revolutionary) crisis of legitimization.7 As far as it is institutionally embodied as a normative constraint on the adaptive incrementalism of political and legal praxis, the Kantian mindset of universal political autonomy operates as a Hegelian existing notion (or existing concept) without – and here my project differs from all progressive, liberal, communitarian, conservative or reactionary versions of right-wing Hegelianism (including that of Hegel himself) – without losing its normative universality, unconditionality, and power, which is, in particular, the power of the modern legal form to resist its use as a mere instrument of domination. The Kantian mindset exists within the existing law as long as it can strike back against the law’s oppressive (and frequently effective) use as class justice. However, my project of a normatively demanding evolutionary theory is as far removed from any transcendental normative theory, and from all social contract theories, as it is from right-wing Hegelianism. Even though I take normative constraints that are co-original with the emergence of social evolution into account, as for example the famous Habermasian forceless force of the better argument, or Brandom’s inferential commitments, I do not think that these kinds of highly generalized constraints entail any normative criteria to prefer (for example) democracy to autocracy, or modern to so-called archaic societies. These general constraints are normatively much less demanding than the original situation of (for example)

6This notion, together with the distinction between a Kantian and a managerial mindset, is taken from Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization’, Theoretical Inquiries in Law 8:9 (2006), 9–36. Having said this, I will decontextualize Koskenniemi’s notions and reintegrate them within the evolutionary framework of this book (Ch. I, Sec. III 2).7See Markus Patberg, ‘Suprastaatliche Verfassungspolitik und die Methode der rationalen Rekonstruktion’, Ms. 2013, p. 13 (forthcoming in: Zeitschrift für Politische Theorie 1/2013).


Rawls’s contractualist Theory of Justice from the 1960s. Members of the Platonic Academy, scholastic philosophers, royal counsellors, advertising consultants, modern lawyers, mafia advisers, students, senior researchers, members of parliament or simply family members are, once they pretend to use an argument, challenged by the same forceless force of the better argument. Reaching rational understanding is presupposed by democracy, but democracy is not presupposed in attempts to reach an understanding. Roughly speaking, one can argue that no earlier than 1789 (or even later as we will see) there exists a normatively and factually highly demanding concept of constitutional law that is the incarnation of the Kantian mindset.

Throughout this book, I rely on Marx’s insight that what people think they are doing need not be the same as that which they actually are doing, and I will follow Habermas’s fundamental turn from human reason (Menschenvernunft) to the reason of the forceless force of the better argument, which refers not to the human being and her or his consciousness, brain or body, but to the communicative system. The forceless force of the better argument locates reason (or rationality) within the system of communication and its evolution. Therefore, world-changing praxis does not consist simply in changing human beings, but in changing society, and this (Marxist point) means, particularly with respect to communicative rationality, the ‘institutionalization of discourses’ (for instance, of constitutional, political and social organizations, public spheres, social reform programmes etc.)8 Therefore, the social evolution of communicative action cannot be explained by human behaviour, but must be explained by the social evolution of communicative action alone, as Durkheim argued already.9

This book is primarily concerned with the legal evolution of modern society.10 There are many other evolutions of modern society, and this is only one of many. I will use only some results of historical research that are significant for my limited purposes, and I am not talking about history but about evolution. The organization of the main Chapter 3 on legal revolutions follows a 10-part structure (see pp. 89–90) that is sociological and evolutionary and not narrative. First, unlike history, evolution does not necessarily need a narrative structure. In contrast to history, for evolutionary theory it does not matter who first invented the wing, the eye, the brain, the hand, bureaucracy, religion, democracy, constitutions or human rights. These are all evolutionary universals (or advances) that have proved to be useful for many, if not for all societies and

8Jürgen Habermas, ‘Vorbereitende Bemerkungen zu einer Theorie der kommunikativen Kompetenz’, in J. Habermas and Niklas Luhmann (eds), Theorie der Gesellschaft oder Sozialtechnologie. Frankfurt: Suhrkamp, 1971; Habermas, Theorie und Praxis. Frankfurt, 1971, pp. 31–3.9See Hendrik Wortmann, Zum Desiderat einer Evolutionstheorie des Sozialen. Darwinistische Konzepte in den Sozialwissenschaften. Konstanz: UVK, 2010, p. 108.10I have to thank Chris Thornhill for a long discussion of this point.


therefore have been exported, copied or reinvented again and again in the course of history. From the beginning, evolutionary theory is, therefore, based on a radical decentring of all kinds of (for example) Eurocentrism. This is so because even if the (probably wrong) story that Athens was the cradle of modern freedom were right, or if the claim that Virginia or Rhode Island first invented modern constitutions were true, the origins (which do matter for Virginians, Eurocentrics and their respective ‘identity’, whatever the latter term means) do not matter for social evolution. It does not matter who invented modern democracy in the same way as it does not matter which animal species once invented the brain. Moreover, there are huge cultural and other differences between the brain of a cockroach and that of a human being, but it makes no sense to call the human brain better, further developed or more progressive than that of cockroaches, and the same is true for different constitutions of different societies or types of societal and political organization.

Secondly, the theory of social evolution is based on a sharp differentiation between the evolution of primates (including human beings) and social evolution. As far as reason and rationality matter for social evolution, what matters is, to repeat, not human but communicative rationality. If something like human rationality exists, it exists in the environment of society, which forces human beings to represent and express their egocentric narcissism through the eye of the needle of the forceless force of better arguments. They have no alternative to the march through this eye of a needle once they act within the social sphere of a scientific discourse, for instance. If it is true that the use of (sign and gestural) language is widespread among primates (and not exclusively human), then it is not even propositionally differentiated language use that distinguishes the social from the genetically steered organic evolution. The evolution of gestural language differs significantly from genetic display because it enables social learning. But the beginning of the evolution of language is not the beginning of social evolution. The latter can only emerge once normative communication is ‘invented’ within an already existing (verbal or non-verbal) linguistic environment that is structurally coupled to some species that can understand and use normative claims and commitments (at least partially).

Thirdly, we can make social evolution intelligible with Heidegger’s model of Dasein (being-there).11 Dasein for Heidegger is an empty signifier that is always already operating within a meaningful world, and to operate within this world it needs certain skills and competencies (know-how) in relation to other things and Daseins that are co-original within the same world. The skills and competencies constitute an open list, and to participate in the game

11I am very grateful for a discussion on this point which I had with Cristina Lafont, Regina Kreide and Axel Mueller on a long car trip through northern Germany.


of Dasein, only a couple of these skills and competencies, which are not determined in advance, are needed. The competencies finally performed also can be partial, restricted or flawed. Two points are fundamental: The first is that Dasein can, but need not, be human. Anthropocentrism is decentred with this very first hermeneutic-pragmatic philosophical argument that coincides completely with the advanced theory of social evolution. Instead of closing the world and reserving it for authentic individuals and even authentic nations or racial groups (as Heidegger did it in Sein und Zeit with his disastrous distinction between authenticity and inauthenticity), one can and must keep the world of Dasein wide open for the Dasein not only of all humans but also of (all) other species (or even things) which somehow or other are included in normative communication – as, for example, dogs and other animals have been for thousands of years, or, more recently, as great apes have been, for several generations already, in communities formed between them and research personnel. We now must also include self-evolving systems such as computers, regardless of whether or not they will, at one point, interact with us, as in Stanley Kubrick’s movie ‘2001’, suddenly creating feelings of sympathy and pain. My second point is this: Once they affect normative communications by contributions that are interpreted normatively as disappointing normative expectations (bad dogs, obstinate donkeys, terribly autonomous computers), the negativity pool of social evolution is also filled with their communicative negations and deviances.12 There are not only human beings, but also a lot of other potential Daseins in the environment, whose actions could be understood communicatively as negative operations and therefore have to be included in the respective social system of normative communication.

Fourthly, methodologically my theory of social evolution is based on a specific version of dialectical negativism. To start with, I will try to combine the philosophical critique of dualism and the reification of universals (from Dewey, Heidegger and Quine to Tugendhat) with the Hegelian and Marxist critique of societal reification (from Lukács to Habermas). This idea is developed throughout the book but, in particular, in the first Chapter and in the part on modernism in the last section of the last Chapter.

Negative criticism, fifthly, nicely accords with advanced theories of social evolution. Hegel already discovered negativity as the driving force of social evolution, and sociology (from Marx and Durkheim to Habermas and Luhmann) step by step has deconstructed the Hegelian teleology of reason, but kept the idea of negativity, and finally reinterpreted the Hegelian power of the negative as an endless, permanent and uncontrollable auto-production of (linguistic, gestural and other) communicative negations. To fill the variety pool of evolution with the critical mass of negative communication that was

12I have to thank Charles Larmore for a discussion of this point.


needed for the take-off of social evolution and its differentiation from biology and organic evolution, a specific form of communication had to be ‘invented’ by evolution, and that was the invention of reciprocally binding norms, and the permanent communicative contestation of normative claims and obligations. What Marx called class struggle always has been, and continues to be, about normative claims which exclude each other reciprocally, so that sometimes right stands against right in an antinomic way, as Marx wrote in Capital. If we understand class struggle primarily as a struggle between material and ideal interests over normative claims and violations that are articulated by the societal ‘sense of injustice’ (Barrington Moore), then Marx and Engels were profoundly right when they wrote in the Communist Manifesto that all history is the history of class struggle. However, pace Marx, class struggles are not just the midwife of the unleashing of all productive forces of society, but also the power engine of normative and moral learning processes which sometimes lead to the revolutionary institutionalization of a new constitutional order. Moreover, not only does the functional differentiation of the economy have the negative externality of accidental and deeply unfair social differentiation, class struggle and other capital-oriented conflicts, but other functionally differentiated systems such as law, politics and, nowadays, education also have similar negative externalities which cause different and much more complex formations of social differentiation, class struggle and material and ideal class interests than Marx had assumed.13

Finally, for the evolutionary reconstruction of the punctuational bursts of modern society that were great legal revolutions, my main thesis is that of the co-evolution of cosmopolitan and national statehood. Throughout the evolution of modern law and politics, cosmopolitan state formation (in a broad, Kelsian sense of ‘state’) has preceded and enabled particular and national state formation.

13Wilkinson, Richard and Pickett, Kate, The Spirit Level. Why Greater Equality Makes Societies Stronger. New York: Bloomsbury, 2010; see Judt, Tony, Ill Fares the Land. New York: Penguin, 2010.

1

The evolutionary significance of revolution

Introduction

Everything is evolution. Revolutions and collective normative learning processes are also evolutionary processes. Evolution never stops. But while evolution is, in a rough distinction, a process beyond plan and control, revolutions and (revolutionary and non-revolutionary) normative learning processes are specific kinds of evolutionary developments which not only proceed automatically as blind natural occurrences (naturwüchsig), but also express and perform our plans, intentions and ideas. Revolution is itself an evolutionary advance, in particular of the evolution of modern societies, even if it may have some forerunners that are premodern.

Like most theories of society, the critical theory of Karl Marx is an evolutionary theory. Yet even if Marx in his historical research clearly distinguished the historical analysis of class struggles from the functional logic of the capitalist system, he did not make much of this distinction systematically. In systematic concerns, his representation of the history of class struggles ultimately assimilates the normative developmental logic of the ‘history of class struggles’ to the functional adaptation of the economic system to its environment. The reason is that Marx did not distinguish systematically between work and interaction.1 Therefore, Marx cannot explain the take-off of social evolution (I). Even if Marx in his historical essays understood the great European revolutions as legal revolutions, he retained a schema of basis

1Habermas, ‘Arbeit und Interaktion’, in Habermas (ed.), Technik und Wissenschaft als Ideologie. Frankfurt: Suhrkamp, 1967; Habermas, Erkenntnis und Interesse. Frankfurt: Suhrkamp, 1967. On developmental logic recently, see Müller, Theorien sozialer Evolution, pp. 185, 191; Rainer Walz, ‘Theorien sozialer Evolution und Geschichte’, in Becker (ed.), Geschichte und Systemtheorie. Frankfurt: Campus, 2004, pp. 29–75, at 39–42.


and superstructure that reduced the basis to the economic system. It is not the schema that is the problem. All theories of society distinguish between basis and superstructure. For instance, Durkheim distinguishes the system of social division of labour from the collective consciousness of society; Parsons distinguishes the energy of a system (basis) from its ability to codify, organize and collect information (superstructure); Habermas distinguishes system (basis) and lifeworld (super-structure), and furthermore, the material (basis) from the symbolic lifeworld (superstructure) and Luhmann distinguishes the societal structure from the semantics of society. The problem with Marx is not the schema ‘basis vs. superstructure’, but his conceptual decision to give the economic system a kind of causal priority over all the other social systems, spheres of value and the whole superstructure. Therefore, he cannot develop a sufficient understanding of the normative peculiarity of revolution and the role of law as a ‘pacemaker’ of evolution that constrains blind evolutionary adaptation normatively (II).2 The most important of these normative legal constraints are constitutions. Constitutions are evolutionary universals. As universals they have a functional and a practical side. They are functional advances as well as practical mindsets (III).3 Constitutionalism presupposes a functionally differentiated legal system, and hence modern society. The last section gives a brief discussion of the internal relations between functional differentiation, crisis and social struggle in the evolution of modern society (IV).

I The power of the negative: The take-off of social evolution

Fifteen years before Darwin’s book On the Origin of Species (1859) was published, the epistemological implications of evolutionary theory were already made explicit in an unpublished manuscript by Marx and Engels that appeared much later under the title The German Ideology. From the middle of the eighteenth century onwards, evolutionary theory developed together with, and for a long time not really differently from, emerging modern historical scholarship and the (idealist) philosophy of history. Marx and Engels, at the end of the pre-Darwin period of evolutionary theory, summarized the results of the first hundred years of evolutionary theory in one short sentence: ‘We know

2Habermas, Zur Rekonstruktion des historischen Materialismus. Frankfurt: Suhrkamp, 1978.3For the former, see Luhmann, ‘Verfassung als evolutionäre Errungenschaft’, Rechtshistorisches Journal 9 (1990); for the latter: Koskenniemi, Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization, pp. 176–220.

THE EVOLUTIONARY SIGNIFICANCE OF REVOLUTION 11

only a single science, the science of history.’4 The short statement that there is only one field of study, namely the study of history, has the epistemological implication that evolution overall is an empirical fact with a transcendental meaning. The meaning of ‘transcendental’ is ‘x being constitutive for y’ (or x limits the knowledge of y, and by limiting it enables the knowledge we have of y). Because everything is evolution, evolution is a quasi-transcendental fact that is constitutive for the reflexive knowledge of evolution that is itself part of evolution.

(1) Work, interaction and the growth of communicative negativity

There is only one evolution. But there are first different levels in the emergence of evolution: ‘One can look at history from two sides and divide it into the history of nature and the history of men.’ The two sides are ‘inseparable’, are ‘dependent on each other’, but have different evolutionary histories.5 The evolution of evolution has led to the distinction between natural and social evolution. Therefore, Engels later called his and Marx’s theory historical materialism.6 In social evolution, so Parsons argues from a state of scientific knowledge a hundred years later, ‘(the) “gene” has been replaced by the “symbol.”’7 Yet this argument, in a nutshell, was already presupposed by Marx and Engels, the disciples of Hegel.8 Human beings are learning to invent and use their means of production through social interaction:

Men . . . themselves begin to distinguish themselves from animals as soon as they begin to produce their means of subsistence. . . . The way in which men produce their means of subsistence . . . must not be considered simply as being the production of the physical existence of the individuals. Rather it is . . . a definite form of expressing their life. . . . As individuals

4Marx and Friedrich Engels, Die Deutsche Ideologie, MEW 3. Berlin: Dietz, 1990, p. 18, English translation quoted from: http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm, 31 March 2012.5Marx and Engels, Deutsche Ideologie, p. 18 (http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm).6Engels, ‘“Einleitung zur englischen Ausgabe (1892) der‚ Entwicklung des Sozialismus von der Utopie zur Wissenschaft”’, in Marx and Engels (eds), Werke 22. Berlin: Dietz, 1990, pp. 287–315, at 292.7Talcott Parsons, ‘Evolutionary Universals in Society’, American Sociological Review 29:1–6, 1964, pp. 339–57, at 341; see Habermas, Theorie des kommunikativen Handelns II. Frankfurt: Suhrkamp, 1981, p. 287.8See Dieter Henrich, ‘Karl Marx als Schüler Hegels’, in Henrich (ed.), Hegel im Kontext. Frankfurt: Suhrkamp, 1971, pp. 187–208.


express their life, so they are. What they are, therefore, coincides with their production, both with what they produce and with how they produce. . . . This production . . . presupposes the intercourse [Verkehr] of individuals with one another.9

Social evolution begins with the socially learned cooperative use of instruments: ‘The production of life . . . as a social relationship’ consists in ‘the co-operation of several individuals, no matter under what conditions, in what manner and to what end’.10 Co-original with the social production of life is the production of communicative variation (consisting in the symbolic distinction between old and new needs) that finally leads to the take-off of social evolution. Marx and Engels call this take-off the first historical act: The ‘satisfaction of the first need . . . leads to new needs; and this production of new needs is the first historical act’.11

Henceforth, for Marx, the driving mechanism of social evolution is the symbolically mediated growth of productive forces. But Marx also considers another driving mechanism, namely, class struggle. He understands class conflicts as conflicts between social groups that are caused by the social structure of society. At the beginning of the Communist Manifesto, he and Engels assert: ‘The history of all hitherto existing society is the history of class struggles.’12 Similar ideas on the evolutionary role of conflict were developed later by American pragmatists such as John Dewey.13 As all historical essays and studies of Marx and Engels show, class contest is about material as well as about ideal interests.14 But when he switches from the history of class struggles to the theory of society, Marx connects class struggle and the growth of productive forces in a way that eliminates class struggle as an independent evolutionary mechanism of change. Instead, he reduces the

9Marx and Engels, Deutsche Ideologie, p. 21 (http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm).10Ibid., pp. 29–30 (http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm#a3).11Ibid., p. 29 (http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm#a3).12Marx and Engels, Manifest der kommunistischen Partei. Stuttgart: Reclam, 1997, p. 19 (quoted from: http://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm#007). On the difference between two driving mechanisms in Marx, see Klaus Eder, ‘Collective Learning Processes and Social Evolution: Towards a Theory of Class Conflict in Modern Society’, (1983) Tidskrift för Rätssociologi, S. 23–36. Already, Kant recognized the progressive side of conflict in history (ungesellige Geselligkeit), see Kant, ‘Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht’, in Kant (ed.), Werke XI. Frankfurt: Suhrkamp, 1977, pp. 31–50, at 37–9.13See Robert B. Westbrook, John Dewey and American Democracy. Ithaca: Cornell University Press, 1991, pp. 80–1.14See Brunkhorst, Kommentar zu: Karl Marx, Der 18. Brumaire des Louis Bonaparte. Frankfurt: Suhrkamp, 2007, quoted from the MEGA-Edition Berlin: Dietz, 1985; Volkan Çıdam, Geschichtserzählung im Kapital. Baden-Baden: Nomos, 2012.


role of class struggle to that of a ‘midwife’ (Marx) of the unfettering of all productive forces. In the orthodox reading, the growth of productive forces (which leads to new symbolic expressions of ever new needs) is, therefore, the source of variation, and class conflict is the mechanism of selection that is re-stabilized by the relations of production. Therefore, Marx must explain the take-off of social evolution by the capacity to work. Work and technology, instrumental and strategic actions are learnt through social interaction. However, the learning of instrumental and strategic know-how is not specific to social evolution. Not only human beings, but also computers, great apes or students of law and economics can be involved successfully in communicative interactions of learning instrumental and strategic know-how. They all are able to learn socially. The actors of strategically restricted communication (like the homo economicus in game theory) learn cooperation with others for the single purpose of getting more for themselves at the end of the day. This is not due to the egoistic or greedy motivation of the actor, but to the strategically restricted system of communication. Marx already observed this in his basic distinction between the real-abstract personification of economic categories (which is related in strategic interaction with other existing categories) and the concrete person (and his or her altruistic or egoistic motivations). But, furthermore, learning ‘instrumental actions from others socially’ must be distinguished from learning to follow reciprocally binding norms and the evolution of systems of such norms.15 Strategically restricted communication can never lead to the take-off of social evolution because the variety pool of negative communication does not grow quickly enough to reach the critical mass needed. Even the reciprocal use of symbols and reflexive symbols that replace other symbols (ab) is not sufficient for the take-off of social evolution. Neither purposive rationality, that is, the ability to make practical inferences, nor the use of a universal language of binary codes that allows for identical transformations of meaning between different signs (propositionally differentiated language) can explain the take-off of social evolution. Such a language can exist as a medium of learning socially from others in groups of humans and other primates, of economists and computers, without causing social evolution. We cannot exclude that the strategically restricted use of language will once lead to a new form of evolution that is emancipated from genetic predetermination and from the realm of norms and truth claims (which

15Michael Tomasello, Origins of Human Communication. Cambridge: MIT, 2008, 213, see also 181ff; Tomasello, Why We Cooperate. Cambridge: MIT-Press, 2009, p. 23, 25f, 33f. See I. C. Gilby, ‘Meat sharing among the Gombe chimpanzees’, Animal Behavior 71:4 (2009), 953–63 (no proof for reciprocal exchange) http://www.duke.edu/∼ig25/gilby_2006.pdf; Gilby et al., ‘Ecological and social influences on the hunting behaviour of wild chimpanzees’, Animal Behavior 72:1 (2009), 169–80, http://www.duke.edu/∼ig25/gilby_etal_2006.pdf.


was Nietzsche’s evolutionary dream). But communicative language use that does not allow communicative agreement on (the truth of) reciprocally binding norms cannot lead to the take-off of social evolution. Therefore, what is needed is a system of communication that is based on inferentially binding distinctions between different kinds of binary codes of validity (such as true/ false, right/ wrong, consistent/ inconsistent and so on).16 Together with the replacement of genetic by communicative variation, and the banishment of the former to the natural environment of society, natural selection is replaced by social selection which is split into the three main mechanisms of (1) functional imperatives, (2) social differentiation (material and ideal class interests of the ruling, but also of the ruled classes) and (3) hegemonic opinions, but also counter-hegemonic opinions (e.g. dissenters).17

Only after the evolutionary invention of reciprocally binding norms does the potential for disputes between reciprocally committed actors (whether humans alone, or humans together with dogs, apes, pigs, spiders or computers) grow towards the immeasurable. To get enough variety together, it needs a certain amount of critique and negation of norms, and of disputes about their validity. Actors, therefore, must be a kind of being in the world that is able to produce negations at any time. These negations need not be intended as a critique of validity (and therefore can be produced accidentally, and by grown-up humans as well as by children, insane persons, dogs, computers, economists, apes and other animals or learning machines), but they must count as a critique of validity claims (and therefore, a sufficient amount of communicative contributions by human beings is necessary). It is precisely – as Hegel argued – ‘the seriousness, the suffering, the patience, and the labour of the negative’ that makes social evolution

16Habermas, Theorie des kommunikativen Handelns I und II. Frankfurt: Suhrkamp, 1981; Robert Brandom, Making It Explicit: Reasoning, Representing & Discursive Commitment. Cambridge, MA: Harvard University Press, 1994.17German lawyers call the hegemonic opinion ‘herrschende Meinung’ or use the acronym ‘hM’. Uwe Wesel gives a sound short description of the formation of ‘hM’, or the hegemonic legal opinion that nicely accords with evolutionary theory: 1. Communicative variation: A new legal problem comes up 2. Social selection: Lower courts make decisions 3. Systemic re-stabilization: Judgements are published, jurists write essays, books, legal comments and textbooks, interpreting the judgements; finally, a higher court makes its decision at the last instance. Hegemonic opinion has been formed. Wesel, Juristische Weltkunde. Eine Einführung in das Recht. Frankfurt a.M: Suhrkamp, 1984, pp. 189–90, quoted from: Sonja Buckel and Oberndorfer, Lukas, Die lange Inkubationszeit des Wettbewerbs der Rechtsordnungen – Eine Genealogie der Rechtsfälle Viking/Laval/Rüffert/Luxemburg aus der Perspektive einer materialistischen Europarechtstheorie, in Fischer-Lescano, Andreas, Rödl, Florian and Schmid, Christoph (eds), Europäische Gesellschaftsverfassung. Zur Konstitutionalisierung sozialer Demokratie in Europa. Baden-Baden: Nomos, 2009, pp. 277–96, at 279 (my translation). ‘Puzzle solving’ is borrowed from Kuhn’s concept of normal science (Thomas S. Kuhn, The Structure of Scientific Revolutions. Chicago: Chicago University Press, 1970).


possible.18 Even the most aggressive communities of apes, the chimpanzees, have a much better human rights record than their human relatives who are obsessed with justice.19 Insofar, Nietzsche was right to blame a moral attitude for all human disasters. But he was wrong to address a moral attitude as the revocable degeneration of social evolution, because the conflict over normative validity is constitutive of social evolution (but not necessarily of the existence of human beings).20 He was right to note an internal link between morality and resentment, but he was wrong to criticize morality as resentment. Such criticism is empty and undetermined because moral resentment is co-original with social evolution. There is no social evolution without the reactive moral attitude of resentment. Making moral resentment explicit means to contradict and negate normative injury or indifference.21 It is only because we cannot avoid binding ourselves reciprocally to normative expectations once we participate in an everyday conversation that the evolutionary pool of variation is rapidly filled with enough deviant copies of symbolic acts: that is, communicative dissent. Every sentence can be negated: ‘Every word a man utters provokes the opposite opinion.’22 Only the exponential increase of communicative negativity (i.e. the increase of no-statements) enables the take-off of social evolution.23 It is dissent that explains the take-off of social evolution:

Variation is triggered . . . by communication that refutes or rejects communicative propositions. . . . The refutation contradicts the expectation of acceptance. It contradicts the tacit consent that everything continues “as always.” All variation therefore is contradiction as disagreement, that

18Georg Wilhelm Friedrich Hegel, Phänomenologie des Geistes. Hamburg: Meiner, 1955, p. 24 (English: http://www.marxists.org/reference/archive/hegel/works/ph/phprefac.htm (01 April 2012).19Lutz Wingert, ‘Die elementaren Strukturen menschlicher Sozialität’, Deutsche Zeitschrift für Philosophie 1 (2011), 158–63, at 162.20See Friedrich Nietzsche, ‘Zur Genealogie der Moral’, in Nietzsche (ed.), Sämtliche Werke Bd. 5. Munich: DTV, 1980, 245–412; critical: Apel, Diskurs und Verantwortung. Frankfurt: Suhrkamp, 1988, pp. 388–92, 434–6; Apel, Auseinandersetzungen in Erprobung des transzendentalpragmatischen Ansatzes. Frankfurt: Suhrkamp, 1998, pp. 237–9, note 28.21For this argument in a different discourse (i.e. on objectivism and not on evolution), see Peter F. Strawson, ‘Freedom and Resentment’, quoted from: http://www.ucl.ac.uk/∼uctytho/dfwstrawson1.htm (12 May 2013); see Anne Reichold, Normativity and Negativity. Comment on Brunkhorst, paper IUC-Dubrovnik 2013.22Johann Wolfgang von Goethe, Elective Affinities, p. 224, (http://www.ia600208.us.archive.org/8/items/electiveaffiniti00goetuoft/electiveaffiniti00goetuoft.pdf), see Luhmann, Die Gesellschaft der Gesellschaft. Frankfurt: Suhrkamp, 1977, p. 226. For legal evolution, see Christoph Henke, Über die Evolution des Rechts. Tübingen: Mohr Siebeck, pp. 45–9, 56–8 (legal variation is every legal communication that is deviant or new in some aspect).23On the communicative role of no-statements in response to speech act offers, see Ernst Tugendhat, Einführung in die sprachanalytische Philosophie. Frankfurt: Suhrkamp, 1976, pp. 76–7, 219–20, 237, 243–4; Habermas, Theorie des kommunikativen Handelns I.


is, not in the logical sense of contradiction, but in the original dialogical sense.24

However, because the dialogical negations and contradictions are not just divergent replications but (more or less) reasonable replications which are mediated by the forceless force of the better argument, dialogical contradictions are not only contributions to the rapid growth of variation that triggers evolutionary selection – they are at the same time no-positions of Alter-Ego who answers to Ego’s claim of truth or normative rightness that is internal to his or her speech-act, and the answer triggers a critical discourse of normative learning.

Even if Marx was right with his observation that the growth of new needs produced by socially learned instrumental and strategic action is at the beginning of social evolution, it is not production and work that ultimately explain the increase of communicative variation. On the contrary, it is only the increase of dissent over normative expectations concerning cooperative work that can explain ‘the production of new needs’ which indeed ‘is the first historical act’.25 Therefore, the explanation of evolutionary change through the improvement of adaptive capacities by way of the growth of productive forces (or, with Luhmann, the growth of systemic complexity) must be decoupled from evolutionary change through class struggle that culminates in normative conflicts, finally resulting in an ‘antinomy’ of ‘right against right’.26 The occurrence of social evolution, therefore, can be explained neither by work and instrumental action nor by helping intentions or the cooperative nature of human beings. However, even if one combines both explanations, the pool of variation remains empty.27 Therefore, only interaction that generates argument and contest can explain how negative communication

24Luhmann, Die Gesellschaft der Gesellschaft, p. 461, my translation (German original: ‘Variation kommt . . . durch eine Kommunikationsinhalte ablehnende Kommunikation zustande. . . . Die Ablehnung widerspricht der Annahmeerwartung oder auch einfach einer unterstellten Kontinuität des “so wie immer”. Alle Variation tritt mithin als Widerspruch auf – nicht im logischen, aber im ursprünglicheren dialogischen Sinn’.) See Hannes Wimmer, Evolution der Politik. Von der Stammesgesellschaft zur modernen Demokratie. Vienna: WUV, 1996, p. 115.25Marx and Engels, Deutsche Ideologie, p. 29 (http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm#a3).26Marx, Das Kapital I. Berlin: Dietz, 1969, p. 249, engl. trans. quoted from: Marx, Capital Vol. I, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April 2012); for an alternative reading, see Çıdam, Geschichtserzählung im Kapital.27The tremendous growth of normative communication and its internal link to deviant behaviour and communicative negativity, that is, negation, dissent and disagreement, is neglected by Tomasello’s reconstruction of the emergence and development of social evolution, because he reduces social evolution to cultural adaptation.


reaches such a large quantity that social evolution can and must take off.28 The elementary event of communication is ‘the smallest unit that can be negated’.29

Because communication is only completed with Alter-Ego’s reaction, it is not the action of a single actor. There is no ‘communicative intention’ (Grice) before Alter-Ego’s reaction. The other does not understand me because he shares my meaningful intention, but the other way around: Ego has a meaningful intention only because, and as far as, Alter has something to understand.30 Moreover, communicative negations are not only disappointments of expectations, but also answers to speech acts that deny the truth claim or validity claim of a given speech act. Communication does not begin with Ego’s communicative intention but with Alter-Ego’s answer.31 This has the important implication (overlooked by Marx and Luhmann) that revolutionary contests, in particular, which pose a right against a right, cannot be ‘decided’ only by ‘force’ alone, but must be continued also by discourse.32 Making moral resentment explicit

28The evolutionary thesis that communicative negation is at the beginning of social evolution is strongly supported by Tugendhat’s critique of any explanation of the rules governing propositions, which goes back to stimulus-response-schemata or subjective intentions (as in Grice’s and Tomasello’s theory of communication): ‘Thus in so far as the relation between speaker and addressee is not a one-way street it corresponds neither to the stimulus-response schema nor to the Gricean conception of a purpose related act. It is not just that the act of the hearer reacts upon the speaker or his act; rather both acts clearly relate – though of course in a way that has yet to be explained – to the same thing: the one denies what the other affirms. Moreover, the affirming, and likewise the questioning, doubting, etc., responses of the hearer refer back to the speaker’s utterance in fundamentally the same way as denial, namely as different position-takings to the same thing whose negation is asserted in the denial.’ (Tugendhat, Traditional and Analytical Philosophy. Lectures on the Philosophy of Language, trans. by P. A. Gorner. Cambridge: Cambridge University Press, 1982, p. 190). It is the negative answer to an assertion that is at the origin of the meaning of truth and proposition as well as at the origin of social evolution.29Luhmann, Soziale Systeme, p. 212, my trans. (German original: ‘die kleinste negierbare Einheit’). This, however, does not mean that the negation of normative truth claims alone can explain the emergence of social evolution. It needs work and cooperation, and for the development of normative issues of justice, a broad context of gestural communication, play and ritual communication (hence a thick pre-ethical and pre-sacral context) is presupposed that reaches far back to the evolution of non-human animals and animal societies; see Bellah, Religion in Human Evolution, pp. 91–7; see Habermas, Theorie des kommunikativen Handelns II, pp. 118–33; Habermas, Nachmetaphysisches Denken II. Frankfurt: Suhrkamp, 2012, pp. 7–18, 77–95, 567–70; Habermas, ‘Kommentar zu einigen grundbegrifflichen Entscheidungen in: Hauke Brunkhorst, Critical Theory of Legal Evolutions’, e-manuscript. Starnberg, 2013 (English translation forthcoming in Law and Society, 2014), pp. 17–19.30Eike von Savigny, Der Mensch als Mitmensch. Wittgensteins Philosophische Untersuchungen. Munich: dtv, 1996, p. 125.31Tugendhat, Einführung in die sprachanalytische Philosophie, p. 244; Habermas, Theorie des kommunikativen Handelns I; Apel, Paradigmen der Ersten Philosophie; but also Luhmann, Soziale Systeme, pp. 160, 203; Luhmann, Die Gesellschaft der Gesellschaft, p. 229.32Marx, Das Kapital I, p. 249, quoted from: Marx, Capital, Vol. I, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April 2012).


releases the universalizing power of the negative. If conflicts between equal rights were decided only by force or by functional mechanisms, and if negation and contradiction were oppressed, then evolution would quickly come to an end due to the lack of dissent. Bureaucratic socialism failed not least because of such a lack of dissent.33

Making moral resentments discoursively explicit enables and obliges us to take the universalizing perspective that this specific injury against me, or another person or group, was not just an injury against me, or another concrete person or group, but against ‘all men’.34 Therefore, moral resentment that expresses our negative ‘sense of injustice’ (Barrington Moore) is prior to the affirmative ‘sense of justice’ (John Rawls).35 Rights stem from wrongs, justice stems from injustice, and not the other way around. It is the ‘injustice one has had to endure that makes one take cognizance of the laws of equality’.36 It is only the negation and not the affirmative statement that enables reflection and deliberation: the dissociation, dissolution, deconstruction and differentiation of concrete recognition and perception. Only if we know what ‘red’ or an ‘apple’ or a ‘cat’ is not (or which use of ‘red’, ‘apple’ or ‘cat’ is wrong), can we learn and know that a cat is a cat because it is not a dog or a man or anything else. To be able to distinguish ‘cats’ from ‘dogs’, good from bad soccer players, legal from illegal actions, just from unjust decisions, one must be able to negate that x is a dog, or that P is a just decision. Negation is constitutive of affirmation, and therefore all affirmation is affirmation only as

33Eder, Collective Learning Processes and Social Evolution. Therefore, it is far from accidental that all great revolutions are a single ‘great noise of discourse’ (Foucault). But before the communicative-linguistic turn of philosophy and the cultural, social and historical sciences, nobody has drawn serious methodological consequences from that insight, which is a simple fact of everyday experience (see Brunkhorst, Contemporary German social theory, in Gerald Delanty (ed.), Handbook of Contemporary European Social Theory. London, New York: Routledge, pp. 51–68).34Strawson, Freedom and Resentment, p. 10.35Barrington Moore, Injustice. The Social Bases of Obedience and Revolt. New York: Sharpe, 1978. For the Augustinian roots of the priority of injustice, see Hannah Arendt, The Life of the Mind (Vol. Two/Willing). Harcourt: Mariner Books, 1981, pp. 67–8 (with reference to: Augustinus, Confessiones); for more recent empirical research that strongly supports my thesis: Lawrence Kohlberg, Elsa Wassermann, Nancy Richardson, ‘Die gerechte Schul-Kooperative. Ihre Theorie und das Experiment der Cambridge Cluster School’, in Gerhard Portele (ed.), Sozialisation und Moral. Weinheim: Beltz, 1978, pp. 215–60, at 230; Rainer Döbert and Gertrud Nunner-Winkler, Adoleszenzkrise und Identitätsbildung. Frankfurt: Suhrkamp, 1975, pp. 162–9; Nunner-Winkler, ‘Frühe emotionale Bindungen und Selbstbindung an Moral’; Augusto Blasi, ‘“Amicus Plato sed magis amica veritas”: Bindung bei‚ moralischen Revolutionären’, in Christel Hopf and Nunner-Winkler (eds), Frühe Bindungen und moralische Entwicklung. Aktuelle Befunde zu psychischen und sozialen Bedingungen moralischer Eigenständigkeit. Weinheim and Munich: Juventa, 2007, pp. 177–202, at 198; pp. 203–44, 210–13, 216.36Jean Piaget, The Moral Judgment of the Child, trans. M. Gabain. London: Routledge & Kegan Paul, 1968, p. 274, accessed: https://archive.org/stream/moraljudgmentoft005613mbp/moraljudgmentoft005613mbp_djvu.txt, (28 October 2013).


far as it can be negated.37 To be sure, there is no negation without something (‘being’, ‘existing’, ens, Sein) to negate. But until affirmative statements are an object of negative linguistic operations, there is nothing affirmative to be known as affirmative (because it cannot be distinguished from its opposite). Language gives us a hint here, as Heidegger would have said. The classical term for the affirmative is ‘Being’. However, there is no unified use of ‘to be’ or ‘being’, and a term for the copula (‘is’) does not even exist in every language. But every meaning of sentences with ‘to be’, whether existential (‘x exists’), predicative (‘x is P’), veritative (‘p is true’) or other, can be negated.38 This is due to a constitutive asymmetry between affirmation and negation: Only negation is a reflexive operation that can make affirmative meaning explicit.39 The latter is the logical reason why the negation that abolishes immediacy is (as Hegel rightly saw) the beginning and the driving force of all developmental processes in human history. In Piaget’s terms, one could say that negation is the driving force for the gradual decentring of egocentrism.40 Moreover, negation is abstraction in the sense of ‘abstaining from something’. Abstracting from the ethnic belonging of a citizen implies the distinction of ethnic belonging from citizenship, and that implies the negation of ethnicity as something that matters for citizenship.41 Furthermore, it is not the affirmative statement (or linguistic sign) that mirrors the world out there, but the difference between match and mismatch of statement and actuality that structures our relation to actuality as an active and practical relation within the actuality. The early Heidegger, therefore, argued that being-in-the world (in-der-Welt-sein) is being within a temporal (or historical) horizon of being and nothing (Sein oder Nichtsein). Only through the possible negation of an affirmative statement by Alter-Ego can a relation of accordance between statement and actuality be assumed or claimed: this means it can be performed only as a speech act from within the actuality.42 Ego’s statement implies that Alter-Ego can change

37See Wilhelm Kamlah and Paul Lorenzen, Logische Propädeutik. Mannheim: Wissenschaftsverlag, 1967, p. 30: ‘to draw a distinction I must negate something because rejecting a predication to something is negating the respective predication . . . , and affirmative predication I only can learn together with the negative rejection of a predication (needing always examples and counterexamples)’. (my translation).38See Tugendhat, Philosophische Aufsätze. Frankfurt: Suhrkamp, 1992, pp. 33–4.39Therefore, the affirmative is constituted by the negative. I am grateful for critical remarks and a controversial discussion of this point with Anne Reichold, Charles Larmore and Axel Müller. See, in particular, Reichold, Normativity and Negativity.40Thomas Kesselring, Entwicklung und Widerspruch. Frankfurt: Suhrkamp, 1981, pp. 25, 206; see Strawson, Freedom and Resentment, pp. 10–11.41These and other aspects of ‘negation’ correspond to Hegel’s analysis of the negative operator. For a brilliant and detailed reconstruction, see Kesselring, Die Produktivität der Antinomie. Hegels Dialektik im Lichte der genetischen Erkenntnistheorie und der formalen Logik. Frankfurt: Suhrkamp, 1984, pp. 140–65.42See Tugendhat, Einführung in die sprachanalytische Philosophie, p. 518.


the world by refusing to obey an order or by questioning an assumption. Ernst Tugendhat rightly addresses these negative acts of refusal and questioning which relate us to the world from within the world as the ‘origin of freedom and rationality (Vernunft)’.43

(2) Egalitarian societies: Repression of negativity

One can only speculate about the beginnings.44 The evolution of homo started about 5 million years ago. Modern man – ‘modern’ in the language of evolutionary biology – needed 2 million years from homo erectus to homo sapiens, and homo sapiens probably evolved somewhere in Africa some 160,000 years ago, and found his or her way into all other continents of the globe. Human societies parted from other primate societies with the first normative use of gestural signs. The first human societies, which still used the universal language of gestures, probably were hunter societies. They did not only hunt cooperatively for strategic reasons, as the homo economicus would do. Human hunter societies shared the killed prey in equal distribution after strategic cooperation during the hunt. The social conformance of an individual member of the tribe to this and other group norms seems, if Tomasello is right, ‘to be uniquely human’.45 It took some 10,000 years from gestural language to the beginnings of speech, which immediately began to differentiate into more and more particular colloquial languages and cultures.46 However, the possibility of going back to the universal language of gestures enables people who speak completely different colloquial languages and do not share a single spoken word or written sign with one another to reach an understanding, and even to (re)construct a complete common language

43Ibid., p. 519. If we take it as a fundamental evolutionary operation of normative learning, even the famous Hegelian negation of the negation does not lead to affirmation because it is reflexive. If the labourer’s right to equal freedom is negated by existing contract law, the negation of this negation through parliamentary legislation (or a revolution) does not lead to a status that is beyond new contradictions and antagonisms (in the way that minus times minus in mathematics equals plus, without any further negativity left). This is the case even if the double negation is not enforced by coercive means, but is the result of free, inclusive and rational discourse and consensus. Even in formal logic, not every negation of a negation leads to mere affirmation (for example: ‘not [non p and non q]’ means: ‘p or q’, which is true, for example, if either the mere affirmation ‘p and q’ or the partial negation ‘non p and q’ is true).44On the logical and ontological problems, see Frank Ruda, Hegel’s First Words, e-Man., Berlin, 2012. For a comprehensive empirical account, see Bellah, Religion in Human Evolution.45Tomasello, Origins, p. 213, see also 187; Tomasello, Why We Cooperate, 21ff.46On the evolution of the latter (with further literature): Quentin D. Atkinson, Andrew Meade, Chris Vendetti, Simon J. Greenhill and Mark Pagel, ‘Languages evolve in punctuational bursts’, Science 319 (February 2008), 588; on the origins in a universal language of gestures: Tomasello, Origins. Gesture still is the basic condition of the translation of all human languages into one another. For a philosophical account, see Peter Rohs, Die Zeit des Handelns. Hain: Meisenheim, 1980.


of gestures.47 The possibility to reach a universal understanding, therefore, is never lost throughout social evolution. Mankind is not only one species or race, but also one communicative community of different languages and cultures.

It might be that only the acceleration of communication through the invention of speech and the copious communicative and normative use of that language produced enough deviant and negative communication for the final take-off of social evolution about 100,000 years ago. Probably, the first human societies which had to reproduce themselves exclusively by the use of communicative operations were band societies or egalitarian societies.48 Social integration was guaranteed by a dense and hieratic normative system of reciprocal cooperation and comprehensive equality which cannot be explained by economic reasons alone.49 Rousseau was right and wrong, but more right, as new research clearly shows.50 As a child of the bourgeois revolution of the isolated and possessive human individual, Rousseau was wrong when he attributed cooperation and equality, helping and sharing to de-socialized and pre-social human nature, because this nature is nothing beyond the socialization of chatting animals.51

But Rousseau was right on the point that really matters: In the beginning there was equality and cooperation between chatting animals, there was reciprocal helping and sharing of emotions and trust, of information and gossip, of social norms and cultural values, of political power and economic goods. Rousseau was right, in particular, to appeal to a kind of original equality. Even if modern ideas and normative systems of equal freedom are much more complex, reflexive and postconventional than the original egalitarian systems

47Rohs, Die Zeit des Handelns.48Allen W. Johnson and Timothy Earle, The Evolution of Human Societies. Stanford: Stanford University Press, 1987; James Woodburn, ‘Egalitarian Societies’, Man, New Series 17:3 (1982), 431–51.49See Bellah, Religion in Human Evolution, p. 570.50See only Tomasello, Origins; Tomasello, Why We Cooperate, 3ff; Morton H. Fried, The Evolution of Political Society. New York: Random House, 1967, p. 106; Woodburn, Egalitarian Societies. For recent ontogenetic research, see E. Fehr and U. Fischbacher, ‘The nature of human altruism’, Nature 425 (2003), 785–91; E. Fehr, H. Bernhard and B. Rockenbach, ‘Egalitarianism in young children’, Nature 454, 2008, 1079–83. Bellah explains the normative integration of egalitarian societies as a generalization of the egalitarianism that had been “endemic in play and ritual” for a long time, Bellah, Religion in Human Evolution, pp. 570–3. There seems to be sufficient evidence now for Rousseau’s thesis that simple hunter-gatherer societies are much more peaceful than complex and more hierarchical hunter-gatherer societies, not to mention highly complex stratified or functionally differentiated societies, see Douglas P. Fry, Beyond War – The Human Potential for Peace. Oxford: Oxford University Press, 2007, pp. 55, 77, 199–200.51Tomasello, Why We Cooperate, 14ff; Tomasello, Human Cognition. Cambridge: Harvard University Press, 2000, p. 215; on the ‘cooperative and chatting species’ see also Habermas, ‘Ein großer theoretischer Wurf – Michael Tomasello über die Ursprünge der menschlichen Kommunikation’, in DIE ZEIT 2009.


of norms that are binding in segmentarily differentiated band societies, it is the collective memory of the original equality of our phylogenesis and our ontogenesis that is the social-psychological basis of our sense of injustice.

Because people can negate an existing order of the world from within their historical horizon of affirmative and negative speech acts (and other symbolic actions), the universalized memory of original equality can be (and has been) called upon again and again in history – by the monotheistic intellectuals of the Axial Age, as well as by the lawyers and legal philosophers of canon law in the twelfth century, by the Protestant peasants of southern Germany in 1525, as well as by the French Declaration of Human and Civic Rights in 1789, or by the communist revolutionaries of the nineteenth and twentieth century. The original equality of egalitarian band and hunter societies is something like the first and unwritten normative charter of the whole evolution of human society. It is something like its first constitutional principle: The reciprocal right to equal treatment – originating hundreds of thousands of years before the legal form of rights was invented. It is carried through history by the universalizing negativity of the sense of injustice, which is a cognitive sense, transforming the mere contingency of individual suffering into an objective wrong.52 This cognitive moral emotion is what Kant had in mind when he wrote ‘that a violation of rights in one place is felt throughout the world’.53

But the first egalitarian societies were already far too complex to trust simply in the anthropologically deep-rooted cooperative and helping intentions of man. Therefore, they had to be stabilized by systemic mechanisms that reduced the environmental complexity in a way that lowered the margin for communicative experimentalism to zero.54 In such a society, the communicative variation that is produced by every deviant speech act is immediately selected so that the difference between variation and selection is blurred.55 Therefore, all astonishing, surprising and unexpected communication is selected negatively once it occurs. A good example is the magic automatism of archaic law. All legal transactions were strictly bound to the correct form, the right expression and the exact wording of legal speech acts. The smallest variation, such as stutters or slips of the tongue, immediately caused the loss of the case.56

Egalitarian societies come up with series of levelling mechanisms to prevent the emergence of any kind of inequality.57 (1) Systematic weakening

52See Koskenniemi, Constitutionalism as Mindset, p. 35.53Kant, Zum ewigen Frieden, in Werke XI, Frankfurt: Suhrkamp, 1977, pp. 191–251, at 216. English transl. quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012).54On the need for a systemic stabilization of socially integrated groups, see Habermas, Theorie des kommunikativen Handelns, Bd. II, p. 228.55Luhmann, Die Gesellschaft der Gesellschaft, Bd. 1. Frankfurt: Suhrkamp, 1997, pp. 498–505.56See Hans Hattenhauer, Europäische Rechtsgeschichte. Heidelberg: C. F. Müller, 1992, p. 43.57Woodburn, Egalitarian Societies, p. 442; see Fry, Beyond War, pp. 25–8, 54–6, 70–2.


of family bonds anticipates family egoism from the very beginning. No inheritance from parents to children is possible, and the borders between common and family life are completely fluid. (2) Property is common to the tribe as a whole, and everybody is allowed to take from the hunting what he or she needs. (3) Immigrants are immediately integrated without any reservation, and on the other hand, there exists no commitment to stay with your tribe and to remain a member of the respective society. (4) Specialization of labour is minimal, even the social divisions of sex and age are kept marginal. (5) Individual achievements such as extraordinary hunting success are answered by total neglect.58 Unequal hunting success leads to equal distribution in the same way as equal success.59 (6) All means of coercive power are completely decentralized; hence, political rule with a centre and a top position is rendered impossible.60 (7) Massive normative pressure guarantees the equal distribution of power, prestige and wealth. By these and other mechanisms, any accumulation of individual wealth by the hard-working and skilled is subverted. Exchange of goods is completely randomized (gambling under the rule that the winner must carry on until he or she has lost everything again). (8) Egalitarian societies are stabilized by relations of economic production and exchange which are based on an immediate return system.61 In such a society, any accumulation of a surplus product is impossible.62 Furthermore, (9) everything that appears has its place and its category in an egalitarian hunter society. Nothing new can happen or is supposed to happen. The mythical world view is closed, and its world is ‘round and concave’ (Lévi-Strauss), and there is no place for history at all. Finally, egalitarian hunter and gatherer societies on the one hand often have open borders for migration, but (10) on the other hand usually combine rigid egalitarianism with parochialism. This, by the way, is in accordance with recent research on the cooperative development of young children.63 For all these reasons, neither privileges nor hierarchies can emerge.

Such a society has no opportunity to allow any kind of social conflict to emerge, hence, it cannot learn. Evolutionary learning processes are rendered impossible by systemic exclusion and suppression of negative speech acts. The same assumption arguably is true of specific cast societies in old India, or of bureaucratic socialism as in the former Soviet Union. All these societies exclude and suppress, or at least try to exclude and

58Ibid., pp. 434, 440.59Ibid., p. 441.60Ibid., pp. 436–7.61Ibid., pp. 441–3.62Ibid., p. 443.63Fehr, Bernhard and Rockenbach, Egalitarianism in young children, p. 1081.


suppress, the communicative articulation of class antagonisms from the very beginning.64

In our paradigm case of an archaic tribe society, the discursive accumulation of negative speech acts is repressed. Therefore, change can only emerge gradually by natural selection, or (and more and more probably) by external catastrophes and the following punctuational bursts (see next section).65 Once an egalitarian hunter society is confronted with the more complex delayed return system of agricultural farmer societies in its own environment, and if it has to try and cope with it, this will either lead to a destruction of agriculture or a tragic decline of the old egalitarian society, and usually in a very short time.66

The same phenomenon has been observed once an illiterate egalitarian society is confronted internally with the communicative use of written language. Lévi-Strauss already reported experimental proof for a punctuational burst in social evolution, caused by the irruption of written language into an illiterate society. The one who introduces written language into a society of illiterates quickly wins prestige and authority: ‘Power over the others.’67 This brings the integrative capacities of egalitarian societies under stress, and rapidly pushes them over their limits. In the case of the egalitarian band society of the Brazilian boondocks, the observing European anthropologist who lived with the aborigines for some time was continuously making written records of his daily observations. The aborigines finally asked him for paper and pencil, and he arranged paper and pencil for everybody. Yet the chief of the tribe, at best a primus inter pares with highly restricted power, was the first who learnt to use paper and pencil as if he could write, and successfully cheated his fellows: ‘Probably he alone understood the social function of writing.’68 A short time later, heated arguments accompanied the first step in the evolution of written language in this small and isolated community. The society suddenly was confronted with overburdened claims of power and prestige. A violent conflict occurred, and the catastrophe of modernization took its course.69 Empirical findings seem to prove that in

64Eder, Collective Learning Processes and Social Evolution, p. 25. To avoid misunderstandings, I have to clarify two things: 1. I understand ‘class antagonism’ here in the broad sense of any conflict between social groups that is triggered by the structure of the respective society. 2. Not the exclusion of social and other inequalities in itself leads to the suppression and blockage of societal learning processes (as the usual neo-liberal vulgarized Darwinist misrepresentation would have it), but only the systematic repression of negative speech acts.65On punctuational bursts, see Connie J. G. Gersick, ‘Revolutionary Change Theories: A Multilevel Exploration of the Punctuated Equilibrium Paradigm’, The Academic Management Review 16:1 (1991), 10–36.66For examples, see Woodburn, Egalitarian Societies, pp. 441–3.67Claude Lévi-Strauss, Tristes Tropiques. New York: Criterion, 1961, pp. 290–1.68Lévi-Strauss, Tristes Tropiques, pp. 288–9.69Ibid., pp. 295–6.


general, the acceptance of ‘principles of mediation and compensation’ (in the aftermath of serious damages, conflicts and mediation), followed by some (weakly differentiated) ‘agencies of adjudication and control’, precedes the invention of writing.70

Lévi-Strauss describes the invention of written language as a twofold sword. Even if the conflicts are solved, the solution is at the price of the original equality. A chapter in the dialectic of enlightenment begins.71 The original sin here appears as an activation of the sense of injustice. The egalitarian and socialist Sandinistas in Nicaragua argued in the 1980s: ‘Alphabetization is emancipation.’ That is true. But on the other hand, alphabetization is, as one could add with Lévi-Strauss, always accompanied by a ‘distribution of those individuals into a hierarchy of castes and classes’, and hence it seems that ‘the primary function of writing, as a means of communication’ consists in facilitating ‘the enslavement of other human beings.’72

(3) A revolution of world views: Unleashing negativity

The revolution of literacy and the earlier agrarian revolution were not yet revolutions in the modern meaning of that term, but punctuational bursts. The first punctuational burst of human history that was a revolution in a way was the revolution of world views during the Axial Age. A dyed-in-the-wool counter-revolutionary thinker such as Heidegger denounced it as the beginning of the ‘time of the world view’ (Zeit des Weltbilds) and later as the beginning of the ‘Gestell’ of ‘Onto-Theo-Logie’.73 But what was truly revolutionary about the time of the world view was the monotheistic reaction to the barbarian inequalities of the highly developed stratified societies of the great Empires of the Eurasian continent, between approximately 800 (or 1200) and 200 BCE (or 600 CE if we include Islam).74

70Richard D. Schwartz and James C. Miller, ‘Legal Evolution and Societal Complexity’, American Journal of Sociology 2 (1964), 159–69, at 160.71Max Horkheimer and Theodor W. Adorno, Dialektik der Aufklärung. Frankfurt a. M: Fischer, 1997.72Lévi-Strauss, Tristes Tropiques, p. 292.73Martin Heidegger, ‘Zeit des Weltbilds’, in Heidegger (ed.), Holzwege. Frankfurt: Klostermann, 1972, pp. 69–104; Heidegger, ‘Die Onto-Theo-Logische Verfassung der Metaphysik’, in Heidegger (ed.), Identität und Differenz. Pfullingen: Neske, 1957, pp. 31–68.74Karl Jaspers, Vom Ursprung und Ziel der Geschichte. Munich: Piper, 1966 (1949). Today, the beginning of the time of the Axial Age is placed earlier by some authors than by Jaspers in his original essay. See for controversial contributions: Aleida Assmann, Jaspers’ Achsenzeit, oder: Vom Glück und Elend der Zentralperspektive in der Geschichte, in Dietrich Harth (ed.), Karl Jaspers. Denken zwischen Wissenschaft, Politik und Philosophie. Stuttgart: Metzler, 1989, pp. 187–205; Stefan Breuer, Kulturen der Achsenzeit. Leistung und Grenzen eines geschichtsphilosophischen Konzepts, Saeculum 45, 1994, 1–33, at 2; Jörg Dittmer, ‘Jaspers’ “Achsenzeit” und das interkulturelle Gespräch’, http://www.chairete.de/Beitrag/TA/jaspers_achsenzeit.pdf.


In these complex hierarchical societies, the daily evidence of tremendous inequalities and unbearable injustice and exploitation had awakened the sense of injustice of the slaves, the lower classes and some of the morally more sensitive intellectuals. This, together with heavy class struggles (as in the myth of the revolutionary class struggle of the Jewish slaves against their Egyptian oppressors), led to a turn from the pagan theodicy of fortune to a universal theodicy of suffering that we can find in Buddhism as well as in Judaism or Christendom.

The new theodicy of suffering no longer served the functional purpose of justifying the fortune of the happy and mighty few at the top of social hierarchy, as the theodicy of fortune had done. The latter simply legitimates the social and political difference between the ruling and the ruled classes by the higher virtue of the ruling class, and the greater achievements of this class for the common good. But in a more complex stratified society, this ideology no longer worked. Injustice screaming for vengeance was evident to everyone on a daily basis. As Max Weber writes:

Individually undeserved suffering was all too frequent [in imperial class societies]. And, not only if we impose the standards of a so called slave morality, but also if we impose the internal standards of the ruling class, it was all too frequently not the best, but the “bad ones” who were better off than the others.75

Now, and that was the revolutionary turn of the monotheistic world view, one question became the centre of religious ethics: ‘What is the cause of suffering?’76 The basic distinction of the metaphysical and religious world views of the Axial Age was that between transcendence and immanence.77 The ontological difference between transcendence and immanence functions at one and the same time as an abstract schema for an enlightening normative insight and as an ideology of legitimization. The distinction between immanence and transcendence discloses a view of the world that is ‘both an expression of real suffering and a protest against real suffering.’ It ‘is the sigh of the oppressed, the heart of a heartless world, the spirit of spiritless conditions.

75Max Weber, Gesammelte Aufsätze zur Religionssoziologie I. Tübingen: Mohr, 1978, p. 246 (my trans., German original: ‘Allzu häufig war individuell unverdientes Leid. Und keineswegs nur nach einer “Sklavenmoral”, sondern auch an den eigenen Maßstäben der Herrenschicht gemessen, waren es allzu oft nicht die Besten, sondern die “Schlechten”, denen es am besten geriet.’) On the origins in Hawai’i and other cultures of the Axial Age, see Bellah, Religion in Social Evolution, pp. 573–6.76Weber, Religionssoziologie I, p. 243.77Shmuel N. Eisenstadt, ‘Allgemeine Einleitung’, in Eisenstadt, Hg. Kulturen der Achsenzeit, Bd. 1. Frankfurt: Suhrkamp, 1987, p. 21.


It is the opium of the people.’78 This distinction is not at all abolished by the great revolutions that disclosed the evolutionary path to modern society, but copied into the immanence of this-worldly society.79 In exactly this way the distinction between transcendence and immanence manifests itself as a preadaptive evolutionary advance. In systems-theoretical terms, one can describe the process of the internalization of transcendence as a re-entry of the distinction between transcendence and immanence into immanence.

From the very beginning, the metaphysical and religious world views of the Eurasian Axial Age led to an institutionalization of the difference between immanence and transcendence in philosophical academies, religious churches and border-transgressing, universal discourses. This was already the first step in the long evolutionary process of its societal internalization, but still strictly bound to class and caste. However, all the Axial Age world views already developed a variety of strategies to overcome this difference (by inner-worldly ascetism, practical political commitment or in other ways).80

A good example is the myth of the exodus of a people of slaves from the old Egyptian Empire. This myth seems to make a kind of revolutionary claim for equality and freedom from any earthly rule, and a new foundation of the rule only of God and his realm of divine justice, based on a double covenant among the people themselves, and between God and his people.81 All power is drawn out of the relations between the people, and recredited entirely to the account of God.82 While the state-apologetic (or, in a manner of speaking, right-Hegelian) ‘royal theology, in classic archaic form, sees the relation of God and people as necessarily mediated by the king’, it is ‘this understanding that the prophets challenge: for them God relates directly to the people.’ What the prophets ‘insisted on was that the king had no monopoly in relation to Yahweh’. They finally ‘rejected kingship altogether’.83 Moreover, once the ‘relationship between God and the people’ was disconnected from, and opposed to kingship, the relationship between ‘God and the individual’ also was detached from state power, and both direct and immediate relationships, that between God and people, and that between God and the individual, ‘were mutually

78Marx, ‘Introduction to a Critique of Hegel’s Philosophy of Right’, English translation quoted from: http://www.cddc.vt.edu/bps/CF/marx-hegel.htm.79Illuminating: Charles Taylor, A Secular Age. Cambridge, MA: Harvard, 2007, pp. 221–5.80Eisenstadt, Allgemeine Einleitung, p. 21.81For a strongly projective and unhistorical, but instructive analysis, see Michael Walzer, Exodus und Revolution. Berlin: Rotbuch, 1988. For an evolutionary reconstruction, see Bellah, Religion in Human Evolution, pp. 306–10.82For the brilliant idea of a total recrediting of power, see Jan Assmann, Politische Theologie zwischen Ägypten und Israel. Munich: Siemens-Stiftung, o. J.83Bellah, Religion in Human Evolution, pp. 303–4 (my emphasis), see pp. 312, 316.


reinforcing’.84 Even if there is little evidence of a revolutionary war and mass break-out of Hebrew slaves from Egypt, there is stronger evidence that the myth that contained one of the greatest anti-mythical mental revolutions in history was born in the course of actual

peasant uprisings against the local feudal monarchies of Canaan up and down the length of Palestine. At least the archaeological research of Albright, Mendenhall, Gottwald and others suggests a revolution of massive proportions.85

Even if there was no great legal revolution anywhere, there is evidence for some kind of preadaptive revolutionary advances in Eurasia during the Axial Age. The ideas of ‘emancipation and salvation’ from the evil of this-worldly order was already at the core of all the new world views that emerged on the East-West Axis of the Eurasian continent.86 Many of them expressed the belief that man can contribute to the improvement of the world by true knowledge of the transcendent; that we can change things ‘through insight, education, reform’; that (to a certain amount) man can ‘take over history by planning activities’.87

In the cosmopolitan and normatively universalistic world views of the Axial Age, for the first time in history society itself became aware of the critical and negative potential of its own history, a point Horkheimer and Marcuse have made in the late 1930s. Horkheimer and Marcuse showed in a couple of essays that philosophy from the very beginning of metaphysical thinking was bound to the historical destiny of mankind by its critical and negative potential, hence, its contribution to the social evolutionary pool of negative communication, and its ability to make this negative potential of history cognizable as the potential of a radical critique of the existing.88 The reflexive

84Ibid., p. 317, for similar deliberations in ancient China, see p. 479. In ancient Indian religion, the city of Nirvana plays the same practical role for the idea of changing the world as the Judaist, and later the Christian and Islamic God, see pp. 529–30, 534–5, 541–2.85Graham Maddox, ‘Religion, Political Science and Society’, in Maddox and Elim Papadakis (eds), The Limits and Possibilities of Social Science, Joint Inaugural Lectures. Armidale: University of New England, 1992, p. 6. Maddox writes further: ‘Since the Canaanite kingdoms were connected by alliance with Egypt, and since their oppressive rule resembled the oriental despotism typified on the grand scale by pharaoh, the exodus was an apt dramatisation of the release from local oppression.’ (pp. 6–7, with further literature). A similar argument is made in Bellah, Religion in Human Evolution, p. 286.86Jaspers, Vom Ursprung und Ziel der Geschichte, p. 22 (my transl.).87Jaspers, Ursprung und Ziel, p. 23 (my transl.).88See, apart from Horkheimer, Zur Kritik der instrumentellen Vernunft, in particular, the earlier essay: Horkheimer and Herbert Marcuse, ‘Philosophie und kritische Theorie’, Zeitschrift für Sozialforschung 3 (1937), 625–47. At 626 Horkheimer writes that despite all interdependency between philosophy and science, philosophy aims at the emancipation of man from social relations that enslave him. Already Plato and Aristotle, Horkheimer adds, argued that the free development of individual human beings depends on the rational constitution of society. Going further along this track, it


revolutionary turn to the negative potential of history becomes even more evident in the above-mentioned universal theodicy of suffering which was combined directly with the very critical question about the causes of suffering. Insofar as both are manifestations of reflexive negativity, metaphysical thinking and the monotheistic theodicy of suffering are at the very origin of a conception of a theoretical attitude that is critical with respect to the existing world order as a whole.

Hegel has elaborated this point in his reflections on the social relations of recognition that emerge between master and slave. Seen from the perspective of the slave, slave labour is the ‘living negation’ (Marx) of the master’s ‘vain-glory, (his) self-consciousness of being superior’ to other living things as well as his self-consciousness of ‘being self-sufficient.’89 If and only if it takes the slave’s perspective, the reflexive self-description of the social difference of advanced stratified societies by metaphysical and religious world views immediately leads to the augmentation of negativity. The augmentation of negativity indicates a learning process that finally makes the slave realize ‘that living is a social, not an individual, category.’90 Once he loses the struggle for recognition, the slave must ‘experience’ himself as ‘absolute negativity’, that is, his consciousness must feel the ‘complete perturbation of its entire substance, this absolute dissolution of all its stability into fluent continuity’.91 As the subject of enforced labour (i.e. the permanent transformation of his living labour into his master’s dead labour), his consciousness finally ‘becomes aware of its own proper negativity, existence on its own account’.92 The slave as the disciplined,

became the critique of political economy, and as critique it is not in affirmative accordance with the existing society. Marcuse adds: ‘For philosophy, to the extent that it has been, up to the present, more than an occupation or a discipline within the given division of labor, has drawn its life from reason’s not yet being reality. Reason is the fundamental category of philosophical thought, the only one by means of which it has bound itself to human destiny. . . . Under the name of reason it [expressed the] conviction that what exists is not immediately and already rational but must rather be brought to reason. . . . In this form philosophy is idealism; it subsumes being under thought. But through this first thesis that made philosophy into rationalism and idealism it became critical philosophy as well.’ It contained the idea that ‘all that contradicted reason . . . was posited as something that had to be overcome’. (Herbert Marcuse, Philosophy and Critical Theory, in idem Negations: Essays in Critical Theory. London: MyFlyBooks, 2009, pp. 100–1) Therefore, historical materialism is nothing else but a theory of society that reveals and discloses the negative potential of history and its internal relation to reason, which is bound to the destiny of mankind through the evolutionary pool of negative communication.89Miguel Vatter, ‘Biopolitics and Geist: Hegel and the Tragedy of Civil Society’, in: Vatter, The Republic of the Living. Biopolitics and the Critique of Civil Society. Fordham University Press, 2014, p. 51 (forthcoming).90Vatter, Biopolitics and Geist, p. 51.91Hegel, Phänomenologie des Geistes, p. 148, quoted from the engl. transl.: http://www.marxists.org/reference/archive/hegel/works/ph/phba.htm (05 April 2012).92Ibid., p. 149, quoted from the engl. transl.: http://www.marxists.org/reference/archive/hegel/works/ph/phba.htm (05 April 2012).


obedient and working animal learns to express ‘the radical equality of all living self-consciousnesses’. The expression of universal equality gives him the political ‘power of absolute negativity’93 that – at least latently – is the founding power of a new egalitarian formation of society.

However that may be, in the Axial Age the contingent evolutionary growth of disturbing and interrupting negative communication reappears for the first time within the horizon of human praxis. To say ‘no’ becomes a reflexive and deliberative action. In the reflexive recognition of our ability to say ‘no’, social evolution itself becomes reflexive, and, at least partly, a matter of collective learning processes. This was, if we follow the (in this case) Christian reading of Hannah Arendt, the very discovery made by Paul, namely that the (biblical) law becomes valid only through the use of our autonomy – ‘autonomy’ in the literal meaning of that word, which combines the old Greek prefix ‘auto-’ with the noun ‘nomos’, or the ‘self-’ with the ‘law’: ‘the Thou-shalt of the law demands and expects a voluntary act of submission, an I-will of agreement.’94 The point is that voluntary and deliberatively consenting submission to the law at the same time and through the same deliberative process can turn into negative statements of dissent. From now on, negativity has become constitutive for the validity of all legal and moral norms. The law itself presupposes

that there is a faculty in man by virtue of which, regardless of necessity and compulsion, he can say “Yes” or “No”, agree or disagree with what is factually given, including his own self and his existence, and that this faculty may determine what he is going to do.95

Like all meaning, political and legal meaning is constituted by different statements for and against the same matter.96 The enormous growth of negativity during the Axial Age can be observed already at the level of cultic practices of communication between the human and the divine sphere, such as oblation. The main difference to archaic oblation rituals is a much greater part of human intentionality and freedom within the oblation procedure, which immediately leads to an accordingly higher risk concerning the divine answer.97 Hence, the pool of negative communication is expanding even between the divine and the human. In particular, the monotheist ban on graven images gives further powerful impulses to the growth of negative communication.98

93Vatter, Biopolitics and Geist, p. 51.94Arendt, The Life of the Mind, p. 68.95Ibid.96Tugendhat, Einführung in die sprachanalytische Philosophie, p. 244.97Robert N. Bellah, ‘Religiöse Evolution’, in C. Seyfarth (ed.), Religion und gesellschaftliche Entwicklung. Frankfurt: Suhrkamp, 1973, 281f.98See Maddox, ‘Hebrew Prophecy and the Foundations of Political Opposition’, Australian Religion Studies Review (ARSR) 1 (2008), vol. 21, 70–92, at 73.


Only a ‘God who is finally outside society and the world provides the point of reference from which all existing presuppositions can be questioned.’ Bellah rightly calls this ‘a basic criterion for the axial transition.’99

Stratified class societies with literate language, a far-developed state formation and urban centres can no longer suppress communicative variation the very moment it appears. It is written, you can reread it and make as many copies as you like. An empire can be governed only from a centre far away from the crucial negative action, and no direct control is possible any longer (as it would have been in communication between those immediately present who have no alternative to the use of oral language). In systems-theoretical terms, more complex societies must distinguish between variation and selection, and therefore, the time lag between communicative variation and social-structural selection causes the permanent production of alternative possibilities. This time lag enables a tremendous increase of centralized power and the oppression and exploitation of huge populations and the rule over a nearly endless periphery. However, at the same time, this is very dangerous for the rulers and the ruling classes, because the time lag between variation and selection for the first time makes effective performance of social criticism possible, and the long discourse that begins with the prophets of the Eurasian world religions to this day has not ceased.

Complex class societies with a literate culture can no longer suppress communicative and normative learning successfully. But the emancipation of the reflexive capacity to negate the ‘bad existing’ (Adorno) of ancient class societies is stopped by mechanisms of systemic stabilization. In stratified societies, the functional mechanisms of re-stabilization are identical with the mechanisms of social selection. Therefore, in these societies, critique is possible, but the legal and political embodiment of critique in new institutions is blocked effectively. In these societies, there is thus no possibility of stabilizing social liberation movements. There is no possibility of embodying the advances of the most impressive normative learning that ever happened in history (from Aristotle to Joshua, from Confucius to Paul, from Buddha to Zarathustra, with a never-ending list of famous names) in institutions that transcend the class structure of society. The tremendous potential of negativity that is accumulated and systematically reinforced by a worldwide institutionalized intellectual discourse is completely neutralized by the social class structure.

Therefore, the idealistic discourse remains ideological in principle. On the one hand, there is the egalitarian message of the coming kingdom of God: ‘May it be averted that in Thy tabernacle the persons of the rich should be accepted before the poor, or the noble before the ignoble; since rather’ – and

99Bellah, Religion in Human Evolution, p. 322, (my emphasis).


here, Augustine quotes the Church Father of the New Testament – ‘Thou hast chosen the weak things of the world to confound the things which are mighty; and base things of the world, and things which are despised, hast Thou chosen, yea, and things which are not, to bring to naught things that are.’ Accordingly, Augustine held it against the pagan philosophers that they were incapable of imparting their doctrine of the rational life (bios theoretikos), correct as it was, to the masses of those who labour and are heavily laden: ‘Philosophy promised reason, and only with difficulty liberated a very few.’100 But the price of this liberation was high, and it was surely always too high when the ones upon whom such liberation was bestowed did not even want to be freed, but had to be forced into the truth that is the life, by fire, wheel and sword. In particular, the Christian denaturalizing and spiritualizing of a human solidarity that is mediated by God’s love is deeply ambivalent. To be sure, the denaturalization extends Jewish and early Christian universalism to the outermost extreme of a community of abstract souls directly before God who are no longer recognizable in their social, ethnic and cultural origins (just like the people behind the Rawlsian veil of ignorance in contemporary political philosophy). But the simultaneous universalization and individualization of morality, because it was purchased with the dualistic coins of the radical spiritualization of intersubjective relations, had a high price. What philosophers – for the sake of their true happiness – autonomously determine through their own knowledge, and ordinary mortals must heteronomously learn and practise by way of authoritarian indoctrination and beating with sticks, is the rigid asceticism of Christian hostility towards the body and sexuality. What Augustine expected from the striving of the soul towards true being was, above all, its detachment from the ‘bird-lime of that pleasure.’101

However, the cognitive and normative paradigm change of the Axial Age, reluctantly and interrupted by regression, but finally successfully established the ‘preadaptive advances’ (Luhmann) of a worldwide communicative community that was oriented towards a postconventional moral universalism and a formal and operative rationality.102 At the latest from the time of the Axial Age onwards, the spontaneous articulation of the sense of injustice can be reinterpreted within the conceptually rationalized framework of a universal concept of justice. This was a normative evolutionary advance that could then be used again and again in different social constellations. Under certain (and highly unlikely) conditions of crisis, it finally led to the destruction of the old European order of inequality.

100Aurelius Augustinus, De Ordine II, pp. 5, 16, quoted in Kurt Flasch, Augustinus. Einführung in sein Denken. Stuttgart: Reclam, 1994, p. 79.101Augustine, The Confessions, trans. J. G. Pilkington. New York: Boni & Liveright, 1927, Bk. 7, Ch. 12, p. 128.102Breuer, Kulturen der Achsenzeit, p. 5.


II Normative constraints

Contrary to orthodox Marxism, class struggle must be understood as an independent source of evolutionary change.103 If we follow Post-Darwinism, evolution in general is driven by at least two different mechanisms of change.104 On the one hand, there is (as in classical Darwinism) gradual improvement of adaptive capacities by natural selection. In social evolution, natural selection is replaced by social selection, and the gradual improvement of adaptive capacities consists in random variation of communicative deviance combined with cultural group selection, social class selection or other kinds of structural selection and systemic restabilization. Marxism explains the gradual and incremental evolution of ‘greater generalized adaptive capacity’ by reference to the growth of productive forces.105 Modern functionalist systems theory has generalized this idea, and the growth of productive forces has become part and parcel of the growth of systemic complexity.106 However, already Darwin argued that natural selection, while, of course, the most important mechanism of evolutionary change, is not the only one.107 Neo-Darwinists such as Mayer, Gould, Lewontin and others detected rapid, catalytic or revolutionary change that cannot be explained by the improvement of adaptation through natural (or social) selection. Evolution in these cases just is too rapid. There is not enough time for adaptation. The organic systems must be adapted to survive, but there is no improvement, nor yet always a maintaining of adaptive capacities. Non-adaptive change in natural organic evolution is explained by the theory of punctuated equilibria and punctuational bursts. Punctuational bursts change

103Eder, Collective Learning Processes and Social Evolution, p. 23.104See Ernst Mayr, ‘Speciational Evolution or Punctuated Equilibria’, in A. Somit and S. A. Peterson (eds), The Dynamics of Evolution. Ithaca, NY: Cornell University Press, 1992, pp. 21–53, http://www.stephenjaygould.org/library/mayr_punctuated.html (04 April 2012); Niles Eldredge and Gould, ‘Punctuated equilibria: an alternative to phyletic gradualism’, in T. J. M. Schopf (ed.), Models in Paleobiology. San Francisco: Freeman-Cooper, 1972, pp. 82–115; Stephen Jay Gould and Richard C. Lewontin, ‘The Spandrels of San Marco and the Panglossian Paradigm: A Critique of the Adaptationist Programme’, http://www.aaas.org/spp/dser/03_Areas/evolution/perspectives/Gould_Lewontin_1979.shtml, (04 April 2012); Gould, ‘Episodic change versus gradualist dogma’, Science and Nature 2 (1978), 5–12; Gould, The Structure of Evolutionary Theory; Gersick, Revolutionary Change Theories; Gisela Kubon-Gilke and Ekkart Schlicht, ‘Gerichtete Variationen in der biologischen und sozialen Evolution’, Gestalt Theory 20:1 (1998), 48–77, at 68 (www.semverteilung.vwl.uni-muenchen.de, 04 April 2012); Quentin D. Atkinson, Andrew Meade, Chris Vendetti, Simon J. Greenhill and Mark Pagel, ‘Languages evolve in punctuational bursts’, Science 319 (February 2008), 588.105Parsons, Societies. Evolutionary and Comparative Perspectives. Englewood Cliffs: Prentice Hall, 1966, p. 110.106Luhmann, Legitimation durch Verfahren. Frankfurt: Suhrkamp, 1983 (1969), pp. 144–5 (with reference to Parsons).107Gould, The Structure of Evolutionary Theory.


the basic body plan of a species (Bauplan). This change does not lead to better adaptation, but to new constraints of adaptation: ‘Evolutionary change’ in these cases is ‘channeled’ ‘by developmental constraints’. Therefore, the ‘limitation of possibilities rather than adaptive honing to perfection becomes a dominant theme in evolution. At a minimum, in explaining evolutionary pathways through time, the constraints imposed by history rise to equal prominence with the immediate advantages of adaptation.’108 The ‘basic body plans of organisms are so integrated and so replete with constraints upon adaptation’ that these ‘constraints restrict possible paths and modes of change so strongly that the constraints themselves become much the most interesting aspect of evolution.’109

Punctuational bursts are triggered, for instance, by speciation in long-term isolated sub-populations. The latter is a phenomenon that can also be observed in social evolution in the time before great revolutions. Reform monks experiment with social formations long before the outburst of the Papal Revolution of the eleventh century. Heretic corporations are breeding later Protestants long before the first Protestant revolutions of the sixteenth century. Masonic lodges from Hamburg to Haiti and from Paris to Philadelphia experiment with new nuclear forms of social life long before the Atlantic Constitutional Revolution of the eighteenth century. The geographically and socially isolated settlers of North America experiment with grassroots or town hall democracies during the seventeenth and eighteenth century, changing the traditional English meaning of ‘rights’ and ‘representation’ radically. Communist and anarchist underground parties experiment with new kinds of political organization long before the social revolutions of the twentieth century.110

108Gould, ‘Darwinian Fundamentalism’, New York Review of Books 44:10 (1997); see Gould, The Structure of Evolutionary Theory, p. 26. For a functional application to legal revolution, see Henke, Über die Evolution des Rechts, pp. 84, 87–91, 107 (on the case of women’s suffrage) 114–19. However, Henke mentions the difference between evolutionary improvement of adaptation and normative constraints on adaptation which are not just moral wishful thinking, but internal to social evolution (see p. 64). However, he subsumes the normative constraints, for instance, of international ius cogens, under the improvement of adaptation (p. 154).109Gould and Lewontin, The Spandrels of San Marco and the Panglossian Paradigm, quoted from: http://www.aaas.org/spp/dser/03_Areas/evolution/perspectives/Gould_Lewontin_1979.shtml (04 April 2012).110Speciation is only one kind of punctuational burst, which is generalized in social evolution by great legal revolutions, as we will see. Natural or societal catastrophes are another. In organic evolution, these are cases of mass extinctions of species caused, for instance, by giant meteorites hitting the earth, as in the case of the dinosaurs, opening the path for the mammals’ gradual and adaptive evolutionary growth and their development from mice to men. In social evolution similarly they can consist in famine, or the invention and communicative use of writing, as we have seen in Section I of this chapter, or in mass deportation, ethnic and social cleansing, concentration camps and genocides, as we know them from the twentieth century, or in climate change, atomic wars, etc.


The distinction between two kinds of evolutionary change, rapid and gradual, and catalytic and incremental, has proved fruitful in many evolutionary studies that are dispersed over a great variety of scientific disciplines, ranging from physics to linguistics, from sociology to the history of science, from economics to the history of ideas.111 Since Thomas Kuhn’s famous book on the Structure of Scientific Revolutions of 1962, for instance, the distinction between normal and revolutionary science is used for research on the evolution of science.112 Revolutionary scientific change is explained by the cumulation of anomalies, which finally leads to degenerating scientific research programmes, crisis and the revolutionary constitution of a new and progressive research programme.113 As Apel and Lakatos have shown, crisis is the beginning not only of predatory competition (Kuhn), but also of a discourse on the rational cogency of the better argument (Lakatos, Apel).114

The same is true in social evolution. Not every evolutionary change can be explained by the growth of productive forces or the growth of systemic complexity. On the contrary, as one can regularly observe, great revolutions are preceded by stagnation and the crisis of productive and systemic growth (and at best some peripheral developments that counteract that trend, e.g. the advanced urbanization of the Netherlands in the fifteenth century). For this reason alone, it seems much more fruitful to explain the punctuational bursts of great revolutions with Klaus Eder by reference to the specific developmental logic of social class struggles which are embedded in discourse. Both mechanisms of change, the growth of systemic complexity and structural social conflict, vary independently from each other. They never reach an understanding or a common ground. They express contradictory principles of societal integration or sociation (Vergesellschaftung). But they have to complement each other in a specific way if a post-revolutionary society, or more generally, a new societal formation of understanding and production, is to be restabilized. Without a certain growth of systemic complexity, revolutionary advances of class struggle cannot be stabilized.

However, the functional adjustment of systemic mechanisms is blind to the victims and losers of history. In the normal and functional course of social evolution, right or wrong does matter only as far as it improves adjustment. But revolutions have another inherent subject than adaptation and adjustment. They are moral events. It was not by accident that Kant was

111Brief overview: Gersick, Revolutionary Change Theories.112Thomas S. Kuhn, The Structure of Scientific Revolutions. Chicago: Chicago University Press, 1970.113Imre Lakatos, The Methodology of Scientific Research Programmes, Philosophical Papers, V.I, London, 1974.114Apel, Paradigmen der Ersten Philosophie; Lakatos, The Methodology of Scientific Research Programmes.


transported into a state of moral enthusiasm by the French Revolution, but for good reasons, and even despite the evidence of terror that could never allow a moral person to suggest such a bloody experiment for a second time. Nonetheless, the revolution sent Kant into moral rapture because he perceived it as a Geschichtszeichen (sign of history) that indicated a constant progress of mankind towards the better.115 At least the great revolutions are a Geschichtszeichen insofar as they are the expression of class struggles which give a voice to the usually silenced victims and losers of history. Revolutions are Geschichtszeichen insofar as the awakened sense of injustice of oppressed and exploited social classes and groups becomes avenging force. The ‘symbiotic mechanism’ (Luhmann) of avenging force is the reserve fund of communicative rationality.116 The revolution argues just as the old prophets and the ancient Chinese philosophers did117: Not justice has to submit to adaptation but adaptation has to submit to justice.

The invention of normative constraints begins with the negative: the articulation of the sense of injustice. But once ‘a violation of rights in one place is felt throughout the world’, it is no longer a particular violation of the rights of a single person or a single people alone, but of those of all persons and peoples (and therefore, Kant argues that this indicates the existence ‘of world citizenship’ – just in the sense of a Hegelian existing Notion).118 As a universal violation of every human being (or mankind), it can be transformed into a normative constraint that bans, for instance, the use of slave labour or torture unconditionally, whatever the negative effects for the adaptive advances and even for the self-preservation of society may be.119 This is the evolutionary meaning of Kant’s use of the old and correct normative insight: Fiat justitia

115Kant, Streit der Fakultäten Werke XI. Frankfurt: Suhrkamp, 1977, p. 361. Hegel repeats this in his lectures on the philosophy of history. But with the affirmative category of ‘wirkliche Versöhnung’ (real reconciliation, i.e. reconciliation with the existing real), he represses the moral rupture between the justified moral feeling of enthusiasm and the unjustifiable plan or suggestion of making a revolution (see Hegel, Vorlesungen über die Philosophie der Geschichte. Frankfurt: Suhrkamp, 1970, p. 529; see Ruda, Hegels Pöbel. Konstanz: Konstanz University Press, 2011, pp. 214–15).116Moore, Injustice. On the primacy of negation in the process of moral development, see Piaget, The Moral Judgment of the Child, p. 274; more general: Arendt, The Life of the Mind, pp. 67–8; on avenging force: Brunkhorst, ‘Kommunikative Vernunft und rächende Gewalt’, Sozialwissenschaftliche Literaturrundschau Heft 8/9, S. 7–34; with further differentiations: Brunkhorst, ‘The Man Who Shot Liberty Valence – Von der rächenden zur revolutionären Gewalt’, Paragrana. Internationale Zeitschrift für Historische Anthropologie, Bd. 15, 1: Performanz des Rechts, pp. 159–67.117On the latter, see Bellah, Religion in Social Evolution, p. 479.118Kant, Zum ewigen Frieden, p. 216. English transl. quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012). For the ‘existing Notion’, see Hegel, Wissenschaft der Logik II. Hamburg: Meiner, 1975 (1934), p. 424; see Hegel, Lectures on the History of Philosophy, quoted from http://www.marxists.org/reference/archive/hegel/works/hp/hparistotle.htm (15 September 2013).119See Koskenniemi, ‘What Should International Lawyers Learn from Karl Marx?’, Leiden Journal of International Law 17 (2004), 229–46, at 244–5.


et pereat mundus.120 It is here that an evolutionary theory which includes the concept of normative constraints coincides with universal history:

Radical antislavery is a human invention that belongs to no one, because it belongs to everyone. Such ideas are the residues of events, rather than the possession of particular collectives, and even if they fail, they can never be forgotten.121

Only because radical anti-slavery belongs to everyone is it an evolutionary universal that can be reinvented again and again, and against every new form of ‘slavery’, including that which Marx called wage slavery.

As in natural evolution, punctuational bursts that are social revolutions presuppose adaptation but do not improve it. Revolutions are at the peak of maladjustment, and they are not a cumulation of tiny maladjustments, but a grand experiment with societal structures that are badly adjusted.122 However, the great revolutions are not (as from the point of view of Luhmann’s systems theory) experimentalism for experimentalism’s sake (or experimentalism by chance alone). At issue in all revolutionary experimentalism is the idea of egalitarian freedom. Therefore, the revolutions are not only about material (class) interests (‘materielle Interessen’), but also about ideal (class) interests (‘ideelle Interessen’).123 In modification of a famous thesis by Max Weber, one might say that ideas and ideal class interests act like pointsmen, changing direction at junctions in the track of evolution.124 In a similar way to that in which a catalytic punctuation of an evolutionary equilibrium creates a new ‘Bauplan’ (Gould) for an organism which constrains its adaptive capacities physiologically,125 the great and successful revolutions impose normative constraints upon the blind environmental adjustment and self-preservation of social systems. Class struggles and revolutions transform social evolution into an evolutionary learning process of socially integrated groups – a learning process that often has a deadly end.126

120Kant, Zum ewigen Frieden, p. 241.121Susan Buck-Morss, Hegel, Haiti, and Universal History. Pittsburgh: University of Pittsburgh Press, 2009, p. 148. On a more immanent Hegelian version of this process of universalization, see Ruda, Hegels Pöbel.122Luhmann goes even further with his assumption that social evolution in itself (or at least the evolution of modern societies) presupposes adaptation to the purpose of experimenting with ever more risky maladjustments (see Luhmann, Gesellschaft der Gesellschaft, pp. 433, 446).123Weber, Gesammelte Aufsätze zur Religionssoziologie I, p. 252, quoted from: Weber, Max 1963, The Sociology of Religion. Boston: Beacon Press, p. 280 (http://web.grinnell.edu/courses/soc/f01/soc295-02/marx_weber.html).124Max Weber, Gesammelte Aufsätze zur Religionssoziologie I, p. 252.125Gould, ‘Morphological Challenging by Structural Constraint’. Palaeobiology 10 (1984), 172–94, at 191; Gould, ‘Punctuated Equilibrium in Fact and Theory’, Journal of Social Biological Structure 12 (2002), 117–36, at 124; Gould, The Structure of Evolutionary Theory, pp. 290, 753, pp. 884–5.126As in Alexander Kluge’s film: Lernprozesse mit tödlichem Ausgang.


Punctuational bursts ‘are not smooth trajectories toward pre-set ends because both the specific composition of a system and the “rules” governing how its parts interact may change unpredictably during revolutionary punctuations’.127 Yet, unlike revolutionary learning processes, the adaptive evolutionary process of variation and selection is completely immoral, brutal and gruesome, a process that (described from the observer’s perspective) experiments with everything, even with totalitarian rule and concentration camps. Contrary to normatively blind evolutionary adaptation, the revolutionary advances of normative learning processes are working as normative constraints that shall protect us from certain kinds of evolutionary experiments, such as, in our days, totalitarian rule and concentration camps.

The normative constraints of evolutionary adaptation are embodied in a new constitutional and legal order of society. This is so because law that is modern (and only law that is modern) is at once emancipatory and repressive: law as freedom (Kant’s and Hegel’s Dasein der Freiheit) and law as the immune system of society (Luhmann). From the Papal Revolution of the eleventh and twelfth century onwards, law became a professionalized and functionally differentiated social system. However, this process coincided accidentally with the co-original emergence of law that is emancipatory because it was, for the first time, based on a universal idea of redemption, identified with the legal body of Christ, and explained in logically reconstructed categories of republican Roman law. From that time onwards, the culture of legal experts and lawyers has been a culture that has to cope with the dialectical tension between the (avant la lettre) Kantian constitutional mindset of the emancipatory, existing concept of law and the managerial mindset of academically trained professionals who are operating as autonomous experts implementing and concretizing the Kantian mindset through their legal work – Friedrich Müller’s Rechtsarbeit.128 However, they normally (and more habitually than intentionally) perform this day-to-day business in the service of the ruling classes of their time.

The great revolutions are co-original with the emergence of modern society, and all great revolutions are legal revolutions.129 This is one of the

127Gersick, Revolutionary Change Theories, p. 12.128On the concept of Rechtsarbeit cp. Müller and Ralph Christensen, Juristische Methodik, Bd. I: Grundlagen, Öffentliches Recht. Berlin: Duncker & Humblot, 2002.129See Eugen Rosenstock-Huessy, Die europäischen Revolutionen und der Charakter der Nationen. Stuttgart: Kohlhammer, 1958 (1931); Harold Berman, Law and Revolution. The Formation of the Western Legal Tradition. Cambridge, MA: Harvard University Press, 1983; Berman, Law and Revolution II: The Impact of the Protestant Reformation on the Western Legal Tradition. Cambridge, MA: Cambridge University Press, 2006; James A. Brundage, Medieval Canon Law. London: Longman, 1995; Brian Tierney, Religion, Law, and the Growth of Constitutional Thought 1150–1650. Cambridge: Cambridge University Press, 1982; John Witte, Law and Protestantism: The Legal Teachings of the Lutheran Reformation. Cambridge: Cambridge University Press, 2002.


main differences between the small number of great revolutions and the huge number of smaller revolutions. Great revolutions generate a new formation of society in the way that punctuational bursts generate a new animal species. They change the framework of the normative constraints of society, and that is possible if, and only if, the new normative constraints are implemented legally. Otherwise, any new formation of normative constraints would disintegrate as soon as it is established.130 In contrast, all smaller or ‘normal’ revolutions in evolutionary terms are part and parcel of gradual change through social selection, even if a cumulation of smaller revolutions can lead to a great revolution (such as a cumulation of anomalies in normal science can lead to a scientific revolution).131 Normal revolutions have a socially selective effect. They change the power structure of society, or at least challenge it in such a way that (as a criterion of a normal revolution) a kind of diarchy (Doppelherrschaft) or balance of antagonistic powers or social classes exists in a region or a state over a certain period. A good example of a revolutionary diarchy is the decade before 1989 in Poland, where the power of the communist military dictatorship and the power of the popular union Solidarnosc were in (relatively peaceful) balance for a long time. Intellectuals and historians such as Leon Trotsky and Charles Tilly have analysed (and in the case of Tilly counted) revolutionary events from the latter point of view, which focuses on the power structure and the control of capital alone, whereas historians such as Marx and Berman focus on the structural and comprehensive change of the societal totality that is caused only by great legal revolutions.

For Marx (who analysed modern capitalism in the legal categories of private property and developed his own categorical framework out of Hegel’s philosophy of law), it was still self-evident that great revolutions, such as the Protestant English Revolution and the French Revolution, were legal revolutions, and therefore alone had world-historical meaning, as the following quotation clearly shows:

The revolutions of 1648 and 1789 were not English and French revolutions, they were revolutions in the European fashion (Revolutionen Europäischen Stils). They did not represent the victory of a particular social class over the old political system; they proclaimed the political system of the new European society. The bourgeoisie was victorious in these revolutions, but the victory of the bourgeoisie was at that time the victory of a new social order, the victory of bourgeois ownership over feudal ownership, of nationality over provincialism, of competition over the guild, of partitioning

130See Kant, Zum ewigen Frieden, p. 224; Hegel, Grundlinien der Philosophie des Rechts § 4, Werke 7. Frankfurt: Suhrkamp, 1970, § 141, pp. 286–91.131Kuhn, The Structure of Scientific Revolutions, Ch. VI and VII.


[of the land] over primogeniture, of the rule of the landowner over the domination of the owner by the land, of enlightenment over superstition, of the family over the family name, of industry over heroic idleness, of bourgeois law over medieval privileges. . . . These revolutions reflected the needs of the world at that time rather than the needs of those parts of the world where they occurred, that is, England and France. . . . The French bourgeoisie of 1789, when it confronted monarchy and aristocracy, the representatives of the old society, was . . . a class speaking for the whole of modern society.132

Marx was right, even if he did not go far enough and still retained a Eurocentric perspective. He did not even mention the American Revolution, let alone Haiti and other places all over the world where revolutions occurred. As has recently been demonstrated in the historical literature, the entire global legal and political order was re-founded and constituted anew in the decades following the constitutional revolutions of the late eighteenth century. This was a fact which contributed greatly to the formation of one modern world society. The new political, legal, economic and cultural world order consisted, from its beginning in the age of the Papal Revolution, in the invention and co-evolution of a new national as well as a new international order of powers. Modern law, in particular, constitutional law, is not at all a national and nation-state phenomenon, but from the beginning is transnationally embedded.133 It was also based on the dense and momentous intersection and interpenetration of national and international law, and, more generally, of processes of simultaneous nationalization and internationalization, as we will see in Chapter 2, Section II.

But Marx was completely right to analyse the advances of the English and French Revolutions as legal and constitutional advances. It was the new constitutional and civil law that established the nation as a sovereign power and disempowered the fragmented powers of provincialism, that replaced the many medieval privileges with one bourgeois law such as the French Code Civil, that replaced particular feudal ownership with universal rights to private property, that abolished the guild and established universal markets for labour and real estate, that replaced the privileged right of primogeniture with equal rights of inheritance, that finally emancipated family and marriage definitively

132Marx, Bourgeoisie und Konterrevolution, in Marx and Engels (eds), Werke, in 43 vols. Berlin: Dietz. Volume 6, 1973, pp. 102–24, at 107–8. quoted from: http://www.marxists.org/archive/marx/works/1848/12/15.htm (19 October 2013).133See David S. Law and Mila Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’, in Legal Studies Research Papers Series No. 10-01 (June 2011), pp. 1182–4, especially at 1183, 1223–4, 1240, 1243 (available at: http://www.californialawreview.org/assets/pdfs/99-5/01-LawVersteeg.pdf, 1 November 2013).


from all legal bonds to a stratified society. All the emphases in italics in the previous sentence relate to legal categories. Marx understands the total revolution of the whole of European society exclusively in legal terms – and rightly so, as we will see.

The new legal and juristically articulated idea of egalitarian freedom, which in all great revolutions takes hold of the masses during the revolution, is transformed into a new legal system after each revolution. This system enables the legal implementation of other social systems and spheres of value. Hence, law in this sense is the pacemaker of evolution.134 More precisely, this means that the new law that has been created by the revolution works through its constraints as a direction giver of the subsequent process of gradual and incremental evolutionary adaptation. The revolutionarily established normative constraints disclose a new evolutionary path. The normative constraints of social evolution function as empirical conditions for the possibility (or the enabling conditions) of further evolution – and the ongoing evolutionary process may then, after another more or less durable equilibrium, change its own enabling conditions again, or it may not.

On a given evolutionary path, adaptive communicative evolution proceeds gradually, together with ordinary class struggle. These proceedings are incremental and uncontrollable, beyond any plan or telos. We have internal access (as participants) to the normative constraints of evolution – we can accept or reject them reasonably, and we can position ourselves at least as if we have made them. In this respect, human beings make their own history and can change it. But we have only external access (as observers) to the blind adaptive processes of our own systems of communication:

Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.135

The revolutions which we experience in the complementary Kantian roles of participants and audience ‘storm more swiftly from success to success, their dramatic effects outdo each other, men and things seem set in sparkling diamonds, ecstasy is the order of the day’ – but they are followed by ‘a long Katzenjammer [cat’s whinge]’ – which we can only observe externally – ‘before [society] learns to assimilate the results of its storm-and-stress period soberly’.136 Two concepts of learning are intertwined here, the Kantian one of

134Habermas, Rekonstruktion des historischen Materialismus.135Marx, Der achtzehnte Brumaire des Louis Bonaparte, MEGA I/II. Berlin: Dietz, 1985, p. 96 (English transl.: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch01.htm, 04 April 2012).136Marx, Der achtzehnte Brumaire, p. 101 (English transl.: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch01.htm, 04 April 2012).


the moral and normative learning of individual and collective actors, and the cognitive and functional learning of social systems of communication. Only for the latter is Luhmann’s critique of critical theory appropriate:

The problem [of the rationality of society as a whole] appears almost paradigmatically in the discussions of the “critical theory” of the Frankfurt School. . . . They stick stubbornly and almost against their better judgment to a concept of reason [Vernunft] that shall fit the individual human being as well as society. However, they overlook the fact that there are now 5 billion people who are acting simultaneously, and therefore without coordination, – if they don’t happen to be sleeping.137

However, Luhmann (like Marx) stubbornly neglects the objective spirit that consists in the independence of the morally relevant mechanism of punctuated bursts which is due to class struggles and social revolutions. New revolutionary ideas, constitutional and legal principles are regularly betrayed, distorted, reversed, forgotten, made subservient to new class rule and exploitation during the Katzenjammer period and the incremental evolutionary process of sober assimilation (functional adaptation) that follows all great revolutions. The constitutionally guaranteed and legally implemented human rights ultimately exclude black and other people of non-European origin from the human race, so that they are often worse off after the revolution than before. However, the revolutionary ideas ‘will not be forgotten’.138 Rights can be taken seriously, and the slaves of Haiti were the first to take the rights declared by the French Revolution seriously.139 Having read the French Declaration of 1789, they rushed into battle, the Marseillaise on their lips, irritating the French soldiers completely: ‘Normative texts, particularly constitutions, can be established with insincere intentions, but ultimately this will not be done with impunity. They can strike back.’140 What appears here is the complete difference between objective spirit and the real abstractions of functional imperatives. The objective spirit of the law empowers the actors to decide for themselves between the reifying function of law to stabilize existing class rule, oppression and exploitation (which is, to be sure, always the mainstream of so-called legal progress) – and the demands for emancipation which are also internal to legal form. As we will see, the revolutionary common man of 1525 could refer to the Schwaben and Sachsenspiegel (medieval legal textbooks of

137See Luhmann, Die Wissenschaft der Gesellschaft. Frankfurt: Suhrkamp, 1990, p. 660: with critical reference to: Brunkhorst, ‘Die Idee einer rationalen Gesellschaft: kritische Theorie und Wissenschaft’, Aus Politik und Zeitgeschichte Heft B28 (1987), pp. 15–22.138Kant, Streit der Fakultäten, p. 361 (my transl. of the German ‘vergessen sich nicht’).139On the latter, see Ronald Dworkin, Taking Rights Seriously. London: Duckworth&Co, 1977.140Müller, Wer ist das Volk?, p. 56.


public and civil law) as well as to the then valid canon law in order to transform them into an argument and a weapon of critique (Marx) against the existing interpretation of the law of bondage by a submissive legal profession which was in the service of the ruling classes of the time.

The advanced system of modern law is one of the best instruments ever invented to stabilize existing class structures, oppression and ever more effective exploitation. But it is just this, the first legal instrument that at the same time could be used by the oppressed as an effective instrument against their oppression. Ancient Roman law lacked the emancipatory dimension of modern law, and it lacked its complexity, professionalization and functional differentiation, and therefore, it was not possible in ancient times to fight within the law against the existing interpretation of law.141 The great legal revolutions created such a legal system, which, once invented, could be used for reformatory and revolutionary purposes as well as for the purpose of stabilization and of increasing the power of the ruling classes.

III Constitutions as evolutionary universals

Constitutions are normative constraints on adaptation, and as such, they are not only evolutionary advances, but also revolutionary advances. I use Parsons’s term evolutionary universal as equivalent to Luhmann’s evolutionary advances. Evolutionary advances or universals are multiple inventions of evolution (like the brain or the eye). Parsons designates as an evolutionary universal ‘any organizational development sufficiently important to further evolution that, rather than emerging only once, it is likely to be ‘hit upon’ by various systems operating under different conditions.’142

There is not that much of a difference here between Parsons and Luhmann; Luhmann only tries to avoid any teleological misunderstanding that could be associated with the word ‘universal’. However, to cover both aspects of advance, the evolutionary (in the sense of functional adaptation through natural/ social selection) and the revolutionary, I will use the term evolutionary universal differently from Parsons, who borrowed it from biology but used it only in its functional meaning. In as far as evolutionary universals establish normative constraints upon adaptation, they have a normatively universal character because, as we will see, they are making universal claims to normative validity (in the meaning of Apel and Habermas). Revolutionary

141See Wesel, Uwe, Geschichte des Rechts. Munich: Beck, 1997, p. 156.142Parsons, Evolutionary Universals in Society, p. 339; see Luhmann, Die Gesellschaft der Gesellschaft, pp. 505–16. For the application of this concept to constitutional evolution, see Luhmann, Verfassung als evolutionäre Errungenschaft.


advances can even be reconstructed as a kind of progress in the development of universal normative constraints that are constitutional in a broad, material sense.

Moreover, unlike Luhmann, I will use ‘constitution’ and ‘constitutionalism’ not only functionally for the designation of the stabilization of social systems, but also normatively as referring to the mindset of social actors. Constitutions do not only couple the law with other social systems structurally, but also express the self-determination or self-legislation of individual persons and peoples as parts of a self-determining humanity.143

(1) Evolutionary advances: Constitutionalism as structural coupling

The functional problem of constitutionalization arises once the growing production of legal norms becomes increasingly confusing, fragmented and inconsistent. This usually leads to an elementary process of constitutionalization, which, as a minimum, consists in classification, codification and corpus formation as in the Corpus Iuris Canonici. Particularly important for constitutionalization is the need to resolve collisions between the self-referentially closed social systems of politics and law. The classical solution is the structural coupling of the two systems through law. The structural coupling of law and politics means that there is no legal norm left that cannot be changed by the use of political power and that there is no political action left that is not regulated by law, and hence is either legal or illegal.144

Once invented, constitutions are copied or reinvented again and again in very different ways, and in nearly all kinds of societal communities. If constitutions are evolutionary universals, then the original and essential concept of the constitution is broader than that of the constitution of the nation state. In consequence, it covers inter-, trans-, and supranational public law constitutions on the one hand, and societal civil law constitutions on the other hand. Understood as an evolutionary universal, the concept of the constitution can be used to bridge the dualism of national and international law as well as the dualism of state and society. Notably, both dualisms were (epistemologically) constitutive for the German statist (or monarchical) constitutionalism of the nineteenth century (Staatsrechtslehre).145

143Koskenniemi, Constitutionalism as Mindset, p. 36.144Luhmann, Verfassung als evolutionäre Errungenschaft.145In the first third of the twentieth century, both forms of dualism were sharply criticized by Hans Kelsen as features of bourgeois legal theory. See Chapter 11 in: Brunkhorst, Legitimationskrisen. Verfassungsprobleme der Weltgesellschaft. Baden-Baden: Nomos, 2012; Brunkhorst, ‘Critique of Dualism: Hans Kelsen and the Twentieth Century Revolution of International Law’, Constellations


The referential openness of the evolutionary concept of a constitution is due to the fact that evolutionary universals (Parsons) or evolutionary advances (Luhmann) contain multiple evolutionary inventions.146 Paradigmatic for evolutionary universals are the invention of the eye or the brain. There is great diversity among brains. Every species has a distinct brain. There are the brains of rats, sparrows, humans, dogs, ticks, cockroaches, apes and sharks. They are as different from one another as the eyes of different species (those of the eagle in comparison with those of the bat), or other evolutionary universals in biology as well as in sociology. Among the social universals of evolution are bureaucracy, kinship, religion, constitutions, stratification, urbanization and others. In these instances, there is a huge variety of forms. Modern German bureaucracy is as different from old Egyptian bureaucracy as the eye of the eagle is different from the eye of the dog. Both paganism and monotheism are realizations of the evolutionary universal of religion. Both Flensburg and Hong Kong reflect an evolutionary advance of urbanization. This argument can be applied ad infinitum.

In analogy to this, there are different societal communities with a wide range of constitutions. Flensburg University has a constitution. China has a constitution and Germany has a different one. But Bavaria, Texas, Goa and New York Taxi drivers also have a constitution, and there are even constitutional amendment procedures for scientific journals. The first international organization to refer to its statutes as a constitution was the ILO in its foundational treaty of 1919, and the EU has a constitution even though the Lisbon Treaty is not called a ‘constitution’. The Charter of the United Nations is a constitutional document that is binding for all states and individual human beings. Furthermore, newspapers, commercial enterprises and chess clubs have documents called ‘constitutions’, and in Germany, there exists a Law on Labour Relations at the Work Place that in German is called Betriebsverfassungsgesetz (constitutional law of the factory). Europe has a plurality of constitutions, and this plurality is not in any way a European peculiarity or Sonderweg. In the first instance, Europe has a constitution ‘in the sense of the co-existence of transnational and national constitutions’. Second, it has a constitution in the sense that it contains a variety of functionally specialized constitutions, constitutionalizing the economic, legal, political and social relations and security system of the European Union.147 From an evolutionary perspective, it is pointless to argue

15:4 (2011), 496–512. On the societal generalization of the concept of constitution, see Gunther Teubner, Constitutional Fragments – Societal Constitutionalism and Globalization. Oxford: Oxford University Press, 2012.146See Parsons, Evolutionary Universals in Society; Luhmann, Die Gesellschaft der Gesellschaft, p. 505.147Kaarlo Tuori, ‘The Many Constitutions of Europe’, in Tuori and Suvi Sankari (eds), The Many Constitutions of Europe. Oxon: Ashgate, 2010, pp. 3–30, at 3.


that there are true, real or substantial constitutions, which can be strictly distinguished from false, unreal or accidental constitutions. This opposition has been one of the fundamental doctrines of the German school of constitutional law (Staatsrechtslehre) since Paul Laband. The distinction between substantial and accidental constitutions is just as pointless as the assertion that the eagle has a true substantial or real eye, whereas the half blind dog or the nearly blind bat have only accidental or unreal eyes, or that the pinnacle of creation, the human being, has the real brain, and all other animals such as cockroaches and chimpanzees have brains that are not truly real.

Constitutions usually consist in a circular relation between two provisions or conditions. That is, they express a circular relation between a number of subjective rights (which need not be human or civic rights, but can also be privileges as in the Magna Carta), and a set of principles of checks and balances (‘rules to make rules’). These two are necessary but not sufficient conditions for a constitution, and it is a myth that there are necessary and sufficient conditions of a true constitution. From an evolutionary point of view, there is only family resemblance between different constitutions. Even if there are great and crucial differences between different kinds of constitution, there is no such thing as a categorical difference between the real constitution of the nation state and the unreal constitutions of Europe or of the New York Times. In other words, there are no unbridgeable dualisms but only continua of differences.148

(2) Revolutionary advances: The Kantian constitutional mindset

Insofar as they claim for themselves some bearing on the progress in the embodiment of freedom and equality, constitutions are not only evolutionary, but also revolutionary advances. At the latest from the invention of a professionalized legal culture in the last decades of the Twelfth and the first decades of the thirteenth century onwards, ancient Roman law changed not only from a politically and socially embedded legal order to a disembedded and functionally specialized legal system, but also from a mere instrument for the co-ordination of the interests of the imperial ruling classes (as in the civil law of transactions) and the repression of the ruled classes and peoples into a double-edged instrument of repression and emancipation: an instrument that served not only the interests of the ruling classes, but also those of the exploited and oppressed classes of society, and was designed to change and

148Robert Brandom, Making It Explicit, p. 856, pp. 864–66.


improve the secular world. Ever since then, the law has borne the double personality of Dr Jekyll and Mr Hyde. Martti Koskenniemi introduced these two characters of the same schizophrenic person into international law and legal discourse.149 While Dr Jekyll follows Kant and his revolutionary idea of a law that is self-legislation and emancipates us from domination, Mr Hyde turns this upside down into a law that is in the service of the ruling classes, and used to manipulate and control us technically. While Dr Jekyll is the herald of the Kantian mindset, Mr Hyde is the practitioner of the managerial mindset. A mindset is an epistemic schema that orients our communicative actions. It governs a whole constellation of societal practices, or a Wittgensteinian form of life (a ‘language game’). Koskenniemi defines the Kantian constitutional mindset (with Kant) as individual autonomy and public self-determination, namely, ‘recognizing only the autonomy of one’s own will’.150 Therefore, constitutionalism must have its centre in common legislative procedures, and no legal norm can be allowed to exist beyond legislative procedures which are designed to express the will of the people. The ‘people’ are all individual addressees of a respective legal norm. The Kantian constitutional mindset is not just the rule of law – but the emancipation from any law that is not the law to which we have given our agreement.151 As long as it is not the product of popular legislation, the rule of law for Kant is nothing else than one of the many instruments of the managerial mindset of professional lawyers whom Kant called sorry comforters.152 Koskenniemi is right when he underscores that it was not the absence (or even the abuse) of law that for Kant and the actors of the Atlantic Revolution was the scandal of so-called absolutism. In contrast, the scandal of absolutism that called for a revolution was the

149Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960. Cambridge: Cambridge University Press, 2001, p. 177. These two characters are fighting each other throughout Koskenniemi’s whole work, beginning with Kantian utopia vs. managerial apologia (Koskenniemi, From Apologia to Utopia: The Structure of International Legal Argument. Helsinki: Lakimiesliiton, 1989), followed up with the struggles between Kelsen and Schmitt, Lauterpacht and Morgenthau, finally between Dr Jekyll alias Wolfgang Friedmann, the last hero of the gentle civilizers, and the many Mr Hydes who were the embedded jurists from the American (and other) State Department(s), Koskenniemi, The Gentle Civilizer of Nations, pp. 413–15, 494–509.150Koskenniemi, Constitutionalism as Mindset, p. 25.151Therefore, Koskenniemi writes, law ‘is needed for legislation to exist, and legislation is needed for self-determination to be possible. Law’s virtue does not lie only in law-application. It resides equally in legislation as the expression of a community’s self-determining will’. Koskenniemi, Constitutionalism as Mindset, p. 25; see Maus, Zur Aufklärung der Demokratietheorie. Frankfurt: Suhrkamp, 1992; Brunkhorst, Solidarity – From Civic Friendship to a Global Legal Community. Cambridge, MA: MIT-Press, pp. 69–76; Möllers, Christoph, Verfassungsgebende Gewalt – Verfassung – Konstitutionalisierung. Begriffe der Verfassung in Europa, in Bogdandy, Armin von (Hg.), Europäisches Verfassungsrecht. Berlin: Springer, 2003.152Kant, Zum ewigen Frieden, p. 210, quoted from Kant, Political Writings, ed. by H. S. Reiss. Cambridge: Cambridge University Press, 1991, p. 103.


‘absence of structures of political representation’, the absence of ‘autonomy’ and ‘self-legislation’.153

Unlike the Kantian one, the managerial mindset is designed to preserve the evolutionary advances of the structural coupling of law and other functional systems. A functionally differentiated, hence self-referentially closed legal system produces itself (autopoiesis) through the combination of normative closure with cognitive openness.154 From the perspective of cognitive or systemic learning, normative expectations and moral points of view are nothing else than learning blockades, useful for the functional purpose of reduction of environmental complexity. As far as constitutions fulfil the functional requirements of structural coupling, they contribute to the enhancement of the adaptive capacities of modern society through cognitive learning alone. This, however, requires the Kantian mindset no longer. Instead, it requires experts and professionals. They are programmed to treat ‘human beings as unfree animals’, as rational egoists, as members of the law and economics faculty, as the homo economicus.155

Koskenniemi’s distinction of the Kantian and the managerial mindset rightly has a strong polemical meaning. However, it is too dualistic and voluntaristic, and the Wittgensteinian idea of a gestalt switch between Mr Hyde and Dr Jekyll is conceptually too poor to use it for evolutionary theory. Mr Hyde is not just the embodiment of evil (as in the famous old novella and the later movie),156 but a deeply ambivalent character. Therefore, I will first redefine the ‘managerial mindset’ in the broader (and more open and ‘dialectical’) sense of a professional mindset that (in accordance with Koskenniemi) operates incrementally and deals with techniques and strategic actions. However, it need not be oriented normatively to ‘law and economics’ alone – that is the

153Koskenniemi, Constitutionalism as Mindset, p. 26; see Brunkhorst, Solidarity, pp. 55–77. Therefore, Hans Kelsen later argued that ‘determining the content of the legal norm [is] a political question’ (Koskenniemi, Constitutionalism as Mindset, p. 29). For Kelsen, the very political question was that of democratic self-legislation (Brunkhorst, Critique of Dualism, pp. 505–7). On the myth of absolutism and absolutism, see Ronald G. Asch and Heinz Durchhardt (eds), Der Absolutismus – Ein Mythos? Strukturwandel monarchischer Herrschaft. Cologne: Böhlau, 1996; Chris Thornhill, A Sociology of Constitutions, pp. 92–102, 117; Rudolf Schlögl, ‘Der frühneuzeitliche Hof als Kommunikationsraum. Interaktionstheoretische Perspektiven der Forschung’, in Frank Becker (ed.), Geschichte und Systemtheorie – Exemplarische Fallstudien. Frankfurt: Campus, 2004, pp. 185–225, at 186.154Luhmann, Das Recht der Gesellschaft. Frankfurt: Suhrkamp, 1993, pp. 78–95, p. 555.155Koskenniemi, Constitutionalism as Mindset, pp. 13–14; see Koskenniemi, ‘Formalismus, Fragmentierung, Freiheit – Kantische Themen im heutigen Völkerrecht’, in Regina Kreide and Andreas Niederberger (eds), Transnationale Verrechtlichung. Nationale Demokratien im Zeitalter globaler Politik. Frankfurt – New York: Campus, pp. 65–90.156Dr Jekyll and Mr Hyde, USA 1931, director Rouben Mamoulian. The movie is based on the novella of Robert Louis Stevenson, Strange case of Dr Jekyll and Mr Hyde and Other Tales. Oxford: Oxford University Press, 2006.


neo-liberal professional. It can also, in contradistinction, be oriented by ‘law and democracy’, that is, the Kantian professional.157 The latter should not be confused with Dr Jekyll’s original Kantian language of radical (revolutionary) change and his rhetoric of ‘pouvoir constituant’, ‘constitutional moments’ and revolutionary progress. As Mr Hyde, the Kantian professional performs his managerial job incrementally and adaptively, contributing small changes (of job routine negations) to the variation pool of gradual evolutionary change. However, in his job routine, Mr Hyde can be oriented either to the language of (Kantian managerial) reform or to the language of (functional managerial) affirmation.158 Both languages contribute to the pool of evolutionary variation (that in itself is beyond control).

What, secondly, is most important for the distinction between managerial and Kantian mindset is something that Koskenniemi does not mention in his essay on the Kantian mindset, but at the end of an earlier essay on Karl Marx and international law, at least implicitly.159 The Kantian mindset of law can never become an exclusive privilege of experts. It ceases to exist once it vanishes from the cognitive horizon of public expression, struggle, controversy and debate, which is the expression, struggle, controversy and debate of everybody. While the Kantian constitutional mindset is the same for the people and the professional ‘elites’ of lawyers, politicians, diplomats, representatives and other stakeholders and lobbyists, the managerial mindset is reserved for the latter and separates them from the people. While the professionals have privileged access to the managerial mindset, everybody has equal access to the Kantian mindset. Therefore, only the Kantian constitutional mindset of the people can act as a constituent power that contradicts and derogates the legal opinion of embedded experts, as in the case of the global protest against the Iraq War in 2003.160

Thirdly, the professional praxis of the managerial mindset of legal experts, professional politicians and stakeholders is needed to stabilize and realize the Kantian mindset legally step by step.161 The Kantian mindset’s existence

157I am grateful to Cristina Lafont for a discussion of this point.158For the distinction between the language of radical change and the language of reform (and affirmation), see Paul Blokker, ‘EU Constitutionalism and Societal Constitutional Claims: A Political Sociological Approach to Constitutional Politics’, paper presented at a conference (Self-Constitution of Europe) at Cardiff Law School 14 June 2013.159Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960. Cambridge: Cambridge University Press, 2001, p. 177.160Koskenniemi, What Should International Lawyers Learn from Karl Marx?, p. 245.161An illuminating case study is Mikael R. Madsen, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist jurisprudence’, Ms 2012 (forthcoming), pp. 43–60, at 55–9. On the general need of the ‘Kantian’ mindset of normative social integration for systemic and ‘managerial’ stabilization, see Jürgen Habermas, Theorie des kommunikativen Handelns II. Frankfurt: Suhrkamp, 1981, p. 228; see Armin Nassehi, Der soziologische Diskurs der Moderne. Frankfurt aM: Suhrkamp Verlag, 2006, pp. 126–7.


depends deeply on the incremental praxis of the managerial mindset. The empty signifier can become an existing notion only through the practical performance of the managerial mindset.162 Once the Kantian constitutional mindset has become part and parcel of revolutionary advances, it ‘will not be forgotten’.163 Therefore, from the beginning, the managerial mindset has to get along with the obstacles and constraints of the Kantian mindset – whether the professionals want to or not, and regardless of whether they are Kantians or (neo-)liberals, whether they stand for reform or affirmation. At the beginning, the Kantian mindset is an empty signifier (or an ‘empty ought’) – Luhmann, Hegel and orthodox Marxists are right. However, this empty signifier contains more than just ‘illusions of feasability’, ‘solemn declarations’ and ‘revolutionary chants’.164 It has been brought forth by revolutionary power, class struggles and wars which finally enabled the (however incomplete) constitutionalizing use of the communicative power of declarations, slogans and chants. From the beginning, the empty signifier is a signifier of right and not of philanthropy.165 It can ‘be halted or inhibited’ by the managerial mindset and the prevailing class interests of the time. But it ‘cannot be eliminated.’166 Why? – Because legal norms cannot get rid of their internal connection with the colloquial language and the moral self-understanding of their addressees, the normative closure of the legal system does not only enable cognitive and systemic adaptation (as in Luhmann’s theory), but also the continuation of normative learning. All law that is public is opened not only cognitively to its environment, but also normatively to the general and diffuse public sphere. Normative learning (or unlearning) is at stake, for instance, in parliamentary or legal landmark debates and decisions which affect the general public.167 Normative learning is at stake when new social movements emerge.168 Normative learning is at stake in all public conflicts and struggles of crowds that assemble and rise up over the validity and the right interpretation of the law; it is at stake when words and cobblestones strike back, and discourses flare up. What appears as a learning blockade from the perspective of systems theory is itself the result of

162I am grateful for a discussion of this point with Jiri Priban and Poul Kjaer.163Kant, Streit der Fakultäten, p. 361 (my transl.).164Luhmann, Verfassung als evolutionäre Errungenschaft, p. 176 (my transl. of ‘Machbarkeitsillusionen’, ‘Gesänge’, ‘feierliche Erklärungen’).165Kant, Toward Perpetual Peace, in Mary Gregor (ed.), Practical Philosophy. Cambridge: Cambridge University Press, 1996, quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (24 April 2012), p. 328.166Alexander Somek, ‘Europe: From emancipation to empowerment’, unpublished e-man., Utah: University of Iowa, 2012, p. 8.167See, for example, Helmut Dubiel, Niemand ist frei von der Geschichte. Die nationalsozialistische Herrschaft in den Debatten des Deutschen Bundestages. München: Hanser, 1999.168See Klaus Eder, Geschichte als Lernprozeß? Zur Pathogenese politischer Modernität in Deutschland. Frankfurt: Suhrkamp, 1985.


evolutionary learning, which consists in an increase and categorical progress of moral insight, measured in categories of social inclusion, moral universality, political egalitarianism, reciprocal understanding, justice as fairness and societal individualization (e.g. Kant’s enthusiasm of moral progress, or Durkheim’s modern cult of the individual).169 The results of normative learning are embodied within the whole system of positive law, and, in particular, in constitutional rights and principles of autonomy, democracy, checks and balances, due process, social equality, human and civil rights, and thus the whole list of solemn declarations and revolutionary chants: ‘The International unites the human race.’ ‘Die Internationale erkämpft das Menschenrecht.’ These are holistic statements and empty legal signifiers which everybody understands. Revolutionary declarations such as the declarations of 1776, 1789 and 1948 are seldom significant for professional lawyers, but they are often very significant for philosophers, and for the people, especially when it comes to social conflicts that are structural. This is so because they express a better, or at least presumably better justified (or better interpreted) idea of freedom, which seems to be more universal, more inclusive, more individualized and decentred than all former ideas of freedom. Hegel has called a historical sequence of these ideas with the corresponding public discourses progress in the consciousness (or understanding) of freedom.

IV The evolution of modern society

Marx’s critique of political economy still entails a model for the evolution of modern society. However, it must be generalized for other social systems that operate on the basis of self-referential closure or autopoiesis, that is, self-production or self-organization.

Class conflict that is structural is at least as old as the tragic collisions between equal legal claims that are reported, for instance, in ancient Greek tragedy.170 However, structural class conflict that culminates in a normative antinomy between equal rights which are internal to a functionally specialized legal system (or the emergence of such a system) is a special feature of the emergence and development of modern society.171

A social system is functionally differentiated once it is reflexively closed, or, in other terms, once it reaches self-referential closure or performing autopoiesis (self-production). For instance, the self-referential closure of the

169I am grateful for a controversial discussion with Rudolf Stichweh on that point, at a conference that Marcelo Neves organized in Brasilia in September 2013.170See Menke, Die Gegenwart der Tragödie, Frankfurt: Suhrkamp, 2005, pp. 8, 21.171See Çıdam, Geschichtserzählung im Kapital.


economic system is reached once the system reproduces itself (autopoiesis) through the monetary codification of communicative operations of commodity exchange. The binary code of having or not having money controls all economic relations equally. Marx has described the reflexive closure that decouples the economic system from its environment with a simple schema. While the early premodern economy of immediate commodity (C) exchange that is oriented to the commodity’s use-value is symbolized by the schema C-C, later premodern economy makes use of the exchange value of money (M), but still remains within the Aristotelian horizon of use-value: C-M-C. Here, the exchange of use values (commodities) is mediated technically by the use of money. In evolutionary terms, money is a preadaptive advance, which later evolved as the leading medium of the functional differentiation of the economic system.172 As long as the advances of a premodern money economy are normatively controlled by the polis, the res publica, the empire, the corporative estate, the religious leadership, the Roman Church or anyone else, these advances remain preadaptive and the economy remains a specific order of life that is embedded in the social lifeworld of a polity or religious community.173 The preadaptive advances of money are transformed into the steering medium of a functionally differentiated social system. Therefore, the preadaptive advance of money must become an end in itself. This then leads to a formal representation of the functionally differentiated system of the modern capitalist economy by the schemata: M-C-M’-(. . .). In this schema M’-M ∆ M symbolizes the profit, and in M-M’-(. . .) the difference M’-M ∆ M represents the interest rate.174 The functional differentiation of the economy that is completed co-originally with the global age of world society in the middle of the nineteenth century presupposes socially disembedded and legally institutionalized markets for real estate, labour (M-C-M’) and money (M-M’).175 While an embedded pre-modern social order is an open, finite and static system, disembedded functional systems are self-referentially closed, infinite and highly dynamic. With the autopoiesis of

172On preadaptive advances, see Luhmann, Gesellschaft der Gesellschaft, pp. 512–13.173On the terminology of ‘embedment’ and ‘disembedment’, see Karl Polanyi, The Great Transformation: The Political and Economic Origins of our Time, 1944, cited here according to the second Beacon paperback edition, Boston MA: Beacon Press, 1957.174Marx, Capital, Ch. 4, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April 2012).175On the global age, see Charles Bright and Michael Geyer, ‘Benchmarks of Globalization: the Global Condition, 1850–2010’, e-paper, Chicago and Berlin, 2011, pp. 7, 17 (now published in Blackwell Companion to World History); on world society, see Luhmann, Die Gesellschaft der Gesellschaft, pp. 145–70; Stichweh, Die Weltgesellschaft. Frankfurt aM: Suhrkamp Verlag, 2000; on the disembedment of the three markets: Polanyi, The Great Transformation.


the economic system begins an endless process of accumulation of capital that is steered by the generalized exchange value of money.176

However, the process of functional differentiation is not restricted to the economy, as Marx still assumed. The co-original (or even preadaptive, anticipating) emergence of a semantics of reflexivity – as in philosophy since Kant or in slogans such as ‘profit for profit’s sake’ (Zola), ‘art for art’s sake’ (Flaubert), ‘love loving love’ (Jean Paul), ‘science for science’s sake’ (Weber), or ‘power for power’s sake’ (Machiavelli) – is an indication of reflexive closure and the differentiation of specialized social systems or spheres of value.177

Once a functionally differentiated system such as the capitalist system of economy emerges, crisis emerges at the same time. What the crisis reveals is the social difference that lurks behind the functional difference of system and environment. For Luhmann, only the latter matters, whereas the former belongs to our old European feudal past of stratified societies. All references to the old European ‘humanistic framework’ of ‘freedom and equality, self-realization and solidarity’ and ‘its affectionately “social” concern’ for ‘outdated mythologies’ such as ‘exploitation’, ‘injustice’ and ‘suppression’ are simply ‘missing the point’.178 Therefore, ‘we have to come to terms, once and for all, with a society without human happiness and, of course, without taste, without solidarity, without similarity of living conditions’.179 However, for Marx, functional differentiation of the economy and the emergence of new, market-dependent social classes are two sides of the same modern coin. For Marx, the crucial social difference that is caused by functional differentiation is that between antagonistic social classes, and that is the difference between capital and labour. For the labourers, the crisis was always already there. For them, capitalism is crisis. Once the closed reflexive system of exchange reaches the labour market, the living labour power (‘lebendige Arbeit’) is transformed into dead labour (‘tote Arbeit’), or constant and variable capital.180 It is the disembedment process of the labour market that transforms the substantiality

176Marx, Capital, Ch. 4, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April 2012).177See Brunkhorst, Romanticism and Cultural Criticism, Praxis International 4 (1985), 397–416.178Luhmann, Globalization or World Society: How to Conceive of Modern Society?, International Review of Sociology 7:1 (1997), 67–80., at 69 and 71. For a careful study of the affinity and differences between Marx and Luhmann, see João Paulo Bachur, Kapitalismus und funktionale Differenzierung. Eine kritische Rekonstruktion, Berlin, 2013 (unpublished book manuscript).179Luhmann, Globalization or World Society, p. 70.180On the difference between living and dead labour, see Marx, Capital, Vol. 1, Chapter 6, Section 1, http://www.marxists.org/archive/marx/works/1867-c1/ch06.htm (accessed 28 May 2013). The transformation of living into dead labour is the great topic of the Marxist theory of alienation and reification; paradigmatically, see Georg Lukács, Geschichte und Klassenbewusstsein.


or objectivity (in Luhmann’s German, ‘Sachlichkeit’)181 of the bourgeois society (bürgerliche Gesellschaft) of functional differentiation into a social relation of classes, of exploitation, suppression and injustice:

On leaving this sphere of simple circulation or of exchange of commodities, which furnishes the “Free-trader Vulgaris” with his views and ideas, and with the standard by which he judges a society based on capital and wages, we think we can perceive a change in the physiognomy of our dramatis personae. He, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but – a hiding.182

My revised Marxist thesis now is a generalization of Marx’s original insight into the internal relation of capitalism and crisis: Functional differentiation in general causes systemic and social problems which the systems themselves cannot solve.

1. Functional differentiation in general, and not only that of the economy, causes systemic problems because of the unavoidable paradoxes of self-reference: Economic crisis and the formation of the system of market economy are co-original. Administrative crisis is co-original with the formation of the modern state and the functional differentiation of the political system. The crisis of rationality is co-original with the self-referential (or autopoietic) closure of the legal system. The crisis of science is co-original with the functional differentiation of the scientific and educational system,

181For Luhmann’s systems theory, the distinction between the three dimensions of societal integration is crucial: substantial/objective (sachlich), temporal (zeitlich) and social (sozial) integration. This distinction is not as innocent or harmless as it appears because, with the substantial dimension, Luhmann reintroduces Weber’s purposive rationality and Schelsky’s technische Sachlichkeit, and transfers them together with social normativity to the temporal level of social evolution, and this finally leads him to a total affirmation of the evolutionary Sachlichkeit of the functionally differentiated society, and the relegation of the social sphere to an earlier, less sachlich (less functionally differentiated) level of evolution.182Marx, Capital, Vol. 1, Chapter 6, http://www.marxists.org/archive/marx/works/1867-c1/ch01.htm#S1 (10 April 2012). The distinction between external and internal transformation marks the methodological difference between a Marxian approach of critical theory and Polanyi’s more conservative cultural criticism. Even though Polanyi does not simply argue for a regressive re-embedment of the economy (I follow here an interpretation of Polanyi that Andrew Arato developed in the discussion of an earlier version of this part), he is not able to develop an immanent criticism of modern capitalism, and that is the great advance of the stubborn Hegelian method of Marx, who can draw a systematic distinction between external and internal transformation, and then ground the critique of capitalism in structural conditions that are exclusively modern.


and so on. The paradoxes of self-reference can be highly productive, as we have known at the latest since the philosophical revolution of German transcendental philosophy and idealism – from Kant’s antinomies of pure reason to Hegel’s and Marx’s dialectic of negative determination. Moreover, the paradoxes of self-reflection generally stimulate cognitive learning processes of autopoietic systems of all kinds. Self-referentially closed systems are learning systems. Up to now, nothing has been invented that is more effective for the unleashing of all productive forces of mankind than the self-referential system of the modern market economy: ‘There is’, as Deng Xiaoping rightly argues,

no fundamental contradiction between socialism and a market economy. The problem is how to develop the productive forces more effectively. We used to have a planned economy, but our experience over the years has proved that having a totally planned economy hampers the development of the productive forces to a certain extent. If we combine a planned economy with a market economy, we shall be in a better position to liberate the productive forces and speed up economic growth.183

Deng’s insight goes back directly to Marx: ‘The bourgeoisie cannot exist without constantly revolutionizing the instruments of production, and thereby the relations of production, and with them the whole relations of society.’184 Deng is also right in that, particularly from a Marxist point of view, there is no fundamental contradiction between socialism and market society. For Marx, socialism consisted in the socialization of the productive forces, but never in the kind of planned economy (in particular, the 5-year plans) that Lenin and the Bolshevists adopted, not from Marx, but from the czars.185

However, at the same time, a self-referentially closed system like that of modern capitalism (or even of a modern market economy with partially socialized means of production as in China, in Japan, South East Asia, or in Western social welfare states) is highly fragile. It can be totally destructive and lead to a system crash anywhere at any time. This phenomenon is well known to every user of self-referential systems such as personal computers. At the

183Henry Grunwald and Deng Xiaoping, ‘There Is No Fundamental Contradiction Between Socialism and a Market Economy’, in China Through A Lens, 23 October 1985, quoted from: http://www.china.org.cn/english/features/dengxiaoping/103358.htm (10 April 2012).184Marx and Engels, Communist Manifesto, http://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm#007 (10 April 2012).185See Berman, Justice in the U.S.S.R., Revised edition, enlarged. New York: Random House, 1963 (1950).


latest since the crash of Lehman Brothers on 15 September 2008, every world citizen was forced to remember the inherently catastrophic tendency of the self-referentially closed system of modern global capitalism.

2. At the core of the catastrophe that is modern capitalism, we can identify the above-mentioned social crisis of exploitation, injustice and suppression that is triggered and reinforced by the systemic crisis of self-reference. More generally, social antagonisms between classes are the other side of the paradoxes of systemic self-reference. Even if the social crisis can be kept in a latent stage through a successful technical management of the systemic crisis (for instance, Keynesianism), the normative problems of unjust and oppressive class rule cannot be solved by technical specialists, but have to be solved by the people who are affected by these problems.

Therefore, unlike systems theory, critical theory assumes that the systemic contradictions of self-reference not only cause systemic crises, but at the same time must engender social differences and latent social and class conflicts that are structural. Once they become manifest and political, these latent conflicts can lead to a crisis of legitimization. The legitimization crisis gives rise to conflicts between equal rights that are now located at the centre of the constitutional system. The result is a further explosion of negative communication. Legitimization crises, therefore, are the triggers for collective learning processes that are normative, and sometimes revolutionary.

Conclusion

The normative use of gestural language marks the turn from the genetic stage to the communicative stage of evolution. The take-off of social evolution can only be explained by the exponential growth of communicative negations: contradiction, disagreement and dissent. In the beginning, the growth of communicative negativity effectively could be repressed by segmented egalitarian societies. But it is unleashed by the ideological and, in particular, religious reflections of the incurable social relations of injustice, exploitation and oppression that are inherent in imperial and stratified societies during the Axial Age. The ‘time of the world view’ (Heidegger) was loaded with negativity. In modern times (functionally differentiated society), negativity could be combined with class struggle, law and revolution, the driving forces of a reluctant and vulnerable normative progress without end.

A critical theory of social evolution is based on the categorical distinction between revolutionary and evolutionary change. Great legal revolutions establish normative constraints on the blind adaptive processes of gradual


and incremental evolution. These constraints are implemented in the legal and constitutional systems of modern society. Successful legal revolutions disclose new evolutionary paths of gradual change and incremental adaptation. The legal core of normative constraints, that is, constitutionalism, is an evolutionary universal that consists in the contradictory unity of the very different advances of revolutionary and evolutionary change (managerial vs. constitutional mindset).

2

Class conflict and the co-evolution of cosmopolitan

and national statehood

Introduction

Functional differentiation causes certain social problems which the systems themselves cannot solve. These problems consist, in particular, of structural social differences that are latent class conflicts. While Marx, for instance, has observed that the functional differentiation of the economy causes a class conflict between capital and labour that is critical for the further reproduction and self-preservation of the capitalist system, Neves and Luhmann have observed that the globalization of functional differentiation causes a structural and possibly unsolvable problem concerning the social difference between included and excluded populations. Once latent conflicts of that size and structural grounding become manifest within the political sphere of public debate and the struggle for public law (Ihering’s Kampf ums Recht), they will routinely lead to a crisis of legitimization. A crisis of legitimization is the trigger of (progressive or regressive) normative learning processes of the affected society as a whole. In an extreme case, a crisis of legitimization can cause revolutionary change. The great legal and constitutional revolutions, therefore, are the paradigmatic cases of a collective learning that is normative. They are not the result of gradual and incremental change that leads to the improvement and growth of the adaptive capacity of the society, but of rapid, catalytic or revolutionary change that leads to a new constitutional order. The constitutional order is path-opening and path-directing because it constrains social selection normatively.


The new constitutional order is not a simple corollary of the former constitutional order. It presupposes the structural advances of the former order but cannot be derived from it, neither by deductive nor by substantial inference.1 This was already Marx’s argument, following Darwin:

Bourgeois society is the most developed and the most complex historic organization of production. The categories which express its relations, the comprehension of its structure, thereby also allows insights into the structure and the relations of production of all the vanished social formations out of whose ruins and elements it built itself up, whose partly still unconquered remnants are carried along within it, whose mere nuances have developed explicit significance within it, etc. Human anatomy contains a key to the anatomy of the ape. The intimations of higher development among the subordinate animal species, however, can be understood only after the higher development is already known.2

In the same way as the new order can never be derived (or predicted) from the old one, but the old one can be derived from the new one retrospectively, a new order of normative constraints of evolutionary adaptation also can only be justified from within the new order in a (more or less) circular way. Moreover, and at best, it can be reconstructed rationally as progress in the consciousness of freedom that is progressive in comparison with the normative advances of all former orders we know. But this is possible only retrospectively: once ‘a form of life has become old’ (Hegel).3 The new revolutionary order, as well as the revolution that leads to it, therefore, can be justified normatively only post festum, never ante festum, as Kant rightly recognized in the famous passage on the spectator’s moral enthusiasm vis-à-vis the French Revolution.4

1For the developmental logic of cognitive and normative learning processes, see Piaget, The Moral Judgment of the Child; Kohlberg, Lawrence, Essays on Moral Development. 2 Vol., San Francisco: Harper & Row, 1981/1984; Kesselring, Die Produktivität der Antinomie; on the difference of substantial and deductive argumentation: Toulmin, Steven, Der Gebrauch von Argumenten. Kronberg: Scriptor, 1975.2Karl Marx, Grundrisse zur Kritik der Politischen Ökonomie, engl. translation quoted from: http://www.marxists.org/archive/marx/works/1857/grundrisse/ch01.htm. In this respect, Luhmann follows Marx in saying that later evolutionary formations cannot be derived from earlier ones, but the other way round, see Walz, Theorien sozialer Evolution und Geschichte, p. 46.3Hegel, Grundlinien der Philosophie des Rechts, quoted from: http://www.marxists.org/reference/archive/hegel/works/pr/preface.htm#xxvii (20 October 2013).4Kant, Zum ewigen Frieden, p. 234, note, quoted from: https://www.mtholyoke.edu/acad/intrel/kant/append1.htm (1 February 2013); see Maus, Zur Aufklärung der Demokratietheorie.

CLASS CONFLICT ANd CO-EVOLUTION 61

I Cosmopolis as an evolutionary universal

Cosmopolitanism is an evolutionary universal. In contrast to the Eurocentric view according to which cosmopolitanism originates in Greek and Roman stoicism, I will demonstrate that cosmopolitanism was not an exclusively European invention, and that the ancient cosmopolitan ideals already included some formal elements which became important much later, and were even constitutive for modern democratic self-organization.

Throughout the hegemony of European imperialism and European educational ideology, non-European cosmopolitanism has been repressed, as have non-European and ‘archaic’ globalization, global history, politics and economy. Only recently, deconstructionist philosophers, researchers in postcolonial studies and – even more radically – historians of the blossoming branch of world history have reconstructed the memory of the repressed.5 This is not accidental, but due to the emergence of world history as ready-to-hand reality and everyday experience for every single human being.6 Together with a dense network of global institutions, and enabled by the new global media of mass traffic and mass communication, the globalization of highly concentrated political power and autonomous political community, of positive law and a highly organized market economy, of the human rights moral culture, of knowledge and experience, of science, formal education and protest movements, but also (and not least) of war and crisis has led to a total decentring of Eurocentrism, of occidental rationalism and even of history, the humanities and social sciences. If they once were European characteristics, they are so no longer.7 The ‘global condition’, since the end of the nineteenth century at the latest, has no longer been that of ‘catching-up’ or of ‘modernization, which informed the language of empire and nation-making, of industrialization and development with such profligacy’, but that of the simultaneous ‘challenge of the modern everywhere.’8 What has been ‘[g]rappling with the modern’ everywhere has been ‘self-transformation’ in

5See, for example, Jacques Derrida, The Other Heading: Reflections on Today’s Europe, trans. Pascale-Anne Brault and Michael B. Naas. Bloomington: Indiana University Press, 1992; Anghie, Antony, Imperialism, Sovereignty and the Making of International Law. Cambridge, MA: Cambridge University Press, 2004; Konrad, Eckert, Ulrike Freitag, Hg., Globalgeschichte. Theorien, Ansätze, Themen. Frankfurt: Campus, 2007; Jürgen Osterhammel, Niels P. Petersson, Geschichte der Globalisierung. Munich: Beck, 2007; Osterhammel (ed.), Weltgeschichte. Stuttgart: Steiner, 2008; Osterhammel, Die Verwandlung der Welt. Eine Geschichte des 19. Jahrhunderts. Munich: Beck, 2010.6Osterhammel and Petersson, Geschichte der Globalisierung, 64ff; Bright and Geyer, Globalgeschichte, 43f.7Brunkhorst, ‘There Will Be Blood. Konstitutionalisierung ohne Demokratie?’, in Brunkhorst (ed.), Demokratie in der Weltgesellschaft, Sonderheft Soziale Welt, 2009.8Bright and Geyer, Benchmarks of Globalization: the Global Condition, 1850–2010, pp. 7, 17.


‘simultaneity and synchronicity’.9 The originally abstract category of world history (and, as we will see, also of cosmopolitanism) ascended to a real abstraction in the course of history.

Long before the last phase of modern globalization, there was ‘archaic globalization’.10 Cosmopolitanism was invented during the Axial Age in several different places that were more or less independent of one another. When the matter already existed, the term – be it cosmopolis, civitas maxima, res publica universalis, universal monarchy or ecclesia universalis, or (as in the eighteenth century) world republic, or (as in our days) global or cosmopolitan democracy – was first introduced in the fourth century BC by Greek philosophers, and subsequently redefined and reinterpreted again and again, first by Roman and Christian philosophers, and then by the philosophers of the Enlightenment in their turn.

Because cosmopolitan ideas were developed independently from one another in different global regions from Sian in China to Rome in Italy, and because this was done in contexts very different from one another, both religious and profane ones, they must be addressed as an evolutionary universal or as an evolutionary advantage.11 Like the eye, the bone, the brain, blood circulation, sexual reproduction, kinship, religious belief systems, social stratification, functional differentiation, empires, cities, states, constitutions, and these days even egalitarian mass democracy, cosmopolitanism is a multiple invention of evolution. Sometimes, these universal inventions are exported, sometimes copied, sometimes invented anew. Usually, they are disseminated by a mixture of all three.

Cosmopolitanism was originally closely linked with the emergence of comprehensive and highly rationalized religious and philosophical world views and, at the same time, the emergence of imperialism, social class stratification and the differentiation of urban centre and rural periphery. Paradigmatic is the use of urbs in the singular for the city of Rome in classical pagan times as well as in contemporary Catholicism, and that of orbis for the rest of the world. ‘Archaic’ states, such as the Assyrian state formation 3000 years ago, understood themselves as the centre of the whole universe, and hence were imperial and contained already the blueprint of a cosmopolitan ideology.12 From the very beginning (5000 years ago), state formation evolves in a

9Ibid., p. 18.10Christopher A. Bayly, ‘“Archaische” und “Moderne” Globalisierung in Eurasien und Afrika, ca. 1750–1850’, in Sebastian Konrad, Andreas Eckert, Ulrike Freitag, Hg. Globalgeschichte. Theorien, Ansätze, Themen. Frankfurt: Campus, 2007, pp. 81–108.11Parsons, Evolutionary Universals in Society; Luhmann, Die Gesellschaft der Gesellschaft, p. 505 et seq.12Charles Tilly, States, State Transformation, and War, e.man New York, 2009, p. 4; ‘Archaic’ in the broad sense of Bayly (‘“Archaische” und “Moderne” Globalisierung’), who distinguishes only archaic and modern globalization.


great variety of species: city states, empires, rural kingdoms or federations of states such as the famous Greek federation of city states in 400 BCE. There were highly decentred states as well as consolidated states with a central government and a unified administration of a whole empire such as Egypt in 1500 BCE and China in 300 BCE.13 In all these regimes, the centre-periphery difference (together with social class formation and differentiation) is constitutive for the emergence of a cosmopolitan and ‘onto-theological’ (Heidegger) world view during the Axial Age.14

All versions of cosmopolitanism are defined by the same set of basic ideas. And all of them have been articulated (in more or less radical and more or less egalitarian ways) for the first time by Buddhism, by Cynical and Stoic philosophy, by Confucianism, Judaism, Taoism, Zoroastrianism, Brahmanism and by Christianity, and later by Islam. They all rely on the basic distinction between transcendence and immanence, an institutionalization of the difference between immanence and transcendence in philosophical academies, religious churches, universal discourses within the intellectual class, and finally a set of strategies to overcome the difference between transcendence and immanence.15 Furthermore, classical cosmopolitanism entails not only (1) the transcendental idea of a universal community that is committed to the one universal basic law of the Golden Rule,16 but also its institutional embodiment in (2) a set of procedural rules for formal institutional settlements of conflicts, and a kind of subjective right to hear and be heard for all parties in a given case, and ‘to present evidence to support their arguments pro and con’ (in Roman law: audi alteram partem).17 The universal basic laws, procedural rules and subjective entitlements (of hearing and giving reasons) constitute the institution of fair trial and impartial tribunal which could be extended even to foreigners, as in the Roman ius gentium.18 Furthermore, (3) because universal principles, methods and entitlements implied strategic ideas to overcome the difference between transcendence and immanence by political foundation, messianic movements, prophetic interventionism, conversion and mission, they were from the beginning (4) applicable not only

13Tilly, States, State Transformation, and War.14Yet, Heidegger’s striking notion of onto-theology neglects the important differences between ontological and theological world views.15Eisenstadt, Allgemeine Einleitung, p. 21.16On this and the following points, see Berman, ‘Faith and Law in a Multicultural World’, in Mark Juergensmeyer (ed.), Religion in Global Civil Society. Oxford: University Press, 2005, 69–89, pp. 78–9; see Bellah, Religion in Social Evolution, p. 319 (Judaism), p. 351 (Greek philosophy), pp. 441, 453–8, 477–9 (Chinese farmer’s school and Daoism), pp. 525, 529–30, 534–5, 541–2.17Berman, Faith and Law in a Multicultural World, p. 79. In this case, one could speak of a preadaptive advance of a subjective right.18See inter alia: William Seagle, Weltgeschichte des Rechts. Munich and Berlin, 1951 (The Quest of Law, New York, 1941), p. 103; Hattenhauer, Europäische Rechtsgeschichte, pp. 66, 72; Otfried Höffe, Demokratie im Zeitalter der Globalisierung. Munich: Beck, 1999, p. 236.


to judicial proceedings, but also to legislative and administrative proceedings. (5) Universal principles were not only restricted to official or public law, but were also applicable to unofficial and informal ‘settlements of conflicts within and between associations of all kinds’19 (families, neighbourhoods, workplaces, professional associations, religious societies, ethnic groups, nations, cultures, and civilizations, which have been clashing since the Axial Age). Finally (7), they were even used as the first medium of a radical criticism of the structural and outrageous injustice of hierarchically structured class societies, in particular, in the monotheistic contexts of a ‘theodicy of suffering’.20 In the latter case, prophets and religious leaders also criticized the outrages of slavery, glorified (or imagined the success of) slave revolts (like that of the Jews in Egypt), and sometimes even came close to a criticism of slavery as an institution. However, it was only in the negative prophetic criticism of injustice that is internal to all political and non-political domination, and in the projection of a transcendental realm of God, that slavery was abolished, at least virtually (as in Augustine’s City of God).21

In deeply unegalitarian societies, these rules secured a minimum of equality provided that conflicts were solved by the use of legal means, which was not usually the case in the relations between the upper and the lower classes of society. Roman law was civil law, which meant that it was used to co-ordinate and to stabilize the internal relations of the ruling classes, while the other classes were subject to simple coercive measures. Like all emperors, the Romans knew: ‘Coercion works.’22 Universal justice and cosmopolitanism in ancient times, therefore, remained ‘abstract ideas’ (Hegel). At least for the lower classes, they were mostly devoid of any real impact, useful at best for the good life of philosophers.

Even if cosmopolitan thinking was designed from the outset for institutional implementation and even if it had some important institutional consequences in the different regions of the ancient world – and, in particular, for the development of case law – early cosmopolitanism in ancient political societies and empires was only loosely linked with political power and legal consequences and effects. If we neglect some more politically intended Greek versions that were directed against the Platonic polis parochialism, cosmopolitanism had three basic functions for Stoic philosophers in general:23

(1) The ideological function of transfiguring the existing empire and its emperor. Even if Roman cosmopolitanism was much more universal and

19Berman, Faith and Law in a Multicultural World, p. 79.20On the latter, see Weber, Gesammelte Aufsätze zur Religionssoziologie I, pp. 243–6.21See Maddox, Religion and the Rise of Democracy. London: Routledge, 1996.22Tilly, Coercion, Capital, and European States, AD 990–1990. Malden, MA: Basil Blackwell, 1990, p. 70.23I am grateful to Hubert Cancik for a discussion of that point.


individualized than Greek cosmopolitanism, the price of this double progress was a complete depoliticization of the cosmopolis into a mere bios theoreticos, a fictitious global community of philosophers that represented little more than an ideological glorification of a superstructure suitable for the Roman Empire.24 Roman cosmopolitanism transformed all human beings into free members of the cosmopolitan order of nature, and Roman ius naturale for the first time described all human beings as born free and equal (‘according to natural law all men were born free originally’, Ulpian, Dig I, 1, 425; ‘in the eye of Natural law all men are equal’, Dig 50, 17, 32).26 But the free and equal nature of all human beings initially included all other animals who were all born free, and it in no way contradicted slavery (or enslaving and eating animals), or all the other social inequalities that were regulated by ius gentium and ius civile in all its brutal details. Natural law was even the ultimate justification for treating slaves like animals, pets or – as in Roman law – things (res).27 Classical Roman cosmopolitanism functioned as a method of ruling through agreement only in the fictitious cosmopolis, while in the real Imperium Romanum, the usual methods of leges pacis imponere supervened: execution, deportation and mass enslavement.28 On the other hand, one must admit that even these natural laws, which were designed as a description of nature (and not

24Women certainly fared better with the Roman Stoics than with the Greeks, but even there the real value of the new ideals of the loving couple consisted in little more than the ‘edifying style’ of its philosophical and poetic champions: ‘When Seneca and Pliny speak of their married lives, they do so in a sentimental style that exudes virtue and deliberately aims to be exemplary. One consequence was that the place of the wife ceased to be what it had been. Under the old moral code she had been classed among the servants, who were placed in her charge by delegation of her husband’s authority. Under the new code she was raised to the same status as her husband’s friends. . . . For Seneca the marriage bond was comparable in every way to the pact of friendship. What were the practical consequences of this? I doubt there were many. What changed was more than likely the manner in which husbands spoke of their wives in general conversation or addressed them in the presence of others.’ (Paul Veyne, ‘The Roman Empire’, in Paul Veyne (ed.), History of Private Life: From Pagan Rome to Byzantium. Cambridge: Harvard University Press, 1992, pp. 42–3.25English translation quoted from: https://archive.org/stream/institutesofjust00abdyuoft/institutes ofjust00abdyuoft_djvu.txt (20 October 2013).26English translation quoted from: Gaius, Institutes of Roman Law §§ 52, 53, http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1154&chapter=88588&layout=htm (accessed 20 March 2013).27For a different account of Ulpian’s natural right of freedom in the narrower context of lex mercatoria, see Otfried Höffe, Demokratie im Zeitalter der Globalisierung. Munich: Beck, 1999, p. 236. However, the historical fact is, beyond any doubt, that there was never a social movement against slavery as an institution in classical times, at least in the ancient Greek and Roman world; see recently: Aldo Schiavone, Spartacus. translated by Jeremy Carden, Cambridge, MA: Harvard University Press, 2013.28See also Alexander Demandt, Der ideale Staat. Cologne: Böhlau, 1993, 263f; Luciano Canfora, ‘Der Bürger’, in Jean-Pierre Vernant (ed.), Der Mensch der griechischen Antike. Frankfurt: Campus, 1993; Egon Flaig, ‘Europa begann bei Salamis’, Rechtshistorisches Journal 13 (1994), 411–32; Moses I. Finley, Politics in the Ancient World. Cambridge: Cambridge University Press, 1983.


as a prescriptive legal rule) and had no (or very little, at best moral and not legal)29 normative meaning within the Roman Empire’s positive law, set off an extraordinarily progressive ‘effective history’ [Wirkungsgeschichte]. Their symbolic meaning in the course of a long history of legal and political revolutions and radical reinterpretations was transformed into normative constitutional meaning, in particular, during the Enlightenment and the Atlantic Revolution of the eighteenth and nineteenth centuries.30

(2) The practical philosophical function of leading the suffering individual human being to the salvific and de-centring insight that she or he is part of a comprehensive rational order. However, this only works with a limited number of highly educated people capable of participating in the bios theoreticos, as Augustine already rightly objected.31

(3) The logical and ontological function of finalizing the theoretical representation of the rational order of being. It is this that had the most important historical effects: it accelerated the development of universal ethical deliberation at the latest from early Christianity onwards, and had some real political and legal effects much later. The discourse, once opened, continues and contributes to the progressive Wirkungsgeschichte of cosmopolitanism.

One of the most famous parts of that Wirkungsgeschichte is Kant’s reception and further development of classical stoic cosmopolitanism, and the enormous Wirkungsgeschichte caused by Kant’s suggestions for a modern Cosmo-polis. At the core of all cognitively advanced cosmopolitan world views is the idea of an expansion of the polis over the whole cosmos, hence the formation of a single Cosmo-polis. For Kant, the universal expansion of the polis was the reason why he called it a sublime idea. For Kant and the philosophers of eighteenth-century Enlightenment, a Cosmo-polis was ‘the unification of all men’ [Vereinigung aller Menschen].32 Campanella, at the threshold to the seventeenth century, had already defined the new Cosmo-polis that was

29If one follows Tony Honoré, one might argue that the term nature for the Roman Jurists of the second and third century (who were deeply influenced by Stoicism) ‘not merely rules out an obligation to perform what is by nature impossible but gives reasons for or against rules and institutions’. This in a way implies treating every human being as kin (Tony Honoré, ‘Ulpian, Natural Law and Stoic Influence’, The Legal History Review 78:1–2 (2010), 199–208, quoted from: http://users.ox.ac.uk/∼alls0079/Stoic%20influence%202.pdf, 29 October 2013). However, it remains more than doubtful that this construction of universal kinship had any legal consequences, see Schiavone, Spartacus.30See Martha Nussbaum, ‘Kant and Cosmopolitanism’, in J. Bohman and M. Lutz-Bachmann (eds), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal. Cambridge: MIT Press, 1997.31Augustinus, De Ordine II, pp. 5, 16.32Kant, ‘Die Religion innerhalb der Grenzen der bloßen Vernunft’, in Werke VIII, Frankfurt: Suhrkamp, 1977, p. 873.


enabled by the ‘stupendous inventions – the compass, the printing press, the harquebus’ as ‘the imminent union of the world.’33 Kant’s cosmopolitanism is deeply influenced by stoic philosophy.34 But he gives it another and more radical twist than classical Greek and Roman stoicism. The Kantian radicalization of cosmopolitanism does not stem from pagan metaphysical stoicism, but from the moral universalism of religious monotheism, which is also the background of Campanella’s metaphor of the presence of all humans in one fold.35

For (pre-Christian) Greek and Roman Stoic philosophers, the cosmos or universe also should be understood as a universal expansion of the polis. Stoic philosophers conceived the universe as the most perfect rational order, and to live in accordance with it was the telos of the political animal (zoon politicon). But to live in accordance with the rational order of the universe, the political animal did not need any kind of egalitarian unification of all human beings or the redemption of all human beings from evil. It needed only the best and most perfect individuals to represent the essence of the human race at the top of a hierarchical society. At least the Emperor had to be a sensitive humanist and a good and just, and hence godlike leader (like the poet-emperors Hadrian, or Nero, in particular, if played by Peter Ustinov). The best part had to represent the whole of political civil society, and therefore, socially constructed inequality and class rule were constitutive of a worldly image of the ideal cosmology that had to be as perfect as possible. As in Plato’s Politeia, there was only one direction of improvement and perfection for all inhabitants of a polis, and that was gradual improvement top down, and definitely not from the bottom up. What mattered for the constitution of a cosmopolitan community was the verisimilitude with which the political image reflected the ideal order of things that was understood as the true reality.

This kind of rational philosophical cosmopolitanism was far from being completely affirmative and no more than an ideological system. On the contrary, it included a critical gauge for the faults and corruptions of the Roman Empire. But it presupposed the Empire and its basic structure of political domination and a hierarchical structure of social, political, economic and cultural inequalities, not only between classes, but also within the social classes and sub-classes.36 There was nothing beyond the existing framework of the Roman Empire. Even the old Greek idea of a political isonomia (of the best!) was conceived, not as an order of equal rights, but as an order of competition (agonia) for privilege and glory. It was meritocratic, not

33Tommaso Campanella, The City of the Sun, trans. by D. J. Donno. Berkley: University of California Press, 1981 [1627], p. 121.34Nussbaum, Kant and Cosmopolitanism.35See Jn 10:16 (I am grateful to Diana Göbel for this hint.).36Michael Stolleis, Diebstahl an sich selbst, Frankfurter Allgemeine Zeitung (24 May 2006). Speaking of the Roman Empire, Stolleis states: ‘If we take the half-free farmers with hereditary


democratic, like the Confucian ideology of the present Communist Party of China. In classical Eurasian cosmopolitanism, a good and stable political or civil society (koinia politike, societas civile) was conceived as a system of asymmetric and hierarchical social relations, and symmetric relations between equals (inter pares) were regarded as deviant or unstable, even among lovers and friends.37 The same was true of ‘international’ relations between cities or between princes. Equal legal sovereignty of princes or states was a modern invention. But for the classical cosmopolitan realization of the zoon politicon, a hierarchical order of inequality was a necessary condition.

The crucial difference between the Kantian and the Greek notion of cosmopolitanism is the abolishment of this condition, which opens the path for an egalitarian construction of the Cosmo-polis. In the above-quoted work on religion, Kant’s example of why cosmopolitanism is a sublime idea consists of the unification of all humans. This unification occurs once a public addresses God in a religious ritual. The meaning of this ritual for Kant (who was a Deist monotheist, but not a Christian) consisted of the fact that in the face of an almighty God all human beings are equal and equally imperfect and suffering, an idea that is alien to classical metaphysical thinking.38 It is precisely the equality of all human beings that is secured by the biblical ban on images, because the ban presupposes a negative abstraction from all concrete and particular relations of a specific human being or class of human beings (people, ruling families etc.) to a specific and concrete figure of God as a mirror of the human being’s nature. All human beings are individual images of God, but absolutely equal in their distance to God, who resembles none of them more than the other. No comparison, therefore, is possible that enables a specific (virtuous, elected, rich, poor, beautiful or whatever) person or group of persons to present a more godlike image than any other.

What is so important here is that the Kantian example or paradigm case of a cosmopolitan order cannot be explained by Greek and Roman Stoic sources alone, but is strongly dependent on the religious sources of Axial Age cosmopolitanism, because these, and only these religious and monotheistic

land rights, the serfs, the salaried farmers and the emancipated slaves into consideration, we see a diversely stratified society before us. Its defining feature was inequality, even amongst slaves’ (Emphasis is my own, HB). For a more comprehensive treatment, see Stolleis, Historische und ideengeschichtliche Entwicklung des Gleichheitssatzes, in Wolfrum, Rüdiger (ed.), Gleichheit und Nichtdiskriminierung im nationalen und internationalen Menschenrechtsschutz: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 165 (2003), 7–22; with respect to slavery see now Schiavone, Spartacus.37Foucault, Michel, The Use of Pleasure, vol. 2 of The History of Sexuality. New York: Random House, 1985; see Veyne, The Roman Empire.38Hermann Cohen, ‘Das soziale Ideal bei Platon und den Propheten’, in Cohen (ed.), Jüdische Schriften, Bd. 1, Breslau, 1923, p. 321.


sources combine the idea of a Cosmo-polis with the norm of universal individual equality and equal freedom for each single human being. These latter sources are developed not so much by philosophical metaphysics as by the religions and theological world views of the Axial Age.

According to biblical sources and Christian philosophers such as Augustine, the City or Empire (it is the same in this case) of God is beyond the basic structure of the Roman Empire, beyond all Empires, beyond all political power. The City of God (1) is not of this world but of another world, and it is conceived (2) as an egalitarian community of individual human beings. It was only these conditions that allowed even early Axial Age cosmopolitanism to offer a radical criticism of the existing political order.

Such an egalitarian radical criticism was more than nothing, even if it had few institutional effects, and usually occurred only sporadically in the old Eurasian world. At least the monotheistic religions used the transcendental difference to engender a new idea of fundamental opposition to all forms of domination relying on the moral insight that ‘there is something inherently wrong in power itself’.39 Even if the use of power might be necessary, it remains an evil. For early prophetic thinking the ‘worst crime’ was to be an ‘earthly ruler’. Prophets and church fathers ‘denounced the idea of power altogether.’40 For Augustine, the earthly ruler is the Anti-Christ, and the famous rhetorical question whose crime is worse, that of being an Emperor or that of being a pirate, is already answered as soon as it is posed:

Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, “What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor.”41

With the political move against political power in itself, prophets and church fathers kept the memory alive that egalitarian societies preceded the evident injustices of deeply unequal class societies, as the rebellious Protestant farmers

39Maddox, ‘Prophetic Religion and the roots of Political Opposition’, in T. W. Hillard, R. A. Kearsley, C. E. V. Nixon and A. M. Nobbs (eds), Ancient History in a Modern University: proceedings of a conference held at Macquarie University, 8–13 July 1993, Vol. 2: Early Christianity, Late Antiquity and beyond. Grand Rapids, Mich.: Wm. B. Eerdmans Publishing Company 1998, pp. 459–67.40Maddox, Prophetic Religion, pp. 460, 463; Jürgen Moltmann, The Crucified God. The Cross of Christ as the Foundation and Criticism of Christian Theology. London: Wilson, 1974. See Bellah, Religion in Human Evolution, pp. 303–4, 312, 316–17.41Augustinus, Vom Gottesstaat (De Civitate Die), Vol. 1. Munich: dtv, 1991, Book IV, Chapter 4, p. 174. quoted from: http://etext.lib.virginia.edu/etcbin/toccer-new2?id=AugCity.xml&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=all (1 February 2013).


rhymed during their revolution some thousand years later, in 1525: ‘When Adam delved and Eve span, who was then the gentleman?’.42 Yet unlike the egalitarianism of archaic, segmentarily differentiated and mythically legitimated societies, the new prophetic egalitarianism was not a system of unchangeable rules that governed the whole society as a collective unity (and was valid only for this particular society), but a moral and legal principle founded on an idea of universal justice that did not exist on earth, but had to be reached through future processes of historical change.

Prophetic egalitarianism was not the main force for the collective social cohesion of a specific tribal or civic city community, but relied on individualizing rules (such as the Golden Rule), procedural legal and administrative norms, and individual insight or conversion of ordinary people, of everybody, including, in particular, children, women, poor peasants, plebs, beggars or slaves.

The prophetic and other (for instance, chiliastic Buddhism, which has a history of impact reaching up to cultural-revolutionary Maoism) egalitarianisms of the Axial Age were a typical intellectual product of a world of empires (or a nearby imperialist environment as in Canaan), and therefore, they developed an at once cosmopolitan and egalitarian alternative to empires that relied on oppressive and exploitative class rule and slavery and had rulers who imagined themselves the divine centre of the universe but usually, or at least in most cases, were just thugs.

Therefore, monotheistic universalism must be distinguished not only from the archaic and mythically founded egalitarianism of early tribe societies, but also sharply from the metaphysical universalism of city-based philosophers. For the philosophers, universalism was internally related to the human potentia or competence for living a rational and political life. This is a potential or competence that is ascribed to every human being. It is a universal competence of all humans (including women, children, slaves, strangers, peasants etc.). But it is separated (by the dualistic metaphysics of the Gattungswesen: the generic potentia) from the actual performance and manifestation of that competence. Some are born without the ability to actualize their generic potentia, others prove in the course of their life that they cannot realize it (because they are living in the countryside in small villages, have lost their leadership over a household or oikos, are not virtuous and rich enough, are barbarians, women, non-residents, passive homosexuals, handicapped people, slaves etc.). Hence, humanistic idealism and the political performance of the universal competence of mankind was (as we have seen) not at all incompatible with the extreme elitism and inequality of

42In the English tradition, this line is ascribed to a leader of an older English peasants’ revolt of 1381, the itinerant preacher John Ball, ‘who used it to incite the people against their feudal lords’, see Oxford Dictionary of Proverbs, 5th edition. I am grateful to Diana Göbel for this addition.


ancient class societies (or the capitalist class society of present-day Chinese Confucian Communism).43 In contrast, prophetic universalism was internally connected with egalitarianism. Therefore, it was much more radical in its criticism of existing society and in the negation of power in itself.

What initially (at least in the Jewish prophetic praxis and the Christian founding fathers’ theological reflection, but also in other Eurasian world views) had been more or less abstract utopianism plus punctuational interventionism, based on a categorical cleavage between the other and this world, was, from the eleventh century onwards, transformed into the real abstraction of a cosmopolitan state. This state had, at least partly, internalized the difference between transcendence and immanence into the immanence of society. The process of the societal internalization of transcendence is based first on the co-evolution of cosmopolitan and national statehood (see next section), and secondly on collective learning processes which are caused by the tiered process of functional differentiation that is enabled by the great legal revolutions, and itself causes ever new constellations of class struggle and structural conflict.

The great legal revolutions are not only the triggers of societal learning processes that are normative, but also the trajectories of specific evolutionary universals that are normative universals with a specific constitutional mindset (such as the differentiation of the sacred and the profane together with the legal freedom of corporation, and the invention of written constitutions together with egalitarian democracy). Therefore, the invention of the abstract category of Cosmo-polis as an evolutionary universal during the Axial Age was not just a product of gradual evolutionary adaptation, but of a normative learning process.

II Co-evolution of cosmopolitan and national statehood

One of the myths discussed and disseminated by the schools of Eric Voegelin or Carl Schmitt was the thesis that the state was a modern invention stemming from the sixteenth or seventeenth century. But the history of state formation and transformation stretches back to the very first societies with some form of specialization regarding the use of coercive power.44 The national state existed in the late nineteenth century in a small (but powerful) north-western segment of the globe, originating roughly around the time of the Protestant Reformation, but with deep roots in medieval history. The national state came

43Robert Fine, Cosmopolitanism. London: Routledge, 2007, p. 110.44See Tilly, States, State Transformation, and War.


to dominate Europe in the nineteenth century and became a truly global phenomenon in the second half of the twentieth century.45

Yet in the early nineteenth century, the European city state still endured alongside the national state, which had become much stronger since the constitutional revolutions of the eighteenth century. The Treaty of the German Federation (Deutsche Bundesakte) of 1815 was a treaty between sovereign princes and free cities (Preamble and Art. 1). This was reiterated in the Treaty of Vienna (Wiener Schlussakte) in 1820, which was again a treaty between monarchic national states and republican city states – in the same year in which Hegel finished his great affirmation of the modern national state, the Grundlinien der Philosophie des Rechts (The Philosophy of Right). In the Philosophy of Right, there is only one of the many species of states left, the centralized national state, which is sovereign. However, Hegel wrote about the emerging essence of the modern state, and not about its actual and still early-modern form, and here he was right. With the exception of a very few singular and mainly folkloristic or nominal cases, in the twentieth century, nothing was left of the city states, which had been free, republican and the bearers of capital growth for hundreds of years – even if it seems that they are now making a comeback (Singapore, Hong Kong, Shanghai, New York etc.). Yet, even in 1820, it already seemed evident that there was no alternative to the national state, as it strived for the monopoly of political organization. Finally, the immensely accelerated process of capital accumulation burst the by now too narrow walls of the cities, because it was deeply in need of an ever bigger, ample operating power organized on a large scale. This power was the national state, which had been ‘perfected’ by ‘all the revolutions’ which had tried to ‘break’ it, but to no avail.46 But this powerful entity, which never did consist in Jellinek’s holy trinity of state power (Staatsgewalt), state territory (Staatsgebiet) and state people (Staatsvolk) – although it did, from a distance, resemble it – lasted only a short time. Furthermore, even the supposedly sovereign state was deeply embedded in the order of international law that was invented after the French Revolution.

At the beginning of the twenty-first century, we are living in a fully fledged world society with a global system of states, with a global media

45Tilly, Coercion, Capital, and European States. The difference between national and nation state lies in the ‘strong linguistic, religious and symbolic identity’ of the latter (idem, Coercion, p. 3). On the roots, which go back to the twelfth and thirteenth century, and are deeply influenced by the legal state of the church, see Joseph Reese Strayer, On the Medieval Origins of the Modern State. Princeton: Princeton University Press, 1970; Strayer, ‘Philip the Fair – A “Constitutional” King’, AHR 62 (October 1956), pp. 18–32; C. Warren Holister and John W. Baldwin, ‘The Rise of Administrative Kingship: Henry I and Phillip Augustus’, AHR 83 (October 1978), pp. 867–905.46Marx, Der 18. Brumaire, quoted from: http://www.marxists.org/archive/marx/works/1852/18th brumaire/ch02.htm.


of dissemination, with world organizations, world markets, world politics, and with urgent problems that affect everybody equally all over the globe.47 In this world society, ‘the power of militarily weak and capitalistically strong states, such as Japan and Germany, is continuing to expand’,48 and their power is already much greater than that of militarily strong and capitalistically weak states (such as China before the explosion of its reformed market economy, and Iran and Cuba today), and even greater than that of militarily and capitalistically strong states (such as Great Britain); furthermore, it is no longer a world of states based on coercive power and capital (with more and more weight placed on capital), but a world in which these states have to share their power with:

multinational capital, as represented by traffic in drugs, arms, electronics, publishing, oil or corporate ownership, [which] is coming to wield great power and mobility in partial independence of the states whose residents created and accumulated the capital.49

If Jean Meyer’s thesis on the early modern state, according to which the power of the modern state directly depends on its creditworthiness,50 holds generally true, then it seems that in the world of global turbo-capitalism, the power of the biggest global companies and banks today equals that of the biggest states. Rating agencies now measure them with triple A’s, B’s and C’s fine-tuned by minus and plus – and they make no difference between a minus for France’s triple A and a minus for the German Commerzbank’s triple A. In such a world, the classical (and, incidentally, conceptually self-contradictory)51 notion of the sovereignty of the state no longer matters in any strict sense of the word ‘sovereignty’.

Bodin’s and Hobbes’s philosophical construction of sovereignty was far beyond the European – and particularly the English – political and constitutional reality at any time. It merely constituted a highly influential political myth that nicely matched the self-description and self-representation of some ‘absolute’ princes, but was contested strongly not only by the still powerful

47I use the term ‘world society’ in a broader sense than Luhmann, so that it covers very different theoretical points of view, such as Parsons, ‘Order and Community in the International Social System’, in James N. Rosenau (ed.), International Politics and Foreign Policy. Glencoe, IL: The Free Press, 1961, pp. 120–9; Luhmann, Globalization or World Society; Habermas, ‘Eine politische Verfassung für die pluralistische Weltgesellschaft?’, in idem, Zwischen Naturalismus und Religion. Frankfurt aM: Suhrkamp Verlag, 2005, pp. 324–65.48Tilly, European Revolutions 1492–1992. Oxford: Blackwell, 1995, p. 26.49Tilly, European Revolutions, p. 26.50Jean Meyer, Le poids de l’État. Paris: Presses Universitaires de France, 1983, pp. 43–69.51Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts, 1920, (Reprint: Aalen, 1981).


old (‘feudal’ and ‘private’) powers, but also by the Protestant revolutions, in particular, when they were under Zwinglian or Calvinist influence. The winners of the English Revolution were not the party of the sovereign prince, James I, and his beheaded son, or Hobbes’s philosopher in his famous dialogue between the philosopher and the student of common law. Instead, the victors of the English Revolution were the critics of absolute sovereignty, the common law lawyers: Sir Edward Coke, John Selden, Matthew Hale and their students.52 There was never a Leviathan capable of keeping legal peace as in Hobbes’s pure theory. Nor had there been any internally uncontested sovereign power of peacekeeping or a power that was not under the law since the time of the Papal Revolution. At least, power was under the divine and natural law that was applied in the courts at the time, and in some respects, it was always already a constitutionalized power (bound to a specific procedure of legislation, hearings of counsellors etc.), relying on a certain separation of powers (e.g. between king, noblemen and clerics, king and parliament as the highest court, etc.)53 Furthermore, there was not first and originally a pluriversum of Leviathans followed by a second-order problem of international law, as in the constructionist view of the contract theory of state formation. Instead, from the very beginning of the modern state, there was a co-originality of an international or cosmopolitan legal order (with some aspects of universal statehood) and of a legal order of particular states such as the later nation state first resulting from the English Revolution. The co-evolution of the national and the cosmopolitan legal and political order was stabilized again and again after every great revolution by the double pressure of selection between cosmopolitan and national law.54

From both historical ends, the paradigm of the national state (or even the myth of the homogeneous nation state) is crumbling, from the past and from the present. Present world society is not merely shaped by the effects of global problems, these problems are now both perceived and defined as common problems of mankind, and this is possible only because world society is already

52Thomas Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of England, Chicago, 1971; Berman, Law and Revolution II, pp. 202–4, pp. 235–63, p. 274; Thornhill, A Sociology of Constitutions, pp. 140–1; Charles Gray, ‘Reason, Authority, and Imagination: The Jurisprudence of Sir Edward Coke’, in Perez Zagorin (ed.), Culture and Politics. From Puritanism to the Enlightenment. Berkeley: University of California Press, 1980, pp. 25–66, at 38.53On the recent debate on, and questioning of, the concept of ‘absolutism’, see Asch and Durchhardt, Der Absolutismus – Ein Mythos, pp. 92–102, 117; see Schlögl, Der frühneuzeitliche Hof als Kommunikationsraum.54On the double pressure of selection in co-evolutionary processes, see Henke, Über die Evolution des Rechts, pp. 108–9 (mentions only the case of the EU). See Law and Versteeg, The Evolution and Ideology of Global Constitutionalism.


a normatively integrated society.55 Taking both ends of the history of the modern state together, I will argue for a paradigm shift in the theory of the modern state. The national state is a borderline case of statehood, a very specific historical case that is not at all the perfect form of the state or the telos and essence of 3000 years of state evolution (as in Hegel’s Philosophy of Right).

III Functional differentiation and social conflict

Modern national state formation is at the centre of the functional differentiation of the political system. The late Marx explains the specific modern entanglement of evolutionary and revolutionary change with the critical progression of functional differentiation. Once functional differentiation is completed by self-referential closure, the system has to cope with the critical paradoxes of self-reflection and the social damages and conflicts it causes in its environment, as we have seen. The systems cannot get rid of the social problems of legitimization and motivation because systemic closure depends on the reproduction of the sources of solidarity that stem from the lifeworld – as Marx has demonstrated with regard to the dialectical relation of dead and living labour.56

(1) Capital depends structurally on the reproduction of living labor. The transformation of living labour into dead labour on the labour market transforms the ‘dramatis personae’ of the ‘money-owner’ into the ‘capitalist’ and the ‘possessor of labour-power’ into ‘his labourer’ who ‘has nothing to expect but – a hiding.’57 Thus, the functional differentiation of the economy generates social class antagonisms between capital and labour, and other capital-oriented conflicts such as struggles between economically different regions, competing clusters of companies etc.58 These kinds of class conflicts trigger the legitimization crisis of the bourgeois society that had been established after the constitutional revolution of the eighteenth and nineteenth centuries. It finally led to the social revolutions and revolutionary reforms of the twentieth century.

But instead of reducing the causal nexus of functional differentiation and class struggle, of functional disorder and legitimization crisis to the economic sphere (as Marx did), one should take the conflict of capital and labour as a paradigm case for the critical analysis of other functional spheres

55Rudolf Stichweh, ‘Der Zusammenhalt der Weltgesellschaft: Nicht-normative Integrationstheorien in der Soziologie’, in Jens Beckert, Julia Eckert, Martin Kohli, Wolfgang Streek (eds), Transnationale Solidarität. Chancen und Grenzen. Frankfurt aM: Campus, 2004, pp. 236–45.56Generalized by Habermas, Theorie des kommunikativen Handelns I und II.57Marx, Capital, Vol. I, Chapter 6, http://www.marxists.org/archive/marx/works/1867-c1/ch01.htm#S1 (10 April 2012).58See Tilly, European Revolutions, pp. 38, 49.


of modern society.59 It is not just that the functional differentiation of the economic system generates structural conflicts that are fought over capital.

(2) The functional differentiation of the political system also generates a different constellation of conflicts that are fought over state power: between people and the ‘power bloc’ (Laclau), as well as between states (and nations/sub-nations).60 State-oriented conflicts are structurally caused by the dependency of functionally differentiated administrative state power on the living power of the people.61 State-oriented conflicts finally drove the turn of the society that was established during the Protestant revolutions of the sixteenth and seventeenth centuries towards the Atlantic Revolution of the eighteenth century. An important point here is that conflicts between people and the power bloc overlap with conflicts between capital and labour, and further conflicts between states, capital-clusters, capital-state-clusters etc., and in ever new and complex constellations of conflict. It is a hypostasization of the form of economic value to reduce all structural conflicts of modern society to a conflict between capital and labour, or to the basic contradiction of abstract and concrete labour, as Marx, Lukács or Adorno did. Moreover, it is a complementary mistake to hypostasize the political and reduce all structural conflicts of modern society to a conflict between power bloc and people, or to the basic contradiction of the police and the political, as Carl Schmitt and post-Marxists such as Rancière did.62

Moreover, and in addition to capital- and state-oriented conflicts (3) the functionally differentiated legal system also engenders another kind of class conflict between included and excluded populations (or populations excluded by way of inclusion),63 or between people with good and people with bad passports64: heretics, migrants, slave labourers, non-white people, inmates of ‘total institutions’ (Erving Goffman), Jews, Trotskyites, rough states, uncivilized people, ‘merciless Indian Savages’ (Declaration of Independence), etc. Legal

59See Brunkhorst, ‘Return of Crisis’, in Poul F. Kjaer, Gunther Teubner and Alberto Febbrajo (eds), The Financial Crisis in Constitutional Perspective. The dark Side of Functional Differentiation. Oxford, UK: Hard Publishing, 2011, S.133–72.60Tilly, European Revolutions, pp. 37, 169 and 171; Tilly, Coercion, Capital, and European States, pp. 111 and 113; Tilly, Democracy. Cambridge and New York: Cambridge University Press, 2007, pp. XII, 80 et seq., and 204.61Arendt, Macht und Gewalt. Munich: Beck, 1970, p. 42.62See Rancière, Jacques (2002), Disagreement: politics and philosophy, trans. by Julie Rose, Minneapolis, Minn: University of Minnesota Press, 1998, the French original is: Mésentente: politique et philosophie. Paris: Editions Galilee, 1995.63See Marcelo Neves, Verfassung und positives Recht in der peripheren Moderne. Berlin: Dunckel and Humblot, 1992; Neves, ‘Zwischen Subintegration und Überintegration: Bürgerrechte nicht ernstgenommen’, Kritische Justiz 4 (1999), 557–577.64Calhoun, Craig, Cosmopolitism and Belonging, Vortrag 37. Stockholm: World Congress International Institute of Sociology, 2005.


inclusion seems to depend on the reproduction of the naked life (Agamben) of excluded or surplus populations (Arendt) in a similar way as capital depends on living labour and state power on the living power of the people. Conflicts over legal inclusion/exclusion are law-oriented conflicts which presuppose the functional differentiation of the legal system. These are the kinds of conflicts that are the focus of Foucault’s work. They have caused the legitimization crisis of the society that was established after the eleventh/twelfth-century Papal Revolution. This crisis finally led to the sixteenth-century Protestant Revolution. However, acting against the backdrop of a functionally differentiated legal system, the excluded populations can use the existing law to articulate themselves as unjustly excluded (a point ignored completely by Agamben’s fundamentalist critique of law). Here again, private protest, escape from persecution or prisoner’s revolts can be transformed into public struggles for legal or constitutional change. As in the case of exploited economic classes or politically oppressed peoples, in the case of excluded populations, too, the political strife for rights – be it reformist or revolutionary – can be fought out within the law. Not only have the functional differentiation of law (twelfth century), of politics (seventeenth century) and of the economy (eighteenth century) caused structural class conflicts which leave us with a variety of partially overlapping social classes of winners and losers, but also today it appears as if we can observe a fourth group of structural class conflicts.

At least a great variety of studies from Parsons65 to Bourdieu suggest that also (4) the now completely globalized educational system breeds a huge and daily growing academic precariat who have identified themselves in 2011 as the 99 per cent (Occupy Wall Street).66 In Beijing and Cairo, in Teheran and Berlin, in Athens and San Francisco, each next generation is ever better and ever longer educated, and the educational system everywhere is ever more socially inclusive (concerning the inclusion of lower classes, women, minorities)67 – but at the same time the graduates’ opportunities in life and job chances are decreasing. This is due to the societal function of the educational system: With the same high speed as the economic system, it produces an ever smaller number of winners and an ever larger number of losers, because it has to fulfil the selective societal function of distributing opportunities in life between bottom and top (Schelsky). But unlike the economic system,

65Parsons and Platt, Gerald M., The American University. Cambridge: Harvard University Press, 1973.66See OCCUPY – Die ersten Wochen in New York. Eine Dokumentation, ed. by Carla Blumenkranz, Keith Gessen, Christopher Glazek, Mark Greif, Sarah Leonard, Kathleen Ross, Nikil Saval, Eli Schmitt, Astra Taylor. Berlin: Suhrkamp, 2011. On the precariat: Pierre Bourdieu, Counterfire. New York: Verso Books, 2003.67See Meyer, John W. and Ramirez, Francisco O., Die globale Institutionalisierung der Bildung, in Meyer (ed.), Weltkultur. Frankfurt: Suhrkamp, 2005.


the educational system does not produce an ‘immense accumulation of commodities’ together with a co-original system of ever new ‘wants’.68 The educational system produces ‘general intellect’ that is not silent like a commodity but, as living labour, represents a source of resistance against the commodity form and other modern forms of domination and heteronomy.69 The simultaneous collective and individual accumulation of academic certificates, together with a dramatic increase of precarian status for the vast majority of students, seems to trigger something like a global crisis of motivation, caused by knowledge-oriented conflicts.70 The never-ending chain of new social movements from Berkeley in the 1960s to Cairo and Wall Street in 2011 and Istanbul in 2013 is the first indicator that a new kind of global class conflict is emerging between the ever better qualified precariat and the small population of the gated communities of our big cities and the beautiful good neighbourhoods of the urban periphery.71

The varying constellations of class struggles (1)–(4) are from the very beginning much more complex, irritating and confusing than in Marx’s theory, which is led by the practical interest in a necessary revolutionary intensification of the antagonisms between two, and only two classes.72 If we have only a lower class and an upper class, the situation is structurally unstable. It was for that reason that Aristotle and the German sociologist of the nivellierte Mittelstandsgesellschaft (levelled middle-class society) Helmut Schelsky (who both, unlike Marx, were interested not in revolution, but in stability) constructed their ideal society as a society of three classes with a

68Marx, Capital I, quoted from: https://www.marxists.org/archive/marx/works/1867-c1/ch01.htm#S1 (31 March 2013).69Marx, Grundrisse.70For a still useful typology of crises in late capitalism, see Habermas, Legitimationsprobleme im Spätkapitalismus. Frankfurt: Suhrkamp, 1973.71Since the 1960s, the population of students increased from 5 per cent of a generation in rich countries of the first and second world to now about 30 per cent of a generation worldwide. ‘Based on current patterns of graduation, 39% of an age cohort in 2007 is estimated to complete tertiary education among the 22 OECD countries with comparable data. This share ranged from less than 20% in Greece to 45% or more in Ireland, Denmark, New Zealand, Finland, Poland, Australia and Iceland. On average, across OECD countries, tertiary graduation rates increased by 18 percentage points over the last twelve years. In virtually every country for which comparable data are available, these rates increased between 1995 and 2007, often quite substantially.’ The OECD average for entering higher education is 56%, ‘in Finland, Australia, Poland, New Zealand, the Slovak Republic, Iceland, Sweden 70% and more.’ Quoted from: http://www.oecd-ilibrary.org/sites/factbook-2010-en/09/01/04/index.html?contentType=&itemId=/content/chapter/factbook-2010-65-en&containerItemId=/content/serial/18147364&accessItemIds=&mimeType=text/html (12 April 2012). For the non OECD states, also all with high growth rates since the 1990th (not to speak about the 1960th) see http://stats.uis.unesco.org/unesco/TableViewer/tableView.aspx?ReportId=167 (12 April 2012).72See Luhmann, ‘Zum Begriff der sozialen Klasse’, in Luhmann (ed.), Soziale Differenzierung. Zur Geschichte eine Idee. Opladen: Westdeutscher Verlag, 1985, pp. 119–62.


broad middle class between bottom and top (like an onion). But in modern society, the structural conflicts between different kinds of class constellations cannot be reconstructed as a hierarchy, neither with two nor with three classes, because the systems from which they emanate no longer form a hierarchy, but a heterarchy. All these structural group and class conflicts (1)–(4) add latent problems of legitimization to the high risks of system crashes that are caused by autopoiesis. For instance, the economic crisis of autopoiesis can trigger a cascade of other crises, culminating in a comprehensive crisis of legitimization which, in extreme cases, leads to catalytic change: either to devolution and regression or to reform and revolution. So far Marxism can learn a lot from systems theory.

But if the economic crisis (1) or any other crisis, the political (2), the legal (3), or the educational crisis (4) expands to a crisis of legitimization, the system reference switches from the economic to the political system, and administrative and coercive state power are suddenly confronted with the communicative power of the politically organized working class, revolts of excluded populations appealing to the general public, popular insurgencies or social movements of precarian but educated masses. They all emerge from different and decentred systemic perspectives, but all of them finally must address the general public, the political system and public law. Systems theory has no system reference for this complex of differentiated but socially integrated bundles of functions at the centre of modern society. Public law as well as public politics are decentred as far as they are functionally specialized institutions. But they are still at the public centre of society once they become the arena of the struggle of social groups and classes for the right within the law. Marx himself has analysed this switch as the switch from unpolitical and economic class struggle at the particular level of a single company or a specific cluster of companies (with a specific system reference) to political class struggle for changes of parliamentary legislation that occurs at the universal level of the public sphere (without a specific system reference) and often leads to an antinomy between equal rights.73 However, because Marx ascribed evolutionary primacy to the economic antagonism of capital and labour, only the transformation of private capital-oriented conflicts into public capital-oriented conflicts came to the fore of orthodox Marxism. But there are, as we have seen (2), also private state-oriented conflicts that sometimes lead to spontaneous revolts against odious tax collectors and conscription officers of the prince. These private state-oriented conflicts are transformed into public state-oriented

73Marx, Brief an Friedrich Bolte v. 23. Nov. 1871, MEW 33, Berlin: Dietz, 1973, p. 332. See Stuart Hall, The ‘Political’ and the ‘Economic’ in Marx’s Theory, in Alan Hunt, Hg, Class and Class Structure. London: Lawrence and Wishart, 1977, pp. 15–60, at 36f.


conflicts once a resisting group of peasants or urban citizens is beginning to understand themselves as the people vis à vis the wielders of coercive state power and organize themselves as a public opposition that fights for political participation and legislative and constitutional change. This is true for all structural conflicts between social class and group formations, whether capital-oriented (1), state-oriented (2), law-oriented (3) or knowledge-oriented (4). All first originate in the particular, belonging to the sphere of private and civil law in a highly specialized social system. They originate in serial groups (Sartre), in private conversations and disputes that are related to specific relations of a worker or a group of workers to a specific organization and its managers and bosses, or of people to a specific official of public administration, or of students to professors, of inmates to guards. They originate from chats in the family, in bars and pubs, at the workplace, during the coffee break, in the queue at a bus stop or at the job centre, on the way home, in an argument over high taxes, a bad mayor, the crime of a bishop, the decisions of a university president, etc.74 The first steps of ‘collective’ (or societal) normative learning processes always consist in the more or less spontaneous and ‘private’ articulation of the sense of injustice. In Hegelian terms, the articulation of the sense of injustice is the first, still abstract negation. At the beginning, the natürliche Sittlichkeit (natural ethical life) is damaged. Hegel develops this idea of a normative learning process that begins with negative justice inter alia in his interpretation of Sophocles’s Antigone. The natural ethical life that is damaged by Creon’s order consists in family commitments, in piety and the gods of the earth.75 Marx’s argument is similar. The natural ethical life that is damaged in the case of the exploited workers is their right to reproduce their living labour power adequately, and it is here that right stands against right. But those who simply articulate their sense of injustice ‘privately’ must secondly go public to discover themselves as a social class that is a structurally oppressed and exploited class of people. The whole normative learning process inherent in the struggles of a social class or group for emancipation from injustice, suppression and exploitation is a process of making the latent injustice of class society publicly explicit. As a class that is included as living labour in the process of production, but excluded from the wealth of capitalist society, the working class becomes

74On the differentiation between serial and synthetic groups, see Jean Paul Sartre, Critique of Dialectical Reason, Vol. 1: Theory of Practical Ensembles. London: Verso, 2004. The chapter on serial and synthetic groups is available also on the Web: http://www.marxists.org/reference/archive/sartre/works/critic/fused-group.htm.75Hegel, Phänomenologie; for a striking comparison of Hegel’s concept of ‘tragedy’ and Marx’s ‘Klassenkampf’ see Çıdam, ‘Zur Rolle der Geschichtserzählung im Kapital: Antinomie des Rechts und die konzeptionelle Entwicklungsgeschichte der normativen Kritik am Kapitalismus’, Vortrag, Universität Flensburg, 29 October 2011, quoted from the manuscript.


the living negation of modern capitalism.76 Once the humiliated individuality awakens the call for negative justice, a process that leads to the public manifestation and explication of class antagonisms is triggered. It is just this that Hegel’s/ Sophocles’ Antigone is doing when she begins to bury her brother. If a social class goes public, it must thirdly transform its particular struggle against the specific patron, boss or capitalist of a private enterprise into a universal struggle for changing public law, that is, a struggle which is general. Throughout the ongoing struggle for the law, the class, which forms itself through that struggle as a class or a synthetic group (Sartre), is checking the legitimacy potential of its society. Unfortunately, the law that Antigone publicly challenged was natural law, and not positive and hence changeable. Thus, she had to die, Creon’s polis had to go to hell and we are left with a great tragedy. In Marx’s case of the modern working class, the law, which is positive, can be changed, and tragedy becomes comedy.77

Conclusion

All great revolutionary transformations (beginning with the Axial Age) invent evolutionary universals that are normative, and one of these evolutionary universals is the idea and praxis of cosmopolitanism. This then leads to the thesis that modern state formation must be explained by the co-evolution of cosmopolitan and national statehood. The pluriversum of modern Leviathans does not precede international law and cosmopolitan statehood. In truth, evolution goes the other way round: Cosmopolitan statehood precedes national statehood. Furthermore, the idea of a national state that is a sovereign Leviathan is wrong from the beginning. The national state is only a borderline case of statehood, and not at all the telos and essence of 3000 years of state evolution. There are four structural conflicts of modern society that are the main triggers of normative learning processes (and of legal revolutions) within that society. The basic social conflicts of modern society are caused, in particular, by the functional differentiation of the systems of law (excluded vs. included), politics (people vs. power bloc), economy (labour vs. capital) and

education (precariat vs. 1%).

76Marx, ‘Kritik der Hegelschen Rechtsphilosophie. Einleitung’, in Fetscher (ed.), Marx-Engels I Studienausgabe: Philosophie. Frankfurt: Fischer, 1966, pp. 1–35.77See Hayden White, Metahistory. Die historische Einbildungskraft im 19. Jahrhundert. Frankfurt: Fischer-Taschenbuch-Verlag, 1991. However, Marx is more complex than White assumes, and therefore, (unfortunately) comedy is not the whole truth of history, see Brunkhorst, Kommentar zum 18. Brumaire des Louis Bonaparte, pp. 198–207, 293.

3

Legal revolutions

Introduction

The great legal revolutions are co-original with the evolution of modern society. What is characteristically modern about all great revolutions is the fact that their main individual and collective actors have planned and performed them as a revolution or a total reformation of all of society. The collectively articulated will to change history and to embrace history as a human project plays an important and constitutive part in all great revolutions. But revolutions are not simply the result of our plans, as Brecht knew: ‘Yes, make yourself a plan; it just goes up in smoke! And make yourself a second plan; they both come to nothing.’1 All ‘reforms, of course, never worked as planned.’2 Georg Büchner was right when he said through one of his dramatis personae: ‘We don’t make the revolution, the revolution made us.’3 This is an important truth about revolution, and it is now often observed by historians that – as in the case of the Papal Revolution a couple of years before its outbreak – ‘a great revolution in world-history took place, which even those most closely concerned had only dimly foreseen.’4 Yet this is not the entire truth. To wit, at least the great and successful revolutions are not only events that have decoupled themselves from the high-flying plans and emancipatory interests of their initiators (which is something they have frequently done). The great

1Bertolt Brecht, ‘The Song about the Insufficiency of Human Striving’, quoted from: http://alarob.wordpress.com/2010/03/18/a-song-of-insufficiency/ (01 April 2013).2Taylor, A Secular Age, p. 243.3Georg Büchner, Dantons Tod, in Büchner (ed.), Werke und Briefe. Wiesbaden: Insel, 1958, p. 35; English translation by Victor Price (Büchner, Danton’s Death. Oxford: Oxford University Press, 1998, p. 28).4Gerd Tellenbach, Libertas. Kirche und Weltordnung im Zeitalter des Investiturstreits. Stuttgart: Kohlhammer, 1936, p. 133, English translation quoted from: Tellenbach, Church, State and Christian Society at the Time of the Investiture Contest, trans. R. F. Bennett. Oxford: Shakespeare Head Press, 1940, p. 111.


5Gordon Griffiths, ‘The Revolutionary Character of the Revolt of the Netherlands’, Comparative Studies in Society and History 2:4 (1960), 452–72, at: 459.6Marx, ‘Thesen über Feuerbach’, Thesis 8, in Marx and Engels, Deutsche Ideologie. Berlin: Dietz, 1960, p. 585. quoted from: http://www.marxists.org/archive/marx/works/1845/theses/theses.htm (1 February 2013)7Taylor, A Secular Age, pp. 173, 175.8Ibid., pp. 175–6. The relation, or, in Hegelian terms, the mediation of theory and praxis is discussed again and again in Marxist and Neo-Marxist philosophy for over 150 years, see only the most famous considerations in: Lukács, Geschichte und Klassenbewusstsein. One of the latest examples is Habermas, ‘Noch einmal: Zum Verhältnis von Theorie und Praxis’, in Habermas (ed.), Wahrheit und Rechtfertigung. Frankfurt: Suhrkamp, 1999, pp. 319–33.9Taylor, A Secular Age, p. 194.

revolutions also achieved their plans, at least in that the revolutions invented some kind of comprehensive normative advances and implemented ideas that turned evolution into a new track.

Revolutions that are modern are messianic and have an eschatological and utopian dimension that is universal. They design, at least in a certain way, the ideal society as an egalitarian community of free individuals. They are messianic, apocalyptic and millenaristic – but at the same time they are organized professionally, informed by judicial expertise and directed towards a realizable reform and a new foundation of the whole legal order of society (Berman). Great revolutions ‘combine with an exalted idealism a very practical genius for administration.’5 Nearly all leaders of great revolutions were lawyers, like Melanchthon, Jefferson, John Adams, Hamilton, Robespierre or Lenin, or had considerable legal knowledge and learning, like the monk Hildebrand and later Pope Gregory VII, Martin Luther, Madison, Saint-Just, Napoleon Bonaparte or Emmanuel Joseph Sieyès. A practice is revolutionary if it is one that is at once ‘comprehension of this practice’.6 The ‘social imaginary’ that throughout social evolution has formed the implicit, pre-theoretical and pre-reflexive ‘background understanding which makes (our actions) possible’ in modern and particularly in revolutionary times is theoretically constructed and reconstructed.7 Theory is accorded ‘historical primacy’, even if ‘theory’ does not ‘make over a social imaginary’ but is ‘schematized in the dense sphere of common practice’ again and again.8 The theoretical and reflexive stance enables the revolutionary self-understanding to overcome ancient dualisms between a (prehistoric) mythical or external foundation of society (Lykurg, Moses, Romulus etc.) and the (historical) common praxis that is constituted by the ordinary foundational power of contemporary peoples.9

Historians often disagree about the beginning of the history of modern revolutions. While historians of the Middle Ages are now discovering more and more origins and advances of modernity going back to the eleventh and Twelfth centuries, historians who focus on what the Germans call Neuzeit tend to associate the beginning of modernity with the Renaissance or

LEGAL REVOLUTIONS 85

10On the original meaning of ‘revolution’ and the switch of meaning in the eighteenth century, see Copernicus’ De revolutionibus orbium caelestium of 1543, and Reinhard Koselleck, Vergangene Zukunft. Zur Semantik geschichtlicher Zeiten. Frankfurt: Suhrkamp, 1979, p. 70 et seq., Koselleck, ‘Revolution’, in Geschichtliche Grundbegriffe, pp. 716, 734 et seq.; Koselleck, Begriffsgeschichten. Frankfurt: Suhrkamp, 2006, p. 241; see Arendt,The Life of the Mind, p. 195 et seq.

the Reformation. For them, the first great revolution was the Protestant Revolution – either the German (for German historians), the Low Countries (for Dutch historians) or the English Revolution (for English historians) or all together (for post-national historians or scholars of world history). Sociologists and most Marxists tend to locate the beginning in the great revolutions of the eighteenth century, and for Hegelians, Marxists and many liberals (except the Americans), the French Revolution functions as the one and only paradigm case of all revolutions, earlier and later ones included. The Russian Bolsheviks even tried to copy the French Revolution, and to avoid its ‘mistakes’. But that did not work, because history never repeats itself and evolution cannot be steered. Herein lay the Bolshevists’ two greatest mistakes: they believed that history repeats itself and that evolution can be steered. Marx never said anything of the kind, and the opposite is true.

There is a (now growing) number of historians who understand the Papal Revolution (1075–1122) or the revolutionary changes of that period as the world-historical turn to modernity : besides Harold Berman, especially James A. Brundage, Norman F. Cantor, Peter Brown, Joseph A. Strayer, Johannes Fried, Brian Tierney, Robert I. Moore and others. The second great revolution in this genealogy is then the Protestant Reformation of the sixteenth century in Germany (1517–55), the third one the Calvinist and Republican Revolution of the Netherlands (1580–1630) and the fourth the English Revolution of 1640–88, which also was shaped by Calvinism. Until the – ironically conservatively, even reactionarily intended – historical invention of the term ‘revolution’ in the monarchist legend of the ‘Glorious Revolution’ of 1688, a revolution was understood as the circular turn back to the beginning of a circular move of the solar system: A revolution every morning. Our own progressive (and no longer circular) use of ‘revolution’ is not much older than the French and American Revolutions. But its subject matter is older. What we call a revolution today was called (in the Christian world) a reformation.10 In this list, the constitutional revolutions of the eighteenth century in America and France (which understood themselves no longer as Christian reformations, but as secular or enlightened revolutions) are the fifth and sixth great revolutions of history; the (atheist) Russian Revolution is number seven and the Chinese Revolution is number eight. What is new about the great revolutions that have occurred since the late eighteenth century is that they were all world revolutions, and today world historians argue that it is more appropriate to


11Parsons, The System of Modern Societies. Englewood Cliffs, NY: Prentice Hall, 1971.

address them as Atlantic Revolutions centred in the Caribbean, and with a global impact that was due to a global crisis of stratified society. However, if we reconstruct history in evolutionary terms, we can distinguish four great revolutionary transformations of rapid, violent and total change. Each of them is reliant on a new idea of freedom that is institutionalized by the revolution as a new system of constitutional law that works as a normative and path-disclosing constraint on blind evolutionary adaptation.

The idea of the following rough reconstruction of the normative advances of the four great legal revolutionary transformations that ultimately made contemporary society is that each of these revolutionary transformations (1) established path-breaking normative constraints and implemented them legally and constitutionally. But these fundamental reforms of society (2) had the unplanned and contingent effect of the functional differentiation of the four most important sub-systems of modern society. Without these absolutely unintended effects, the new formation of communicative understanding and social group integration would never have been stabilized. The revolutions contingently triggered a long process of functional differentiation that was needed to stabilize the revolutionary advances, but at the same time compromised and reversed them and twisted their meaning right around: the dialectic of enlightenment. The story is well known. The revolutions abolished all class domination, but in a backstroke they established new and even more stable formations of class domination. In one way or another, the great legal revolutions opened the evolutionary path for the promotion of functional differentiation. As we will see, already (1) the Papal Revolution of the twelfth century had the unintended side effect of the functional differentiation and self-referential closure of the legal system. (2) The Protestant Revolution 400 years later had the unintended side effect of the functional differentiation and self-referential closure of the political system. (3) The Atlantic Revolution of the eighteenth century had the unintended side effect of the functional differentiation and self-referential closure of the economic system and (4) the Egalitarian Revolution of the twentieth century had the unintended side effect of the functional differentiation and self-referential closure of the global educational system and the globalization of all functional systems.

The combination of revolutionary punctuations with functional differentiation matches Parsons’s AGIL-schema. Parsons already had used that schema to reconstruct the evolution of modern societies.11 Parsons likewise distinguishes four revolutions, but different ones (the Protestant Reformation or the religious revolution, the industrial revolution, the democratic revolution


12Parsons and Platt, The American University.13See Parsons, Order and Community in the International Social System.

and the educational revolution). His genealogy of the system of modern (still national) societies is different from, but does not exclude, the approach taken here. It partly overlaps with and partly adds other evolutionary developments to our schema of the four revolutionary transformations. As I have said from the beginning, there are always different, but not necessarily mutually exclusive narratives of concrete evolutionary developments. The main differences compared with Parsons’s evolutionary model are: First, Parsons used a different and much broader sociological concept of ‘revolution’ (including other great transformations such as the so-called ‘industrial revolution’), which in my view overstretches the concept of ‘revolution’. Even if law, the legal system and, in particular, Roman Law and its reception played a crucial role for Parsons’s reconstruction of the development of the system of modern societies, he secondly did not make use of the idea that all great Western revolutions were legal revolutions. This might be due to the historical and sociological state of research at his time (Berman’s book on Law and Revolution only came out after his death), and to his overstretched concept of a revolution. Thirdly, Parsons retained the meta-narrative of the modern national state that emerged from absolutism only from the sixteenth century onwards. Therefore (like Marx), he attached his concept of the four revolutions to the leading system of one national state for each revolution (for Marx’s economically narrowed perspective, this was England, in Parsons’s AGIL-pluralism, it is the Netherlands for the religious revolution of the seventeenth century, England for the industrial revolution of the eighteenth century, France for the democratic revolution of the nineteenth century and the USA for the educational revolution of the twentieth century). Fourthly, Parsons (partly, it may be, for political reasons) neglected the role which the global social revolution played for his own concept of the American educational revolution,12 and even if he brilliantly analysed the revolutionary change of the international world system and the emergence of a global constitutional system after World War II,13 he – fifthly – did not connect his path-breaking deliberations on the global constitutional transformation with his concept of the educational revolution. Sixthly, binding the social evolution conceptually to the schema of four and only four functions, Parsons closes off evolution by tacitly imposing a model of final completion. Finally, and this is the seventh point, Parsons does not systematically distinguish normative learning processes and the changes of normative constraints (hence the constitutional structure of the society) from the (as a whole) adaptive evolution of functional systems. But we can – as now becomes obvious – use Parsons’s categorical framework as a heuristic tool for a different reconstruction of the evolution of modern society that is based on concepts such as ‘legal


revolution’, ‘normative constraints’ and ‘world society’. On the level of the social system, Parsons differentiates four basic social systems of modern society which (as specialized systems) fulfil the four fundamental functions of social action and societal integration: While the educational system (including the scientific system) is specialized in the extended reproduction of latent cultural patterns (knowledge) steered by the latency function of the social system (L), the legal system is specialized in the extended reproduction of norms which fulfil the function of social integration (I). The political system and government are specialized in the extended reproduction of power, to be able to fulfil the function of goal attainment (G), and, finally, the economic system is specialized in the extended reproduction of capital fulfilling the adaptive function (A) of the social system. If we distinguish normative learning from evolutionary adaptation and restrict the concept of revolution to legal revolutions, we come to a very different evolutionary sketch of the four social systems than Parsons. The evolutionary unfolding of the AGIL-Schema then reads as follows in Table 1.

However, we must keep in mind that there is no completion as is suggested by Parsons’s schema of four and only four functions. The following blueprint of an evolutionary genealogy of modern society follows the course of the great legal revolutions, but can only tell one of the many stories of evolutionary change, and it focuses on only two trajectories of social evolution, on normative learning processes and functional adaptation. As we will see, the functional differentiation of the legal system and the organization of the church (twelfth century) caused a structural social class conflict between the wielders of the normative power of the definition of true faith (the papal power of excommunication) and the heretic associations of religious denomination (Sec. I, II). The functional differentiation of the political system and the national state organization caused a structural social class conflict between the wielders of coercive power and the people (Sec. II, III). The functional

Table 1 Evolution of functional advances of revolutions

I

Papal Revolution (West-European)Legal system: Twelfth/thirteenth

century

G

Protestant Revolution (Western)Political system: Sixteenth/

seventeenth century

L

Social World RevolutionEducational system: Twentieth/

twenty-first century

A

Atlantic RevolutionEconomic system: Eighteenth-

twentieth century


14See Gaus, ‘Rationale Rekonstruktion als Methode politischer Theorie zwischen Gesellschaftskritik und empirischer Politikwissenschaft’, Politische Vierteljahresschrift (PVS) 2 (2013), 231–55; Patberg, Suprastaatliche Verfassungspolitik und die Methode der rationalen Rekonstruktion.

differentiation of the economic system and the capitalist corporation caused a structural social class conflict between capital and labour (Sec. III, IV). The functional differentiation of the educational system and the globalization of organizations of higher education are too recent to draw final conclusions, but seem to cause a structural social class conflict between the transnational establishment and the precarians (Sec. IV).

In this Chapter, I will differentiate each of the Sections I–IV into 10 parts, which can be related roughly to Parsons AGIL-schema, at least for reasons of representation. Evolutionary learning processes are enabled by the growth of cognitive reflexivity. All great revolutions are closely related to epistemic revolutions. They change the superstructure (cultural lifeworld) of society (LLatency). Cognitive reflexivity is represented in the progression of scientific insight, taking the notion of science in the broad sense of the Eurasian academic tradition since the Axial Age. This tradition covers all major spheres of cultural knowledge (science, legal scholarship, aesthetics, practical knowledge). I call it ‘progression’ insofar as it is experienced as progression by the social actors themselves, who use it for reasons of justification and criticism.14 They are forced to argue from within its framework. A paradigmatic case is the fictitious debate between John of Salisbury and the Norman Anonymous in the time of the Papal Revolution. The epistemic revolution (L) establishes a kind of ratchet effect (1) that is accompanied by the transcendent becoming immanent (2). The latter is constitutive for the consciousness of modernity (3). The selective mechanism (GGoal attainment) is class struggle (4), including, from the beginning of modern society, the struggle for human rights (5). They result in a new set of normative constraints (IIntegration), consisting in a new

Table 2 Dimensions of revolutionary change

I

Normative constraints(6) new idea of freedom (7)

founding documents

G

Selective mechanism(4) Class struggle (5) struggle for human

rights

L

Epistemic revolution(1) ratchet effect (2) immanence of

transcendence (3) modernism

A

Systemic stabilization(8) co-evolution of cosmopolitan & national

statehood (9) constitutionalization


15Berman, Law and Revolution, pp. 165, 558.16Jacques Le Goff, Medieval Civilization 400–1500, trans. by Julia Barrow. Oxford: Blackwell, 1988, pp. 25–36, Guy Bois, The Transformation of the Year One Thousand: The Village of Lournand from Antiquity to Feudalism, trans. by Jean Birrell. Manchester: Manchester University Press, 1992, p. 76.17Jürgen Weitzel, ‘Versuch über Normstrukturen und Rechtsbewußtsein im Mittelalterlichen Okzident (410–1100)’, in Ernst-Joachim Lampe (ed.), Zur Entwicklung von Rechtsbewußtsein. Frankfurt: Suhrkamp, 1997, pp. 371–402, at 381–7; Le Goff, Medieval Civilization, pp. 119–21.

idea of freedom (6) and one, or a few, legal documents that have a founding character (7). The stabilization of the new formation of normative constraints (AAdaptation) is due to the gradual evolution of political organization, which consists in the co-evolution of cosmopolitan and national statehood (8) and the constitutionalization of functional differentiation (9).

The final part of each section gives a brief conclusion on the dialectic of enlightenment, which I discuss throughout all other chapters, because there simply is no realm that is beyond the dialectic of enlightenment (10). The latter, however, has no analogy in Parsons AGIL-schema because this schema is still shaped by the undaunted liberal optimism and the strong belief in progress of the American 1940s and 1950s.

I Papal Revolution

Without the fear of purgatory and the hope of the Last Judgment, the Western legal tradition could not have come into being. Western legal science is a secular theology.

HAROLD BERMAN15

The Papal Revolution (1075–1122/1170) was the first Christian revolution at the threshold of modern society. Before that time, West European society had passed through a long period of stagnation and devolution that followed the decay of the Roman Empire in the middle of the first millennium. Of the educational, political, legal, technical and agricultural advances of Rome, hardly anything was left.16 There were legal textbooks, collections of canones and some royal codifications, but they were all without any normative impact. The continuous succession of bishops had been interrupted. The urban and rural populations were decimated, many formerly big cities had vanished, most of the large stone buildings were derelict and replaced by much smaller wooden houses. Glass was no longer produced. Paved streets were destroyed and impassable.17 To transport wheat with an oxcart over 80 miles


18Arnold H. M. Jones, The later Roman Empire. Oxford: Basil Blackwell, 1973 (1964), pp. 841–2; Bois, The Transformation of the Year One Thousand, p. 76.19Robert I. Moore, The First European Revolution. Oxford: Blackwell Publishing, 2000, pp. 30–8; see Robert F. Lopez, The Commercial Revolution of the Middle Ages 950–1350. Cambridge: Cambridge University Press, 1976; Johannes Fried, Das Mittelalter. Geschichte und Kultur. Munich: Beck, 2009, p. 110.20Peter Brown, The Rise of Western Christianity. Cambridge, MA and Oxford, Blackwell, 2003 (2. Edition), pp. 368–72.21Brown, ‘Society and the Supernatural: A Medieval Change’, Daedalus 104:2 (Spring 1975), pp. 133–51, at 137; on stratification: Moore, First European Revolution pp. 10, 22–3, 45–6, 52–5, 165–6, on micro-Christianities: Brown, The Rise of Western Christianity, p. 357 et seq.22Brown, The Rise of Western Christianity, pp. 355–80.23James A. Brundage, Medieval Canon Law. London: Longman, 1995, p. 119; see Berman, Law and Revolution, pp. 117–19; Dreier, Horst, Kanonistik und Konfessionalisierung. Marksteine auf dem Weg zum Staat, in Siebeck, Georg (ed.), Artibus ingenius. Tübingen: Mohr, 2001, pp. 133–69, at: pp. 137–41; Reinhard, Wolfgang, Geschichte der Staatsgewalt. Munich: Beck, 1999, pp. 37, 261, 285–91; Manlio Bellomo, The Common Legal Past of Europe 1000–1800. Washington: The Catholic University of America Press, 1995, pp. 126–48.

was as expensive as transporting a whole shipload by sea from one end of the Mediterranean to the other.18 Therefore, the Papal Revolution had to reinvent the city. And it invented a completely new cluster of self-organized cities.19 But around the year 1000, great parts of the population were no longer settled and were forced to roam as hunters through the ever larger wooded areas.20 Society before the revolution was relatively simple, consisting of segmentarily differentiated clans and a rough stratification of two social classes: potentes (or domini) and pauperes, masters and slaves. The centre of society was the village or the rural city, surrounded by an endless periphery of wilderness. The centres were at best loosely linked to one another. Christianity was highly fragmented into a plurality of micro-Christianities who had hardly any contact with one another.21 Easter was celebrated by each of these micro-Christianities at a different time of the year.22

All this changed totally after the Papal Revolution. Modernity begins with the professional formation of canon law. In the writings of the canonists, we can find

traces of the early history of numerous modern ideas about corporation law, tax law, or public finance and even the germ of concepts basic to the constitutional state, the notion that the power of governments must be defined by law, and the conceptual foundations of parliamentarism and similar legislative assemblies.23

Developing at a breathtaking pace over a few decades, by the twelfth century, canon law had become a scientific system which, as a German legal historian wrote in 1875, enabled the ‘purely legal construction of the organization of


24Johann Friedrich von Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts. Stuttgart: Enke 1875 (quoted from the unchanged reprint: Graz: Akadem. Druck- und Verlagsanstalt, 1956), pp. 4–5, 100–3, 215, note 18 (my transl., the original is: ‘rein juristische Construktion des Kirchenwesen bis ins Kleinste hinein’).25Berman, Law and Revolution, p. 50; see Pablo Holmes, Verfassungsrevolution in der Weltgesellschaft. Differenzierungsprobleme des Rechts und der Politik im Zeitalter von Global Governance. Baden-Baden: Nomos, 2013, pp. 122–3.26Ibid., pp. 151–64; Toby E. Huff, The Rise of Early Modern Science. Islam, China, and the West. Cambridge, UK: Cambridge University Press, 2003 (1993). The universities were autonomous and basic democratic corporations of students or of students and professors. Even if only a papal bull or the act of an emperor turned a corporative school into a university, this usually did not mean that corporative self-organization came to an end. See Bellomo, The Common Legal Past of Europe 1000–1800, pp. 126–48.27Walter Rüegg (ed.), Geschichte der Universität in Europa, Bd. 1: Das Mittelalter. Munich: Beck, 1993.

the church down to the minutest detail’.24 For the first time, a legal body was created, which was ‘independent of emperors, kings and feudal Lords.’25

Its evolutionary advance consisted in the constitutionalization and juridification of both cities, the city of god (civitas dei) and the earthly city (civitas terrana), of the realm of God and both its this-worldly bodies and swords. The evolutionary advance of the separation of sacerdotium (church, monasteries) and regnum (kings, emperor, magistrates) was exported, copied and reinvented again and again, through all further great revolutions, and all over the world. From the beginning, the separation of sacerdotium and regnum enabled the corporative pluralisation of autonomous legal bodies (cities, universities, guilds, kingdoms, congregations, fraternities, villages etc.), and, in particular, the functional differentiation of the legal system that presupposed the structural coupling of law and academic science (professionalization) and centralization in a system of courts and stages of appeal, and hence the co-evolution and structural coupling of functionally differentiated systems of law and science. The first universities were law schools and the first modern science was legal science.26 In the concert of medieval powers, the universities were the third power besides sacerdotium and regnum, the power of studium.27 Furthermore, the separation of sacerdotium, regnum and studium caused the continent-wide expansion of a completely unique and homogeneous pastoral power, the formation of the modern state and the modern city, and, last but not least, at the basic structural level of society, a formidable growth of the agrarian surplus product through technical innovation and, never to forget, a much better exploitation of the dependent farmers and villains by the aristocrats and the ecclesiastical owners of the land.

The separation of the managerial mindset of law from the lifeworld led to a functionally differentiated, autonomous and self-referentially closed system. In the scientific, political and religious sphere, there were many strong preadaptive advances towards functional differentiation. But the different


28See Luhmann, ‘Einführende Bemerkungen zu einer Theorie der symbolisch ausdifferenzierten Kommunikationsmedien’, Zeitschrift für Soziologie 3 (1974), 236–55; on the differences between the early modern legal state of the church and the modern secular state, see Berman, Law and Revolution, pp. 113–15; Reinhard, Geschichte der Staatsgewalt, 1999, pp. 262–3.29Berman, Law and Revolution, p. 86; see Weitzel, Versuch über Normstrukturen und Rechtsbewußtsein im Mittelalterlichen Okzident, p. 393.30Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, 29, 92f.31Berman, Law and Revolution, p. 50.32Ibid., p. 200.

institutional orders were not yet self-referentially or self-reflexively closed spheres of communication. Sacerdotium was clearly differentiated from regnum, but the former was still an important part of the latter and itself a kind of regnum, just as the kings and the emperor were still part of the holy Christian world order. Political power was beginning to accumulate through increasing legalization, but never became a symbolically differentiated medium of communication that organized the political system of administrative power through the binary code of power/ powerlessness alone.28 Christian religion was far removed from the Protestant sola fide (faith alone) that led to a self-reflexive closure of the religious sphere of values (see next section parts 4, 6, 8). Only in the legal sphere, the preadaptive advances immediately led to a fully fledged functional differentiation of the legal system: ‘Law became disembedded.’29

Before the time of the Revolution there existed no academically trained legal profession.30 There existed no idea of the law as a corpus iuris:

No one had attempted to organize the prevailing laws and legal institutions into a distinct structure. Very little of the law was in writing. There was no professional judiciary, no professional class of lawyers, no professional legal literature. Law was not consciously systematized. It had not yet been “disembedded” from the whole social matrix of which it was part.31

Even the memory that something like this had existed in the ancient Roman days of Justinian (even though it was never used as a corpus in practice) was nearly lost, at least in Western Europe; nearly, but not totally, because the church always continued to claim ‘to be a bearer of Roman law’, as in the eighth-century Lex Ribuaria, which contained the provision: Ecclesia vivit jure Romano (‘The Church lives by Roman Law’). But this claim had a weak legal basis at that time, and was understood as the law of the respective local clan of the Church.32 There were no codes of law, and no legal scholars to interpret and comment on them:

There was no independent, integrated, developing body of legal principles and procedures clearly differentiated from other processes of social


33Ibid., p. 50.34See Brown, Society and the Supernatural, p. 142.35Ibid., p. 135.36Ibid., p. 138.37Berman, Law and Revolution, p. 150.

organization and consciously articulated by a corps of persons specially trained for that task.33

Law was distinguished neither from theology nor from philosophy, ethics or morality. There was no disciplinary differentiation of knowledge at all. Legislation, as well as case law, was at best at a rudimentary level of development in the year 1000. There was an archaic common law, which combined pagan, Christian and some degenerated Roman law elements (Vulgate), but there was hardly any written law, legal statutes, courts of justice or stages of appeal. The main procedure of legal decision-making was by ordeal, and the ordeal was the performance of law as ritualized torture that had its end in itself.34 The sudden penetration of an archaic society by monotheism produced monsters. The same water that was used for baptism was used to submerge the poor victims of the ordeal. The more-often-than-not deadly torture instruments of the ordeal were used to decide trivial civil law cases as well as questions of capital crime or high treason. The ordeal was not just a legal issue concerning right or wrong, but a magical practice of comprehensive social and cosmic integration. The Christian community understood itself as an undifferentiated and holistic unity of the sacred and the profane, of the natural and the supernatural.35 In the performance of ordeal, the inapproachable higher objectivity of the transcendent order was ‘sucked into the subjective values of the group’. The ‘ritual itself’ was a ‘reassuring and peace-creating. . . spectaculum’ that left ‘a lasting impression on the public memory of a small community. . . . Verba Volant, ordalia manent [words come and go, ordeals are lasting] could be the motto of part of the function of this great ceremony’.36

Even the much more advanced ancient Roman law had developed only a sophisticated order of legal concepts, but no concept of a concept of law.37 Only with the ‘concept of a concept’ (Hegel) is a system reflexively closed. A legal system is not the same as a legal order. There was no legal system prior to the eleventh and twelfth century. There was only

a legal order in every society of the West prior to the eleventh and twelfth century, in the sense that there were legally constituted authorities that applied law. Indeed, at no time in their history did the peoples of Europe lack a legal order: the earliest written records are collections of laws, and Tacitus, writing in the first and second centuries A. D., describes Germanic


38Ibid., p. 50. My emphasis.39Ibid., p. 200; Brown, Society and the Supernatural: A Medieval Change; see Fritz Kern, Recht und Verfassung im Mittelalter. Darmstadt: Wiss. Buchges. 1952, pp. 14–15, 17, 56, 81–2, 87–8, 90, 95–6, 99, 103–4. Kern overgeneralizes his observations, which fit the time before the eleventh century, but not that after, as new research shows. For a critique of Kern’s overgeneralization, see Armin Wolf, ‘Gesetzgebung und Kodifikation’, in Peter Weimar (ed.), Die Renaissance der Wissenschaften im 12. Jahrhundert. Zurich: Artemis, 1981, 143–70, at: p. 143 et seq., pp. 162–3; for newer research, see Brown, The Rise of Western Christianity, pp. 244, 357–8; Le Goff, Medieval Civilization, pp. 35–6, 119–21; Heinrich Mitteis, Der Staat des hohen Mittelalters: Grundlinien einer vergleichenden Verfassungsgeschichte des Lehnzeitalters. Cologne: Böhlau, 1986, p. 14 et seq.; Wesel, Geschichte des Rechts, p. 276 et seq.; Bois, The Transformation of the Year One Thousand, p. 13 et seq., 76; Jones, The later Roman Empire, pp. 841–2; Alexander Demandt, Geschichte der Spätantike. Munich: Beck, 1998, pp. 261–2; Fried, Das Mittelalter, p. 112; Parsons, System of modern Societies, p. 51.40Brian Tierney, Religion, Law, and the Growth of Constitutional thought 1150–1650. Cambridge: Cambridge University Press, 1982, Preface, p. IX (with reference to H. Butterfield, The Whig Interpretation of History. London: G. Bell & Sons, 1931).

assemblies that acted as courts. Also the church from very early times declared laws and had established procedures for deciding cases. Yet the legal rules and procedures which were applied in the various legal orders of the West in the period prior to the late eleventh and early twelfth centuries were largely undifferentiated from social custom and from political and religious institutions.38

Hence, there existed a consuetudinary, habitual, and mechanical legal order that was an integral part of the lifeworld, and close to family, kin and clanship – but there was no legal system before the twelfth century C.E.39

(1) Ratchet effect

In the case of the great legal revolutions, the mutation of ideas consists in the rapid emergence of a new discursive formation that is constituted by a new conceptual or epistemic framework. The emergence of the latter is crucial for the success of a great revolution. It does not mean that the normative constraints erected by the revolution and the new constitutional and legal system are uncontested, but that the contestation of (and opposition to) the new set of normative constraints now must be articulated from within the new epistemic framework. In the epistemic integration even of fundamental and radical opposition to the revolutionary advances, the revolutionary institutions and the revolutionary epistemic framework into the same epistemic framework of the revolution consists the revolution’s very victory, even if it should lose all military battles, as we will see again and again in this chapter.

Therefore, the mutation of ideas plays a crucial role for the success of the revolution.40 There is an internal relation between the mutation of ideas


41Piaget’s theory of cognitive development is a good example for a theory of revolutionary change that, in particular, fits the method of Hegel’s negative dialectic (see Kesselring, Entwicklung und Widerspruch; Kesselring, Die Produktivität der Antinomie). Kuhn’s theory of scientific revolutions would be another good example.42Quoted from: Tierney, Religion, Law, and the Growth of Constitutional Thought, Preface, p. IX.43Tierney, Religion, Llaw, and the Growth of Constitutional Thought, Preface, p. IX.

and social revolutionary change. Brian Tierney argues that the mutation of ideas, in particular, is due to rapid change that cannot be explained by gradual adaptation. Therefore, he compares the mutation of ideas to a theory of evolution such as Piaget’s.41 In our evolutionary framework, the mutation of ideas nicely matches the change of the direction givers of evolution, the epistemic framework in discourse history, the constraining Bauplan in biology or the normative constraints in sociology (see above General Introduction, Ch. I, Sec. II). A good paradigm case for such a mutation is the argument of Alanus, a twelfth-century lawyer, in comparison with a formally similar but categorically incompatible argument by Pufendorf, a seventeenth-century philosopher. Alanus argues that the legally organized peaceful coexistence of papal sovereignty with the sovereignty of secular princes presupposes the independence of papal sovereignty from that of the princes. Otherwise, the subsumption of the church under the sovereignty of the prince would create monsters: ‘the church is one body and so it shall have only one head or it will be a monster.’42 Pufendorf (who did not know Alanus) took the same argument, but turned the monster the other way around: In the case of the legal coexistence of papal and monarchical sovereignty within the same Christian polity, ‘the state would become a monster with two heads’.43

In the twelfth century, the argument of Alanus represented a successful mutation of ideas, in particular, in public law and political theory. Alanus’s argument is strongly supported by the turn from divine kingship to papal sovereignty and the differentiation between the legal spheres of the king and the priest during the Papal Revolution. The revolution established a new epistemic framework. There are three phases: (1) Before the turn of the millennium, the hagiographic political theology of divine kingship, published in a few treatises at the high tide of the Papal Revolution around the year 1100 by the Norman Anonymous, would have been accepted by most of his readers. However, (2) in the late eleventh century, the Anonymous was strongly contested, even if his arguments remained plausible, or at least comprehensible as arguments. In the political world of the Anonymous, there was no fundamental difference between the king and Christ. Despite 50 years of European-wide agitation by the clerical reform party, the secular king or emperor still was widely accepted as the Vicarius Christi. For the Anonymous, the king was gemina persona or persona mixta (a mixed person): God or Christ as well as a human being. The king was a deified man, just like the Roman emperor had been before


44The only difference compared to Jesus was that the king’s divinity was divinity by grace and not by nature. But this difference only concerned the king’s body, not his power (potestas), which was divine by nature, and hence the same power as that of God/Christ (divina potestas): MGH, LdL, III, pp. 667, 35 et seq., 671, p. 35 et seq., quoted from: Ernst H. Kantorowicz, The King’s Two Bodies. A Study in Medieval Political Theology. Princeton: Princeton University Press, 1985 (1957), p. 48 et seq. (quotes at 48, note 11 and 12, 54, note 25). It appears highly plausible that ancient Roman emperors thinking in categories of power primarily understood themselves as Vicars of Christ, because through the conflation of the emperor with Christ (hence, with the one and only God of Christ), the imagined power of Roman emperors increased far beyond the pagan imagination that described the emperor as one of many gods. In this way, Tertullian had already tried to make Christianity tempting to the emperors (see Tertullian, Apologeticus, trans. A. Souter. Cambridge: Cambridge University Press, 1917, Ch. 25, pp. 89, 91; Ch. 26, p. 91. Ch. 42, p. 123.45MGH, Libelli de Lile Imperatorum et Pontificum (LdL), III, 663, 5, quoted from: Richard W. Southern, The Making of the Middle Ages. London: Hutchinson’s 1953, p. 93.46Southern, Making of the Middle Ages, pp. 93–4; see Berman, Law and Revolution, p. 276 et seq.47Walter Ullmann, Law and Politics in the Middle Ages. An Introduction to the Sources of Medieval Political Ideas. Cambridge, UK: Cambridge University Press, 1975, pp. 133, 139.48Manegold von Lautenbach, Manegoldi ad Gebehardum liber, in Monumenta Germaniae historica, Hannover 1891, pp. 18–30, 43, 47–9; see Gerhard Koch, Manegold von Lautenbach und die Lehre von der Volkssouveränität unter Heinrich IV. Berlin: Matthiesen, 1902, pp. 22, 45 et seq.; Berman, Law and Revolution, p. 286; Kurt Flasch, Einführung in die Philosophie des Mittelalters. Darmstadt: Wiss. Buchges. 1994, p. 73.

and after the turning point represented by Constantine.44 The king’s actions were interpreted as the direct performance of the divine will. What kings do as ‘Vicars of Christ’, Anonymous argues, ‘is not done by men but by a God and a Christ of the Lord.’45 This, the historian Richard Southern comments, ‘is a strange language to our ears, but it would have been less strange in the tenth than it was in the eleventh than it became in the twelfth century.’ At the end of the eleventh century, the ‘man who wrote these words was struggling against a rising tide, against a new spirit of definition which would rigidly sever the powers and nature of a king from those of a priest.’46 After the Papal Revolution, (3) it became impossible to argue the way in which the Norman Anonymous did. While the Anonymous still saw the legal order in the service of theology, an early intellectual and juridical forerunner of the papal reform party of the revolution, Bishop Burchard of Worms (965–1025), had already turned the old Christian world view upside down, and suggested to put ‘theology . . . [at] the service of the legal order’.47 During the revolution, the reform party went further in the direction of a total disenchantment regarding all higher justice, truth and status ascribed to kings and emperors. In the middle of the revolution, between 1083 and 1085, Manegold von Lautenbach assumed that secular rulers like the emperor had no direct divine legitimacy, but simply administered a recallable mandate. Manegold radically desacralized kingdom. For him, kings were hired by the people like a ‘swineherd’ by a farmer. They could be fired by the people once they did a bad job.48 Only half


49Berman, Law and Revolution, pp. 276–88.50Kantorowicz, The King’s Two Bodies., p. 93.51Kantorowicz, The King’s Two Bodies, see Chapters III and IV.52John of Salisbury, Policraticus. New York: Russell & Russell, 1927.53In our days, the method of abstracting reflection or reflexive abstraction has been developed by the developmental psychologist Jean Piaget. For a good representation, see Kesselring, Entwicklung und Widerspruch; Kesselring, Die Produktivität der Antinomie.54Berman, Law and Revolution, p. 288.

a century later the arguments of the Anonymous had become strange and implausible, whereas those of Manegold stayed plausible, at least in principle. Probably the first elaborated functionalist political theory was established by John of Salisbury, supporting a sharp separation of sacerdotium and regnum.49 The idea of liturgical kingdom was replaced by a juridical understanding of the rational requirements and functions of that agency. The status of a secular ruler was no longer defined by sacrament and altar, but by law and justice.50 Kantorowicz rightly distinguishes ancient ‘Christ-centered kingship’ from modern ‘law-centered kingship’.51 This is where the differentiation of legislative and executive power originates (see below part 8). John’s Policraticus (1159) combines Aristotelian, Stoic and Patristic elements in a completely new way.52 Already the idea of a comprehensive and dialectical synthesis of classical political thinking was new. Contradictory norms were reduced to their common universal content by abstracting reflection.53 The office of the king was now explicitly separated from his person, as had implicitly already been done in Manegold’s polemical comparison of the king’s job with that of a swineherd. The whole body politic was now defined as a functionally differentiated organism related to a certain territory. The turn from a ruler who keeps order in his family-like state to the idea of an independent legal and constitutional order that has to be preserved by the ruler was brought about, not as late as the political theory of the sixteenth century (as Quentin Skinner and the mainstream political theory of the Neuzeit assume), but already in the time of John of Salisbury and his intellectual contemporaries. John adopts the classical organic metaphors of political theory, but combines them in a way that reminds one ‘of modern systems theory, with the concept of flows, subordination, and hierarchy, feedback, controller and programme.’54 This is why John could conceive society differently from Aristotle, as a progressive rational entity that can improve its rationality constantly, oriented by an ultimately divine programme of justice. In the course of the twelfth century, the old European world of the writings of the Norman Anonymous ceased to exist and classical political theory was reinterpreted anew and within a new categorical framework.


55Dictatus papae, c. 2, 8, 9; see Moore, First European Revolution, 38, 121–2, 145–6; Franz Wieacker, Privatrechtsgeschichte der Neuzeit. Göttingen: Vandenhoeck, 1967, 74f; Schatz, Der päpstliche Primat, pp. 107, 103; Cantor, Medieval History, pp. 228, 273–4.56Berman, Law and Revolution, p. 178 (German trans. p. 296).

(2) The immanence of transcendence

The idea of a universal church or Ecclesia Universalis was more than mere ideology.55 It is crucial for the understanding of the modern formation of cosmopolitan statehood (and the subsequent evolution of modern law and statehood) that the cosmopolitanism of the church state indeed implied robust and bloody imperialism, but cannot be reduced to empire and imperialism. The state of the church was not an empire like the old Roman Empire, which was based on the legal integration of the ruling classes alone, and on the coercive control of others, namely, the Roman periphery and the lower classes, which was called Pax Romana – a control that never could be as dense and comprehensive as the subsequent legal control, first by Catholic clerics and later by modern state officers.

The church described itself in constitutional terms as a legally organized cosmopolitan order: as an internally differentiated continuum comprised of civitas dei and civitas terrana. Both together were constructed as a kind of universal confederation. The constitutional system of the church and the balance of sacred and profane powers were based on a philosophical and theological reinterpretation of the doctrine of incarnation:

It was not transcendence as such, and not immanence as such, that was linked with the rationalization and systematization of law and legality . . ., but rather incarnation, which was understood as the process by which the transcendent becomes immanent. It is no accident that Christianity, Judaism, and Islam, all three of which postulate both a radical separation and a radical interconnection between God and man, also postulate that God is a judge and a lawgiver and that man is governed by divine law. Nevertheless, the distinctive features of the Western concepts of human law that emerged in the eleventh and twelfth centuries – as contrasted not only with Judaic and Islamic concepts but also with those of Eastern Christianity – are related to the greater Western emphasis on incarnation as the central reality of the universe. This released an enormous energy for the redemption of the world; yet it split the legal from the spiritual, the political from the ideological.56

In particular, Anselm’s (1033–1109) rationalist philosophy, which was written at the height of the revolution, was a perfect expression of the Western turn


57Tellenbach, Libertas, p. 194, English translation quoted from: Tellenbach, Church, State and Christian Society, p. 163.58Ibid., p. 195. My translation of ‘damals gewann die Weltgewinnungstendenz deutlich die Oberhand über die Weltabwendungstendenz’, and ‘Verwirklichung der Gerechtigkeit’, ‘rechte Ordnung der Welt’. The terms ‘inner-worldliness’ or ‘inner-worldly’ are frequently used by Max Weber throughout his work.59Laurent Mayali, Recht sprechen, p. 299, Journal for History of Law (Rechtshistorisches Journal), issue 14(1995), pp. 284–308.60Berman, Law and Revolution, pp. 116–18.61Mayali, Recht sprechen, pp. 298–9.62Berman, Law and Revolution, pp. 144–5.

to the doctrine of incarnation, and its generalization. Unlike in Augustine, the saeculum – which for Christians is the temporal, secular world in contrast to the eternal, transcendental and sacred world – no longer was interpreted as something deeply corrupted, depraved and malign, a world totally determined by original sin. During the eleventh century, the leaders of the church lost their ‘ancient aversion from the wickedness of worldly men’ and regarded themselves as elected ‘to re-order earthly life in accordance with divine precept.’57 Contrary to Augustinian dualism, the doctrine of incarnation now was used to copy the difference of the transcendental and the secular world back into the secular world. The first great turn of Christianity to ‘inner-worldliness’ (Weber) was not Protestantism, but the Papal Revolution: ‘at that time the inner-worldly engagement with this world clearly prevailed over the old Christian detachment from the world.’ The revolutionary aim of Gregory VII and his fellow radicals was the ‘realization of justice’ and the ‘right order of the world’ (order is lat. ordo).58 Gregory VII used a trinominal phrase (reflecting the Holy Trinity of Spirit, Son and Father) to define the legal obligations of a true ruler: amor iustitiae (love of justice), defensor pauperum (guardian of paupers), propagator pacis (sustainer of peace).59

The secular internalization of the two realms transformed them into steps of a historical process of changing the world for the better, and of realizing the city of God at least partly within the city of humans by means of social praxis. The medium of that reformist praxis was to be positive law. The right order of justice gave all Christians the task to institutionalize the separated powers of the sacred and the profane as legal states, and it culminated in the commitment of the sacred power of the church to the reform of inner-worldly society.60 ‘In this way, this world and the beyond were unified within a single practical project.’61 Furthermore, the jurists of the eleventh and twelfth centuries complemented the ideas of divine, moral and natural law by a second concept of an ideal human law that they thought to have discovered in Roman law and the code of Justinian. By this means, human law could be used as an immanent measure for the criticism of human statutory and customary law.62


63Ibid., pp. 142–4.64Ibid., pp. 109–10, 112, 117–20.65Ibid., pp. 158, 400–2, 521.66Anselm of Canterbury, Cur Deus Homo – Warum Gott Mensch wurde. Darmstadt: Wissenschaftliche Buchgesellschaft, 1993.67See for the richness of (judicial) methodological instruments: Gilbert Crispin, Religionsgespräche mit einem Juden und mit einem Heiden, Lateinisch-Deutsch. Freiburg: Herder, 2005, p. 39 et seq. (principle of coherence of interpretation), pp. 51, 71, 69ff, 95 (historical critique of sources), p. 43ff (teleological interpretation) p. 117 (metaphor vs. literal meaning).68Berman, Law and Revolution, p. 158.69Ibid., p. 176.

The theological and philosophical basis for the multiple representation of the macrocosm within the inner-worldly microcosms were moderate nominalist deliberations, such as Abelard’s assumption that universal concepts reside within the singular things which they designate, and that thereby the universal (God) is present, embodied, visible and recognizable within its parts, and causes its cohesion.63 From here to the idea that law and society are at least partly an incarnation of God, it is only one step. Within the corrupted world, progress became possible. The old corruption by the Fall of Man could at least partly be overcome within this world.64 The church now incarnated Christ on two grounds, the old one of (1) being the mystical body of Christ, which is concrete incarnation, and the new one of (2) being a juridical corporation with a secular mission to reform this world, which is abstract but real incarnation (in the Hegelian-Marxian sense of a ‘real abstraction’).

Law was considered as the main instrument with which to begin building the city of God within this world.65 Only on this dual ground of the church being the concrete mystical and the abstract legal body of Christ was it possible for philosophers such as Anselm to give a purely rational account and proof of the incarnation of Christ;66 for philosophers such as Abelard (1079–1142) and Gilbert Crispin (1045–1117) to take the first steps of a scientific criticism of the Bible;67 for the lawyers of canon law to argue that even the pope, despite being the immediate representative of God, could be impeached, and that hence the performance of his job could be controlled and improved by legal action.68

In line with the liturgy of the eleventh and twelfth centuries, Anselm understood the salvation no longer as mythical resurrection, but as the legal act of crucifixion, hence as the performance of divine justice through secular legal procedures.69 While the Eucharistic liturgy of the Eastern Church understood the message of Christ primarily as overcoming death, the Eucharistic liturgy of Western Christendom in the eleventh and twelfth century understood the message of Christ primarily as that of overcoming sin. The same difference was expressed in religious art. While Eastern religious art emphasized the icon of the resurrected Jesus, Western religious art from the eleventh and


70Ibid., pp. 176–9.71Ibid., p. 290 (note 22), in the German translation it is p. 595 (note 22).72Brown, Society and the Supernatural, p. 134.

twelfth century onwards emphasized the cross and the stations of the cross.70 Eastern art was concerned with Heaven and the deification of man, whereas Western art was concerned with the incarnation of God and the Son. Thus, the pope supplemented the Nicene Creed, according to which the Holy Spirit came from God, with the phrase that it came from God and the Son: filioque. The same switch from transcendence to immanence is reflected in Anselm’s philosophy. Anselm wanted

to bring God down to earth rather than to carry man up to heaven. . . . For the Scholastics of the late eleventh and the twelfth centuries the way of the knowledge of God was the way of incarnation, not of deification.71

We now can generalize these observations by Harold Berman to arrive at a central hypothesis for the following sections of this chapter: All great legal revolutions have secularized the difference of transcendence and immanence (which is constitutive for all religious and metaphysical world views since the Axial Age) by a step by step internalization of that difference and its reinsertion into immanence that finally led to a transcendence from within this world back to this world (Habermas). I call this the Berman-Habermas thesis.

Retrospectively, a clear direction from transcendence to immanence is observable. But this does not mean that this can be generalized inductively, or that there is any teleology that is directed to ever further secularization, so that transcendence at some point will be completely mediated by, and sublated in, immanence (as in Hegel’s philosophy of history). As we have seen, no such telos is possible any longer once we have switched to evolutionary theory. There are direction-givers, or normative constraints, but they do not complete themselves in a universal direction, or towards a telos.

(3) Modernism

The ‘disengagement of the two spheres of the sacred and the profane’ released an ‘energy and creativity analogous to a process of nuclear fission’.72 From the beginning, the revolution was a total revolution. As in all following ‘eras of world revolution of modern times – the Protestant, French, and Communist revolutions’, only during the

seven long decades of relative quiescence which followed the ending of the Gregorian Revolution . . . the tremendous forces of twelfth-century


73Cantor, Medieval History, pp. 263, 272.74Rosenstock-Huessy, Die europäischen Revolutionen, p. 142; Michael Mitterauer, Warum Europa? Mittelalterliche Grundlagen eines Sonderwegs. Munich: Beck, 2003, p. 117; Le Goff, Medieval Civilization, pp. 56–64.75Lynn White, ‘Technology and Invention in the Middle Ages’, Speculum 15 (1940), 141–59, at: 156, my emphasis. On the revaluation of labour enforced by urbanization, see Bellomo, The Common Legal Past of Europe 1000–1800, pp. 55–7.76White, Technology and Invention in the Middle Ages, p. 156, my emphasis.77Ibid.

creativity and achievement fully manifested. . . . All aspects of life were affected by this creative expansion: religion, art, literature, philosophy, economy, and government.73

Already from the so-called Agrarian Revolution of the ninth and tenth century onwards, an accelerated growth of productive forces can be observed.74 At the end of the eleventh century, technical innovation and the growth of productive forces had surpassed all ancient measures. Animals, water and wind replaced ‘human by non-human energy whenever great quantities of power were needed’. As Lynn White argues, this was not due to economic necessity (which exists in every society), but to normative learning processes, or, as he says, ‘ideas’ which made ‘necessity conscious’. The ‘labor-saving power-machines’ of the twelfth and thirteenth centuries ‘were produced by the theological assumption of the infinite worth of even the most degraded human personality’.75 Aristotle’s famous argument that we need slaves because we have no machines (which he used without any compunction in order to legitimate slavery) was now transformed by the activists of the Papal Revolution and the lawyers of canon law into a generalized normative commitment to search for technical means and to invent technologies which should allow for an organization of economic necessity that no longer needs slavery, or the ‘subjecting [of] any man to a monotonous drudgery which seems less than human in that it requires the exercise neither of intelligence nor of choice.’76 It was only the successful Papal Revolution that allowed for the unique legal implementation of the most basic theological assumption of Christianity (and of other world views of the Axial Age), namely that all human beings are created equal and equipped with equal and unalienable dignity. Only the new theology of the Papal Revolution, which interpreted the doctrine of incarnation as the immanence of transcendence and which put theology at the service of the legal order, enabled the resolution of the ‘Christian paradox: that just as the Heavenly Jerusalem contains no temple, so the goal of labor is to end labor.’77 The resolution consisted in the transformation of the good news of redemption into a political programme of the reform of this world by law and the improvement of law.


78Berman, Law and Revolution, pp. 15, 2381, 102–3, 227, 320, 334, 359, 363.79William R. Lethaby, ‘Medieval Architecture’, in Charles G. Crump, Ernest F. Jacob (eds), The Legacy of the Middle Ages. Oxford: Clarendon, 1926, pp. 59–92, at: 74.80Moore, First European Revolution, pp. 37–9.81Ibid.82Tellenbach, Libertas, p. 195. ‘Anti-traditional energy’ is from Adorno, Aesthetic Theory. London: Continuum, 2004, p. 29.

The age of the Papal Revolution was an age of rapid urbanization. In around 1050, barely over 20 cities had more than 2000 inhabitants, and only Venice and London had more than 10,000. In 1250, there were a few cities with more than 100,000, dozens of cities with more than 30,000 and hundreds with more than 10,000 inhabitants. In around 1250, between 5 per cent and 10 per cent of the population of the former West-Roman Empire lived in cities. That amounted to 3 or 4 million people. In the new city, gothic architecture became the material symbol of the new normative direction that was imposed on the growth of productive forces.78 Cathedrals were constructed with arches of an altitude of 50 metres. They spread all over Europe, accompanied by newly erected intellectual cathedrals such as the Codex Gratiani and Thomistic philosophy.79 The cathedral became a Sign of History. Building churches was as important for the great communitarian, urban, aesthetic, moral and legal transformations of the eleventh and twelfth centuries as the building of railways was for the industrial revolution of the nineteenth century.80 Furthermore, building cathedrals was at the origin of an architectonic universalism that is modern: the first creation of an international style that was expressed in the common language of stone and glass.81 In the time of the revolution, there also emerged a strong consciousness of progress and a new semantics of modernity. ‘Anti-traditional energy’ (Adorno) was realized and went out of control. Gregory VII and the intellectual leaders of the revolution again and again quoted Jesus in the paraphrase of Tertullian, saying that he had not come to bring custom and tradition, but truth.82 The cultural revolution of the eleventh and twelfth century was not simply a renaissance, but the opposite:

If it is the European contribution to philosophy and science that is being considered, this would be more correctly described as a birth rather than a renaissance, since many intellectual movements of the twelfth century created something new; they did not simply recover an older tradition. It is this activity and improvement which distinguishes twelfth-century culture from the late medieval Italian Renaissance. . . . In so far as they drew upon the classical heritage it was to provide a starting point for new directions and dimensions in all facets of civilized life: religion, law, government, economy, ethics, and education as well as in art, literature, philosophy and science.83


83Cantor, Medieval History, p. 336; see Lethaby, Medieval Architecture, p. 69.84Hans Liebeschütz, Medieval Humanism in the Life and Writings of John of Salisbury. London: Warburg Institute, 1950, p. 34.85Walter Freund, Modernus und andere Zeitbegriffe des Mittelalters. Cologne: Böhlau, 1957, pp. 111, 66 (‘revolutionärer Umbruch im Zeitbewußtsein der Reformpartei’); Wilfried Hartmann, ‘“Modernus” und “Antiquus”: Zur Verbreitung und Bedeutung dieser Bezeichnungen in der wissenschaftlichen Literatur vom 9. bis zum 12. Jahrhundert’, in Albert Zimmermann, Hg. Antiqui und Moderni. Traditionsbewußtsein und Fortschrittsbewußtsein im späten Mittelalter. Berlin: De Gruyter, 1974, p. 24.86Le Goff, Medieval Civilization, pp. 173–4; Freund, Modernus, p. 106.87Cantor, Medieval History, p. 352.88Berman, Law and Revolution, p. 152 (German translation: 248).89Ibid., pp. 155–7; see Schilling, Die neue Zeit, pp. 352–3.

John of Salisbury, one of the best classicists of his time, insisted that ‘there is no return to the problems and methods of antiquity’.84 The partisans of the papal reforms were the first using the late Latin difference between modernity and antiquity (which originated in the fifth century) in the modern meaning of a fundamental historical break that is at once a break in our self-understanding of time.85 During the twelfth century, modernus, moderni and modernitas become established concepts that are regularly combined with novus, and refer to innovations in matter, or to new law as in the above-quoted canon 7 of the Dictatus Papae: novas leges condere (‘conduct’ or ‘make new law’). Le Goff even observes the emergence of a self-confident modernity, if not of modernism, no later than from the Lateran Council of 1215.86 The Papal Revolution was not least a revolution of knowledge, and of the reflexive awareness of knowledge. ‘In the early twelfth century it was becoming more and more apparent every day that knowledge was power.’’87

At the epistemic core of that knowledge was legal knowledge, which consisted (1) in ‘an integrated body of knowledge’, (2) ‘in which particular occurrences of phenomena are systematically explained’, (3) ‘in terms of general principles or truths (“laws”)’, (4) ‘knowledge of which (that is of both the phenomena and the general principles) has been obtained by a combination of observation, hypothesis, verification, and to the greatest extent possible, experimentation’.88 At the same time that heretic belief was legally condemned and heretics, if they were not prepared to renounce, were put to death, the values of scientific objectivity, impartiality, methodical scepticism, fallibilism and scientific innovation were proclaimed and institutionalized at universities and law schools.89 This was no accident, but a logical consequence of the corporative freedom that enabled the foundation of universities and a broad sphere of autonomy for teaching, thinking, critical discourse and research. Furthermore, the critical distance to worldly or clerical powers of direct


90Helmut Coing, ‘Wissenschaft’, in Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, Erster Band: Mittelalter (1100–1500). Munich: Beck, 1973, pp. 41–3, 58; Rüegg, ‘Themen, Probleme, Erkenntnisse’, in Rüegg (ed.), Geschichte der Universität in Europa, pp. 23–48, at: 25–6, 30–1, 37, 39; Paolo Nardi, ‘Die Hochschulträger’, in Rüegg (ed.), Geschichte der Universität in Europa, pp. 83–108, at: 85 (achievement replaces ascription, no teaching fees for poor students etc.).91Rüegg, Themen, Probleme, Erkenntnisse, p. 32.92Berman, Law and Revolution, pp. 144–5; Huff, The Rise of Early Modern Science, 127f, 131; Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 13; see Honnefelder, Woher kommen wir? Ursprünge der Moderne im Denken des Mittelalters. Berlin: Berlin University Press, 2008, pp. 43, 46ff, 55, 62ff, 78f, 83 (in particular, on the scientification of theology and the disciplinary differentiation of theology and philosophy and a plurality of truth claims); see Rüegg, Themen, Probleme, Erkenntnisse, pp. 31, 42, 47.93Honnefelder, Ursprünge der Moderne, p. 43. The German original is: ‘Wissen-wollen um des Glaubens willen’ and ‘Wissen-wollen um des Wissens willen’.94Parsons, Societies.

control was secured by the ban on simony that led to a further ban on the sale of examinations and titles.90 For a period of more than a hundred years, there was not a single intervention of papal censorship at the University of Bologna. The autonomy of universities, discourse and studium was due to the medieval separation of powers: The holy authority of the papal legislative machinery produced new law, and the academically trained, professional jurists completed the work of law-making by its scientific rationalization. In this process, rationality trumped authority. If authority was pitted against authority, if holy text was in discordance with holy text, dialectical rationality had to resolve the antinomies and contradictions. Law was classified as a hierarchy of divine, natural and human (customary or statutory) law, and at the same time, it represented the macroscopic trinity as the unity of God (divine law), son (human law) and holy spirit (natural law). In all cases of conflict, it was natural law that was used as the rational medium of making discordant canons concord. This way, legal doctrines could be criticized in the light of general truth, as in the famous case of the Bologna law professor Pepo. Pepo (at the end of the twelfth century) argued on a Roman and natural law basis that the equality of human beings does not allow bondsmen and free men to be treated differently in the criminal courts.91 Contradictory customs had to yield to natural law, and this method was quickly generalized for all other cases of conflicts between contradictory authorities that now could and should be decided by the better argument.92 What had begun already in the eleventh century with ‘desiring knowledge for the sake of faith’ ended a short time later (and long before Max Weber) with ‘desiring knowledge for the sake of knowledge’.93

Here, we can make use of Parsons’s seedbed thesis.94 On the basis of the same natural law which stabilized hierarchy, enabled the persecution of


95Cantor, Medieval History, p. 337.96Flasch, Das Philosophische Denken im Mittelalter. Stuttgart: Reclam, 2000, p. 234.97See Melve, Inventing the Public Sphere, p. 18 et seq., p. 45 et seq.; p. 77 et seq., p. 349 et seq., p. 367 et seq., p. 379 et seq., pp. 400, 640 et seq., pp. 652, 655; Michael Mitterauer, Warum Europa? Mittelalterliche Grundlagen eines Sonderwegs. Munich: Beck, 2003, p. 235 et seq., pp. 242–3, 248, 250–1; Fried, Mittelalter, pp. 168–9.98Vgl. Rosenstock-Huessy, Die europäischen Revolutionen, p. 131.

heretics and the exploitation and oppression of bondmen and serfs, one could argue against hierarchy, persecution and serfdom: If servitude or slavery was custom, and natural law stood against it, the customary law of slavery should be null and void. If the excommunication of heretics was a papal decree, and natural law stood against it, the council should revise it. If the dehumanization of Indians was papal law or colonial custom, and natural law stood against it, papal law and colonial custom had to be nullified. It was in the latter way that legal scholars or clerics such as Vitoria and Las Casas argued right after the Spanish invasion of America had begun to enslave the indigenous population.

Revolutionary times are times of experimentalism. The intellectuals ‘exhibited a marvellous desire to experiment with new intellectual systems, to investigate new problems and to follow new methods and avenues of thought’. They articulated an ‘extremely optimistic belief in their ability to do new things in a short space of time’.95 As in our days, the word modernus was used polemically by both parties of the revolution, critically by the conservative, affirmatively by the progressive party.96 A growing public sphere emerged from the eleventh century onwards, centred inside and in front of churches, and spread around the universities and university cities. Melve even speaks of the first structural change of the public sphere. It was reinforced by the technical innovations (or copies from China, which came through the Islamic countries to Western Europe) of the twelfth and thirteenth centuries: Church architecture designed for mass audiences inside and in front of the churches, woodblock printing and block print, finally paper, which subsequently was used for printing with movable type.97 The outbreak of the revolution was preceded by 25 years of dense and European-wide agitation and propaganda. During the period of the revolution, a revolutionary semantics and rhetoric was created, and ‘simony’ and ‘simonist’ became the names of the counter-revolutionary class enemy.98 The polemicists and controverters of the papal reform party in a way were the first modern intellectuals. They were literati who did write not only sermons, poems or dramas, but also scholarly, theological and political treatises for a mass audience of illiterati. Their papers were addressed from the beginning to ‘an audience much larger than that of a few learned men


99Leyser, The Polemics of the Papal Revolution, p. 43, see 44; see Melve, Inventing the Public Sphere, pp. 18, 46 et seq., p. 77 et seq.; Mariateresa Fumagalli Beonio Brocchieri, ‘The Intellectual’, in Le Goff (ed.), Medieval Callings. Chicago: University of Chicago Press, 1996, pp. 181–210 (originally Italian: Le Goff (ed.), L‘Uomo Medievale. Rom: Laterza, 1987); Hans-Hennig Kortüm, Menschen und Mentalitäten. Einführung in die Vorstellungswelt des Mittelalters. Berlin: Akademie, 1996, p. 185 et seq.100Leyser, Polemics of the Papal Revolution, p. 59.101Moore, First European Revolution, p. 197.102On the distinction between attempt or start-up (‘Globalisierungsanlauf’) and push towards globalization (‘Globalisierungsschub’), see Osterhammel and Petersson, Geschichte der Globalisierung, pp. 25–6 (An English translation is available: Osterhammel and Petersson, Globalization: A Short History. Princeton: Princeton University Press, 2005). What Osterhammel and Petersson call Globalisierungsanlauf is about Bayly’s archaic globalization, whereas the pushes to globalization are proto- and modern globalization (see next note).103Bayly, ‘“Archaische” und “moderne” Globalisierung in Eurasien und Afrika, ca. 1750–1850’, in Conrad, Sebastian, Eckert, Andreas and Freitag, Ulrike (eds), Globalgeschichte. Theorien, Ansätze, Themen. Frankfurt: Campus, 2007, pp. 81–108. For Bayly, archaic globalization is situated between the fourteenth and sixteenth century and is based on Eurasian long-distance trade in exotic and luxury products, whereas proto-globalization is situated between the sixteenth and eighteenth

residing at the better schools, scriptoria and courts’.99 They already used the same means as the modern revolutionary intellectuals of the twentieth century: ‘boycott, agitation, subversion, and the utmost publicity for the papal programme and its justification’. The papal party’s polemics were ‘revolutionary almost in the Marxist sense that it is not enough to discover the truth but that one must make it one’s business to transform what exists in order to make it prevail’.100

The First European Revolution set the course for European modernity. Europe since that time has described itself again and again as modern. In the eleventh and twelfth centuries, the dynamic element was discovered: the restless energy and acceleration of time, the specific mix of greed, curiosity and inventive genius, which motivated the first Europeans of the eleventh and twelfth centuries

to exploit their land and their workers ever more intensively, constantly to extend the scope and penetration of their governmental institutions, and in doing so eventually to create the conditions for the development of their capitalism, their industries and their empires. For good and ill it has been a central fact not only of European but of modern world history.101

The Papal Revolution was an early European attempt (but not yet a real push) at globalization.102 It stood at the beginning of one of the many forms of archaic globalization, yet already anticipated the mentality of proto- or even modern globalization.103 Taking the missionary message of Augustine literally, Pope Urban II (1040–97), who was pope at the height of the revolution (1088–97) and the organizer of the First Crusade, declared


century, and hence in the age of the Protestant revolutions, overlapping modern globalization, which begins in the seventeenth century with the Dutch and English Protestant revolutions (see next section).104See Fried, Mittelalter, p. 137; Southern, Making of the Middle Ages, p. 142.105Moore, First European Revolution, pp. 145–6 et seq., pp. 151, 152–3, 157–9.106John France, Victory in the East. A Military History of the First Crusade. Cambridge: Cambridge University Press, 1994, p. 38; Michael McCormick, Eternal Victory. Cambridge: Cambridge University Press, 1986.107Moore, First European Revolution, pp. 137–9.108The designation of the first Christian modernity as ‘Western’ and ‘European’ is of a later date, see Olaf Asbach, Europa – Vom Mythos zur Imagined Community?. Munich: Wehrhahn, 2011.

all undiscovered islands of the world to be the sovereign territory of the Roman Church. This required a knowledge of the whole inhabited earth. Johannes Fried speaks of a globalization of wanting and knowing that was required by the Christian imperative of expanding the gospel.104 The First Crusade, together with this far-reaching legal claim to sovereignty, was at the imaginary origin of modern colonialism and imperialism. It fits nicely into this whole period of archaic proto-globalization that the last legal act of papal world history was the sanction of the Treaty of Tordesillas in 1492, which divided the whole globe into two spheres of Christian rule, one half reserved for the Portuguese, and the other for the Spanish Crown. Hence, the last cosmopolitan, truly world-historical and global legal act of the Roman Church marked the beginning of the first push towards globalization. The latter was based on the advances of the Papal Revolution: the globalization of wanting and knowing, and the legal claim to Christian sovereignty over the whole inhabited world. Needless to say, this was the most ambiguous advance of the Papal Revolution.

All of the darker legacy of the Papal Revolution was modern in specific ways. The Crusades and the legal claims of Christian world mission and world rule were internally related to a specific syndrome of modern stereotypes, including early forerunners of anti-Semitic prejudices. Even the rumour of a worldwide Jewish conspiracy has contaminated the European mindset since the time of earliest modernity.105 Everything that resisted the Catholic modernization came under attack in ways that became extremely barbarian during the first Crusades (even if they were not as bloodthirsty as the returning warriors proudly claimed).106 In a comparable manner to that of all subsequent great revolutions, the inhabitants of the ‘underdeveloped’ periphery were subject to coarse insults. The Irish, the Scots and the Welsh were attacked by the ‘progressive’ Englishmen as dirty, lazy and ignorant oafs. Such stereotypes rapidly spread all over Europe and produced the first mental and symbolic patterns of modern European imperialism.107 History was constructed as a collective identity of Christendom.108 The one who writes history is the one who creates a new identity by prescribing who does not belong to ‘our’


109Moore, First European Revolution, pp. 137–9.110Ibid., pp. 139–41; see Kortüm, Menschen und Mentalitäten, p. 167.111Berman, Law and Revolution, pp. 87–8, 99 et seq.112Ibid., pp. 90–1; Henning Ottmann, Geschichte des politischen Denkens 2/2. Stuttgart: Metzler, 2001 et seq., p. 88; Rosenstock-Huessy, Die europäischen Revolutionen, pp. 123–4; see Brown, The Rise of Western Christianity, p. 355 et seq.; Fried, Mittelalter, p. 130 et seq.113Joachim Wollasch, ‘Reformmönchtum und Schriftlichkeit’, Frühmittelalterliche Studien, Bd. 26 (1992), 274–86; see with reference to Georg Herbert Mead: Holmes, Verfassungsrevolution in der Weltgesellschaft, p. 87.114On the revolutionary role of the crusades, see Berman, Law and Revolution, pp. 101, 104; see Christoph T. Maier, ‘Konflikt und Kommunikation: neues zum Kreuzzugsaufruf Urbans II.’, in Dieter Bauer, Klaus Herbers and Nicolas Jaspert (eds), Jerusalem im Hoch- und Spätmittelalter. Frankfurt: Campus, 2001, pp. 13–30, at 29f; Kaspar Elm, ‘Die Eroberung Jerusalems im Jahr 1099’, in Bauer, Herbers and Jaspert (eds), Jerusalem im Hoch- und Spätmittelalter, pp. 31–54, at: 47ff.

identity.109 The Welsh, the Scots, women, but above all else, the army of the revolution, the pauperes and the peasants, not to mention pagans, Jews and Muslims, did not belong to King Arthur’s Round Table. The chevaliers of the poem are colonizing the periphery, Wales, Cornwall and Brittany, in the name of the then modern law of feudalism, legally excluding at the same time everything non-feudal.110

(4) Class struggle

The Papal Revolution was a revolution in the modern (Marxist) sense of a class struggle that gave rise to a rapid, total and violent change of society as a whole.111 There was also a Leninist element in the Papal Revolution, and that consisted in its revolutionary organization. During the hundred years that preceded the Papal Revolution, more than a thousand monasteries were newly founded all over Europe, and they formed the backbone of the administrative power of the pope. In particular, the monasteries of Cluny were the first transnational European body corporate.112

The so-called reform monasticism (Reformmönchtum) constituted itself early on as an isolated ascetic population in the European woods, performing a kind of social speciation, breeding revolutionaries.113 The monasteries and the reform monks were the pope’s revolutionary party organization, and the Crusaders were his revolutionary army, which exported the revolution with all its darker sides (as Cromwell’s Puritan New Model Army, the armies of Gustav Adolf and Napoleon, the US Cavalry, the Marines or the Red Army did in subsequent revolutions).114 First, the number of monasteries surged suddenly, and then came the revolution. The reform monks were obsessed by the idea of law, the idea of justice, the reform of this world and salvation through law. In the early eleventh century, they began frantically to search


115For more details on the complex order and struggles of social classes, see Moore, First European Revolution, pp. 5–6, 10, 22–3, 45–7, pp. 52–5; in particular, on the role of slavery, see the case study: Bois, The Transformation of the Year One Thousand; Berman, Law and Revolution, pp. 146, 168 et seq.; Le Goff, Medieval Civilization; Weitzel, Versuch über Normstrukturen und Rechtsbewußtsein im Mittelalterlichen Okzident, p. 388–9, 392.116Bois, The Transformation of the Year One Thousand, p. 134; Fried, Mittelalter, p. 93 et seq., 128ff; Moore, First European Revolution, pp. 48–9 et seq.117Brown, The Rise of Western Christianity, pp. 257–8. On Cluny still impressive is Rosenstock-Huessy, Die europäischen Revolutionen, p. 123. On the sharpening class struggles, see Moore, First European Revolution, pp. 42–4; Bois, The Transformation of the Year One Thousand, p. 142 et seq.

for a copy of Justinian’s Corpus Juris Romani – a collection of Roman civil law arranged according to certain groups of legal textbooks that contained institutiones (teaching books), digesta (collections of valid law), the Codex Iustinianus, also called constitutiones (old laws enacted by the emperors before and by Justin), and novellae (new laws of the emperors after Justin). The monks expected there to be copies somewhere in Italy. They finally found a copy in a library in Pisa in 1050, 25 years before the outbreak of the revolution.

At the core of the revolutionary learning process was the struggle between classes over conflicting legal claims. Right stood against right. The classes involved identified themselves as pauperes (urban and rural plebs) and potentes (domini), they were clerics, nobles or (in small numbers) burghers. While the pope took the side of the pauperes and the pauperiores (the poorest of the poor), that is, the side of slaves, plebs, low clerics and low nobles, the Emperor was committed to the potentes: the high clerics and high nobles, and their allies.115 The brutal violence of the potentes against the pauperes increased dramatically during the tenth century.116 From the end of the tenth century onwards, the clerics, and, in particular, the monks and their avant-garde, which spread from Cluny all over Europe, successfully tried to mobilize the oppressed, exploited, dispossessed, disenfranchised and enslaved pauperes against the potentes. At that time, the latter for the most part were robber barons and slaveholders, who lived by hunting animals and human beings, and loved massacres.117

The clerics organized a huge, nearly European-wide Peace of God movement (Treuga Dei). It originated in the tenth century, had its centre in southern France and lasted throughout the next century. From the turn of the millennium onwards, the clerics tried to radicalize the Peace of God movement and from the middle of the eleventh century, they turned it more and more into a war for the Peace of God – the war that was to end all wars, as Wilson and Lenin would call a similar transformation of a peace movement on the eve of World War I. The Peace of God councils met 26 times between


118On the Peace of God movement, see Mitteis, Der Staat des hohen Mittelalters, p. 188; Berman, Law and Revolution, pp. 90–1; Weitzel, Versuch über Normstrukturen und Rechtsbewußtsein im Mittelalterlichen Okzident, pp. 390–1; Moore, First European Revolution, pp. 9, 19–21 et seq.; Horst Fuhrmann, ‘“Quod catholicus non habeatur, qui non concordat Romanae ecclesiae”. Randnotizen zum Dictatus Papae’, in Kurt-Ulrich Jäschke and Reinhard Wenskus (eds), Festschrift für Helmut Beumann. Sigmaringen: Thorbecke, 1977, pp. 263–87, at 268f, 274 et seq., 284; Heinz Schilling, Die neue Zeit. Vom Christenheitseuropa zum Europa der Staaten. 1250 bis 1750. Berlin: Siedler, 1999, pp. 387–8.119Moore, First European Revolution, p. 9, on the political, even revolutionary meaning of the cults of relics, miracles and holy men, and the emergence of a revolutionary public, pp. 11–21 et seq.; on the peace movement and the emergence of a mass public, see Mitterauer, Warum Europa?, p. 235 et seq., pp. 250–1; on the structural change of the medieval public sphere and the beginning of a modern mass public since the turn of the millennium, see Leidulf Melve, Inventing the Public Sphere. The Public Debate during the Investiture Contest (c. 1030–1122). London: Brill, 2007, pp. 18, 45; 640 et seq. (I have to thank Michael Geyer for indicating this book.).120Lopez, The Commercial Revolution of the Middle Ages, p. 59.121Moore, First European Revolution, pp. 101–2.122For this affirmative ideology, the Vita Eligii of the ninth century is a good paradigm case: ‘God could have made all men rich, but he wanted poor men in this world so that the rich might have an opportunity to redeem their sins’. (Protologia Latina 87 col. 533, quoted from: Michel Mollat, The Poor in the Middle Ages. An Essay in Social History, translated by Arthur Golhammer. New Haven: Yale University Press, 1986, p. 44).

998 and 1038, and finally grew into popular church meetings which united the pauperes under the umbrella of the church for the coming struggles with the potentes. The later legal regulations of Landfrieden (King’s peace or public peace) are a long-lasting direct effect of the Peace of God movement.118 Men of all classes, and especially a vast majority of ordinary people, confirmed their commitment to the church and to the poor in the presence of a holy relic.119

The clerics preached the gospel of spiritual humility, material indigence and pauperism. They convinced a lot of potentes to betray their own social class, to abstain from their privileges and to fund the church and the monasteries with their material wealth. They were as successful ‘in collecting real and movable estates as in attracting devoted souls’.120 Yet the clerics condemned not only the means that were used to keep the existing system of lordship running, but also the system itself.121 They performed caritas in close interaction with the pauperes and the pauperiores, and they did it with the goal of changing the world. In a way, affirmative Christian ideology became critical theory.122 But no critical theory without a dialectic of enlightenment: The clerics were not naive idealists. They were, in a way, historical materialists avant la lettre, at least unconsciously, because they knew how to combine idealism with robust material interests. The walls of the monastery provided real cover and sustenance to the pauperes and pauperiores, and the monks took the opportunity to teach them ora et labora, civilizing the poor and illiterate


123Bois, The Transformation of the Year One Thousand, p. 142 et seq.; see Moore, First European Revolution, pp. 48–9 et seq.; Mollat, The Poor in the Middle Ages, pp. 51–3.124Berman, Law and Revolution, p. 144 et seq., 225 et seq.; John Witte, ‘Law, Religion, and Human Rights’, Columbia Human Rights Law Review 28:1 (1996), 17; see Brundage, Medieval Canon Law.125Ullmann, Law and Politics in the Middle Ages, p. 133 et seq.126On the fundamental relevance of All Souls’ Days for the universalization of individual rights by the Papal Revolution, see Rosenstock-Huessy, Die europäischen Revolutionen, pp. 122, 127; Norman F. Cantor, Medieval History. The Life and Death of a Civilization. London: Macmillan, 1969 (1963), p. 86.

farmers, and increasing en passant their own surplus value.123 They combined the ideas of justice and emancipation from slavery (which they took seriously) with their own basic interest, which was the interest of the coming ruling class, and they formed a social class even in the orthodox Marxist sense of their relation to the means of production and their role in the economic process of production. A quarter or even one third of European land was the property of the church. Therefore, the conflict about Lay Investiture was at once a conflict about property and the control over the means of production. But it was not only a conflict about real estate, but also a conflict about the then very powerful spiritual goods: the legal rules of confession, marriage, family relations, education, baptism, funeral doctrine, liturgy, ecclesiastical property, political association, patronage, charity, inheritance, oral promises, oaths, various contracts, moral and ideological crimes.124 The realm of spiritual goods embraced all of Christian society and influenced everything. If the clerics claimed legal control over the spiritual realm (canon law), they implicitly claimed control over the whole society of Western Europe. The then most important productive force of communication, which was controlled by the clerics, was the productive force of law. It was the law that regulated property rights and inheritance, real estate and commercial exchange, confession and marriage, baptism and oath, heresy and contract, and the clerics for a long time were the class that had more or less a monopoly on legal knowledge and legal scholarship.125

The clerics were partisans of the pauperes. Without the clerics, without their advanced administrative power and far-reaching ideological influence, the pauperes never would have had a chance to emancipate themselves. But in cooperation with the clerics, their major goals, which were centred in the catchphrase justice through law, could be attained. Slavery was not abolished, but at least the peasants’ labour was liberated from slavery, robbery and forced exploitation. Equality of all human beings in the face of God was emphasized as never before. All Soul’s Day became a powerful symbol of the new universalism of equal rights of all human beings that emerged for the first time in the age of the Papal Revolution in Europe.126 At least in their post-mortal existence – probably the most important spiritual good at that


127Berman, Law and Revolution, p. 170. At this time, one’s post-mortal existence was as important and ‘material’, or even more important than one’s mortal existence. This was true of nearly everybody, and independent of class. Furthermore, that popes and plebeian robbers should suffer the same punishments was far from the usual consciousness of inequality that ruled the ancient and medieval societies (see Stolleis, Historische und ideengeschichtliche Entwicklung des Gleichheitssatzes). Even Thomas Aquinas could not imagine a final stage of the divine Jerusalem where kings and peasants were eating at the same table. Even if in the divine Jerusalem, all the redeemed people once were to become kings that govern tighter as equals, the former kings were to be more equal than the others, and sit closer to God (Thomas von Aquin, Über den Fürsten. Stuttgart: Reclam, 1990, p. 39). But not so in hell. There, one finds true democracy.128Ernst Bloch, Naturrecht und menschliche Würde. Frankfurt: Suhrkamp, 1975 (1961), p. 230, English translation quoted from: Bloch, Natural Law and Human Dignity. Cambridge, MA: MIT Press, 1996, p. 202. Bloch adds: ‘Thus the justice of the Divine Comedy, which was almost always a justice that puts things in order, withstood the test for the criminals among the great and the crimes that only the great could commit. Dante did not learn this justice from a Thomism that is respectful of authority, but from his exile, from a pathos for a prophetic justice instead of a pathos for an administrative and forensic justice.’ (p. 202).129Hegel, Lectures on the Philosophy of History, Introduction, § 21, quoted from: http://www.marxists.org/reference/archive/hegel/works/hi/history3.htm#(2) (2 February 2013)130Augustinus, Vom Gottesstaat (De Civitate Dei), Vol 2, Book V, Chapter 17, p. 257. Quoted from: http://etext.lib.virginia.edu/etcbin/toccer-new2?idAugCity.xml&imagesimages/modeng&data/texts/english/modeng/parsed&tagpublic&partall (2 February 2013)

time – all human beings should be equal before the law. The purgatory was a kind of great Christian democracy. Everybody in purgatory was equal before the law, and punished with respect to her or his sins alone, as in Dante’s Divine Comedy, where former popes and emperors are roasted alongside slaves and habitual offenders.127 In the words of Ernst Bloch:

Dante’s God is the court of cassation for the false justice of this world: The popes can be put in Hell, but the prostitute Rahab, because she contributed to the fall of pagan Jericho, enjoys life in Paradise.128

To this extent, Hegel was right to argue that the consciousness of equal freedom arises ‘first in religion, the inmost region of Spirit’.129

(5) The struggle for human rights

In the great revolution of the eleventh and twelfth century, Christendom for the first time draws legal consequences from Augustine’s insight: ‘Take away outward show, and what are all men after all but men? But even though the perversity of the age should permit that all the better men should be more highly honored than others, neither thus should human honor be held at a great price, for it is smoke which has no weight.’130 It is not just an anachronistic projection to assume with John Witte that at


131For the thesis of the first emergence of human rights in the Papal Revolution, see Witte, Law, Religion, and Human Rights, pp. 16–17.132Witte, Law, Religion, and Human Rights, pp. 17–18.

the opening of the second millennium of the common era, the Catholic Church [which in our days needed two hundred years to accept the constitutional advances of the French Revolution] led the first great “human rights movement” of the West in the name of “freedom for the church” (libertas ecclesiae).131

To be sure, the church throughout its time in power had a terrible human rights record (and this is not made any better by the fact that the same is true of the motherlands of modern human rights, the United States and France). There is no doubt that the Christian church played a major part in the ‘slaughterhouse of history’ (Hegel). In countless cases, clerics reinforced and duplicated cruelty instead of diminishing it. But for the emergence of a legal system of human rights, it was crucial that ‘the medieval canon law was based, in part, on the concept of individual and corporate rights (iura)’; that ‘canon law defined the rights of the clergy to their liturgical offices and ecclesiastical benefices, their exemptions from civil taxes and duties, their immunities from civil prosecution and compulsory testimony’; that it ‘defined the rights of ecclesiastical organizations like parishes, monasteries, charities, and guilds to form and dissolve, to accept and reject members, to establish order and discipline, to acquire, use, and alienate property’; that it ‘defined the rights of religious conformists to worship, evangelize, maintain religious symbols, participate in the sacraments, travel on religious pilgrimages, and educate their children’; that it ‘defined the rights of the poor, widows, and needy to seek solace, succor, and sanctuary within the church’. Even more important than the long lists of rights was that a

good deal of the rich legal latticework of medieval canon law was cast, substantively and procedurally, in the form of rights. To be sure, such rights were not unguided by duties, nor indiscriminately available to all parties. Only the Catholic faithful—and notoriously not Jews, Muslims, or heretics—had full rights protection, and their rights were to be exercised with appropriate ecclesiastical and sacramental constraints. But the basic medieval rights formulations of exemptions, immunities, privileges, and benefits, and the free exercise of religious worship, travel, speech, and education have persisted, with ever greater inclusivity, to this day. Many of the common formulations of rights and liberties in vogue today were first forged not by a John Locke or a James Madison, but by twelfth and thirteenth century canonists and theologians.132


133Maddox, Religion and the Rise of Democracy, pp. 11, 47, 58–9, 63.134Kathryn L. Reyerson, ‘Flight from Prosecution: The Search for religious asylum in Medieval Montpellier’, French Historical Studies 17:3 (spring 1992), 603–26, at 604.135Charles J. Reid, ‘The Rights of Children in Medieval Canon Law’, University of St. Thomas Legal Studies Research Paper Series 07–34, Working Paper 2007, http://papers.ssrn.com/abstract1015403, pp. 26, and 29 et seq; Brundage, Medieval Canon Law, p. 165 et seq; Fried, Zu Gast im Mittelalter. Munich: Beck, 2007, p. 167; see, also, Gabriel Le Bras, ‘Canon Law’, in C. G. Crump and E. F. Jacob (eds), The Legacy of the Middle Ages. Oxford: Clarendon Press, 1926, pp. 321–63, at 346.136Joachim Ehlers, ‘Die hohen Schulen’, in Peter Weimar (ed.), Die Renaissance der Wissenschaften im 12. Jahrhundert. Zurich: Artemis, pp. 57–85, at 60, 69.137Berman, Law and Revolution II, p. 91.

The differentiation of a legal system was further based upon a considerable development of equal individual rights, and, in particular, of such rights for the ‘outcasts’, the ‘widowed and fatherless’, ‘the cheated, the poor, the dispossessed, the accused, the enslaved’.133 The experience of the Peace of God movement and the revolutionary Papist programme of this-worldly and earthly justice and order (lat. ordo) was implemented, for instance, in the very expansive right of asylum, which, as a welcome side effect, gave the church ‘a considerable role in the criminal and civil justice system’.134 Important to mention is further that rights for all children (legal equality for legitimate and illegitimate children concerning care, education, the responsibility of the father, etc.) and (Christian) women (abolition of forced and arranged marriage, marriage only through reciprocal consent) were implemented, with effects that are not to be underestimated.135 There existed even a right to free education for poor children.136 The theologically motivated turn to the theology of suffering and the negative universalism of injustice, oppression and exploitation deeply changed the relation of law and justice. Equity, which for Aristotle was only methodologically relevant to deal with exceptional cases that strict law is not intended to cover, was radically reinterpreted as a universal legal principle by the canonists. The ‘scholastic jurists had built on this Aristotelian concept’, but had filled it with a new egalitarian content: ‘Equity, they said, protects the poor and helpless,’ and the regular application of equity, therefore, leads to an improvement of the societal community’s ‘relations of trust and confidence’.137

Furthermore, the ‘sturdy individualism’ of medieval jurists of commercial law finally resulted in an early modern concept of

private property rights. . . . In property matters medieval jurists were staunchly on the side of individual proprietors. . . . Both canonists and civilians, in addition, zealously defended the rights of property owners


138Brundage, Medieval Canon Law, p. 80; see, already, M. Weber, Religionssoziologie I. Tübingen: Mohr, 1978 (1920), p. 56 et seq.; see Lopez, Commercial Revolution.139Le Bras, Canon Law, pp. 353–4.140Lopez, Commercial Revolution, p. 72, see pp. 76–7 (joint-stock companies), 77–8 (banks).141Robert Génestal, Rôle des monastères comme établissements de crédit, étudié en Normandie du XIe à la fin du XIIIe siècle, Paris, A. Rousseau, 1901.142Lopez, Commercial Revolution, pp. 72, 79.143Christine de Pizan, The City of Ladies. London: Penguin, 1999, p. 95.144Ludger Honnefelder, ‘Die ethische Rationalität des mittelalterlichen Naturrechts’, in Wolfgang Schluchter (ed.), Max Webers Sicht des okzidentalen Christentums. Frankfurt aM: Suhrkamp Verlag, 1988, p. 267.

against efforts by public authorities to expropriate their wealth through taxation or by any other means.138

They also found a lot of legal means to bypass the religious restrictions on credit. Canonists declared reciprocal consent a necessary condition of any contractual commitment.139 A new civil contract law allowed for long-dated credits that were bigger than ever before. This was supported by ‘novel formulas of partnership and other arrangements for the sharing of risk and profits’ and by the revolutionary faith in the reform and long duration of this world.140 Therefore, the economy lost its nearly exclusive dependency on cash and treasure. More and more monasteries became credit institutes. Their lawyers found legal loopholes even for straight loans with high interest rates.141 This allowed, in particular, for the reinvestment of the agrarian surplus-product in commercial operations. ‘Unstinting credit was the great lubricant of the Commercial Revolution.’142 The commodification of money that is so central for modern nineteenth- and twentieth-century capitalism begins in the twelfth century.

On the same legal basis of equal subjective rights, a famous early ‘feminist’ author, Christine de Pizan, argues that legal concepts such as the ‘common good of the city’ and the ‘universal good of all’ implies that ‘women as well as men must derive equal benefit from it’, because something ‘which is done with the aim of privileging only one section of the population is called a private or an individual good, not a common good’. Even if – and here Christine makes an avant la lettre use of the concept of exploitation – it is done ‘for the good of some but to the detriment of others . . . it constitutes a type of injury done to one party in order to benefit the other: it only profits the second party at the expense of the first’.143 Christine’s argument had a clear basis in canon law.

Natural law which had, for a long time, defined humans descriptively as naturally free (but without any normative meaning) was now reloaded with a normative legal meaning.144 Once it was used and applied by courts, a process of proceduralization and positivization was triggered that finally


145Bellomo, The Common Legal Past of Europe 1000–1800, pp. 84–5; see Luhmann, Legitimation durch Verfahren, pp. 147–8.146Honnefelder, Die ethische Rationalität des mittelalterlichen Naturrechts, pp. 262, 267 et seq, and 271; Fried, Gast im Mittelalter, p. 159 et seq, 167 et seq, and 170.147Huff, The Rise of Early Modern Science, p. 138; see Dreier, Kanonistik und Konfessionalisierung, pp. 141–7.

led to the societal internalization of natural law.145 The general concept of individual autonomy became a fundamental legal principle.146 The invention and doctrinal configuration of the form of subjective rights and individual autonomy enabled dissident voices and enabled outcast groups to make use of the form of rights and the principle of autonomy for purposes diverging from the official clerical definitions of true faith and the hegemonic interpretation of law. Particularly on the rational basis of natural law, it was possible to challenge and subvert the hegemonic interpretations of true faith, of Christian freedom, of fair commercial and financial transactions – from within the existing system of law. Persecuted heretics, oppressed women, exploited bondsmen or urban townsmen could try to extend and equalize the abstract concepts of rights and autonomy. In a word, they could appeal to the already existing Kantian constitutional mindset of the same law that was simultaneously designed and interpreted (by the managerial mindset of the professional jurists) to stabilize the rule of clerics and aristocrats over the rest. Once people did this, they began to overburden the socially integrative capacities of the one and only church, and of the manorial law of serfdom.

(6) A new idea of freedom

The new idea of freedom that was invented by the Papal Revolutions under the slogan of Freedom for the Church consisted in the corporative freedom of the church as a legal corpus or body. But the slogan of the revolution had a long-lasting spill-over effect that was as pervasive and comprehensive as it was unintended. What was originally planned as the liberation of the church from the grip of secular power became the most fundamental constitutional advance of the revolution, which consisted in a new right of corporative association:

Once the church had declared itself legally autonomous from the secular order, the stage was set for the recognition of all the secular states – the national as well as city and communal states – as autonomous legal bodies, bound by their own laws.147


148Bellomo, The Common Legal Past of Europe 1000–1800, p. 58; Klaus Schatz, Der päpstliche Primat. Würzburg: Echter, 1990, pp. 103, 106–7.149Diarmaid MacCulloch, Reformation – Europe’s House Divided 1490–1700. London: Penguin, 2004, p. 149.150The role of heretics for a radically egalitarian interpretation of divine law was rightly noted already by Friedrich Engels, Der Deutsche Bauernkrieg, in Marx and Engels (eds), Werke, Band 7. Berlin: Dietz, 1960, pp. 327–413, at: p. 345.151Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 19.152Weber, Wirtschaft und Gesellschaft, p. 549, see: pp. 615–17; Brundage, Medieval Canon Law, p. 100; Bermann, Law and Revolution, p. 215 et seq.; see Tilman Struve, Staat und Gesellschaft im Mittelalter. Berlin: Dunker & Humblot, 2004, p. 14; Huff, The Rise of Early Modern Science, p. 137, note 73.

The freedom of corporations turned the exclusively vertical social relations of personal dependencies and local followings (Gefolgschaften) that prevailed before the revolution into a much more abstract and horizontal system of social relations between translocal strangers, who were organized in the same corporations of clerics, fraternities, cities, universities and so on. Corporative social association was anti-hierarchical. In particular, the early invention of mendicant orders under the direct custody of the pope increased the reformatory flexibility of the church. Free from local bonds, they were the mobile force of the universal church.148 However, corporative freedom easily and often unintentionally could be turned into a weapon against the papal power of defining the true faith, because it enabled the emergence and stabilization of a great variety of new religious movements. Luther and Vitoria were members of a mendicant order. The mendicant orders and the socially egalitarian radicals of the Franciscans became an unceasingly active source of heretic ideas and finally of Protestantism.149 The new legal freedom of corporations (which normatively constrained the adaptive evolution of either theocracy or caesaropapism) became a seedbed for the creation of ever new heretic groups. In this way, the church that administered and defined the one and only truth of faith cherished at her own bosom the viper that finally killed her. This was one of the many unintended, but also one of the most momentous effects of the doctrinal work of the canonists.150

Taking the method of legal fiction from Roman law, the canonists (unlike Roman law) distinguished the juridical personality of the corporation from that of its particular members.151 Probably for the first time in history, the canon and civil law of the corporation was no longer based on kinship and family bonds, but instead on function, membership and formal organization. The parochialism of kin, clan and caste was broken once and forever (whereas in the eighth century, the church was still one clan among other clans).152 By generalizing the concept of corporation in the form of rights to create, conduct and represent ever new corporations with a new legal subjectivity as a corporation, canonists distinguished between membership of a corporation


153Huff, The Rise of Early Modern Science, pp. 136.154Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 32.155On the latter, see Peter Landau, ‘Die Anfänge der Unterscheidung von Ius Publicum und Ius Privatum in der Geschichte des kanonischen Rechts’, in Gert Melville and Peter von Moos (eds), Das Öffentliche und Private in der Vormoderne (Norm und Struktur 10). Vienna and Cologne-Weimar: Böhlau Verlag, 1998, pp. 629–38. The distinction between private and public law goes back to Roman law (Okko Behrends, Rolf Knüttel, Berthold Kupisch and Hans Hermann Seiler (eds), Corpus Iuris Civilis: Die Institutionen. Heidelberg: Müller (UTB) 1999, I. 1. 4., p. 2. But public law was not legally developed by Roman lawyers. It did not really exist as law.156Landau, Anfänge der Unterscheidung von Ius Publicum und Ius Privatum, p. 633 et seq (with reference to the respective legal sources); Ernst-Dieter Hehl, ‘Krieg, Individualisierung und Staatlichkeit im ausgehenden 11. und 12. Jahrhundert’, in K. Herbers (ed.), Europa an der Wende vom 11. zum 12. Jahrhundert. Stuttgart: Steiner, 2001, pp. 117–33, at 126.157Berman, Law and Revolution, p. 217 et seq. On the sharp differentiation between private and public property, in particular, in ecclesiastical matters, see Hehl, Kirche und Krieg im 12. Jahrhundert. Stuttgart: Hiersemann, 1980, p. 97 et seq.158Berman, Law and Revolution; Moore, First European Revolution.

and kinship, between solidarity among corporate strangers and family bonds, between organic and mechanic solidarity, and, in particular, between jurisdiction and ownership.153

To have proprietary right and ownership over property is not the same thing as having jurisdiction over it. . . . Princes have the power of judging even though they do not have ownership of the property in question.154

These differentiations on the object level enabled the higher-level distinction between public and private domains, and the beginning of the differentiation of private and public law.155 The lex privata (Gratian, C.19 q.2 c.2) was now used to grant membership in a monastery as an individual right within the ius publicum. This even included a restricted right to resign from a clerical position (renunciatio est voluntatis).156 Moreover, on the basis of the distinction between kinship and corporate membership, the property of the corporation could no longer be owned (informally and beyond the law) by the most powerful person or family of the corporation, but only by the group as a whole and as an abstract institutional entity. The law of the Papal Revolution developed the modern legal form of an association with its own legal personality (Verbandspersönlichkeit), with its own rights of ownership and its own legal liabilities (Gesamthaftung).157 Now a sharp legal distinction separated obligations to a friend or family member from the obligations to the corporation. Office and person became two different things. The paradigm case was the administrative body of the church, which implemented and controlled this distinction through the rules of celibacy and the ban on simony. It was not at all accidental that the contest over celibacy and simony was at the core of the so-called Investiture Conflict. With the enforcement of celibacy and the ban on simony, modern state formation begins.158 Furthermore, only after


159Huff, The Rise of Early Modern Science, pp. 136–8.160Fried, Die Entstehung des Juristenstands im 12. Jahrhundert. Cologne: Böhlau, 1974, pp. 156, 139.161Fried, Die Entstehung des Juristenstands, pp. 55, 61. On the myth of Westphalia, see Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’. International Organization 55 (2001), 251–87.162See Hasso Hofmann, Repräsentation. Studien zur Wort- und Begriffsgeschichte von der Antike bis ins 19. Jahrhundert. Berlin: Dunker & Humblot, 1990 (1974), pp. 126–7.163Tierney, Religion, Law, and the Growth of Constitutional Thought, pp. 19–20, 23.164Hofmann, Repräsentation, p. 130.

the legal differentiation of ownership and jurisdiction, kinship and corporation and private and public law did it become possible that a non-member of the corporation served as its authorized agent.159 This finally cleared the way for the replacement of cousins, uncles, brothers and all other kin and tribesmen in diplomatic affairs by professional lawyers. It was no accident, but a direct effect of the legal revolution that from the twelfth century onwards, diplomacy became a privilege of lawyers.160 This (and not, as Carl Schmitt and others have suggested, the Peace of Westphalia) is where the juridification of war began and an alternative between waging war and searching for a judicial dispute settlement was disclosed.161

The legal freedom of corporation allowed for the foundation of more and more new corporations: universities, cities, monastic orders, professional associations, guilds, business enterprises, states, chapters, clerical associations, municipalities, burgs and other forms of corporative self-organization both outside and within the church. Their number exploded and their internal complexity escalated after the revolution. The legal concept of a corporation was designated by a lot of signifiers, which initially all meant the same, some only later acquiring a specialized meaning: corpus, universitas, collegium, societas, communitas, congregatio and others. Everything could and should be organized as a corporation or as part of a corporation: small commercial associations, poorhouses, bishoprics, but also the church as a whole, even the totality of the Christian world, and the entire cosmic body of Christ were imagined as legal corporations. The whole cosmos was conceptualized as a legal body that made it possible to extend solidarity to strangers (and jurisdiction over strangers) indefinitely, and even – especially important in medieval times – allowed for the inclusion of the living and the dead.162 Canonists drew a systematic distinction between macrocosmic (the church as a whole, a whole people, the cosmos, Corpus Christi) and microcosmic corporations, which existed ‘on the model of the state’ (ad exemplum reipublicae).163 From now on, and for the first time, mankind was understood as a unified legal community.164 In the juridical horizon of the doctrines of corporation and corporative freedom, the original Christian


165Ibid., p. 128; Berman, Law and Revolution, p. 158.166Tierney, Religion, Law, and the Growth of Constitutional Thought, pp. 1, 18.167List with minor modifications from: Huff, The Rise of Early Modern Science, p. 120. See Berman, Law and Revolution, p. 215 et seq.168The constituent power of a group to found a corporation under an existing legal order (and as part of a system of greater corporation) must not be confused with the pouvoir constituant (Sieyès) of the people or the nation as in the French or American revolutions.169Pierre Gillet, La personnalité juridique en droit ecclésiastique, spécialement chez les décretistes et les décrétalistes et dans le code du droit canonique. Malines: W. Godenne, 1927, quoted from: Berman, Law and Revolution, pp. 218–19.170Berman, Law and Revolution, pp. 218–19.171Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 14.

meaning that relates the idea of corporative association only to the mystical body (corpus mysticum) of Christ fades away.165 The legal freedom of corporation was not only a seedbed for heretic groups, but also a seedbed of modern constitutional thought.166 It contained in nuce all major constitutional advances of modern society: (a) constitutional government, (b) consensual and majoritarian political decision-making, (c) rights to political and legal representation, (d) powers of legislation and (e) jurisdiction.167

(a) The right of incorporation enabled the new foundation of corporations of nearly every kind. The founding or constituent power lay solely with the members (the founding group).168 Founding a new corporation under canon or civil law only required a minimum of three members.169 Other than in ancient Roman law, they were not dependent on the approval of a higher authority, and they formed a citizenship of their own (backed by the above-mentioned doctrine, according to which any corporative microcosm mirrors the corporative macrocosm ad exemplum reipublicae).170 Once constituted, the constituted power lies either with the assembly of all members or with representative bodies. The canonists performed a complete volte-face from the divine right of the ruler (as a mortal person) to the divine right of the community (which as a macrocosmic corporation was considered immortal). Even if they strongly favoured papal sovereignty because they considered the Pope to be the vicar of Christ and the immediate representative of God, they insisted at the same time that ultimately, the ‘consensus of the Christian people indicates the guidance of the holy Spirit’.171 Gratian interpreted Peter’s and Augustine’s famous metaphor of the ‘key’ as the key of the church, and he understood the church as a universal community of believers (including the dead generations). The ‘key’, therefore, was not Peter’s or the pope’s key in the manner of a personal authority. Here, the canonists used the basic distinctions that constitute a corporation (see above), when they argued that Peter as well as the pope were ‘mere


172Ibid., pp. 14–15, 20 et seq. The deeply reactionary doctrine of the infallibility of the Pope goes back only to the late nineteenth century and was directed against human rights, democracy and socialism.173Ibid., pp. 16, 25; Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, p. 169, note 40; see Brundage, Medieval Canon Law, p. 104 et seq.; Rolf Decot, Die Kirche im Spätmittelalter, p. 18 (http://www.vaticarsten.de/theologie/theologiedokumente/nkige/decot_konzilien_16jhdt.pdf, 5 May 2012).174Berman, Law and Revolution, p. 221; Tierney, Religion, Law, and the Growth of Constitutional Thought, pp. 21, 24–5; Brundage, Medieval Canon Law, pp. 106–7; see Maddox, Religion and the Rise of Democracy, p. 99; Landau, ‘Die Bedeutung des kanonischen Rechts für die Entwicklung einheitlicher Rechtsprinzipien’, in Heinrich Scholler (ed.), Die Bedeutung des kanonischen Rechts für die Entwicklung einheitlicher Rechtsprinzipien. Baden-Baden: Nomos, 1996, pp. 23–47, at 42; Reinhard, Geschichte der Staatsgewalt, p. 217.175Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 21.176Berman, Law and Revolution, p. 211 et seq, and 217 et seq; Weber, Wirtschaft und Gesellschaft. Cologne: Kiepenheuer, 1964, p. 549 and 615 et seq; Tilman Struve, Staat und Gesellschaft im Mittelalter. Berlin: Dunker & Humblot, 2004, p. 14; Maddox, Religion and the Rise of Democracy, p. 99; Landau, Die Bedeutung des kanonischen Rechts für die Entwicklung einheitlicher Rechtsprinzipien, p. 42.

erring mortal(s)’, but not so ‘the universal church understood as the whole Christian community’ that exists not at Rome, but wherever the faithful are, and that it is only their faith that (following Peter) cannot fail. The canonists attributed sovereignty to the pope, but never indefectibility, impeccability or infallibility – these they ascribed only to the universal Christian community.172 Although ‘the pope was superior to each individual prelate, he was subordinate to the church as a whole’. With this argument, the classical constitutional problem of how the community could defend itself against the abuse of papal sovereignty was solved. It could defend itself through reference to the ‘consensus of the unfailing church’ as it was ‘expressed in the statutes of general councils, norms of faith and order that could bind even the pope’.173

(b) The way to such a defence was paved by the procedural formalization, generalization and radical reinterpretation of an ancient Roman legal doctrine of private law. Canonists took the doctrine of the Roman civil law of inheritance, which said that that which concerns everyone requires the consent of everyone (quod omnes similiter tangit, ab omnibus comprebetur). They then universalized this doctrine into a constitutional principle that governed any corporative body.174 By a very technical reinterpretation of the Quod omnes tangit procedure, even laymen were to be represented at general councils of the Church.175 In combination with the emerging system of subjective rights, the decisions of the judicial body of the corporation finally could be traced back to the political formation of the will of its individual


177Hofmann, Repräsentation, pp. 321–8. Hofmann comes to the conclusion that even the most radical conciliarists (such as Nikolaus von Cues) do not bridge the gap that completely separates them from modern representation (p. 328). This means in evolutionary terms that there is no missing link, and this supports my general thesis on the evolutionary relevance of revolutions: If revolutionary change cannot be explained by gradual adaptation, then no missing links between conciliarism and modern democratic parliamentarism can be expected.178Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 23.179Huff, The Rise of Early Modern Science, p. 134; see Brundage, Medieval Canon Law, pp. 107–8.180Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 28.181Ibid., p. 17; see in general: Brundage, Medieval Canon Law, p. 101 et seq.

members.176 From here to modern democratic legitimization it is still a long way, but a first step had been taken on the road that finally led to the idea that government has to be legitimated by the consent of the governed (see below Sec. III, part 5).177 The Quod omnes tangit principle was reinforced by the constitutional reinterpretation of another private law principle of ancient Roman law, according to which in cases of conflict the maior et sanier pars, the ‘greater and sounder part’, was to decide. This was a principle of majority vote, but not yet a democratic one, because it was constrained by the additional qualification that it should be not only the greater, but also the sounder part, and it was in any case integrated into a hierarchical society.178

(c) Another step in that direction was the right of individual persons to be represented through their corporation at all levels where binding decisions affected its members.179 When in 1644 Henry Parker, a supporter of Oliver Cromwell during the English Revolution, quoted the old legal doctrine that the king was greater than each individual, but less than the whole collective body of Parliament, together with the doctrine Quod omnes tangit, he no longer had any idea that the original source of both doctrines of constitutional theory was the Decretum Gratiani, the first systematic legal corpus of canon law of 1140.180 The first foundation for the much later parliamentary representation of the people was laid in a theology that understood representation as the incarnation of the macroscopic body of Christ (or the church, or the universal community of believers) in the microscopic body of a representative assembly. From here, canonists drew the conclusion that the authority of the pope with a council was greater than without. The pope-in-council preceded the king-in-parliament.181 In the twelfth century, the old Christian doctrine of Paul that the church is the incarnation or the body of Christ led to a rejection of the ancient Roman law of corporations as agents of the emperor. If the church no longer depended on imperial authority, but on the consent of the universal community of the church itself, then the body of Christ should be understood


182Berman, Law and Revolution, pp. 216–18. Even if the pope-in-council is an idea that comes close to modern concepts of parliamentary monarchy (or even parliamentary democracy), one must keep in mind the crucial differences which consist in the indispensability of a theological foundation for the conciliary representation of the people, which does not have even a functional equivalent, because the legitimating people themselves are still only an organ of the universal body of Christ (and hence not a constitutive power). See Hofmann, Repräsentation, pp. 325–6.183Huff, The Rise of Early Modern Science, p. 137; Berman, Law and Revolution, pp. 217–18.184Ibid., p. 138.185Cantor, Medieval History, p. 280 et seq.; Moore, First European Revolution, pp. 11–13; cp. also Hartmut Hoffmann, ‘Die beiden Schwerter im hohen Mittelalter’, Deutsches Archiv für Erforschung des Mittelalters 20 (1964), 78–114.186Mt. 10, 34 (English Standard Version of Bible, see http://biblehub.com/matthew/10-34.htm).

as his legal corpus, and all microscopic corporations as representations of the macroscopic people of God (this section part 9).182

(d) For this reason (and in contrast to the ancient Roman law of corporations), the canonists equipped all corporations with the power of legislation. Corporations enacted their own ordinances and statutes, and hence could be ‘a source of new laws and regulations’.183 On this basis of the law of corporations, the modern idea of sovereignty as the legal competence of the legislator was created by the lawyers of the pope. This idea originated in the Dictatus Papae (1075).

(e) Canon law entitled all corporations to an autonomous jurisdiction. The corporations had legal control over their members and courts of their own. Furthermore, there was an implied hierarchy of jurisdictions. Within the church, authority clearly flowed down from the pope, through the cardinals, to the archbishops and so on.184 But the hierarchy at the same time implied, as we have seen, the autonomy of its own legal bodies at all levels of the hierarchy, and the subordination of the hierarchy itself to the general council.

(7) Founding documents

The most important semantic innovation in political and judicial theology on the eve of the Papal Revolution was the substitution of the old Constantinian, Eusebian and Augustinian difference between the history (and city) of the Church of Christ and the history (and city) of the worldly empire, by the political and revolutionary doctrine of the two swords of Petrus Damiani (1006–72), who was an intellectual pathfinder and moderate supporter of Gregory VII.185 The meaning of ‘sword’ was taken literally and combined with the then frequently used words of Jesus: ‘I have not come to bring peace, but a sword.’186 It was directed against the Emperor, the kings and high nobles and their personal ownership of sacred offices, in particular, dioceses.


187When Gregory VII was still a German monk and his name Hildebrand, the people called him Höllenbrand (hellfire) because of his revolutionary fanaticism, and Damian called him a Holy Satan: the power of the negative.188The dictates probably were part of a collection of canons which had been drawn up already by the monk Hildebrand. See Karl Hofmann, ‘Der Dictatus papae Gregor VII. als Index einer Kanonensammlung?’, in Studi gregoriani per la storia die Gregor VII e della riforma gregoriana. Rome: Abbazia di San Paolo, 1947, pp. 531–7; Fuhrmann, Randnotizen zum Dictatus Papae.189Berman, Law and Revolution, p. 146 et seq.; with a much broader time period that ranges from 970 to 1215: Moore, First European Revolution (speaking of an occurrence of world history, pp. 180–1, 197–8); in particular, on the Papal Revolution see Cantor, Medieval History, 11f (‘Gregorian World Revolution’, comparing it with the Reformation, the French and the Russian Revolution), see: 263, 271ff; Mitteis, Der Staat des hohen Mittelalters, p. 194 et seq., on p. 326. Mitteis speaks of a ‘Zeitwende größten Maßstabs’. In the first edition, he uses even the word ‘Verfassungsrevolution’: 1. Aufl. 1940, quoted here from the 1962 Weimar edition, quoted from Berman, Recht und Revolution, p. 151; see Geoffrey Barraclough (ed.), Medieval Germany, 911–1250, Vol I, Introduction. Essays by German Historians. Oxford: Basil Blackwell, 1938 (‘constitutional revolution’ – but restricted to the German speaking world); Karl J. Leyser, ‘The Polemics of the Papal Revolution’, in Beryl Smalley, Hg. Trends in Medieval Political Thought. New York: Barnes & Noble, 1965, pp. 42–6 (comparing it with the social and Marxist Revolutions of the nineteenth and twentieth century); Ernst-Wolfgang Böckenförde, ‘Die Entstehung des Staates als Vorgang der Säkularisation’, in Recht, Staat, Freiheit. Frankfurt: 1991, p. 96 et seq.; Ottmann, Geschichte politischen Denkens 2/2, p. 87 et seq. With a different Marxist framework and for an earlier period, see Bois, The Transformation of the Year One Thousand. With a different meaning of ‘revolution’, which is too broad for my purposes, see Lopez, Commercial Revolution; with emphasis on the media revolution, see Brian Stock, ‘Schriftgebrauch und Rationalität im Mittelalter’, in Wolfgang Schluchter (ed.), Max Webers Sicht des okzidentalen Christentums. Frankfurt: Suhrkamp, 1988, pp. 165–83. Authors not using the word ‘revolution’ but referring to the meaning of revolution: Brown, Society and the Supernatural, pp. 133–51, at: 133f, p. 142 et seq.; Brundage, Medieval Canon Law; Tellenbach, Church, State and Christian Society, p. 111 (one of the ‘great revolutions in world-history’), p. 164 (Gregor VII standing at ‘the greatest – from the spiritual point of view perhaps the only – turning-point in the history of Catholic Christendom’). The origin of the thesis of the Papal Revolution goes back to Rosenstock-Huessy, Die europäischen Revolutionen (‘world revolution’, p. 5).

The revolution broke out in 1075, after Pope Gregory VII had challenged imperial power with his Dictatus Papae.187 Like later revolutionary documents such as the American Declaration of Independence and the French Declaration of Human and Civic Rights, the Dictates were a typical revolutionary manifesto of 2 pages and 27 legal claims (canons), and not one superfluous word.188 The revolution unified the masses and mobilized them against high clerics, high nobles and the emperor. The most popular revolutionary slogans were ‘Law protects the paupers’ and ‘Freedom for the Church’ (Libertas Ecclesiae). The latter was already at the centre of the Dictatus Papae and was backed by a special Papal Bull in 1079. On the continent, the revolution lasted until the Concordat of Worms (1122), and in England until 1170, when Archbishop Thomas Becket was murdered in his cathedral. It ended with a constitutional compromise that consisted in a renunciation of total power by both parties, and it was stabilized by the legal differentiation of sacerdotium and regnum.189 The Dictates of 1075 interpreted all sacred and profane powers in legal terms. They declared all of the then valid constitutional norms null and void.


190Maddox, Religion and the Rise of Democracy, pp. 11, 47, 58–9, 63.191There is indeed a Western legal tradition that (despite all its deep breaks and revolutionary transformations) joins the original programme of a sacral absolutism through law with the legal programme of secular democracy through law in Europe today – the latter is the name of the Council of Europe’s influential European Commission for Democracy through Law (Venice Commission).192Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, p. 169, note 40; Berman, Law and Revolution, p. 158.193Berman, Law and Revolution, pp. 289–91; Huff, The Rise of Early Modern Science, p. 122; Brundage, Medieval Canon Law, p. 105.194Today, this reads: ‘Legitimacy through Legality’ (Habermas, Faktizität und Geltung. Frankfurt: Suhrkamp, 1992, pp. 541–71).

In particular, these norms concerned the fundamental relations of powers and distributions of competencies within the church, and the relations of the church to the secular powers and the emperor. The Dictates claimed freedom for the church and its independence from all secular powers, and made a strong case for papal supremacy, conferred directly by God. They declared papal absolutism, and constructed the Church as a papal hierarchy of offices. For Gregory VII, and his fellow intellectual supporters, papal supremacy was bound to a theology that (1) understood papal supremacy as the rule of the servant of the servants of God. Servus servorum dei is the official self-designation of the pope. Therefore, the benchmark or canon of papal supremacy remained the idea of a ‘kingdom of outcasts’, a community of the ‘widowed and fatherless’, ‘the cheated, the poor, the dispossessed, the accused, the enslaved’ – that is a community free from domination and violence, made of ‘trust and commitment alone’.190 (2) This idea was combined with the constitutional principle of the Papal Revolution, according to which all political and religious, imperial and papal powers of the Christian world are something juridical, are legal powers, and therefore, the projected order of the Catholic Church appeared at once as theocratic absolutism (of the lower classes represented by the pope and the council) and as rule of law. Papal absolutism from the outset was conceived as absolutism through and of law.191 For a canon lawyer of the late twelfth century such as Huguccio, it was no problem and no contradiction at all to be at the same time one of the most radical and pre-eminent apologists of papal supremacy and to justify the doctrine of the impeachment of the pope, which was no less radical and new.192 The canonists used Ulpian’s and other Roman lawyers’ definitions of sovereignty (‘What pleases the Prince has the force of law’ etc.), but interpreted them as the profession of someone who is subject to the laws, and whose authority is completely dependent on that of the law.193 From the beginning of the Papal Revolution, imperium, auctoritas and potestas of the pope (as well as that of the emperor and any other ruler) were considered to be his iurisdictio, hence to be something judicial and legal. There was no sovereignty beyond legality.194 Therefore, its performance was always already


195Berman, Law and Revolution, p. 207; Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, p. 94 et seq., p. 102 note 18.196Ibid., pp. 291–2.197Kantorowicz, The King’s Two Bodies, p. 95.198Berman, Law and Revolution II, pp. 5–6; see Fried, Die Entstehung des Juristenstands; Berman, Law and Revolution; Tierney, Religion, Law, and the Growth of Constitutional Thought; Cantor, Medieval History, p. 274.199In contrast and for the mainstream, see Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity. Princeton: Princeton University Press, 2011.

legally limited.195 Jurisdiction and dominium (later called ‘sovereignty’) of kings, popes, emperors, magistrates or princes were two sides of a coin, and as Azo (1150–1230) – the successor of the founder of the Bologna school of law (the Glossators) Irnerius (1060–1125) – argued right after the Papal Revolution, the ‘source’ of their ‘independent’ ‘sovereignty’ was ‘iurisdictio’ that was based on corporative freedom: ‘the corpus, the universitas, the communitas’. Jurisdiction ‘did not descend downwards from the emperor but upwards from the corporate community’.196

The beginning of the Western legal tradition, therefore, was Kelsian and not Schmittian, and it is in the Dictatus Papae that the juridification of politics begins. At the beginning of the Western legal tradition, there was the dialectical insight that absolute power is compatible with its absolute constraint by law.197 Political power, the religious sphere and the legal order now formed a ‘juridified’ constitutional system enabling the dialectical reconciliation of opposites.198 The legal and constitutional coordination of lasting social, political, legal and religious contradictions was invented by the Papal Revolution, and has been exported, repeated, reinvented, renewed and reorganized again and again in all of the great legal revolutions. The productive integration of dialectical contradictions was the great methodological advance of scholastic philosophers, theologians and lawyers. The sublation of the archaic culture of ritualized unanimity dates not only from the French Revolution or, even later, from the fall of the Berlin Wall, but also from the Papal Revolution.199 The dialectical method consisted in dialogical dissent, dialogical inductive generalization and an operative logic of drawing distinctions. Through the dialectical method it was possible to justify the distinctions which were most crucial for the differentiation of a legal system, in particular, the distinctions between the sacred and the profane, between theology and law, between morality and law, and between legislative and executive bodies. The dialectical method finally laid the basis for the Corpus Iuris Canonici through the work of Gratian and the jurists of Bologna in the twelfth century. The new dialectical method was, at the same time, the methodological basis for the emergence of the first modern science, which was immediately followed by the emergence of a European system


200Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 13; see Berman, Law and Revolution, pp. 115–64 (German translation: p. 215 et seq., p. 247 et seq.); Huff, The Rise of Early Modern Science, p. 128 et seq.; Ullmann, Law and Politics in the Middle Ages, p. 137 et seq.201Berman, Law and Revolution, p. 136 et seq.; see Habermas, Faktizität und Geltung. Frankfurt: Suhrkamp, 1992.202see Wikipedia (1 December 2011): http://en.wikipedia.org/wiki/Dictatus_papae; http://de. wikipedia.org/wiki/Dictatus_Papae#Text_des_Dictatus_Papae; see Fuhrmann, Randnotizen zum Dictatus Papae, pp. 267–8, pp. 285–6. On the push towards the positivization of law since the twelfth century, see Brundage, Medieval Canon Law, pp. 39–40, 55–6, 62 et seq., pp. 152, 164 et seq.; Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, pp. 98–9, 168–9; Tierney, Religion, Law, and the Growth of Constitutional Thought, pp. 14–15; on the role of the cities: Weitzel, Versuch über Normstrukturen und Rechtsbewußtsein im Mittelalterlichen Okzident, p. 389.203Justinian’s institutions ascribe only one of many legislative procedures to the emperor (lex regia). Legislative power was only a restricted and revocable concession (concessio) to an emperor in persona (Kantorowicz, The King’s Two Bodies, pp. 103–4). On the turn to legislative sovereignty, see Weitzel, Versuch über Normstrukturen und Rechtsbewußtsein im Mittelalterlichen Okzident, pp. 392–5.204See Ullmann, Law and Politics in the Middle Ages, pp. 122–3; Brundage, Medieval Canon Law, pp. 39–40, 55–6, 164 et seq.; see already Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, pp. 93, 169.

of universities. Gratian’s work designated itself as Concordia Discordantium Canonum. That is the operative coordination, integration, sublation and resolution of contradictory legal norms. It consisted in an ‘ordered synthesis out of the tangle of apparently conflicting laws and practices that had grown up in the church over the preceding thousand years’.200 Unlike Greek reflection on justice without legal praxis, and Roman legal praxis without reflexive justice, the canonists laid the ground for modern law in combining both of these dialectically, the reflexive theory of (biblical and Aristotelian) justice and the praxis of (Roman) legal action – or, as a later author put it: facticity and normativity.201

The Dictates ascribed all legislative power to the Pope. Dictate 7 declared legislative sovereignty (‘to make new laws’), and it understood papal legislative sovereignty as a legal (‘lawful’) competence, and law as positive law (‘according to the needs of the time’). Canon 7 of the Dictates reads: ‘That for him (the Pope) alone is it lawful, according to the needs of the time, to make new laws’ (Quod illi soli licet pro temporis necessitate novas leges condere).202 It was, in particular, the turn to legislative sovereignty that distinguished modern concepts of sovereignty once and for all from classical, or ancient Roman ones which defined the emperor negatively as legibus solutus (Ulpian), but not exclusively or at least primarily by the legal function and competence to make new law.203 From that time onwards, the decretal machinery of the papal administration began its work, and never stopped. In a few decades it produced ever more new legal norms, and an increasing need for collection, systematization and professional interpretation.204 The


205Ullmann, Law and Politics in the Middle Ages, pp. 137, 145–6, 150.206Weber, Wirtschaft und Gesellschaft, pp. 432, 480, 549 and 615 et seq; Weber, Das antike Judentum, pp. 5–6, 7; see Stolleis’s qualification of the thesis of the frühe Neuzeit as the foundation of everything modern, with reference to the forerunnership of the church state: Stolleis, Geschichte des öffentlichen Rechts in Deutschland, Erster Band 1600–1800. Munich, Beck, 1988, pp. 171–2, 174; Reinhard, Geschichte der Staatsgewalt, p. 261: ‘Die päpstliche Amtskirche besaß . . . nicht nur in der Theorie, sondern auch in der institutionellen Praxis einen Vorsprung vor werdenden Staaten. Päpstlicher Alleinherrschaftsanspruch . . ., Zentralismus. Verwaltungsapparat und Steuerwesen ließen sie im Mittelalter zum Modell des modernen Staats werden’.207‘Summa est laus miliciae reipublicae utilitatibus obedientiam exhibere’ (C. 23, q. 1 c. 7 Rubrik), quoted from: Hehl, Kirche und Krieg im 12. Jahrhundert, p. 106.

creation of law became, as Ullmann writes, ‘the foremost preoccupation of the papacy’, and ‘the proliferation of decretal output and the ramifications of the papal canon law’ expanded ‘into all segments of public life. There is hardly any other instance in European history which mirrored a government at work as faithfully as the thirteenth-century canon law.’ They were much more advanced, rational and modern than all the competing powers of their time: ‘No other European government in the thirteenth or fourteenth centuries had such a cosmopolitan galaxy of talent, learning and practical experience as the papacy.’205

(8) Co-evolution of cosmopolitan and national statehood

From the Papal Revolution onwards, a political and legally meaningful cosmopolitan order was erected in Western Europe (covering nearly the whole territory between Trondheim far north and Catania far south, between Riga in the east and Capo di Finistere in the furthest west of Spain. Max Weber already described the legal and political turn to cosmopolitanism since the twelfth century in Western Europe as the beginning of modern state building. For him, the first modern state that emerged during the First European Revolution was the universal state of the church. Weber described the church of the day as the ‘first rational bureaucracy’, a ‘modern’, ‘rational organization’, a ‘disciplined army of administrative power’, or in German: ‘moderne anstaltsmäßige Staatsverwaltung’, the rational ‘Anstaltsstaat’.206 Gratian already established an abstract concept of the state as a legal person, an idea that (as we have seen) was inherent in the concept of a corporation. Therefore, Gratian argues, citizens have obligations not only to persons such as kings or princes, but also to the republic (state) in itself.207 Because the first modern state was understood as the one and only universal state, there existed no idea of foreign political relations. All politics was conceived as world domestic politics. War, in particular, was a matter of domestic politics, and the


208Hehl, Kirche und Krieg im 12. Jahrhundert, pp. 71–4; see Gerhard Beestermöller, Thomas von Aquin und der gerechte Krieg. Friedensethik im Kontext der Summa Theologiae. Cologne: Bachem, 1990.209Brundage, Medieval Canon Law, 39f, 55f, 62ff, 152, 164ff (positive law), 119 (modernity), 98ff (constitutional law), 62ff (professionalization), 80, 165ff (subjective rights), 152 (functional differentiation); Berman, Law and Revolution, pp. 7–9, 76, 86; Luhmann, Das Recht der Gesellschaft. Frankfurt aM: Suhrkamp Verlag, 1993, p. 25.210On the professionalization of the legal system between 1130 und 1239 AD, see Brundage, ‘The Rise of the Professional Jurist in the Thirteenth Century’, Syracuse Journal of International Law and Commerce 20 (1994), 185–90; Brundage, Medieval Canon Law; Fried, Entstehung des Juristenstands.211Berman, Law and Revolution, p. 76.212Luhmann, Das Recht der Gesellschaft, p. 25 (my translation).213Rüegg, Geschichte der Universität in Europa, Bd. 1.214Martin van Creveld, Aufstieg und Untergang des Staates. Munich: Gerling, 1999, p. 156.215Berman, Law and Revolution, p. 161, see: p. 124 et seq.

final decision about legal or illegal war was in the hands of the papal court. All war was subject to the legal sovereignty of the church.208

The structural basis of the cosmopolitan legal state was the functional differentiation of law, which no longer formed a legal order, but, for the first time, a legal system with an internally differentiated organization of courts at its centre.209 The birth of modern law and of the modern system of universities was co-original. The functional differentiation and self-referential closure of the legal system originates from its academic professionalization during the late twelfth and early thirteenth centuries.210 In a short time, law was transformed from a legal order into a legal system.211 A ‘legal culture’ emerged ‘which interpenetrated and regulated all of societal life’.212 The more the functioning of the legal system became dependent on academic professionalization, the less it could be steered directly from outside the system. It could be destroyed but no longer controlled, due to its growing internal complexity. If the king wanted to know what the law said, he had to ask the law faculty. Even an academically well-trained jurist at the top of the hierarchy, and with an excellent legal staff to advise him (a description that fits most of the post-revolutionary popes and their curia), was no longer capable of bringing light into the darkness of the proliferating discursive jungle of the legal system. Therefore, the universities formed a real third power besides sacerdotium and regnum, which was the power of studium.213 Regnum was compelled to go to studium, and from the eleventh century onwards, European rulers received literacy training and began to supplement their warrior identity with at least some scholarship.214 The rapidly growing number of universities constituted Europe as one cultural unity, and society for the first time became dependent on scientific knowledge.215 The power of studium became a source of social mobility, itself offering a growing number of positions that were independent


216Fried, ‘Über den Universalismus der Freiheit im Mittelalter’, in Fried (ed.), Gast im Mittelalter, pp. 143–72, at 160; on the leading role of the law schools in matters of social mobility: Fried, Entstehung des Juristenstands, pp. 71, 86, 99, 105, pp. 156–7, pp. 163, 171, pp. 249–50; see Wieacker, Privatrechtsgeschichte, pp. 69–70; Brundage, Medieval Canon Law, p. 67 et seq.; Ehlers, Die hohen Schulen, pp. 60, 72, 74–5, 78–80; Schilling, Die neue Zeit, p. 359.217Jaques Verger, ‘Grundlagen’, in Rüegg (ed.), Geschichte der Universität in Europa, pp. 49–80, at: 50–1, 64; Coing, Wissenschaft, p. 56. Citing Marx, Schilling even calls the universities the ‘Totengräber’ (gravedigger) of the clerically dominated social system: Schilling, Die neue Zeit, p. 352.218Moore, First European Revolution. On the dialectical development of modern law, see Brunkhorst, ‘Dialectical snares: human rights and democracy in the world society’, Ethics & Global Politics 2 (2009), 219–39.219See Brunkhorst, Solidarity, p. 23 et seq.220Berman, Law and Revolution, pp. 26–7, 158, 160–1, 174, 400, 521.221Luhmann, ‘Subjektive Rechte: Zum Umbau des Rechtsbewußtseins für die moderne Gesellschaft’, in Luhmann (ed.), Gesellschaftsstruktur und Semantik 2. Frankfurt: Suhrkamp, 1981, pp. 45–104, at: 62f; see Thore Prien, Fragmentierte Volkssouveränität – Recht, Gerechtigkeit und

of birth, heritage and status.216 The old European system of stratification came increasingly under pressure. Therefore, the more the organization of the universities at the centre of the emerging scientific system developed, the more it reinforced the tensions between the new order of functional differentiation and the old order of hierarchical stratification.217

The professionalized legal culture of the twelfth and thirteenth centuries changed ancient Roman law from a mere instrument for the co-ordination of the interests of the imperial ruling classes (as in the civil law of transactions) and the repression of the ruled classes and peoples into a double-edged instrument of repression and emancipation: an instrument that served not only the interests of the ruling classes (and that more effectively than any earlier legal order),218 but also that of the expropriated and oppressed classes of society, because it was designed to change and improve the secular world.219 Long before Kant, the Kantian constitutional mindset became a concept that existed within the legal system. The new professional law was not only the basis for a Luhmannian autonomous social system designed as an immune system of society, functioning exclusively to stabilize reciprocal expectations, but also a legal instrument designed to change and reform the world in the light of universal emancipation and salvation.220 Canon law opened the evolutionary path of modern law that is at once emancipatory and repressive, normative and functional, and both sides of the law are in dialectical tension from the beginning. The paradoxical unity of universal freedom and coercive law, or of law that is freedom, or (with Hegel’s famous phrase) law that is the existence of freedom (Dasein der Freiheit), explains most of the internal dynamic of the legal system and its constitutional frame.221 Ever since then,


der demokratische Einspruch in der Weltgesellschaft. Baden-Baden: Nomos, 2009, quoted from the Dissertation: Universität Flensburg, 2008, p. 97 et seq. The classical sources of the paradoxical formulation are Kant, Metaphysik der Sitten, Werke Bd. VIII. Frankfurt: Suhrkamp, 1977, Rechtslehre § 47, p. 434; Hegel, Grundlinien der Philosophie des Rechts § 4, p. 46.222Koskenniemi, Gentle Civilizer of Nations, p. 177.223Moore, First European Revolution, p. 39 et seq, and p. 50 et seq.224Fried, Das Mittelalter; Landau, Bedeutung des kanonischen Rechts für die Entwicklung einheitlicher Rechtsprinzipien; Landau, Anfänge der Unterscheidung von Ius Publicum und Ius Privatum.225Émile Durkheim, De la division du travail social, available at: http://classiques.uqac.ca/classiques/Durkheim_emile/division_du_travail/division_travail_1.pdf, (with further links), 1893.226If we follow recent world history research on modern state formation, a fully fledged territorial state with real borders and passports and all the disciplinary and bio-powers that go along with it has existed only since the late nineteenth or early twentieth century, and as a direct effect of imperial globalization: Sebastian Conrad, ‘Globalization effects: mobility and nation in Imperial Germany, 1880–1914’. Journal of Global History 3 (2008), pp. 43–66.

the law has existed in the double personality and dialectical unity of Dr Jekyll and Mr Hyde.222 That was the price that the egalitarian Kantian mindset of autonomy, which then appeared as the mindset of brotherly love, had to pay for its legal and professional implementation, its managerial transformation into an existing concept. The double-edged sword of the new law finally enabled the continuing and sustainable reproduction of ‘grain fields [that] stretched higher up the hillsides than they had ever done before’ – planted and processed by farmers who were more disciplined and ‘more intensely exploited’ than ever before.223 It was the legal concretization of the Christian and Kantian mindset of emancipation and salvation that transformed them into the managerial mindset of the stabilization, growth and improvement of the oppressive power and exploitative instruments of the ruling classes (thanks to Mr Hyde). However, only the legal concretization and implementation of the Kantian mindset by the managerial mindset of professional lawyers permitted the people’s sense of injustice, which had always already been egalitarian, to strike back from within the system of legally stabilized class rule and to subvert it by using its own means (thanks to Dr Jekyll).

In so-called medieval times, the functional differentiation of law had a strong individualising effect on a society that was still organized by the primacy of stratification.224 Functional differentiation of law (together with the beginning differentiation of science, markets, power and religion) injected strong elements of organic solidarity into a society which, in its basic structure, was still organised by mechanical solidarity.225

However, the Papal Revolution was not only the origin of the dialectic of the legal system, but also the beginning of the specifically modern co-evolution of universal and particular statehood.226 The latter was the origin


227C. Warren Hollister and John W. Baldwin, ‘The Rise of Administrative Kingship: Henry I and Philip Augustus’, The American Historical Review 83:4 (October 1978), 867–905.228Strayer, On the Medieval Origins of the Modern State, p. 22; Schilling, Die neue Zeit, p. 387.229See Schatz, Der päpstliche Primat, p. 109.

of the much later territorial and national statehood. This co-evolution was specifically modern due to the emancipatory universalism as well as the autopoietic closure of the legal system. It was activated by the universal legal state of the church. Once the legal, constitutional and administrative advances of the systems of modern canon and civil law became obvious to Europe’s secular ruling classes, the increasingly powerful European kingdoms started to copy the path-breaking administrative and legal inventions of new canon and civil law, and to use it for a complete reconstruction of monarchy as modern monarchy.227 The same happened to the republican city states.228 The more the modern territorial, and later national, state developed, the further a new functional system began to emerge that had its centre in the formal organization of a plurality of kingdoms as territorial states. With the growing autonomy of the territorial state, the relation of the heterarchical organization of the political system of monarchical states to the hierarchical organization of the one and single church state became more and more antagonistic. Over the course of the centuries, papal supremacy came successively under pressure.229

(9) Constitutionalization

In the end, the revolution established a new constitutional system that was the first European constitution worth that name (even if it was a Europe avant la lettre). It began, as we have seen, with the Dictatus Papae. But the legal claims of the Dictates were paradoxical. The pope claimed (1) independence and autonomy of the sword of the church because it represented the dialectical unity of the spiritual sphere and its embodiment in the corporation of the holy church. Only if it was strictly separated from the bloody sword of the (also holy office of the) secular prince could it fulfil its religious function. But at the same time the pope claimed (2) the power of control over the secular sword of magistrates, kings and emperors, which, for theological reasons, clearly contradicted the first claim for strict separation of earthy and spiritual power. The theological reasons for the resolution of this discordance consisted (as John of Salisbury argued in his Policraticus) in the fact that the Christian king administers only that bloody side of the holy office that it is unworthy for any cleric to perform.230 At the end of the long day of


230Berman, Law and Revolution, pp. 111–12.231See Baldus de Ubaldis (1327–1400), consilia, 3, 159, No. 3, fol. 45 (V): ‘Imperator in persona mori podest: sed ipsa dignitas, seu Imperium, immortalis est, sicut et summus Pontifex moritur, sed summus Pontificatus non moritur’ (quoted from Kantorowicz, The King’s Two Bodies., p. 398, note 283).232This is already the dialectical method later developed by modern philosophers such as Hegel and cognitive psychologists such as Piaget, see Kesselring, Die Produktivität der Antinomie.233John of Salisbury, Policraticus, IV. c. 2 (engl. The Statesman’s Book) p. 7.234John of Salisbury, Policraticus, IV., c. 2, pp. 6–7; Kantorowicz, The King’s Two Bodies, p. 94 et seq.235John of Salisbury, Policraticus, IV. c. 3, p. 9; IV. c. 2, p. 7.

the revolution, a new constitutional law of Europe was reached that was (like all constitutional law) the expression of a dialectical resolution, and a compromise between the conflicting parties and classes. Both parties had to learn to cope with the legal differentiation of the two swords, and it was this normative learning process that finally opened the evolutionary path to modernity.

After the constitutional compromise of Worms, a similar dialectical operation to that which made papal absolutism compatible with the rule of law and the coordination of different autonomous powers was applied to secular power. John of Salisbury dialectically resolved the contradiction between the persona publica of the king, who was legibus solutus, and his privata voluntas, which was subject to the law (legibus alligatus), by using the basic distinctions of the law of corporation. In accordance with the principle of canon law: dignitas non moritur (office never dies),231 John first reintroduced or copied the paradoxical difference between a person not bound by law (legibus solutus) and another person bound by law (legibus alligatus) into the public person, thus intensifying the contradiction by making it into an antinomy.232 As a public person, the prince is legibus solutus and legibus alligatus at the same time and in the same respect. John’s resolution consisted in the categorical differentiation of two levels in the public performance of the king’s role: As the supreme power in his principality, the prince is legibus solutus (level I). But ex officio he is not allowed to do injustice, because he is committed to law and equity: He ‘may not lawfully have any will of his own apart from that which the law of equity enjoins’233 (level II). Even if he cannot be disciplined, and hence cannot be bound extrinsically by the law through fear of punishment (level I), he is already bound by the law intrinsically through the legal norm of brotherly love (level II).234 But this means in constitutional terms that he is ‘a minister of the priestly power’ as well as the ‘minister of the common interest’.235 He ‘receives’ the ‘sword of blood’ ‘from the hand of the Church’, and, John immediately adds:


236Ibid., p. 9, my emphasis.237John of Salisbury, Policraticus, IV. c. 2, p. 8.238Quoted from: Berman, Law and Revolution II, p. 465, note 35.239See Jürgen Miethke, Mittelalterliche Politiktheorie. Baden-Baden: Nomos, 2006, p. 31; Frederick Pollock and Frederick W. Maitland, The History of English Law Before the Time of Edward I. Cambridge: University Press, 1968, Vol. 1, p. 174 et seq., especially pp. 181–2.240Strayer, ‘Philip the Fair – A “Constitutional” King’, AHR 62 (October 1956), pp. 18–32.

Nevertheless [the church] has this sword, but she uses it by the hand of the prince, upon whom she confers the power of bodily coercion, retaining herself authority over spiritual things in the person of the pontiffs.236

The prince is only the ‘hammer of the law’ who must ‘justly punish offenders . . . in accordance with the decision, of the passionless law’.237 John’s argument marks the beginning of the legal differentiation of legislative (primarily the church) and executive (primarily princes and magistrates) powers. The enlightened theory of popular sovereignty of the eighteenth century still distinguishes legislative from executive functions in a similar way, and by the same metaphors of the legislative head and the executive arm of the people and their common interest. A hundred years after John, the English lawyer Bracton (1210–68) generalized this idea and developed it further towards a general theory of procedural sovereignty. The king, he argues, consistently with John and the canonists, can act ex officio only in accordance with the law. The king is king because he is not under man, but under God and the law: Quod Rex non debet esse sub homine sed sub Deo et lege.238 This is true also for the interpretation of Ulpian’s old Roman legibus solutus: ‘What pleases the prince is the law.’ Already the Roman text here adds that the pleasure of the prince as prince is due to the Lex regia that made the prince the representative of the whole people. The meaning of the Lex regia for Bracton, therefore, can be only that not everything that the king performs arbitrarily has the force of law, but only that which follows the right legal procedure.239 Even such a powerful king and warrior as Philip the Fair of France (1268–1314) was effectively bound to constitutional limits, and (whether he knew this or not), he increased his power through these limitations. He depended on a legally organized bureaucracy that he himself could control only selectively. The government of Philip the Fair ‘was not very tender of the rights of bishops or of communes’, but it ‘had more respect for these rights than many local officials. It preferred to hold at least to the letter of the law’ and the ‘customs of the kingdom’.240 Furthermore, the king depended completely on the advice of his council, and here he was at best primus inter pares, and ‘no one’ of the members of the council, the king included, ‘was in complete control’. This was so because being surrounded by influential ‘prud’hommes’ was a legal must for a king who had to remain ‘within the limits of legality’, and who had


241Strayer, A ‘Constitutional’ King, pp. 21–2, 30–1.242Ibid., pp. 31–2.243Berman, ‘Renewal and Continuity: The Great Revolutions and the Western Tradition’, in M. Darrol Bryant and Hans R. Hussey (eds), Eugen Rosenstock-Hussey. Studies in his Life and Thought. Lewinston: Mellen Press, 1986, pp. 19–29.244Pollock and Maitland, History of English Law, p. 182.

‘to justify his action and to obtain the consent of those who were affected’.241 Finally, he could only govern the land through a ‘well-established system of courts and administrative officials’. Judges and officials had to follow their own sphere of rational action. The relations of the executive government of Philip the Fair to his Council were

not unlike those of a modern prime minister with his cabinet. Special tasks were assigned to each member, advice was always asked and often taken, but final decision and general direction of policy remained with the king.242

In all these cases, the arguments are based on the law of corporation (this section part 4). There were intrinsic rational and theological reasons for the constitutionalization of kingdom, but they were in accordance with, and backed by, the instrumental reason which consisted in the fact that the political power of legally bound constitutional kings was much higher than that of legally unbound kings.

However, kings had not only reasons and law on their side, but also the strongest armies. In military terms, the popes and bishops were mostly much weaker, or relied completely on the power of loyal and allied princes. Why then did papal legislative supremacy work at all? This must be explained by theological reasons. Papal legislative supremacy worked firstly because the ideological success of the Papal Revolution consisted in the now widespread religious belief that identified God with the law: ‘God is himself the law, and therefore law is dear to him’, as the Sachsenspiegel says, the first German law book written 100 years after the Concordat of Worms.243 The new faith in the divine power of law was backed by the theological argument that God himself not only is the law but, through his incarnation in Jesus Christ, has made himself subject not only to divine and natural law, but also to human law.244 At the core of the theological argument is the idea of rational freedom or autonomy, an idea developed, transformed and reinterpreted first by Thomas, and later by Vitoria, Rousseau, Kant, Hegel and others. If a king, so the Song of Lewes from the thirteenth century argues, is constrained by rational insight (for instance, the realization that he as a erring man needs council), then

the constraining of the King . . . does not take away liberty. . . . The incapacity to sin is not impotence, but the highest power and the great glory of God.


245G. L. Kingsford, (ed.), The Song of Lewes. Oxford: Clarendon, 1890, pp. 103–4, 113–18, quoted from: http://www.archive.org/stream/songlewes00richgoog/songlewes00richgoog_djvu.txt (8 April 2012).246See Paolo Grossi, A History of European Law. Wiley Blackwell, Chichester & Oxford, 2010.247Laurent Mayali, ‘Recht sprechen. Die Normdurchsetzung und das Selbstverständnis der Kanonisten’, Rechthistorisches Journal 14 (1995), 284–308, at: 288, 303, p. 295 et seq.

The guardianship which preserves those who are liable to fall from falling enables them to live freely and is not slavery. Whoever is truly king is truly free, if he rules himself and his kingdom rightly.245

This general epistemic shift in faith and argument strongly supported the binding force of all law, human, natural and divine law. Secondly, the force of canon law and the legislative power of the Church were not only backed by a shift in faith and the communicative power of better arguments, but also by the more sinister power of ideology and criminal law. It was the church that defined true faith and heresy, and the church interpreted heresy as a public crime of high treason. Now, in the question of true faith and heresy, which at the time was existentially crucial for everybody, even the mightiest emperors and kings had to be in accordance with the church. In a similar way as in other theologically relevant questions such as asylum (this section part 5), the church used its spiritual privilege to spread its influence over secular jurisdiction. In a society which was (1) based on the Christian faith which said that there was a transcendental world and a post-mortal existence of man, and (2) that this transcendental world was a corporative legal order, canon law and only canon law and its lawyers were in charge of both worlds, and, in particular, the only ones who had the competence to build legal bridges from this to the other world of legal corporation.246 Therefore, canon lawyers could argue their contemporaries into the belief that everything that was important for salvation was to be found in the corpus iuris (as Accurius wrote in the Glossa ordinaria). In this case, everybody’s salvation depended on the advice of academically informed lawyers. Equally, since the success of the Papal Revolution, everybody’s salvation had been closely related to professional knowledge about the complex legal orders of the Civitas Dei and the purgatory, and its dialectical relations with the legal order of the Civitas Terrana. The ideological power of the pope, the clergy and especially of the canon law lawyers relied on their double jurisdiction.247 Double jurisdiction was the privilege of the church, and therefore, the ‘custody of the ideologically cementing bond of society lay in ecclesiastical hands, which only goes to show the ecclesiological substance of society. The secular power within the Church (be it now the emperor or the king) had to act as a police force in exterminating


248Ullmann, Law and Politics in the Middle Ages, pp. 147–8; Bellomo, The Common Legal Past of Europe 1000–1800, pp. 75–8.249Brundage, Medieval Canon Law, p. 94; see Gratian C. 15, q. 8, c. 5: ‘non statim qui accusatur reus est, sed qui conuincitur criminosus’.250Hermann U. Kantorowicz, Albertus Grandinus und das Strafrecht der Scholastik. Berlin: Guttentag, 1907, p. 100 (my translation from the German: ‘ein moderner Richter bereits verurteilt haben würde’), see p. 134. See Berman, Law and Revolution, pp. 187–9, 409; Berman, Law and Revolution II, p. 133; Ullmann, ‘Reflections on Medieval Torture’, Judicial Review 56 (1944), pp. 123–37; Eberhard Schmidt, Inquisitionsprozesse und Rezeption. Studien zur Geschichte des Strafrechts in Deutschland vom 13. bis 16. Jahrhundert. Leipzig: Weicher, 1940, pp. 69, 77, 79, 81 et sec.; John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime. Chicago: University of Chicago Press, 1977; Rainer Maria Kiesow, ‘Das Experiment mit der Wahrheit. Folter im Vorzimmer des Rechts’, Rechtsgeschichte 3 (2003), 98–110, at 99–100. See Brundage, Medieval Canon Law, pp. 93–5.251Fried, Entstehung des Juristenstands, p. 61 (my translation of: ‘Juridifizierung der Politik’), see p. 140.

heretics.’248 Because the soul of the human was involved in any of his or her actions, canon law was affected by every legal issue. What we can observe here paradigmatically is how closely Dr Jekyll and Mr Hyde collaborate in the formation of the Western legal tradition. The early separation of legislative and executive powers between the cosmopolitan state of the universal church and the individual state of the Christian princes is accompanied directly by the bloody work of inquisition and torture.

But again we have to keep in mind how cunningly the dialectic of enlightenment works. It was precisely the courts of inquisition that were at the height of all the great rule of law advances of that time: (1) The judges were bound by the presumption of innocence.249 (2) The defendants had nearly all the subjective rights of a modern defendant in a classical Rechtsstaat such as the German Empire before World War I. The use of torture was so strictly limited that it was used only in cases where ‘a modern judge would already have convicted the defendant’.250 Together with the legal limits on sovereignty and the differentiation of legislative and executive powers, the juridification of politics became one of the basic doctrines of the academic scholars of canon and civil law.251 The new normative constraints of blind evolutionary adaptation erected by the revolution excluded all evolutionary experiments with theocratic regimes of clerics or secular rulers. These normative constraints were implemented by a complex constitutional system of checks and balances between the different corporations of the church, the Empire, the kingdoms and the republican city states. All of them claimed ‘sovereignty’ and were divided into the two basic powers of regnum and sacerdotium.

As the claim of European law supremacy in the European Union today is reconciled, by way of a process of constitutionalization, with the national member states’ claims to popular sovereignty, the claim of papal law supremacy was reconciled with the claims of emperors, kings and towns


252See Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, 96f, note 14; 98f (Roman law binds the church but the pope can change it!), 101ff, 168f; see Hehl, Kirche und Krieg im 12. Jahrhundert, pp. 72–4, 74–5 note 329.253Hierarchical systems of absolute power are extremely vulnerable as long as they are not stabilized by a legal system that is autonomous. In a hierarchical system, legitimacy must be assured by one role alone – hence, it must be represented on a dangerously concretized level, and therefore could be attacked on this level (see Luhmann, Legitimation durch Verfahren, p. 152). The beheading of the monarch is enough to destroy the system as a whole. Such a system is not complex enough to govern a continent’s bodies and souls, including the living and the dead. Therefore, it needs stabilizing mechanisms on other levels, and canon law provided them, as we have seen, by institutionalizing the distinction between the pope’s two roles of legitimacy, the pope alone vs. the pope-in-council (part 6 c this section), by introducing bottom-up models of autonomous republican self-organization at all levels of ecclesiastical corporative organization (part 6 b), and by separating the two swords of bloodless legislation and bloody execution (part 7).254Robert K. Merton, ‘The Puritan Spur to Science’, in Norman W. Storer (ed.), The Sociology of Science. Chicago: University of Chicago Press, 1973, pp. 228–53, at pp. 242–3, note 46; see Gerald R. Owst, Literature and Pulpit in Medieval England. Cambridge: Cambridge University Press, 1933.

to princely sovereignty, and the arguments of the canon lawyers were no less complex than those of the European courts and lawyers today.252 At the beginning of modern European law, therefore, one finds not only the invention and judicial institutionalization of legislative sovereignty, but at the same time the invention of shared or dual sovereignty, which enabled the co-evolution of cosmopolitan, imperial and territorially particularized statehood. At least all lay Christians were at once a member of the cosmopolitan state of the church and subject to a secular prince or magistrate. The co-original evolutionary advances of legislative sovereignty and shared sovereignty enabled the co-evolution of universal, sacred cosmopolitan and secular imperial, and individualized, monarchical and urban republican statehood.

The new constitutional system integrated all of Western Christian Europe socially on the basis of a common faith. It was stabilized by the functional differentiation of the legal system. The latter was a blind side effect of the revolution and its communicatively agreed constitutional compromise. It was never planned by the revolutionary parties, but enabled accidentally by the path-opening power of the normative constraints of the new constitutional law. A huge and continent-wide hierarchical cosmopolitan system such as the church could only be stabilized through law.253 However, the stabilization of the highly dynamic centrifugal forces of this first modern but still hierarchical society in the long run could not be performed by the legal system and the legal state of the church alone. The viper at the bosom of the church began to grow up. The socialization of the viper was speeded up, in particular, by the growth of universities and science. The ‘spokesmen of the medieval Church themselves . . . bade men to consider the work of God’s hand in the multifarious appearances of Nature, and this was indeed a powerful justificatory principle for scientific pursuits.’254 Hierarchy came under the rationalizing pressure of


255See Kortüm, Menschen und Mentalitäten, pp. 126–7, 133.256Marx still used it in his 18th Brumaire to denounce the pre-Bonapartist mix of presidential and parliamentary democracy in the late French republic of 1848.

heretic confessions, egalitarian legal claims, urban freedom, scientific truth, emerging markets and so on.255

The abysmal dialectic of the basic contradiction of the first modern society of Europe is due to the fact that the only way to stabilize the complex hierarchy of the stratified clerical system (including papal, imperial, princely, municipal, feudal and other forms of hierarchical organization and stratification) consisted in the reinforcement of the functional differentiation of the legal system. As a side effect, the functional differentiation of science, markets, politics and even religion began to develop. But once the growth of functional differentiation had been launched, the precarious system of constitutional checks and balances between antagonistic systemic imperatives of stratification and hierarchy on the one hand and functional differentiation and heterarchy on the other got increasingly skewed: The more the organizational principle of functional differentiation took shape, the more religious corporations, universities, monarchies, cities and markets went out of church control. The more functional differentiation developed, the more the precarious system of constitutional checks and balances between the two antagonistic systemic imperatives of hierarchy and heterarchy was destabilized, and it needed only a schism such as that of 1378 to destroy the authority of the papal hierarchy. Despite all its rule of law and constitutional advances, which adapted the hierarchical system to a more and more heterarchical environment, the precarious legitimacy that was centred in one role alone, and represented by one concrete person alone, finally came under attack. Suddenly the argument of the twelfth-century lawyers, according to which, as Alanus put it, ‘The church is one body and so it shall have only one head or it will be a monster,’ became implausible, and Pufendorf’s later replacement of the one head by a plurality of territorial state bodies loomed behind the surface of the clerical ordo of Europe. Now Pufendorf’s ratchet-effect-argument, according to which the civil ruler should be empowered to control church doctrine, as otherwise ‘the state would become a monster with two heads’, was close to being accepted as the better argument.256

(10) Dialectic of enlightenment

Once the revolution was over, the local and arbitrary power of self-proclaimed saints and miracle workers was expeditiously replaced by legally regulated procedures of canonization. The myriads of pilgrim preachers and holy men were subjected to the bishops’ disciplinary power, and had to become


257Moore, Erste europäische Revolution, pp. 174–5.258Ibid., pp. 175–8.259See Strayer, On the Medieval Origins of the Modern State; on the constitutive and unique role of the Western European parish system, see Moore, First European Revolution, pp. 268, 294.260Wesel, Geschichte des Rechts, p. 156 (my translation of ‘Klassenrecht, das Recht der vornehmen Leute. Klassisch heißt zwar vorbildlich. Und so wird das römische Recht seit dem Ende des 18. Jahrhunderts genannt. Aber klassisches Recht war auch Klassenrecht, das Recht der Besitzenden untereinander, also Zivilrecht. Mit den anderen machte man kurzen Prozess, außerhalb des Rechts’.).261Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 13.

officials of the Church. Miracles continued to be allowed, but now only within the walls of the churches, and under the surveillance of the clerics.257 The Kantian mindset of the revolution was implemented by the sober managerial mindset of professional lawyers and employed clerics, and the result was evolutionary adaptation: rationalization, disenchantment and legitimization through procedure (Luhmann). In a word, the ‘long Katzenjammer’ (Marx) that followed the revolutionary enthusiasm saw the emergence of pastoral power (Foucault): It took only a couple of decades to cover the whole continent with a dense network of parishes, controlled by the bishops. This system was the cornerstone of centuries of juridified clerical power that consisted in the internal control over the body and soul of the European peoples.258 It worked much more effectively than Roman rule by external coercion and superior administration alone.259 Roman law was a law only of coordination and repression, as Uwe Wesel has described it. Roman Law, he writes, was

class law, the law of gentlefolk. Classical does, of course, mean exemplary, and as such Roman law has been described since the end of the 18th century. However, classical law was also class law, in the sense that it was the law of the propertied among themselves, and hence civil law. The rest were dealt with summarily – beyond the law.260

The Papal Revolution radically reinterpreted Roman law in the light of universal justice and salvation, and extended it to the rest. The canonists were ‘elite intellectuals in a vigorous creative society. Their work as teachers, prelates, administrators touched the life of their world at many points’.261 They used Roman law but transformed it deeply. They universalized and individualized it in the light of the Bible, and they systematized it through the methodological instruments of scholastic dialectics and Aristotelian logic. In this way, they transformed Roman class law into a universal law of freedom, emancipation and salvation. As we have seen, law became the main instrument for changing the world in the light of biblical egalitarian universalism.

However, paradoxically, it was exactly this same law, which comprised a great step forward in the consciousness of freedom (indeed one of the


262Moore, Erste europäische Revolution, p. 38.263Ibid., pp. 71–3, see pp. 66–8, 74–5; on marriage: Fried, Universalismus der Freiheit, p. 167; Hattenhauer, Europäische Rechtsgeschichte, p. 157.264Moore, Erste europäische Revolution, p. 92 et seq.265Rosenstock-Huessy, Die europäischen Revolutionen, p. 151 et seq.; Moore, Erste europäische Revolution, p. 38 Le Goff, Medieval Civilization, p. 67.266Marx, Bourgeoisie und Konterrevolution, MEW 6, pp. 107–9. The English translation is quoted from: http://www.marxists.org/archive/marx/works/1848/12/15.htm (8 April 2013).

greatest ever), which at the same time was used successfully to transform, improve and increase oppressive power, exploitation and class rule: 1. After the revolution, the same small number of highly aristocratic families as before the revolution governed Europe. They survived the revolution and maintained their status nearly without losses. But their family structure changed totally. They had lost a lot of their property, and they had to accept the new restrictions on access to church property (celibacy, prohibition of simony). To keep a huge part of Europe’s land as well as their governing power, they had to transform themselves from lawless warriors into landlords and authorities who kept peace and law. They had to submit themselves to the law.262 They had to give up a lawless slave economy and replace it by the lawful exploitation of bondsmen. They had to give up clanship in favour of the then revolutionary principle of patrimonial dynasty. They had to replace the common estate of the clan with the family property of the firstborn. They had to change the family structure from a group of common ancestors into a close-to-modern nuclear family which had its centre in the dyad of the father and his firstborn son, and was based on the reciprocal voluntariness of marriage.263 They had to follow the new and highly restricted canon law of incest which compelled them to build a European-wide cosmopolitan network of more and more civilized and educated aristocrats. To care for their particular family interests, they now had to take a general European and imperial perspective. If, in a small number of upper-class families, even distant nieces were no longer available for marriage because of legally enforced and expanded incest rules, the firstborn sons of the aristocrats had to travel from Trondheim to Seville or further to make a good match, and the second and third born often had to remain single, free for employment in the service of the church or of (more or less holy) war.264 In this way, the high aristocrats had to form a transnational ruling class with a common Latin culture, common religion, common military actions such as the Crusades, and a common imperial self-understanding.265 As in all great revolutions, so too in the First European Revolution the winners of the revolution ‘did not represent the victory of a particular social class over the old political system; they proclaimed the political system of the new European society’. In a way, the old aristocracy prevailed, but its victory was ‘the victory of a new social order’.266 2. The high aristocrats were not the only winners


267Moore, Erste europäische Revolution, pp. 66–7 et seq., 92 et seq.268Lopez, Commercial Revolution; vgl. a. Rosenstock-Huessy, Die europäischen Revolutionen, p. 152; Le Goff, Medieval Civilization, pp. 78–9 et seq.; Fried, Entstehung des Juristenstands, pp. 71, 99, 105, 157, 163, 171, pp. 249–50; Wieacker, Privatrechtsgeschichte, pp. 69–70; Brundage, Medieval Canon Law, p. 67 et seq.269Hugo Preuß, ‘Staat und Stadt’, in Vorträge der Gehe-Stiftung zu Dresden, Bd. 1 Leipzig und Dresden 1909, pp. 37–74.270Moore, First European Revolution; Le Goff, Medieval Civilization, pp. 82–6 et seq.271Berman, Law and Revolution, p. 108. I have to thank Justyna Konwisarz for an indication of this quote in a seminar paper 2011.

of the revolution. They now had to share their power with the new noble classes of service gentry (cavaliers).267 3. Furthermore, they had to share their power with the other great winners of the revolution, the free cities, their councils and their rich, capital-accumulating citizens, who formed imperial alliances of their own, and ruled the emerging global trade.268 In a history of modern state formation that is apologetic of the state and of sovereignty, the fundamental role of capital-accumulating cities for the emergence of the modern state is usually totally underestimated or repressed. An exception is the German constitutional lawyer and architect of the Weimar Constitution of the first German republic, Hugo Preuß, a disciple of Otto von Gierke, who held critical views on the sovereignty of the state and rightly argued that the medieval city ‘with its administration and police, its finance and tax system, its commercial law and politics, its bureaucracy and mercenary force became the prototype of the modern state’.269 4. Finally, the high aristocracy had to share their power with the new true ruling class of Western Europe, the universal state of the clerics.270 The clergy became ‘the first translocal, transtribal, transfeudal, transnational class in Europe to achieve political and legal unity’.271 The aristocrats were also a transnational ruling class, but without the ability to achieve political and legal unity not only for themselves as a class, but also for the whole population of Europe. The aristocrats were the wielders of coercive power, but not the wielders of the pastoral power that was at the core of social integration.

How did the clerics do this? – As we have seen, they successfully reinterpreted and inverted Christian theology. They put theology at the service of the legal order and identified God with the law. They were the only class who could legitimately claim a double competence for both jurisdictions, the jurisdiction of the earthly and the divine city. They had the power to define true faith and heresy, and implement the legal procedures for the enforcement of this definition, and, last but not least, they had privileged access to the means of the production of law. Papal law supremacy had its basis in a new and unique microphysics of power. The clerics were present everywhere, in the cities, in the countryside, in the smallest village, in the darkest wood and on the rough


272On this difference, which marks the difference of modernity and antiquity, see Strayer, Medieval Origins.273Moore, Erste europäische Revolution, pp. 193–5.274Witte, Law and Protestantism, p. 290.275Ibid.

seas. Robert I. Moore makes a striking comparison between the European clerics and the Chinese mandarins. The system of parishes covered the whole space of Western Europe, and everywhere in Western Europe it determined the daily rhythm and the rhythm of the year, the time of work and the time of pleasure, the performance of sexuality, the sins, confessions and penances. Compared with such a tremendous and comprehensive power, which allowed for the control, not only of the external, but also of the internal faculties of its subjects, of the darkest soul and the farthest province of Christendom, the mere coercive power of the Roman proconsuls or the Chinese mandarins was weak.272 A mandarin, who travelled from Sian to one of the far provinces, had absolute power as long as he was present in a given province. But ‘absolute power is weak’ (Luhmann). For that reason, he never could substantially break the rule of the provincial nobles. Why? The well-educated elite of mandarins never cared about tiny local issues, the ignoble, trivial but heavy burdens of farmers, the inheritance disputes of shepherds, the conflicts of all people, poor and rich, over fishing rights, bridge tolls, water ditches, childcare problems, tavern-brawls and so on. Therefore, they never could gain lasting power over the province. But the much less well educated, but huge mass of clerici could, because for them nothing was too small and trivial, too ignoble and ugly to activate their concern. They were even concerned with the education of the uneducated masses and the ‘uncivilized’ rural population. They followed the law of Christ to teach all nations. They knew that the essence of power was its microphysics, the disposition over fish ponds, lower education, the sexual use of everyone’s body, the disagreement over rights of ways and so on.273 The clerics were among the first ‘who offered the principal form of lower education, governed by general and local canon law rules’.274 They established a refined system of educational institutions at the level of cathedrals, monasteries, chantries, ecclesiastical guilds and large parishes where young students, independent of class, were trained in the trivium, the quadrivium and other religious subjects, and ‘gifted graduates were sent on to Church-licensed universities’, something which increased social mobility against the structural constraints of the still stratified and hierarchical society.275 Here, the normative constraints of revolutionary advances are in conflict (at least latently) with the structural constraints of the existing social class system. Not only the leaders of the Protestant revolutions were a socialization product of the clerical system of education, but even, much later, the greatest constitutional


276Weber, ‘Die Entfaltung der kapitalistischen Gesinnung’, in Die protestantische Ethik I. Munich: Siebenstern, 1969, pp. 358–9 (my translation of: ‘machtvolle, unbewußt raffinierte Veranstaltung zur Züchtung kapitalistischer Individuen’).277Moore, First European Revolution, p. 102, see pp. 101, 104, 106.278Mollat, The Poor in the Middle Ages, pp. 41–2; cp. also Le Goff, Medieval Civilization, p. 255 et seq., especially: pp. 258–61.

legal theorist of the eighteenth century, Emmanuel Joseph Sieyès, who was a poor student at the seminary of Saint Sulpice in Paris, and had a career as a cleric before he voted for the beheading of the king in the Jacobin Committee of Public Safety.

The most important point is that the clerics had the means to care about the microphysics of power, and these means consisted in the system of canon law that shaped their professional and private life, their administrative competences and legal actions, and enabled them to implement, apply and enforce the same legal norms everywhere in Europe, in Rome as well as in Colonia, in Trondheim as well as in Catania, in Riga as well as in Capo di Finistere in the furthest west of Spain. The secret of the pastoral power of the clerici was the legal proceduralization of domination and rule, the formalization of administration and, finally, the transformation of the soul into the prison of the body (Foucault) which Max Weber once called a ‘powerful, unconsciously shrewd arrangement for the breeding of capitalist individuals’.276 Weber was referring to the Protestant ethics, but he should have used the same statement already for the time of a reformation that occurred much earlier: the Papal Revolution. The proceduralization of domination and rule, the formalization of administration and the control over the subject by its own self-referential operations were the great historical and evolutionary advances of canon law’s managerial mindset. They were reinvented by every subsequent revolution, and they improved and increased the hegemonic power of each of the ruling classes of modern society.

At the end of the day, it became evident that the freedom of the church was not only restricted to non-heretic Christians, but that it was also not the freedom of the pauperes, whether Christian or not, who in their vast majority were peasants. In the end, the class interest of the clerici and the class interest of the pauperes were incompatible.277 Together with structural normative conflict between corporative freedom and the persecution of heretic confessions, the structural social incompatibility of the class interests of pauperes and clerici caused a latent crisis of legitimization of the medieval ordo. The clerics strived for the rights of the poor and the disenfranchised, but at the same time they discovered that the exploitation of liberated labour was much more effective than the exploitation of slave labour.278 Modern capitalism has a long pre-history.


279Wesel, Geschichte des Rechts. Munich: Beck, 1997, p. 403, with reference to Brecht’s Three-Penny Opera (first half sentence), and the theory of John Locke. In German: ‘Nur wer im Wohlstand lebt, der darf zur Wahl’.280Witte, Law and Protestantism, pp. 24–5, 27; Berman, Law and Revolution II, p. 23.281See Witte, Law and Protestantism, 2002; Berman, Law and Revolution II, 2003.282Carter Lindberg, Beyond Charity: Reformation Initiatives for the Poor. Minneapolis: Augsburg Fortress, 1993, pp. 161–3, quoted from Witte, ‘An Evangelical Commonwealth. Johannes Eisermann on Law and the Common Good’, in David M. Whitford (ed.), Caritas Et Reformatio. Essays on Church and Society in Honor of Carter Lindberg. Saint Louis: Concordia, 2002, pp. 73–88, at: 73.

II Protestant Revolution

Only he who lives in prosperity is allowed to vote.

UWE WESEL279

The Protestant Revolution was the second and last of the two great Christian legal revolutions. But ‘the positive contributions of Protestantism to the development of legal thought and legal institutions have been largely ignored’.280 Only recently its character as a great legal revolution has attracted the historical attention that it deserves.281 It is now clear that it was nothing more than a common prejudice to think that German reformers at any rate ‘separated public and private morality and were indifferent to the ethical impact of social structures and institutions’. On the contrary, the reformers, the Lutherans and the Zwinglians, as well as the Calvinists, ‘impelled by their theology, developed new legislative measures’ of all sorts and an impressive jurisprudence in its support.282 In particular, sociologists have neglected the constitutive role of law for the Protestant Revolution because they are still enchanted by Max Weber’s paradigm-setting study on the disenchanting power of the Protestant ethics, now over 100 years old. This is all the more astonishing because Weber rightly recognized the legal character of the Papal Revolution, as well as the modernity of canon law.

Like the Papal Revolution, the Protestant revolutions primarily were legal revolutions that effected fundamental reforms of common, statutory and constitutional law, of private and public law, of lex mercatoria and criminal law, of the laws of marriage and social welfare, of church, education and family life, of primogeniture, inheritance, foundations, trusts and corporations. They created a new legal science, a new legal rhetoric and theory, and reconstructed the concepts of equity and judicial reasoning, constructed new syntheses of canon, civil and customary law, reorganized rules and procedures of proof, evidence and appeal, established new systems of civil and criminal courts, invented new legal methods, wrote hundreds of new legal textbooks and thousands of tracts on law, politics and society. Everywhere in Europe, armies of lawyers followed the trajectory of the great reformers (and the Catholic


283Witte, ‘An Evangelical Commonwealth’, pp. 73–4; see Witte, Law and Protestantism, 2002; Berman, Law and Revolution II, 2003.284Berman, Law and Revolution II, pp. 53, 94; see Svetlana Alpers, The Art of Describing: Dutch Art in the Seventeenth Century. Chicago: University of Chicago Press, 1983; Merton, The Puritan Spur to Science.285Peter Blickle, Die Revolution von 1525. Munich: Oldenbourg, 2004, p. 238; MacCulloch, Reformation, pp. 298, 308.286Heinz Schilling, Die neue Zeit. Vom Christenheitseuropa zum Europa der Staaten. 1250 bis 1750. Berlin: Siedler, 1999, pp. 243–72; Kortüm, Menschen und Mentalitäten, p. 168; for more, see Wilhelm Abel, Agrarkrisen und Agrarkonjunktur. Eine Geschichte der Land- und Ernährungswirtschaft Europas seit dem hohen Mittelalter. Hamburg: Parey, 1966, pp. 48–96.287The conciliarist Nicolas of Cues celebrated the printing press as a divine and holy art, the sancta ars. The more down-to-earth pontifical curia recognized the danger, but this insight came too late for effective censorship. So, the curia decided to use the printing press itself and to modernize the sale of indulgences. However, Protestants had already advanced the new technology of communication (see Elisabeth Eisenstein, ‘Clio and Chronos. An Essay on the Making and Breaking of History-Book Time’, History and Theory, Special Issue 6: History and the Concept of Time, Wesleyan University Press, 1966, p. 37; Stephan Füssel, Gutenberg und seine Wirkung. Frankfurt: Insel, 1999, p. 42; Michael Giesecke, Der Buchdruck in der frühen Neuzeit. Frankfurt: Suhrkamp, 1991, pp. 176–7; see Füssel, Gutenberg und seine Wirkung, p. 73 et seq.) On the enormous difference between the communicative use of hand-written and that of printed materials, see Henry J. Chaytor, From Script to Print. An Introduction to Medieval Vernacular Literature. London: Sidgwick & Jackson, 1966 (1945), p. 10: ‘We cannot think of sounds without thinking letter. . . . Nothing is more alien to medievalism than the modern reader, skimming the headlines of a newspaper and glancing down its columns to glean any point of interest, racing through the pages of some dissertation to discover whether it is worth his more careful consideration, and pausing to gather the argument of a page in a few swift glances. . . . The medieval reader, with a few exceptions, did not read as we do: he was in a stage as our muttering childhood learner: each word was for him a separate entity and at times a problem, which he whispered to himself when he had found the solution.’

counter-reformers), and they were accompanied by political philosophers, humanists, printers and natural scientists.283

Like the Papal Revolution, the Reformation was not only a legal and constitutional revolution, but also a total revolution, changing church and state, the social and economic structure, culture and education, family life and science, painting and discipline.284 Furthermore, like the Papal Revolution, the Protestant Revolution was from the beginning a grass roots and mass movement.285 It was preceded by a cascade of crises of demography, the agrarian economy, the papal hierarchy, political administration and religious motivation. The agricultural surplus product decreased dramatically and caused a century of cyclical downturn, famine, shrinking areas of settlement, shrinking urban populations and pauperization of great parts of the noble and cleric estates.286 Towards the end of the century, the communicative use of the printing press, and the beginning of the first great impulse of globalization, which accelerated rapidly after 1492 (Columbus), improved the conditions for a punctuation of the societal equilibrium of the Christian ordo.287


288Talcott Parsons even called the Holland of the seventeenth century (together with France and England) ‘the “spearhead” of early modernity’ (Parsons, The System of Modern Societies, p. 54).289See MacCulloch, Reformation, pp. 214–19. On the ubiquitous success of Protestant reforms, also in Catholic regions, see Dreier, Kanonistik und Konfessionalisierung, pp. 155–6, 159–61.

The Protestant Revolution had its centres in Germany in the first half of the sixteenth century (Lutheran Reformation 1517–55), in the Netherlands in the second half of the sixteenth century (Calvinist Revolution 1572–85, embedded in the Eighty Years War of 1568–1648) and in England in the seventeenth century (Calvinist Reformation/English Revolution 1640–89). Each of these revolutions shook and changed the whole European world order, including the Catholic Church and the Catholic kingdoms. After spectacular early successes, the revolutionaries lost most of the great wars. They lost the Schmalkaldic War (1546–47). After the successes of the Calvinist republican revolution in the Netherlands, their Calvinist comrades in England could not stabilize the English republican experiment (1649–60). They lost huge Protestant regions during the Thirty Years War (1618–48) and the following counter-reformatory wars of Louis XIV, who failed to regain only the Netherlands, which in a very brief time had become a Protestant world power.288 But the counter-reformation in many respects copied the Reformation, and introduced similar constitutional and legal reforms in the Catholic regions of Europe. Like all great revolutions, the Protestant Reformation was a ‘Revolution in the European style’ (Marx). It changed not only the world of the new Protestant countries, but also the world of the old Catholic countries, and the self-understanding of all European religions. The Council of Trento 1545–63 copied the Reformation under the double heading of counter-reformation and Catholic reformation. Already ten years earlier, Iñigo López de Loyola (1491–1556) and his comrades had founded the Societas Jesus, which became the avant-garde of the counter-reformation, but resembled Protestantism with regard to many substantial issues. They rejected all privileges of the clerics before God and followed a path that was opened by the Devotio Moderna of the late fifteenth century, another Catholic forerunner of Protestantism. Like the Protestants, the Jesuits improved education and abolished tuition for school attendance. They emphasized spiritual life and Protestant sobriety, rejected any monasticism for their own order and declared not the church, but the world their house. Spiritual life was to be possible not only within the church, but also within the world and that gave a much stronger value to this world than the official doctrine of the church. Therefore, the later Protestant Methodist founder, John Wesley (1703–91), just had to modify the Jesuits’ slogan ‘The world is our house’ slightly for it to become Calvinist: ‘The world is my parish.’289

The most important evolutionary advances of the Protestant revolutionary transformation were (1) the de-constitutionalization of the one and only church;


the marginalization of the Holy Roman empire; (2) the de-legalization of the post-mortal existence of man which extinguished the fire of purgatory; (3) the emergence of a state-centred and eurocentric cosmopolitan global order with a modern ius gentium and the ius publicum europaeum; (4) the formation of global colonial empires; (5) the emergence of global free trade, and a world economy based on modern, proto-industrial slave labour; (6) the invention of huge, legally autonomous and state-like private-public partnerships such as the East India Companies of the Netherlands and England; (7) the invention of constitutional monarchy and republican statehood beyond the existing city states (Netherlands, England), and the first experiments with modern legislative parliamentarism, complemented by some smaller and more basic democratic peasant republics, in particular, in Switzerland and, not to forget, in the Puritan colonies of New England.

All spiritual law became the law of the state (or the city). Law for the first time was interpreted primarily as a profane and utilitarian instrument of domination, disciplining, civilizing and education. It was completely disenchanted. The church was reduced to the status of one secular order besides others. The first sword of the church was thrown away and replaced by the first realm of God, which was accessible only through one’s conscience and the universalizable core of the Holy Scripture: sola fide (faith alone) and sola scriptura (the Bible only). Protestantism made the nationalization of the sacred irreversible. The whole legal system was reinterpreted, and in great parts reinvented under the law of the Holy Scripture which now was centred in the Ten Commandments. The prince or magistrate was invested with the right to reform. From cuius regio eius religio, a ius reformandi was derived. In particular, as an outcome of the English Revolution, the first comprehensive and still existing court system was established on the basis of scientific methods of proof, and strong rights for the accused in all kinds of trial. Furthermore, modern nationalism was invented by the English Revolution, whose winners copied the Calvinist theological doctrine of predestination onto the English nation (which thereby became the elect nation). Everywhere, the burden of individual salvation was transferred from the church to individual conscience, and salvation was structurally coupled with the Protestant work ethic. Legal and scientific progress was now interpreted in empiricist, experimental and utilitarian terms. All religious communities (including the Catholic Church) were confessionalized, and so was the state (which was never neutral in religious concerns, or secularized in our sense of religious tolerance and neutrality, before the American and French Revolutions – see next section). Finally, a variety of new subjective rights were established and legally implemented. Their core consisted in the new freedom of conscience, Christian confession and departure (the right to emigration), including an individualized right to


resistance against tyranny that was founded on the individual conscience alone. The ideas of a universal right to have rights (Vitoria) and of a human right of freedom (Twelve Articles of Memmingen) were circulated for the first time in European history. The territorial and national state step by step became the organizational centre of the functional differentiation of the political system of coercive and administrative power.

(1) Ratchet effect

There are a lot of examples for a revolutionary turn in legal doctrine and political theory during the time of the Protestant revolutions that illustrate the ratchet effect of Protestantism. On the basis of three examples, I will explain the difference between the Catholic and the Protestant formation of modern society. Beginning with the above-mentioned difference between Pufendorf and Alanus (A), I will further develop it by means of a confrontation of Vitoria with Thomas Acquinas or neo- with classical Thomism (B). Finally, I will briefly turn to a legal case that marks the doctrinal difference between the so-called Middle Ages and the so-called frühe Neuzeit (early modern age), and that is the case Paradine vs. Jane, where counsel for the defence argues on the basis of the prerevolutionary, and the judges argue on the basis of the revolutionary legal doctrine which they themselves have constructed in its final shape (C).

(A) The move from Alanus’s (1125–1203) clerical and cosmopolitan ‘monster with two heads’ to Pufendorf’s (1632–94) secular (confessional) and statist (princely) ‘monster with two heads’ is a paradigm shift. The wide-ranging influence of Pufendorf’s metaphor is a good example for a normative constraint that frames, shapes and directs all further constructions of state and politics. While Alanus wanted to cut off the secular head of the church, to implement a second, sacred head at the body of the secular state, and to coordinate both through papal law supremacy, Pufendorf wanted to overcome papal law supremacy by cutting off the sacred head of the state and subsuming the legal body of the church within the secular power of the state or prince (hence, all canon or spiritual law now had to become the public law of the state). The latter, in a nutshell, contained already the whole Protestant theory of state, politics and constitutional law. By the turn from papal law supremacy to statist law supremacy, the Catholic Church lost its sword and its status as the one and only church. The Catholic princes (including the Papal State in Rome) did just the same as the Protestant princes, they confessionalized Christendom. The universal church of the one and only true faith was replaced by a particular


290The state was confessionalized and not, as one of the myths propagated by Carl Schmitt and others tells us, secularized. It was far more than a religiously neutralized administrative power, see Reinhard, Geschichte der Staatsgewalt; Stolleis, Michael, ‘Konfessionalisierung’ oder ‘Säkularisierung’ bei der Entstehung des frühmodernen Staates, in Ius Commune XX (1993), p. l et seq. (auch unter: http://data.rg.mpg.de/iuscommune/ ic20_stolleis.pdf); Reinhard and Schilling (eds), Die katholische Konfessionalisierung. Münster: Gütersloh, 1995; Dreier, Kanonistik und Konfessionalisierung, pp. 148–65; see Christian Waldhoff, Neue Religionskonflikte und Staatliche Neutralität, Gutachten D zum 68. Deutschen Juristentag. München: Beck, 2010, pp. 43–4.291Berman, Law and Revolution II, pp. 61, 97–8, 125, 182.292Ibid., pp. 349, 357, 362, pp. 369–71. Church building and state building went ‘hand in hand’ (Philip S. Gorski, The Disciplinary Revolution: Calvinism and the Rise of the State in Early Modern Europe, Chicago: University of Chicago Press, 2003, p. 19). The confessionalization of the state hardened ‘interconfessional boundaries’ and imposed ‘intraconfessional uniformity’. (p. 36) The phrase of the age was religio vinculum societatis (religion is the bond that holds society together). This really was remarkable because it signified that from now on the bond, the religious vinculum became a problem that had to be solved politically. Ideological integration and legitimization of rulership and sovereignty through religion became a matter of political planning. State and church now shared the work of organizing the disciplinary discourse of religious virtue (church) and ‘imposition of godly law upon the world’ (state) (pp. 27–8).293Berman, Law and Revolution II, pp. 60–1.294MacCulloch, Reformation, pp. 83–4, 122–3, 416.

confessional state.290 Spiritual law was completely subsumed under the public law of the monarchy or city republic.291 Therefore, advanced secularization and advanced spiritualization were two sides of the same coin.292

(B) Pufendorf already looked back to the advances of the Protestant Revolution from its conclusion when he declared the state with two heads to be a monster. But the idea in a paradigmatic form had been introduced much earlier by a Catholic monk and jurist. At the beginning of the long Protestant transformation of Europe, it was introduced by Francisco de Vitoria (1483–1546), a contemporary of Martin Luther (1483–1546), Ulrich Zwingli (1484–1531), Iñigo López de Loyola (1491–1556) and Johannes Calvin (1509–64). Vitoria was a Catholic Dominican who taught at the University of Salamanca, and never had any intention of converting to Protestantism. But some Dominicans did become important reformers, among them Calvin and Martin Bucer (1491–1551), and the young Zwingli was only prevented by his father’s veto from going to the Dominicans. Since the end of the fifteenth century, Protestant pressure on the supremacy of the universal church grew rapidly, from outside the church and from within.

A hundred years before Grotius (1583–1645), and hundred and fifty years before Pufendorf, Vitoria developed the first advanced Protestant theory of the law of nations (ius gentium).293 There are, in particular, two points where Vitoria’s Neo-Thomism (which in a way was the avant-garde of reform/reformation within the Catholic Church)294 radically differs from his famous Dominican brother Thomas Aquinas (1225–74) and the codices of medieval canon and civil law. First, at the latest from the beginning of the


295‘Imo, cum una res publica sit pars totius orbis et maxime Christiana provincia pars totius rei publicae, si bellum utile sit uni provinciae aut rei publicae cum damo orbis . . . puto eo ipso bellum esse iniustum. . . .’ (Vitoria, De Potestate Civili, p. 13).296Even the gloomy Spanish kings of the age of increased inquisition and of the persecution of Moslems, Jews and Protestants were far from absolutism, but presided over a (pre-parliamentary) constitutional monarchy. Only ten years before Vitoria gave his famous lectures in Salamanca, his friar Bartolomé Las Casas (1484/85–1566) publicly advised the Spanish kings and made a strong case in favour of the rights of the Indians, and with considerable (but unfortunately not lasting) success.297See Francesco de Vitoria, De Potestate Civili 6, 7, 13, 14, quoted from: Vitoria, Vorlesungen I-II, eds. Ulrich Horst, Heinz-Gerhard Justenhoven and Joachim Stüben. Stuttgart: Kohlhammer, 1995, Vorlesungen I, pp. 126–9, 138–41; Vitoria, De Indis: Prima Pars, II, 1–9, 22, III, Primus Titulus 3: ‘consensus maioris partis totius orbus’, quoted from: Vorlesungen II, 406–31, 448–53, 466–7; see Justenhoven, Francisco de Vitoria zu Krieg und Frieden. Cologne: Bachem, 1990, 46f, 57, pp. 68–73, 81, 83, 88–90, 93f, 98f, 106, 109, 120f, 175; Anghie, Imperialism, Sovereignty and the Making of International Law, pp. 17–20.298Kelsen, Das Problem der Souveränität; Justenhoven, Francisco de Vitoria zu Krieg und Frieden, pp. 73, 175, 178f.

Reformation onwards, there was no longer a universal power that had any legal competence to make decisions binding on sovereign principalities and magistrates. Only particular powers (princes, cities) were left, which were legitimated directly by universal natural law and the whole community of all their peoples. Therefore, the consensus (majority) of the community of peoples (orbis) was the higher law, and in case of conflict, the positive law of the particular states or provinces, including the whole Christian province, was considered null and void: ‘Because the particular state, and in particular the whole Christian province is part of the whole community of peoples, a war that is waged in the legitimate interest of a specific state, is an unjust war if it is not in the interest of the whole community of peoples.’295 Furthermore, the constitution of any single people no longer was to depend on its acceptance through ecclesiastical authority, and therefore excommunication lost all its force to delegitimize a specific ruler. The right of all peoples to consent to any form of government by majority vote was considered co-original with the creation by Vitoria. Therefore, the ultimate authority for making legally binding decisions lay with the prince in his council, with (representative) participation of the (educated parts of the) people, and, of course, under divine, natural and common law.296 As representatives of their people, princes and magistrates were acting as the sole organs of the universal order of peoples. Vitoria finally argued that the cooperative community of peoples was identical not with Western Christendom, but with all mankind. Mankind, which covers the whole globe (orbis), is the constituent power and legislator of the positive law of nations, which, therefore, only could be changed by the majority of all peoples.297 Vitoria’s new order of international law resembles Hans Kelsen’s later so-called primitive evolutionary stage of a decentralized cosmopolitan state, and it was understood thus by Protestants.298


299Vitoria, De Indis: Prima Pars III, Primus Titulus, p. 2.

Secondly, for the first time, the individual human being is constructed by Vitoria as a bearer of a right to have rights. The individual becomes an at least partially responsible subject of the ius ad bellum as well as the ius in bello. With Vitoria, the individualization of international law begins, long before the term ‘international law’, which replaced the old ius gentis (or law of nations) at the end of the eighteenth century, was invented. The legal equality of all humans becomes the most basic principle of natural law. Therefore, nobody has any original privilege that entitles him to political leadership and rule. Ultimately, a ruler is a legitimate ruler only because of his likeness to God, which he shares with all human beings, and not because of a specific civilizing advance, and be it that of the civilization of Christendom. Human beings’ god-likeness is inalienable. The story that finally leads to Marx’s lounge-suited, ordinary lawyer, thrown to the top by the ordinary game of general elections (Lincoln), who is the hero of the coming social revolution, or the story of Lenin’s cook who can govern a state, begins here. Because all humans are equal in their likeness to God, not only all humans but also all peoples (unbelievers as well as Christians) share certain subjective rights to equal freedom. The latter, Vitoria argues, is true also for unreasoning and insensate human beings. Finally, it is not reason that is so important for the Thomist Vitoria. It is their sense of injustice that distinguishes humans from animals, and makes them natural bearers of rights. Therefore, the right to hospitality, the natural right of everybody to travel and stay on earth where he or she wants to stay, is at the individualistic core of ius gentis. The statutory law of a prince or city that violates the right to hospitality (or as Kant later calls it, the right to associate) is, for this reason, without legal force: non haberet vim legis (null and void).299 Vitoria’s theory of natural law refers to the famous Aristotelian definition of man as a ‘political animal’, an animal sociale. But combined with the biblical notion of ‘brotherly love’, the political animal must be understood universally and individualistically. To be treated as a political animal, therefore, no longer is based on the generic essence (Gattungswesen) that is represented by the politically active urban best (vis à vis the rural idiots, women, passive homosexuals and slaves), but it is the inalienable right of everybody to be treated as a friendly cooperating political animal. The old European hierarchical thinking here is abolished. With one argument, Vitoria anticipates Kant’s famous individualistic foundation of international law (universal hospitality, right to associate) of the late eighteenth century, and the cooperative turn of international law in Article 1 of the UN Charter of 1946. Moreover, he also anticipates the idea of a natural human right to have civic rights, which was later postulated by Fichte,


300On the difference between Arendt’s and current international law’s right to have rights on the one hand, and Vitoria’s and Fichte’s natural or rational right to have rights, on the other, see Ch. III, Sec. IV 8.301Vitoria, De Potestate Civili, Vorlesungen I 7, pp. 128–31; Vitoria, De Indis: Prima Pars, I, 3: ‘Dominium fundatur in imagine Die. Sed homo est imago Dei per naturam. . . . Ergo non perditur per peccatum mortale.’, I, 4: ‘. . . quia possunt pati iniuriam. Ergo habent jus.’, III, Primus Titulus 1–3: Man is an ‘animal civile’ that is committed to universal brotherly love: ‘Omne animal diligit sibi simile. . . . Ergo videtur, quod amicitia ad omnes hominess sit de iure naturali et quod contra naturam est vitare consortium hominum innoxiorum. . . . Si autem lex humana esset quae prohiberet sine aliqua causa a iure naturali et divino [which allows for travel everywhere: licebat unicuique in quamcumque regionem vellet intendere et perigrinari], esset inhumana, nec esset rationabilis, et per consequens non haberit vim legis’, III, Primus Titulus 4: ‘. . . quia cum homo sit animal civile’, he must be the member of a ‘civitas. Si ergo non esset civis illius non esset civis alicuius civitatis, per quod impediretur a iure naturali et gentium.’, Vorlesungen II, pp. 390–1, 402–3, 460–67; Justenhoven, Francisco de Vitoria zu Krieg und Frieden, pp. 47, 60f, 71, pp. 96–9, 112, 114.302See for the same argument: Martin Luther, ‘Von weltlicher Obrigkeit’, in Werke 11, Weimar, 1900, pp. 245–81, p. 277, quoted from: Ulrich Preuß, ‘Martin Luther, Von weltlicher Obrigkeit (1523)’, in Manfred Brocker (ed.), Geschichte des politischen Denkens. Frankfurt: Suhrkamp, 2007, pp. 137–50, at: pp. 137–50, at: pp. 145–6.

Hegel and Arendt.300 Because man is a political or civic animal, he must be a member of a specific civic community. It is the law of nations that prescribes this. Otherwise, a human being would be excluded from natural law as well as from the common law of nations, and that cannot be legal. Therefore, states must naturalize stateless inhabitants, and, in particular, if they are born within the respective community or on the territory of the respective state (ius soli). Additionally, Vitoria’s individualistic turn of the law of nations is so distinctive that he argues that even soldiers (under certain conditions) share the responsibility of the prince who wages an unjust war. In the same way as in the doctrines of the Protestant lawyers, for Vitoria, the individual conscience becomes the last authority to decide in case of doubt. Moreover, Vitoria argues that a soldier is relieved of his duty to submit to a military order if there is clear evidence that the prince has waged an unjust war.301 Here again, individual conscience is the last instance, as in the Protestant theology of his contemporary Luther.302

The protest of Vitoria, the school of Salamanca and, in particular, of the famous Bishop Bartolomé de Las Casas against the oppression, exploitation and enslavement of the Indians was not without success. In 1537, the Papal Bull Sublimus Dei banned slavery of the Indians and of all human beings.

(C) But not only in politics, in public law and in the law of nations can we observe a ratchet effect that has erected a normative constraint against any return path which leads beyond individualism and the final foundation of the legal order on the consent of the people, and the universal community of peoples (mankind). The ratchet effect is also significant in private and civil law which – involuntarily (see Weber’s famous analysis at the end of his Protestant


303Berman, Law and Revolution II, p. 281.304Ibid., p. 281, see 340.305Berman, Law and Revolution, p. 178 (German transl. p. 296).306Gorski, Disciplinary Revolution, p. 21.

Ethics) – opens the path for the evolution of modern capitalism. A paradigm case for the implementation of the Protestant ethics in civic law is a precedent from the time of the English Revolution, which established the doctrine of absolute contractual liability. In Paradine v. Jane, the King’s Bench decided in 1647 that the signer of any contract is liable ‘regardless of impossibility of performance’. The defendant lessee, being sued for nonpayment of rent, ‘pleaded that the invading army of the German Prince Rupert had driven him off the land so that he could not enjoy it or take the profits from it. The court summarily rejected this defense.’ This was even though the council for the defendant had made use of all available legal instruments: The ‘law of reason’, ‘civil law’, ‘canon law’, ‘martial law’, ‘law of nature as well as of nations’ and all great moral authorities. All this did not impress the court and its Calvinist judges, who stated

that by the common law of England “when the party by this contract creates a duty or a charge upon himself, he is bound to make it good . . . notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.”303

Yet the judges did not just apply common law, but created new law, and they took it from the Protestant doctrines of predestination and their belief in the sanctity of covenants (going back to scripture and the biblical covenants). This belief coincided with the ideal interests of the coming ruling classes of landed aristocracy and urban bourgeoisie (City of London), together with that of the poor rural masses of Protestant believers. But in this path-breaking case of contract law, the ideal interests were in ‘pre-established harmony’ (Marx) with the material interest of the coming ruling class alone, the ‘mercantile emphasis on security of bargaining transactions’.304


Protestantism went a huge step further in the ‘process by which the transcendent becomes immanent’.305 The practical implication of the Catholic doctrine of incarnation was that human praxis could overcome sin partially and top down in a hierarchical order. Calvinists were much more radical. They wanted to overcome sin completely and bottom up, hence independently of hierarchy and privilege.306 Therefore, the ‘God of Calvinism demanded of his


307Weber, Gesammelte Aufsätze zur Religionssoziologie I, p. 114, Engl. translation: http://www.marxists.org/reference/archive/weber/protestant-ethic/ch04.htm (23 February 2012).308Ibid., pp. 110–1. Engl. translation: http://www.marxists.org/reference/archive/weber/protestant-ethic/ch04.htm (23 February 2012).309Merton, The Puritan Spur to Science, p. 252.310Ibid., p. 252.

believers not single good works, but a life of good works combined into a unified system’.307 This system, the ethical system of a methodological lifestyle (Weber), accorded as exactly with the universal systems of modern science as it did with a modern ethics of autonomy: ‘In practice this means that God helps those who help themselves. Thus the Calvinist, as it is sometimes put, himself creates his own salvation.’308 This does not at all abolish the difference between transcendence and immanence, but clearly is a far step further in the direction from transcendence to immanence, if we compare it with Anselm, for instance. While for Anselm and the intellectuals of the Papal Revolution reason (and reason alone) had to prove what was the undeniable foundation of reason, the existence of God and the facticity of incarnation, Protestants bound the truth of faith completely to contingent and profane experience. They assumed that ‘immutable law is as pronounced in the doctrine of predestination as in scientific investigation’.309 For Protestant believers as well as for scientific investigation, ‘all religious belief’ ‘and all scientific statements, respectively, are subject to tests by ‘reason and experience’, ‘except the basic assumption’ of Protestant belief or scientific investigation.310

While the Papal Revolution copied the difference between transcendence and immanence into this world and transformed the dualism of transcendence and immanence into a graduated and historical continuum of legal spheres, the Protestant Revolution freed immanence totally from the dualism of the two realms and copied the dualism into the conscience of the individual believer and/or the discursive conscience of the community of believers. Transcendence no longer befalls the objective and social world from outside, but only the subjective world of the individual. The internalization of the fundamental laws which have been discussed in previous sections is a striking example. Natural and divine law, both systematized and founded through the Decalogue, are transformed step by step into the constitutional law of the political association. Once it becomes constitutional law in practice, it undergoes an irreversible process of legal positivization. The same is true for canon law, which becomes public criminal and civil law. With the second great shift from transcendence to immanence, the earthly world is integrated completely into the horizon of a lifeworld that is made by man, and a society that is engendered by the legislative machinery of an authoritarian Lutheran Obrigkeit, or a Calvinist republican community.


311Blickle, Der Bauernkrieg, p. 101. The whole old German title is: An die versammlung gemayner Pawerschafft/ so in Hochteütscher Nation/ vnd vil anerer ort/ mit emporung und aufrur entstanden (To the assembly of the common peasantry which in the German nation and many other places has arisen in outrage and insurrection).312Blickle, The Revolution of 1525, p. 156.313Short on this point: Joachim Ritter, ‘Hegel und die Reformation’, in Ritter (ed.), Metaphysik und Politik. Frankfurt: Suhrkamp, 1977, pp. 310–17.

However, in the process by which transcendence becomes immanent, Zwinglians and Calvinists went much further than the Lutherans. Significant is a pamphlet by an Anonymous of 1525 that is addressed to the assembly of the peasants. The Anonymous sharply rejects Luther’s Augustinian doctrine of the two realms and argues for the message of salvation not to be separated from the legal sphere, or the divine law of the second command (which concerns salvation) from the law of public interest.311 The whole revolutionary movement of 1525 (see part 5) was designed as a process of transcendence becoming immanent. It is just this design that explains its broad social basis:

If we accept the uncontroversial idea that the Reformation began as a popular movement, then the broad base of the revolutionary movement in 1525 can hardly astonish us. The goal of these programs, after all, was at long last to shape the world exactly according to the will of God, to actualise the message of Christ . . ., and thus to secure eternal salvation. This world and the world to come became more closely intertwined in 1525, and both were anchored in a will of God that stretched out over both “kingdoms” – the spiritual and the secular. This sense of unity corresponded to the mentality of the common man, who could not imagine himself inhabiting two kingdoms, since he saw himself as undivided. For him the removal of oppression and misery was part of salvation and blessedness.312

(3) Modernism

Hegel tells us a simple story of the emergence of modern times and modern spirit.313 For Hegel, modern freedom begins with the Lutheran Reformation. Modern freedom is universal freedom: All humans are free by and in themselves. Human beings as human beings are free. The origin of this modern idea of freedom in Hegel’s narrative goes back to early Christianity, and Christianity alone. But the idea embodied in the narrative of the incarnated God was repressed for at least 1000 years by the negativity of the existing hierarchical society and its episteme of inequality. Reformation conceptually liberated us from this history of repression, which Luther called the Babylonian captivity of the church in 1520. Reformation annihilated the ‘dominant


314Hegel, Wissenschaft der Logik II. Hamburg: Meiner, 1975, p. 410, english: http://www.marxists.org/reference/archive/hegel/works/hl/hlidea.htm#HL3_754 (28 April 2013).315Hegel, The Philosophy of History, trans. by J. Sibree. Ontario: Batoche Books, 2001, p. 430, see: pp. 32–3, 362–3, 431–57; Hegel, Vorlesungen über die Geschichte der Philosophie. Frankfurt: Suhrkamp, 1971, pp. 49–58. See Luther, On the Babylonian Captivity of the Church, quoted from: http://www.ccel.org/ccel/luther/first_prin.v.iii.html (9 July 2012).316Johann Wolfgang Goethe, Faust. Stuttgart: Kröner, 1949, pp. 51–2. English quotes from: http://www.gutenberg.org/cache/epub/14460/pg14460.html (1 February 2002).317Goethe, Faust, p. 54. English quotes from: http://www.gutenberg.org/cache/epub/14460/pg14460. html (3 February 2012). Adorno rightly objects here by asking how green and lively a ‘golden tree’ could be. For Adorno, this is a clear case of gold, money and commodity fetishism (Adorno, ‘Marginalien zu Theorie und Praxis’, in Adorno (ed.), Stichworte. Kritische Modelle 2. Frankfurt: Suhrkamp, 1969, pp. 169–91, at 169). Goethe saw it not that differently when he concluded the passage with the verses of Mephistopheles: ‘Only despise all human wit and lore / The highest flights that thought can soar. . ./ Into my snare the victim creeps’ (Goethe, Faust, p. 50, English quote from: http://www.gutenberg.org/cache/epub/14460/pg14460.html, accessed 03 February 2013, English translation by Charles T. Brooks, originally published Boston: Tricknor&Fields, 1868). (03 February 2013). Read this way, Goethe’s Faust becomes a metaphor for the Weberian great transformation from the Protestant ethics to the spirit of capitalism.

notion’ (machthabenden Begriff) of the state that was the Catholic Church and substituted it with another notion that accords better with the concept of universal freedom.314 Because of this emancipatory advance, Hegel calls the Reformation ‘the all-enlightening Sun’.315 The opposition of Babylonian captivity vs. enlightening Sun is typical for all claims of modernism, which all try to excel former times by a series of caricatures of the dark ages that have been overcome now – thanks to heroes such as Hildebrand, Luther, Jefferson, Robespierre and Lenin.

Goethe’s play Faust (which is set during the time of the Reformation) contains a brilliant, simultaneously ironical and serious caricature of the dark age of a scholasticism that is not only scientific nonsense, but also the greatest disciplinary and oppressive power that was ever seen in history, and thankfully was shaken off by the Reformation: ‘Then is your mind well trained and cased/ In Spanish boots, all snugly laced,/ So that henceforth it can creep ahead/ On the road of thought with a cautious tread.’ Mephistopheles explains to the student that scholastic logic is a ‘cautious tread’, which tries to get rid of the lively spirit, disassembles everything into pieces, reduces and classifies, and finally cuts the spiritual tie that holds the societal community together. After the scholastic collegium logicum the student is ‘confused/ As if ‘twere a mill-wheel going round in [. . . [his] head’.316 Thereafter, he is fit for Mephistopheles’s alternative: ‘Gray, worthy friend, is all your theory/ And green the golden tree of life.’317 As in the age of the Papal Revolution, history is divided into an emerging realm of light and a decaying realm of darkness, and the universities are only now, after the Reformation, at the height of the powers of innovation. In 1546, Petrus Ramus looks back in horror to times a hundred years ago when teaching, learning and science were in a ‘barbarian’


318Petri Rami, Oratio de studiis philosophie et eloquentiae coniungendis, Lutetiae habita, anno 1564, quoted from Rüegg, ‘Themen, Probleme, Erkenntnisse’, in Rüegg (ed.), Geschichte der Universität in Europa, Band II: Von der Reformation bis zur Französischen Revolution 1500–1800. Munich: Beck, 1996, p. 27.319Noah Biggs, Mataeotechnica Medicine Praxeos. London, 1951, quoted from: Merton, The Puritan Spur to Science, p. 239.320Thomas Sprat, The History of the Royal Society of London. London: J. Martyn, 1667, p. 19, quoted from: Merton, The Puritan Spur to Science, p. 237, note 28, see p. 248.321Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes. Cambridge: Cambridge University Press, 1996; Walter J. Ong, Orality and Literacy. London: Routledge, 1995, p. 132 et seq.322From a Hegelian point of view, people like Tocqueville are deeply wrong when they argue that in an aristocratic society, true freedom is realized (at the price of equality), and in a democratic society, equality (at the price of freedom). (see Tocqueville, Alexis de, Democracy in America, trans. and ed. Harvey C. Mansfield and Delba Winthrop. Chicago: University of Chicago Press, 2000). They miss the very dialectical point that freedom and equality can only be increased together. As in systems theory, and already in Durkheim’s sociology of the social differentiation of professions, more autonomy and independence means (and is enabled by) more dependency, and less dependency

and ‘crude’ state of ‘darkness’ compared with the ‘light and brightness of today’.318

The same was true of the Calvinist revolutions in the Netherlands and England. Noah Biggs, a Puritan physician, chemist and university reformer, in 1651 attacked the scholastically dominated university system of his days as ‘rubbish that has pestered the Temple of Knowledge’. He charges it with having expelled ‘Mechanical Chemistry’, ‘real experiences’, ‘examination and consecution of Experiments’, ‘ocular demonstration of herbs’, in a word: the whole ‘new world of Knowledge’ from the universities.319 The historian Thomas Sprat (1635–1713) argued in 1667 that monastic asceticism was one of the main religious causes of the lack of empiricism of the schoolmen.320 The polemic against scholasticism was reinforced by the unleashing of the communicative power of the printing press: the general turn from the rhetorician to the writer. Rhetoric now is denounced everywhere, in the name of sola fide and sola scriptura, and in the name of sober science and philosophy.321 Backed by the printing press, Freedom from the Church was supplemented with the humanist slogan: Freedom from the devil’s rhetoric seduction machinery.

Hegel makes a systematic point on the progress of freedom that is based on the great liberation war against the Babylonian captivity of the so-called medieval dark age and its horrible scholastic rhetoric. In the ancient European society (Rome, Athens), Hegel argues in his Lectures on the Philosophy of History, only some people (the aristocrats) were free. But the freedom of the few cannot be true freedom for Hegel because it violates the universal concept of freedom. Because freedom is universal, there is no real freedom in a society where some are free and the others are not.322 In such a societal environment


means less independence. Already, the literal meaning of auto-nomy means that the more effective freedom is, the more effective the laws are. Both things can be increased only together.323Hegel, Geschichte der Philosophie, p. 49, my trans., in German ‘der unendlichen Entzweiung und der greulichen Zucht’.324Hegel, Philosophy of History, p. 362.325Hegel, Grundlinien der Philosophie des Rechts, Vorrede, p. 27, my trans. In German: ‘nichts in der Gesinnung anerkennen zu wollen, was nicht durch den Gedanken gerechtfertigt ist’. I came upon this crucial quote reading Ruda, Hegels Pöbel, pp. 29–30.326Hegel, Geschichte der Philosophie, p. 51, English translation quoted from: http://www.marxists.org/reference/archive/hegel/works/hp/hprevival.htm.327Hegel, Phänomenologie des Geistes, p. 24 – with an explicit reference to the Reformation, beginning this sentence with the equivalence of ‘Leben Gottes’ and ‘göttliches Erkennen’. English translation: http://www.marxists.org/reference/archive/hegel/works/ph/phprefac.htm.

of incomplete freedom, even a church like the Christian one, which already had anticipated universal freedom conceptually, had scarcely any other option to survive than by participating actively in its own Babylonian captivity. It had to internalize the dominant notion. Hegel describes the Babylonian captivity of the Church of universal freedom, therefore, as a time of ‘endless division and dreadful discipline and punishment’.323 The Reformation freed mankind from Babylonian captivity and revealed the universal truth of freedom: ‘The Christian principle has now passed through the terrible discipline of culture, and it first attains truth and reality through the Reformation.’324 Already the Constantinian turn (333), but certainly at the latest, the Papal Revolution, can be seen as the Thermidor of the church. What was meant by the title of Luther’s pamphlet Von der babylonischen Gefangenschaft der Kirche was that the legal body of the church was the Babylonian prison of the spiritual body of the faithful Christian people, and the name of the prison was canon law, which was equated with scholasticism. Therefore, the reference to the Babylonian captivity in the title of Luther’s pamphlet meant nothing short of Freedom from the Church!

Because Luther and his comrades re-established the church by faith alone, Hegel represents Luther as the one who passed the threshold to modern times. He was not the original thinker of Protestant ideas, which were older and existed already, but he made them popular and caused a revolution. For Hegel, sola fide was the ratchet effect that marked the point of no return. The ultimate meaning of sola fide that Hegel makes explicit is the ‘peculiar principle of Protestantism’: ‘to recognize nothing in sentiment which is not justified by thought’.325 For Hegel, sola fide signifies the universal breakthrough of the reflexive relation of the self to itself, which is the ‘principle of subjectivity’. The principle of subjectivity is nothing else than the consciously performed ‘pure relation to me personally’.326 The reflexive relation binds faith (Gesinnung) to reason (‘justified by thought’). It is the result of a historical learning process that has negated the negativity of existing society again and again through ‘the seriousness, the suffering, the patience, and the labour of the negative’.327


328Hegel, Geschichte der Philosophie, p. 49, English translation quoted from: http://www.marxists.org/reference/archive/hegel/works/hp/hprevival.htm.329Ibid., p. 55, English translation quoted from: http://www.marxists.org/reference/archive/hegel/works/hp/hprevival.htm.330Luhmann, Die Gesellschaft der Gesellschaft, p. 292 (my transl).331Hegel, Geschichte der Philosophie, p. 49.

The Reformation has completed this process, which now enables the self to appropriate the world by his or her own work, and hence allows the ‘mediation without a separating wall’ of the social class differences of stratified society, whereas it was ‘formerly’ stabilized by the fact that ‘a brazen wall of division was present separating the laity from the church’.328 The mediation without a brazen wall of division is done by sola scriptura which is read sola fide. For Hegel, this can be generalized, and its universal meaning is that the subject reflects itself: this is why the mediation is without a separating wall. Hence, in the religious context of the individual interpretation of the Bible by any of its readers, every reader now must ‘confirm [it] in [his/ her] heart’ because there is only one ‘criterion of truth’ left, namely that ‘the fact that I judge and know rightly – or that what I hold to be true is the truth – must be revealed to my heart’.329 But this then can and must be generalized to all thinking, talking and reading, because (for Hegel) religion is only one application of the principle of subjectivity. People began to read the Bible themselves, and ‘readers, once they read the Bible, can also read other texts’.330 Therefore, the final meaning of sola scriptura and sola fide is the egalitarian mediation of the formation of the autonomous self through everybody’s learning. For these reasons, Hegel calls the Reformation ‘die Hauptrevolution’ (the main or key revolution) of modern progress in the consciousness of freedom.331 Obviously, Friedrich Engels implicitly refers to Hegel’s reconstruction of the historical form of reflexive subjectivity formed by Protestantism when he describes the theological-philosophical doctrine of Thomas Müntzer. Like Hegel, Engels tacitly switches from faith to reason. Engels rightly seems to think that the peasant war was the Hegelian concretization and sublation of Luther’s spiritually limited concept of freedom. Müntzer, Engels observes, ‘repudiated the assertion that the Bible was the only infallible revelation. The only living revelation, he said, was reason, a revelation which existed among all peoples at all times.’ Like Hegel, he sees universal subjective freedom at the core of the sola fide message of Protestantism, and the beginning of a reflexive movement of criticism that goes far beyond the restricted context of Luther’s particular freedom of the Christian:

To contrast the Bible with reason, [Müntzer] maintained, was to kill the spirit by the latter, for the Holy Spirit of which the Bible spoke was not


332Engels, Bauernkrieg, p. 353, English translation quoted from http://www.marxists.org/archive/marx/works/1850/peasant-war-germany/ch02.htm (23 October 2013).333Ibid.

a thing outside of us; the Holy Spirit was our reason. Faith, he said, was nothing else but reason become alive in man, therefore, he said, pagans could also have faith. Through this faith, through reason come to life, man became godlike and blessed, he said.332

Therefore, and here the left-Hegelian Engels parts ways with Hegel in how he overcomes the dualism of transcendence and immanence through the advances of reflexive subjectivity, and pushes Müntzer in the direction of his own historical materialism:

Heaven was to be sought in this life, not beyond, and it was, according to Muenzer, the task of the believers to establish Heaven, the kingdom of God, here on earth. As there is no Heaven in the beyond, so there is no Hell in the beyond, and no damnation, and there are no devils but the evil desires and cravings of man. Christ, he said, was a man, as we are, a prophet and a teacher, and his “Lord’s Supper” is nothing but a plain meal of commemoration wherein bread and wine are being consumed without mystic additions.333

Hegel’s story, which he himself calls universal history, is still fascinating, and contains many profound insights into the modern mind: first and paramount, the normative insight that freedom is possible only as egalitarian freedom; then that freedom is the reflexive autonomy of ‘subjects’ as human beings; that law is freedom, and that coercive law and law that emancipates us from coercion are the productive antinomy of legal form; and that, last but not least, negativity and dialectical negation are at the core of a cognitive and normative learning process that is constitutive for the emergence of a comprehensively modern mind (in each of its different manifestations – ‘subjective’, ‘objective’ and ‘absolute’ ones). Finally, Hegel is right to emphasize that one of the advances of Protestantism was the emancipation of reflexive subjectivity from the shackles of a stratified society and the class rule of the clerics. But Hegel’s narrative is no longer plausible as a historical or evolutionary narrative.

First, Hegel had a very limited concept of modern society. Mind precedes society, and society is only one of the three branches of objective spirit besides family and state. Society is reduced to the civil society of market economy, civil law, political surveillance (Polizey) and corporation. The state


334On the notion of Übergangssemantik: Stichweh, ‘Professionen in einer funktional differenzierten Gesellschaft’, in Arno Combe and Werner Helsper (eds), Pädagogische Professionalität. Frankfurt: Suhrkamp, 1996, pp. 49–69.335Brunkhorst, Kommentar zum 18. Brumaire des Louis Bonaparte.336World society is not only culturally mixed and diversified, but now also modern everywhere and all the time. Even if – as is arguable – modernity was European once, it is not European or Western any longer. Moreover, it originates in a great variety of sources which have been developing at the latest since the Axial Age in ever different and changing formations of entangled cultures that cover the whole Eurasian continent.337For a very plausible distinction between four surges in globalization, see Osterhammel and Petersson, Geschichte der Globalisierung.

is the higher category, and only the state, not society, can become the true reality. From the perspective of the true reality of the state, society is only a partial state with a partial, instrumental truth (Not- und Verstandesstaat). From a systems-theoretical point of view, one could rightly say that Hegel’s whole Philosophy of Right provides us with a hybrid semantics of transition (Übergangssemantik) between traditional, stratified society and modern, functionally differentiated society.334 But sociology and critical theory (Marx) have turned the Hegelian relation of mind and society upside down. The society of sociology is no longer the society of the mind, but the mind of society. All spheres of objective mind, family as well as the state, have become the family of society, the state of society, the economy of society, the law of society, including the branches of the absolute mind as branches of society, as religion, science or art of society.335 Secondly, the Hegelian story has a clear Eurocentric bias. He locates the origins of modern times and modern freedom in two sources of universal history alone: Athens and Jerusalem. But, as we have seen, there are many beginnings of freedom and rationality in the whole Eurasian space, and maybe even beyond. Therefore, telling one story of the evolutionary origins of modern society beginning in Athens and Jerusalem does not exclude the possibility of there being more evolutionary origins of modern society, and therefore of their all coming together in the cultural mix of current world society.336 Thirdly, Hegel’s representation of the Reformation is due to the mistakes of national history, which emerged at the same time as Hegel’s philosophy in the early nineteenth century. Weber already corrected the view that the Reformation was primarily a Lutheran revolution. It was as much, or even much more a Calvinist one (including in Prussia!). Furthermore, it was not a German revolution, but one part of a European revolution at the threshold between the first and the second push towards globalization.337 Fourthly, universal law was not just added to universal freedom through the French Revolution, in a dialectical process of successive completion and perfection of less


338Hegel argues that the ‘mere subjectivity of man, mere freedom of man, the fact that he has a will . . . does not constitute any justification: for else the barbarous will, which fulfils itself in subjective ends alone, such as cannot subsist before reason, would be justified’. Therefore, the Protestant Revolution of the will must be completed by the French Revolution of law. Only then a ‘self-will’ could be established that ‘obtains the form of universality, [whose] ends are conformable to reason, and [who is] apprehended as the freedom of mankind, as legal right which likewise belongs to others’ (Hegel, Geschichte der Philosophie, p. 51, English: http://www.marxists.org/reference/archive/hegel/works/hp/hprevival.htm, 29 April 2013).339Schilling, Die neue Zeit, pp. 356–60, 366–67, 378–79, 387; Stolleis, Geschichte des öffentlichen Rechts in Deutschland, Erster Band 1600–1800. Munich: Beck, 1988, pp. 72–3.340Thornhill, A Sociology of Constitutions, p. 89.341Berman, Justice in the U.S.S.R., p. 178.342Berman, Law and Revolution II, p. 100, pp. 102–11, p. 113.

complete formations of spirit.338 On the contrary, the Protestant revolutions themselves were, as we have seen, first and foremost legal revolutions. Here, Hegel (like Weber) neglects the role of law in Protestantism because his attention is so focused on Luther’s theology and its philosophical point (in a similar way to that in which Weber’s attention is focused on ethics and its sociological point).

The need for professional lawyers and judges increased enormously in all the Protestant kingdoms and cities. The sixteenth century experienced an educational revolution. The university system grew everywhere, and for the first time, more academics were produced than were needed. Especially lawyers were needed for the administration of the rapidly growing state power.339 The positivization of law accelerated dramatically.340 As important as the quantitative changes were the qualitative ones. While for the canonists, the authority of the legal text had priority, Protestants replaced authority with the individual conscience of the judge, legislator or addressee of the legal norm. Individual conscience (sola fide) was, as we have seen in previous parts, integrated into legal method and became the ultimate arbiter in all legal and moral decisions. The Lutheran jurists, strongly supported by the attacks of humanists and publishers/printers against earlier understandings of Roman Law and glossal techniques, invented the method of legal topoi, which replaced (or at least complemented) scholastic dialectics. The new reception of Roman law finally resulted in a ‘recreation of the medieval Roman-and-canon legal system out of which it grew and against which it reacted’.341 The topical method of explaining the ratio scripta became the usus modernus protestantorum. Instead of disclosing the recognizable truth of the text, the Protestant jurists deduced it from biblical and naturally reasonable principles that were in accordance with their own individual conscience. Only then could it be confronted with existing law, and had to be used as a means of assessing and improving the latter.342


343‘The Trial of Christopher Love before the High Court of Justice for High Treason’, in T. B. Howell (ed.), A Complete Collection of State Trials and Proceedings of High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, vol. V. London: Hansard, 1816, pp. 43–268, 171–2, quote at 251.344The Trial of Christopher Love, p. 251.

Not only Lutherans, but also Zwinglians and Calvinists used the sources of divine law as legal principles to (re)construct, change and improve the existing statutory and common law. Paradigmatic here is a statement of the Lord President Richard Keble of the London High Court of Justice in 1651 in the high-treason trial against Christopher Love. The statement comes close to a Weberian ideal type of Protestant jurisdiction:

There is no law in England but is as really and truly the law of God as any Scripture phrase, that is by consequence from the very texts of Scripture: So is the law of England the very Decalogue itself; and whatsoever is not consonant to Scripture in the law of England is not the law of England, the very books and learning of the law: whatsoever is not consonant to the Law of God in Scripture, or to right reason which is maintained in Scripture, whatsoever is in England, be it Acts of Parliament, customs, or any judicial acts of the Court, it is not the law of England, but the error of the party which did pronounce it; and you, or any man else at the bar, may so plead it.343

The existing law is not simply abolished and replaced by divine law, but radically reinterpreted in the light of divine law, and especially the Decalogue. The last words of Love to the Lord President after the latter had condemned him to death are just as much in exact accord with the Protestant scheme. Love resorted to the ultimate authority of his conscience, sola fide: ‘My lord, so you have condemned me, yet, this I can say, that neither God nor my own conscience does condemn me.’344 What the common man of 1525 wanted, namely, divine law (sola scriptura) reconstructed through everyone’s right reason (sola fide), had become the law of England by the middle of the seventeenth century, and it was a very complex system. First of all, the theory of reason based on faith was much further developed by the English Calvinist lawyers in the seventeenth century than it had been by German Lutheran and Zwinglian lawyers. Sir Edward Coke (1552–1634) had already drawn the crucial difference between the natural reason of any person and the artificial reason of the law itself. To make use of the artificial reason of law, it needed (1) faith-based natural reason plus (2) the technical and professional training, socialization and experience of (3) the whole community of lawyers. It needed, as Coke argued, ‘long study, observation, and experience’ because the common law ‘is nothing but reason’ that in ‘many successions of ages’


345Edward Coke, The First Parts of the Institutes of the Laws of England, ed. by Robert H, Small, Philadelphia: R. Pheney & S. Brooks, 1853, 97b, p. 1; quoted from: Berman, Law and Revolution II, p. 242. On Coke’s notion of artificial reason, see Gray, Reason, Authority, and Imagination: The Jurisprudence of Sir Edward Coke.346Berman, Law and Revolution II, p. 245.347Barbara Shapiro, Probability and Certainty in Seventeenth-Century England. A Study of the Relationships between Natural Science, Religion, History, Law, and Literature. Princeton: Princeton University Press, 1983, p. 165.348On ‘rational reconstruction’, see Lakatos, The Methodology of Scientific Research Programmes; Apel, ‘Scientistik, Hermeneutik, Ideologiekritik’, in Apel (ed.), Hermeneutik und Ideologiekritik. Frankfurt: Suhrkamp, 1971, pp. 7–44, at: pp. 36–44; Lorenzen, Paul, ‘Scientismus versus Dialektik’, in Gadamer, Hans-Georg and Bubner, Rüdiger (eds), Hermeneutik und Dialektik I. Tübingen: Mohr, 1970, pp. 57–72; Habermas, Rekonstruktive vs. verstehende Sozialwissenschaften, in Habermas (ed.), Moralbewußtsein und kommunikatives Handeln. Frankfurt: Suhrkamp, 1983, pp. 29–52.349Gray, Reason, Authority, and Imagination, p. 46.350Berman, Law and Revolution II, p. 264.351Gray, Reason, Authority, and Imagination, p. 37.

‘hath been . . . refined by an infinite number of grave and learned men, and by long experience grown to such a perfection for the government of this realm, [that] the older rule may be justly verified of it, Neminem opportet esse sapientiorem legibus; no man out of his own private person ought to be wiser than the law, which is the perfection of reason’.345

The distinction is remarkable. First, from the seventeenth century (and not earlier), common law is no longer just lived traditionalism, but artificially (re)constructed tradition.346 Coke, like his fellows Hale (1609–76) and Selden (1584–1654), were ‘deeply involved in historical investigation’. Their ‘historical interest’ was not ‘historicist’ in the mere scientific sense of the nineteenth century, but immediately related to practical interests within the class struggles of the revolutionary age. Common lawyers like Coke were serious historians, but also ‘manipulated their findings about the past to serve their present interests’.347 They did not only discover, but also constructed and reconstructed the supposedly ‘old tradition’ of common law rationally.348 The revolutionary (re)constructed common law was as crucial for the first historization of law (long before romanticism and Savigny) as it was for the development of national law founded in national history: the ‘discovery of history and the historical discovery of England’.349 The first axiom of the English lawyers, from the outbreak of the revolution at the latest, was that England is the elect nation.350 But the historization of law and the identification of the truth of law with English law did not mean historical relativism (that came much later). On the contrary, English law for Coke and the common lawyers was valid because it already included ‘universal ethical standards’, natural and divine law that showed English laws to be in ‘consonance with those of other nations’.351 Yet universal law alone was not sufficiently determined to decide hard cases and to apply universal law to a specific case. Nevertheless,


352Quoted from: Merton, The Puritan Spur to Science, p. 241.353Eisenstein, The Printing Press as an Agent of Change. Cambridge: Cambridge University Press, 1979, p. 143.354Merton, The Puritan Spur to Science, p. 231.

universal and, in particular, biblical law always worked as a measure for reconstructing the true meaning of common law and for changing it in case of doubt. But Coke’s distinction is also most significant for the close and reciprocal relation of modern common law (which is no older than the English Revolution) to the ‘absolute spirit’ (Hegel) of modern natural science which emerged, or even exploded, in the age of the revolution in England, as we can see from the lament of Isaac Borrow, a Greek professor at Cambridge University in 1663: ‘I sit lonesome as an Attic owl, who has been thrust out the companionship of all other birds; while classes in Natural Philosophy are full.’352

The absolute spirit of science was at the core of Protestant modernism. Like the Papal Revolution, the Protestant Revolution was accompanied by a veritable scientific revolution. It was strongly reinforced by the new media. Science is always close to new media. In our days, the internet has been used first by the scientific community, and only afterwards by the CIA and Wall Street. So it was in the days of the Protestant Revolution, when the new ‘run-away-technology’ enabled the formation of a ‘cosmopolitan book trade network’.353 Everything changes in periods of sharp transition, and all branches of the mind are involved:

New patterns of conduct must be justified if they are to take hold and become the foci of social sentiments. A new social order presupposes a new scheme of values. And so it was with the new science. . . . In partnership with a powerful social movement which induced an intense devotion to the active exercise of designated functions, science was launched in full career.354

The emergence of modern natural science was, as Robert K. Merton has shown in his path-breaking and by now classic study from the end of the 1930s, due much more to Protestantism than to Humanism and the so-called Renaissance. Even if Protestantism is not indispensable for the emergence of modern science, it caused the strongest push, particularly towards the organization of science as a corporative endeavour. No doubt the specific combination and reciprocal reinforcement of science and Protestantism has accelerated the evolution of modern society considerably. Not only the rise of a Protestant work ethic together with the class interests of the rising class of merchants explains the affinity of Protestantism to the new


355Ibid., p. 229; Steven Shapin and Simon Schaffer, Leviathan and the Air Pump. Princeton: Princeton University Press, 1985; Shapiro, Probability and Certainty in Seventeenth-Century England.356Shapiro, Probability and Certainty in Seventeenth-Century England, p. 167.357Ibid., p. 168.358Ibid., pp. 168–9.359Berman, Law and Revolution II, p. 267.360Shapiro, Probability and Certainty in Seventeenth-Century England, p. 168.361On the former, see Berman, Law and Revolution II, pp. 76–7, 80–1, 96; see Shapiro, Probability and Certainty in Seventeenth-Century England, p. 169; on the latter, see Merton, The Puritan Spur to Science, p. 232.

sciences, but also, and even more so, the theologically motivated interest in legal studies.355 There were very close links ‘between law and the scientific revolution of the seventeenth century’.356 Most of the major legal scholars ‘of the bar of that day were immersed in the new science’, and they ‘frequently drew on the same central core of ideas for both their legal and scientific pursuits’.357 It was not so much the deductive-mathematical revolution of that time (Galilei, Descartes, Bacon, Hobbes, Spinoza, Leibniz), but especially the co-original probabilistic-empiricist and experimental revolution of natural science (Newton, Boyle) that was influenced deeply by legal thinking and vice versa. Legal methods and procedures were deeply influenced by the new empirical sciences. Legal theorists such as Edward Coke, John Selden and Matthew Hale had an important impact on the emergence of scientific empiricism, and the common law lawyers were in close, direct or indirect contact with Isaac Newton (1643–1727), Robert Boyle (1627–92), John Locke (1632–1704), John Ray (1627–1705) and the other, mostly Calvinist members of the Royal Society (founded in 1660). The most important intellectual developments of the seventeenth century ‘occurred almost simultaneously in law and science’. Both lawyers and scientists used the same methods of categorical systematization, both used either casebooks or court reports for the same purpose of ‘careful and accurate collection and correlation of data from which generalizations might be drawn’.358 The logical method of reaching general statements for scientists as well as for lawyers was inductive, not deductive inference. Against Bacon and Descartes, the new empirical scientists considered the experimental method the only one, which could only reach ‘moral’ certainty: that is, not absolute truth, but at best a high degree of probability. Newton and Locke denied altogether the capacity of the human mind to achieve absolute truth ‘and instead emphasized various empirical methods of achieving various degrees of probability in various fields of knowledge’.359 What for the scientist was probable truth, for the lawyers was a judgement without reasonable doubt.360 In accordance with the Lutheran jurists of the sixteenth century who radically reinterpreted law and legal validity using categories of social usefulness, Boyle and the English empiricists ‘identified the useful and the truthful’.361 In a strikingly similar


362Merton, The Puritan Spur to Science, pp. 232, 236, 240–1 note 42, p. 251.363Ibid., p. 242.364Ibid., pp. 236, 232, pp. 234–5.365Ibid., p. 234.366Weber, Religionssoziologie I, p. 535; Merton, The Puritan Spur to Science, p. 235.367Berman, Law and Revolution II, p. 257. In the twentieth century, this side of Hobbes (there will be more to be said on the other side in a moment) has been updated nostalgically by Carl Schmitt, whereas the position of the seventeenth-century common lawyers has been taken by the English wing of the German Gierke school of corporative law, in particular, Laski. See Vatter, ‘The Political Theology of Carl Schmitt’ in Jens Meierhenrich and Oliver Simons (eds), The Oxford Handbook of Carl Schmitt. Oxford: Oxford University Press, 2014.

way to that of the Lutheran jurists, the Calvinist scientists distinguished the individual (proof of predestination through scientific and professional success) from the social (enlarging control over nature) and the theological (glorifying God by disclosing the laws of His Creation) use of science.362 This made natural science popular and scientists the avant-garde of the avant-garde of Richard Baxter’s (1615–91) saints.363

The experimental study of nature was an important aspect of a Protestant’s methodical conduct of life (Weber). Experimental science was to Boyle ‘itself a religious task’. Through experimental science it was possible to ‘discover the true nature of the Works of God’.364 For the Protestant, man never could grasp God directly and reach absolute truth, as Anselm had still presupposed with his rational proofs of God, but he could glorify God by a ‘clear-sighted, meticulous study of His natural works’.365 Man is justified by becoming an instrument of God’s will (and the better the instrument, the better his chances to be elected and redeemed), and he can fulfil that task through a use of science that discloses natural and social truth, and is socially useful as a contribution to the Comfort of Mankind, as Boyle once put it.366 Therefore, Boyle and Hale (who were close friends) rejected the idea of man-made absolute truth. They argued that it was false because scientific knowledge is probabilistic, and it was dangerous because the quest for absolute certainty leads to dogmatism and repression of the dissent which is the ignition spark of scientific discourse. The latter was addressed directly to Hobbes, for whom dissent and disunity were the greatest evils of a commonwealth.367 At the same time as Spinoza in the Netherlands, the Calvinist lawyers and scientists strongly defended scientific freedom of research, discourse and dissent (even as a kind of human right) against all powers of religious intolerance as well as against rationalist philosophers of political sovereignty such as Thomas Hobbes. ‘Puritanism led inevitably to the elimination of religious restrictions on scientific work,’ and this for religious reasons. Man, sola fide, needs reason and experience even to ascertain religious truth. Here, we can see again that Hegel made an accurate point about the specific rationality of all Protestant revolutions: ‘To recognize nothing in sentiment which is not justified by


368Hegel, Grundlinien, p. 27. Quoted from Hegel, Philosophy of Right, trans. by S. W. Dyde. New York: Cosimo, 2008, p. XX (Preface).369Merton, The Puritan Spur to Science, p. 243.370Ibid., pp. 251–2.371Ibid., pp. 243–4.372See Gray, Reason, Authority, and Imagination, p. 45.

thought.’368 As long as faith remains unquestioned and not ‘rationally weighed’ (Baxter proclaimed), it ‘is not faith, but a dream, or fancy, or opinion’. This granted power to science that ‘ultimately limit[ed] that of religion’ because the unity of knowledge required that ‘the testimony of science must perforce corroborate religious beliefs’.369 Even the Bible ‘as final and complete authority was subject to the interpretation of the individual’, which had to be on the basis of scientific experience and experimental science. Though for the Calvinists, the Bible remained infallible, ‘the “meaning” of its content must be sought’ and there was a commitment to have ‘reason and experience “test” all religious beliefs, except the basic assumption, which . . . is simply accepted as a matter of faith’.370 But the Calvinist leaders, scientists and lawyers never defended any ‘relaxation of religious discipline over conduct’, which must be ‘conquered and controlled’, including all kinds of speech acts and symbolic expressions (with the one exception of freedom of speech for Members of Parliament in Parliament).371

Modern scientific, legal and political experimentalism was born in the Protestant, and, in particular, in the Calvinist revolutions, together with the pluralization of methods, and the differentiation of a growing variety of academic and practical disciplines.372 Natural sciences are based on a process that is the same as in the legal praxis of legislation and concretization, of creating and modifying precedents in ever new applications. Its inferences are neither deductive nor inductive, but abductive – to use Charles Sanders Peirce’s famous logical innovation. In many respects, the arguments in the debate between the probabilistic scientist Boyle and the deductivist philosopher Thomas Hobbes were nearly the same as in the debate between the common law lawyers Coke and Hale on the one hand and King James I. (1603–25) and the statutory law philosopher Hobbes on the other, which the latter caricatured in his famous Dialogue between a Philosopher and a Student of the Common Laws of England (1681, written about 1670), counter-attacked, in turn, by Hale in his Reflections on Mr. Hobbes’s Dialogue of the Law. In the Dialogue, Hobbes or rather the philosopher won, in legal and political praxis the winners were Coke and Hale. Hale invalidated Hobbes’s argument according to which Coke was wrong because law originates not from legal reasoning, but from the sovereign will, and obscure because the notion of ‘artificial reason’ does not explain the relation between the judge’s


373Berman, Law and Revolution II, p. 251.374Ibid., pp. 258–60; on the relation of popular and legally learned opinions, see Gray, Reason, Authority, and Imagination, pp. 36–7, 40–4. The interesting turn to the historical community of all people allowed Coke a radical historization and communitarian interpretation of the old doctrine of the king’s two bodies. While the finite body of the currently ruling king is the one who actually is the supreme maker of the law, and who hence, stands above the law, – his eternal body is not only a reference to his divine legitimation, but a reference to kingdom as a historical and social institution. The point is that through this move, the king’s divine legitimization is entirely transferred from the account of the king to the account of the people and their covenant with one another and with God. Michael Walzer interprets even the biblical covenant already as such a double contract – but this might be a projection of a modern Protestant idea, and another indirect proof of our thesis (borrowed from Berman) that everything becomes Protestant (or democratic, socialist) after the Protestant (democratic, socialist) revolution. See Michael Walzer, Exodus und Revolution. Berlin: Rotbuch, 1988.375Berman, Law and Revolution II, pp. 239–40.376Ibid., p. 240.

or lawyer’s reasoning and the actual law, that is, the commandments of the sovereign.373 But this, so Hale argues, is the wrong opposition, because as in all sciences, general principles as well as the king’s or parliament’s statutory acts have to be combined with concrete applications in one case and the judgments of the courts in the other. The legislative power of the king is normatively irrelevant and empty without the autonomy and artificial knowledge of judges and lawyers, in the same way as the competence of judges and lawyers is toothless without the king’s soldiers, marshals and hangmen. However, artificial reason is indispensable for the creation and reliable performance of valid law (which distinguishes the state of society from the state of nature) because men, including kings, are not born lawyers, and lawyers do not work alone (as absolute rulers), but in cooperation with an unlimited community of legal actors and legal discourses (including laymen and all dead generations since the invention of law). The participation of laymen, their popular answer to legal questions, their natural reason and their conscience are constitutive for the historical development of common law, but not sufficient without the assistance of legally learned opinions.374 Coke argued that the king’s laws

included not only the laws of the reigning monarch but also the laws of his predecessors . . ., who in and through their councils and their parliaments and their courts had, over the centuries, created a legal system that had duration in time and carried with it meanings remembered from the past.375

Furthermore, the king’s laws included the rights of the Englishman, the ‘liberties, franchises, privileges and jurisdictions of Parliament’ that limited the power of the finite body of the king.376 With his historical contextualization


377Ibid., pp. 268–9, p. 472 note 95. Berman refers here to Merton, Shapiro, Kuhn, Shapin and Schaffer, but he also should have referred to the origin of that theory in American pragmatism (from Peirce to Brandom, from Dewey to Rorty) and its combination with Kantianism and communication theory by Apel and Habermas, see Apel, Transformation der Philosophie, Vol. I and II. Frankfurt: Suhrkamp, 1973; Apel, Der Denkweg des Charles Sanders Peirce – Eine Einführung in den Amerikanischen Pragmatismus. Frankfurt: Suhrkamp, 1975.378Thomas Sprat, History of the Royal Society (Selections), http://andromeda.rutgers.edu/∼jlynch/Texts/sprat.html; see Merton, The Puritan Spur to Science, pp. 236–7.379Berman, Law and Revolution II, p. 268.

of the eternal body of the king, Coke integrated the legislative activity of kingdom into the legal activities of the people as a whole. From here to the modern theory of parliamentary representation, which emerged at the same time in Protestant political praxis, it is only one small step. With his argument against Hobbes, Matthew Hale already anticipated the Kelsian theory of the necessity of a creative and norm-making concretization of all general or statutory laws. Hobbes never got the point of that argument, and therefore, ultimately remained in the evolutionary dead-end of power fetishism and deductivism, these being two sides of the same coin. But Hale and the English common lawyers and empirical scientists anticipated not only Kelsen with this argument, but also nineteenth- and twentieth-century theories according to which scientific truth as truth requires acceptance by the scientific community as a whole.377 Thomas Sprat, who has been mentioned already in this section, appealed in 1667 to the ‘converse of mankind’ and the ‘common works’ of nature, the remoteness from which allegedly distinguishes scholastic and monastic ascetism from modern scientific experimentalism.378 In relating truth to the scientific community, Coke, Boyle and Hale developed the first social theory of scientific knowledge. This is why it was so important for Boyle and Hale to insist against Hobbes on the constitutive role of dissent in the intertwined processes of scientific discovery and justification. The validity of scientific truth claims for Boyle

depends on its verification by other members of the scientific community. Witnesses of the experiment must be multiplied. If the experience of it can be extended to many persons, and in principle to all, then the result must be treated as a fact, that is, as a truth having the highest degree of probability.379

Hale makes the same argument when it comes to the validity of legal principles. Their validity depends on

repetition and verification by the community of trained practitioners. The common lawyers’ “artificial reason” itself represented a kind of


380Ibid., p. 269.381It ranged from the grand political experiments with a great variety of new constitutional and legal orders that took place everywhere in Europe for a period of nearly 200 years to the cultural revolution of the Protestant Carnival (1521–24) with its iconoclastic insurrection, which covered the whole Baltic region and reached from Switzerland in the south to Scotland in the North-West, and from the polygamy and war-socialist experiments of the Anabaptists in Münster (1534–37) to the methodological experimentalism that was used methodologically from the time of the English Calvinist theologian William Perkins (1558–1602) onwards to distinguish true faith and redeem oneself from false and temporal faith, using confessional diaries as the reform monks of the tenth century had done (Ch. III, Sec. I 4).382Berman, Law and Revolution II, pp. 55–62; Blickle, Die Revolution von 1525; Blickle, Von der Leibeigenschaft zu den Menschenrechten. Eine Geschichte der Freiheit in Deutschland. Munich: Beck, 2003; for a brief overview of the peasants’ revolutionary war, see Blickle, Der Bauernkrieg. Die Revolution des Gemeinen Mannes. Munich: Beck, 2006 (1998).

empiricism, different from but parallel to the experimental empiricism of natural scientists.380

Finally, scientific experimentalism was embedded throughout the Protestant revolutions in a much broader context of political and form-of-life experimen-talism.381 Protestantism was modern also as a sexual revolution, legalizing the monks’ sexual desires, opening a legal way for married men and women to separate from their spouse and to start a new love affair.

(4) Class struggle

Like all revolutions, the Lutheran Reformation, which was the first Protestant revolution, had a social basis in mass movements from below. Its most important and most radical mass movement was that of the peasants, which led to the peasants’ revolutionary war of 1524–26. The famous leaders of the Reformation, such as Luther and Melanchthon, strongly opposed it, and the Protestant princes erected execution platforms together with their Catholic colleagues. As in all great revolutions, the revolution consumed its children. The Swiss and southern German insurgencies of the peasants were the first autonomous ‘revolution of the common man’. They had a tremendous impact all over Europe, and opened the path for the second Protestant Revolution in the Netherlands and the third Protestant Revolution in England.382 The situation of the peasants everywhere in Europe was similar, and Leibeigenschaft (serfdom) was widespread throughout Europe: in France, in England and Scotland, in Italy and Spain. During the radical republican phase of the English Revolution, the Levellers within Cromwell’s New Model Army played a similar role as the peasants in the southern regions of German-speaking Europe. They struggled for a more ‘democratic’ constitution, the ‘abolition


383Berman, Law and Revolution II, p. 218.384Banu Bargu, The Problem of the Republic in Marx and Machiavelli (Work in Progress), unpublished e-man., New York: New School for Social Research 2010; see Vatter, Between Form and Event: Machiavelli’s Theory of Political Freedom. Dordrecht: Kluwer Academic Publishers, 2000.385Tilly, European Revolutions, p. 61.386Blickle, Von der Leibeigenschaft zu den Menschenrechten, pp. 70–1, p. 152.387Moore, Erste Europäische Revolution, p. 107.388Berman, Law and Revolution II, pp. 48–62.389Gorski, Disciplinary Revolution, p. 4.390Tilly, European Revolutions, p. 55.

of monopolies, reform of poor laws, reductions of taxes, religious toleration, and a wider franchise’.383 A second source of mass movements from below was the plebeian classes of the cities. For instance, Machiavelli, in studying the Italian cities, observed growing conflicts between people and rulers, the increasing mobilization of a sense of injustice on the part of urban paupers, unpredictable and spontaneous acts of vengeance by the people and their struggle for freedom from oppression, domination and exploitation.384 In the Netherlands, the urban poor played a similar role as the social mass basis of Calvinism.385 The peasant insurgents of 1525 understood the ever more frequent and vexatious restrictions on their freedom, both by the old clergy and nobles and by the officers of the early modern state, as an injustice which finally became unbearable.386 ‘Still, man does not rebel for bread alone.’387 The majority of German princes were another important wing in the class struggles of the first Protestant Revolution. They successfully imposed the new Protestant confession on their subjects and formed their armies from them. But the imposition only worked because the evangelical confession had already taken hold within the masses of the population. In particular, the free cities and their councils formed a strong foothold of the Reformation. This was an urban movement, and based on the communicative use of the printing press. The Protestants were the party of the new media.388

In particular, in the second Protestant Revolution of the Netherlands, the cities played the decisive role. Here, the ‘urban popoli took the lead, demanding free worship and an end to oligarchy’ and its replacement by republics.389 The Netherlands at that time had experienced one of the greatest urban expansions in history, and had by far the densest network of cities, commerce and capital in all of Europe. The leaders of the Calvinist revolt came from the ‘wealthy, cultivated patriciate and bourgeoisie’ and kept the revolution under their control.390 Some of them (the so-called Beggars or Geuzen), who had started the protest movement against the Spanish Crown in 1566, retreated to the sea, and under the leadership of William of Orange formed a revolutionary marine army of more than 18 pirate ships, together with Protestant refugees and exiles, desperadoes and adventurers from all nationalities (‘Sea Beggars’). They were supported by French Huguenots and had their base in the Huguenot


391Griffiths, The Revolutionary Character of the Revolt of the Netherlands, pp. 458–9.392Ibid., p. 459.393Tilly, European Revolutions, p. 61.394Griffiths, The Revolutionary Character of the Revolt of the Netherlands, pp. 468–9.395Tilly, European Revolutions, p. 65.

port of La Rochelle. From here, the Sea Beggars started a civil war, primarily not against the Spanish, but within the Netherlands. During that struggle, the Sea Beggars juxtaposed ‘the liberties and privileges of their towns and provincial estates’ against Spanish ‘centralizing absolutism and bureaucracy’. But their ‘appeal to medieval charters of liberties, privileges and estates’ only made use of the internal contradictions of the old legal order to found a completely new political and legal order that drew its legitimacy from the popular will. The revolutionaries guaranteed, for the first time, (limited) political freedom of speech (which was reflected a little later in Spinoza’s political theory) and organized a new system of representation that was dominated by the urban patriciate.391 The Sea Beggars were the revolutionary avant-garde party of the Calvinist revolution, like the Bolshevik Party in Russia, the Jacobin Club in Paris, Independent Congregations during the American Revolution or the New Model Army of Cromwell during the English Revolution.392 Their guerrilla war finally succeeded in building a cordon of religiously purified, Calvinist-dominated cities in Holland and Zealand, and to find a mass base in the poor urban and rural population. For the first time in history, the Third Estate gained a leading position in the new Dutch Ständestaat, representing the revolutionary town councils. The nobles still had a function during the revolution. They organized the defence of the Republic against Spain. But once the nobles had done their revolutionary duty, the nobles could go, and vanished on Lenin’s famous ash heap of history together with the clerics. The stronger and the more republican the cities, and the weaker the landed nobles and the urban oligarchies, the higher the likelihood of their turning to Protestantism, and especially Calvinism, and of their being supported by the masses of ‘poor, idlers, and vagabonds’ who ‘took the new colors to attack rich people’s property’.393 What emerged in the new republican assembly of estates in the Low Countries already allows a first glimpse at later class constellations, the all-dominating Third Estate and the plebeian members of the magistrates and the guilds.394 In a way, ‘the Low Countries set the European model for bourgeois revolution’.395

In the English, third Protestant Revolution, the different class constellations of Germany and the Netherlands came together. Here, the basic conflict was (as in France, Spain and Portugal) that between the landed gentry and the royal bureaucracy, ‘the country’ and ‘the court’. The landed gentry contained the non-feudal and non-clerical landholding parties, and they were supported by all other classes who suffered from real or imagined oppression at the hands of the royal court and its bureaucrats, from tax pressure and religious and political


396Berman, Law and Revolution II, pp. 203, 205; Tilly, European Revolutions, pp. 128, 135.397Blickle, Die Revolution von 1525, pp. 105–39; Blickle, Von der Leibeigenschaft zu den Menschenrechten, pp. 189–201. The urban extension of the so-called peasant war is rightly noted already by Engels, Bauernkrieg, pp. 337–40, p. 345.398Witte, Law and Protestantism, p. 295.399Berman, Justice in the U.S.S.R., pp. 177–8 (the chapter on ‘The Western Legal Tradition’).

repression. Specifically, the English Revolution had (like the Dutch Revolution) its urban class base in the City of London with its strong bourgeois elite, who stood against ‘the court’ as much as ‘the country’ did. Both revolutionary class parties who came to power in the course of the revolution, the non-feudal but wealthy and property owning landed gentry and the urban (commercial) elites were the parties of the parliament. They both strived for the supremacy of common law and the parliamentary constitutionalization of the monarchy.396

In a nutshell, the conflict between the tax gathering and sentencing bureaucracy of the early modern state and the ‘country’ (plus the ‘city’) can already be observed during the so-called Peasants’ War in Germany in the early sixteenth century. The Peasants’ War was the (up to then greatest) revolution of the common man (including not only peasants but also a great number of artisans, urban residents and mine workers). Theirs was a revolution against the clerics and the nobles whose Leibeigene (‘serfs’) they were, and against the absolutist tendencies of the just emerging early modern state. The common man (der Gemeine Mann) strived for a kind of territorial estate parliamentarism (landständischer Parlamentarismus) from below.397 The German cities and the City of London, the Dutch urban bourgeoisie and the French Huguenots, the English landed gentry, the German princes and the Catholic kings had a substantially overlapping material class interest that ‘sought to truncate some of the power, property, and privilege of the Catholic Church’ and the clerics. They shared this interest, but not their ideas for its realization with the Protestant mass movements, with the southern German common man, the English Leveller or the Dutch Beggars. Beyond that, the material class interest of the emerging new Protestant ruling classes of Europe was closely combined with their ideal class interest in transplanting very large parts of canon law into civil law.398 The successful revolutionary realization of this ideal interest became the main religious and legal means for oppressing the material interests of the Protestant masses after the revolution, and for making good and disciplined workers, servants and subjects out of them.

Ultimately, the great winners of the Protestant revolutions were the new landed and bourgeois elites, the princes and the towns. Also on the side of the winners was the secular judiciary, who had increased their power everywhere, and, in particular, during the English Revolution. Protestant German princes and magistrates sponsored the growth of ‘a new class of secular jurists and secular civil service’ with lawyers in most of the higher positions.399 In England,


400Berman, Justice in the U.S.S.R., p. 177.401Ibid.402On the distinction of four periods and pushes towards globalization since the sixteenth century, see Osterhammel and Petersson, Geschichte der Globalisierung, p. 25. On the history of globalization, see Michael D. Bardo, Allen M. Taylor, Jeffrey G. Williamson, Hg. Globalization in Historical Perspective. Chicago: University of Chicago Press, 2003; Antony G. Hopkins, Hg. Globalization in World History. London: Pimlico, 2002; David Reynolds, One World Divisible: A Global History since 1945. New York: W. W. Norton, 2000; Sebastian Conrad, Andreas Eckert, Ulrike Freitag, Hg. Globalgeschichte. Theorien, Ansätze, Themen. Frankfurt: Campus, 2007.403On the growing oppression and exploitation since 1400, see Blickle, Die Revolution von 1525, pp. 41–89.

the power of the judiciary increased much further because it was ‘composed largely of the younger sons of the landed gentry (the older sons going into Parliament)’.400 Unlike the Lutherans, the Calvinist common law jurists were on the side of Parliament and strongly opposed to the King. Ultimately, the common law judges won the battle against the courts of the Crown. After the revolution, they were no longer removable at the will of the monarch, and they had wide powers of discretion.401 The great losers were the clerics and the old, feudal nobles – and (as usual) the peasants (together with the growing urban and rural lower classes). However, at any rate, serfdom was moderated, constrained or even abolished. Finally, the first and second historical push towards globalization created a further and entirely new category of losers, the non-white people of the world, the overwhelming majority of whom were peasants, too.402

(5) Struggle for human rights

Protestants turned the tension between the repressive function and the emancipatory commitment of the first modern legal system of canon, civil and common law into an irreconcilable contradiction. One of the most radical articulations of this contradiction was the great peasant insurgency of 1524–26 (lasting about a year and a half). The unpretentious and egalitarian concern of the clerics for the legal, marital and inheritance conflicts of poor families, for their hunting and fishing rights, for the right to collect dead wood, bridge and road tolls and so on was turned against their own more and more restrictive juridical interpretation, which from 1400 onwards had been transformed by legislators, judges and academic commentators into an instrument of mere exploitation, injustice and oppressive serfdom.403 The Eigenverfassung (constitution of the manorial system) was turned against its repressive implementation. Finally, the emancipatory implications of the existing divine, canon, civil and common law were separated from their repressive interpretation, implementation and concretization. Their radical reinterpretation resulted in the complete breakup


404MacCulloch, Reformation, pp. 154–7; Berman, Law and Revolution II, pp. 55–7; Blickle, Die Revolution von 1525, p. 1. Today, one still can find traces of the revolution of the common man in guide books on Southern Tyrol: ‘In der Zeit, da das Luthertum vom Zillertal übers Hundskehljoch auch ins Ahrntal einschleppt wurde, und zwar von fremdländischen Knappen, gab es einmal einen richtigen Kampf, man würde heute sagen, ein “Gemetzel”. Es gab nämlich unter den ansässigen Bauern Lutheraner wie unter den Bergknappen. Aber es gab auch noch Katholiken, die sich gegen den fremden Glauben wehrten’. (Anton Schwingshacke, Bergkapellen unserer Heimat, Bruneck, Südtirol, 1978, p. 156). I have to thank Gunnar Hindrichs for this quote which he discovered on a holiday in Southern Tyrol.405Blickle, Von der Leibeigenschaft zu den Menschenrechten, p. 86f; Blickle, Der Bauernkrieg, pp. 16–19; on the precursors of the peasant uprising, see Engels, Bauernkrieg, pp. 359–71.406On Luther’s anti-semitism, see Micha Brumlik, Martin Luther und die Juden – eine politologische Betrachtung (forthcoming).

of the old system of parishes, and the destruction of feudalism. The old legal texts struck back.

The so-called ‘Peasants’ War’ was, as MacCulloch realizes, Europe’s most powerful and comprehensive popular insurgence before the French Revolution. The mere extent of the revolutionary insurgence was enormous, and the number of armed men quickly grew to some hundred thousand. It reached from Alsace to Bohemia and Saxony, to Hesse in the German North, to Zurich’s Oberland, Upper Austria, Tyrol and Trento in the south and south-east, and even triggered insurgencies in Poland and Hungary.404 The insurgency of 1525 was the largest and most powerful, intellectually well founded and progressive of all peasant insurgencies against Leibeigenschaft, but it was by no means the first. There had been tensions and armed hostilities going back to the middle of the fifteenth century and earlier. The coming great revolution was tested in a series of local insurgencies: St Blasien 1351, Staufen 1466, Salem 1468, St Gallen 1489, Kempten 1491, Ochsenhausen 1498–1502, St Peter and Triberg 1500, Berchtesgaden 1506, Solothurn 1513 and Wurttemberg 1514.405 Since Luther’s infamous denunciation of the insurgents (which was trumped only by his later anti-Semitic hate speeches),406 the Peasants’ War has been wrongly stigmatized as a barbarian rural war of uncivilized peasants, Gnostic utopians and a totalitarian mob avant la lettre. Luther’s denunciation was repeated again and again, and historically canonized by Leopold von Ranke in 1839. Yet, as Peter Blickle has shown, the so-called Peasants’ War in fact was the revolution of the common man (in German: ‘Gemeiner Mann’). Even if the power engine and the vast majority of the revolution were peasants (80% of the whole population at that time were peasants), they were strongly supported by other social groups and corporations, in particular, urban artisans and mine workers, and most of the many independent cities of southern Germany became a part or ally of the common man’s Christian Associations (Christliche Vereinigungen) and their confederation in the League of Christian Associations. The empirical finding today is: ‘The common man was the


407Blickle, The Revolution of 1525. Baltimore: Johns Hopkins University Press, 1981, p. 124 (‘In light of the active participation by territorial towns and by the common people of the imperial cities, we may question whether we should continue to speak of a peasants’ war. This is even more true when we note that in addition to townsmen the miners were deeply involved in the Revolution of 1525’, pp. 120, 188), p. 212 (against the horror propaganda of Luther and his influential alliance of German Lutheran publicists and scholars), p. 244, pp. 280–320 (with a lot of further sources and literature); Berman, Law and Revolution II, pp. 55–7.408Blickle, Die Revolution von 1525, p. 192. This self-description is crucial. Because the signifier Gemeiner Mann (common man) indicates something universal that could be and was opposed to universal and abstract categories of domination, Obrigkeit, and state – as in the cases of signifiers like gemeine Christenheit (common Christianity), gemeiner Nutzen (common wealth), or gemeiner Pfennig (a common imperial tax).409Blickle, Der Bauernkrieg, pp. 45–6, see: 42–3.410For this method, which is also a method of critical theory, see Marcuse, One-Dimensional Man. Boston: Beacon Press, 1964, Chapter 5.

peasant, the miner, the resident of a territorial town; in the imperial cities he was the townsman ineligible for public office.’407 This is true also for the self-understanding of the revolutionaries, who called themselves not ‘peasants’, but poor common men (vis-à-vis clerics, secular landlords and seigneurs) or subjects (vis-à-vis the early modern prince and his officials, tax inspectors, prosecutors, judges and hangmen).408

From the beginning, the specific political and social radicalism of the revolution of the common man transcended the horizon of local and particular injustice, oppression and exploitation. It was directed no longer against oppression by a certain particular ruler or a certain particular kind of Obrigkeit, but against any oppressive Obrigkeit, against any state that was not in accordance with divine justice and natural law.409 Using general concepts, the insurgents universalized the critical negativity of the revolution.410 The universalizing power and negativity of abstract categories was made explicit and discernible in the light of the biblical heritage, and its specific Protestant interpretation, which was Zwinglian and not Lutheran. It is the reciprocal reinforcement of these three critical elements that explains the early affinity of the revolution of the common man to the idea of human rights. It was no accident that the most advanced human rights movement of the early Reformation occurred in southern Germany, Upper Austria and Switzerland – at just the time when Vitoria was teaching far away in Salamanca that every individual human being is a bearer of a right to freedom, and of a reflexive right to have rights, and that nobody has any original privileged entitlement to political leadership and rule. In a similar way to Vitoria, the jurists who influenced the insurgents used their knowledge of divine and natural law to draw the legal consequences from all human beings’ likeness to God and from libertas naturalis to argue against Landts rechtlich Gewonhaiten (common law of the local rule of landlords and abbots).411 Like the papal party more than


411Blickle, Der Bauernkrieg, p. 63; see Justenhoven, Francisco de Vitoria zu Krieg und Frieden, p. 47.412See http://mitglied.multimania.de/jpmarat/12artd.html. The original late medieval German reads: ‘Darum erfindt sich mit der Geschrift, daß wir frei seien und wöllen sein’. (http://www.bauernkriege.de/artikel.html).413Blickle, Die Revolution von 1525, p. 28; Blickle, Von der Leibeigenschaft zu den Menschenrechten, p. 75.414Blickle, Von der Leibeigenschaft zu den Menschenrechten, p. 91.415A Declaration from the Poor oppressed People of England, Directed To all that call themselves, or are called Lords of manors, through this Nation; That have begun, or that through fear and covetousness, do intend to cut down the Woods and Trees that grow upon the Commons and Waste Land, printed 1649, quoted from: http://www.bilderberg.org/land/poor.htm.

400 years earlier, they argued in Jesus’s words: I am truth and not custom. The revolution of the common man was the first social mass movement that fought for an individual human right to equal freedom. In Article 3 of the Twelve Articles of Memmingen, sentence 2 reads: ‘that we [as creations and images of the universal God – HB] are free, and that we want to be free’.412 This implied, in particular, the main political demand of the common man for unreserved and total abolishment of serfdom (Leibeigenschaft).413 From the human right to equal freedom and the unreserved abolishment of serfdom, the insurgents derived a whole series of subjective basic rights which should be enforceable by the courts. These were, in particular, freedom of movement, freedom of marriage and freedom of ownership.414

More than one century later, the same idea was clearly and more extensively expressed and translated into the language of subjective rights (already common in England at that time) by the True Levellers, the English Calvinist radicals who were also called Diggers. They argued in their Declaration from the Poor oppressed People of England (1649): ‘[While we are made free, . . . every one, friend and foe, shall enjoy the benefit of their Creation.’ They did this referring to the Christ, ‘the one onely righteous Judg, and Prince of Peace; the Spirit of Righteousness that dwells, and that is now rising up to rule in every Creature, and in the whole Globe’. It is the ‘Law of Creation’ that man as ‘Creature’ of God’s ‘own Image’ has ‘equal rights’ to ‘freedom’, and this is articulated with a global consciousness. Hence, freedom is ‘promised to be the inheritance of all, without respect of persons’. The human right to equal freedom for the Diggers also includes an equal share of the ‘common Store-house of Livelihood to all Mankinde, friend and foe, without exception’. Only then the human right to equal freedom and share is specified in the ‘National Covenant’ ‘to preserve and seek the liberty of each other’. The document is signed with a universal claim ‘for and in behalf of all poor oppressed people of England and the whole world’.415 In another pamphlet entitled A Light Shining in Buckinghamshire (1648), the Diggers demanded universal equality, free elections, a common economy and an equal share of the common wealth


416Peter Linebaugh and Marcus Rediker, Die vielköpfige Hydra. Die verborgene Geschichte des revolutionären Atlantiks. Berlin: Assoziation A 2008 (2000), p. 114.417MacCulloch, Reformation, p. 127.418Blickle, Der Bauernkrieg, pp. 64–6.419For a brilliant and still paradigmatic criticism of Luther’s ideology of freedom, see Marcuse, ‘Studien über Autorität und Familie. Einleitung’, in Ideen zu einer kritischen Theorie der Gesellschaft. Frankfurt: Suhrkamp, 1970, pp. 55–156, at: 59–68. Blickle rightly argues (against Jellinek’s and Troeltsch’s later, and by now totally disproved, transfiguration of the Reformation as the origin of modern human rights) that Lutheran theology never supported the world-historical process of emancipation of man from serfdom. Even if Christianity had already developed the legal basis for human rights with the legal interpretation of its axioms of universal brotherly love and God-likeness (Ch. III, Sec. I, 5), the clerical jurists later rendered the human rights core of the legal textbooks of the Schwabenspiegel and Sachsenspiegel, derived from the saving ministry of Christ, compatible with its opposite, namely legal serfdom. With a stroke of the pen, the social doctrine of the Lutherans made serfs into subjects of his majesty, the earthly prince. Only after Lutheran hegemony was overcome by the Enlightenment did the discourse of real freedom reappear in the language of the political theory of Pufendorf, Kant and Hegel. (Blickle, Von der Leibeigenschaft zu den Menschenrechten, pp. 307–8, see: pp. 309–11). Not so the Protestant and Catholic jurists. They emphasized the differences between slavery and Leibeigenschaft and turned the already existing rights of the Leibeigene into a Roman law praesumptio pro libertate, so that at least higher courts, the Kammergerichte and Hofgerichte, implemented effective legal remedies against arbitrary and arrogated rights to domination (Blickle, ibid., p. 308).

for everybody. Their aim was a new world order that should overcome ‘all the slavery in the world’.416

Even if Luther quickly became the most aggressive and polemical enemy of the common man’s revolution, his essay Von der Freiheit eines Christenmenschen (1520) had the effect of a major emancipatory earthquake, merely because of the exceptional position of the one word Freiheit (freedom) in the title of his essay, and the central place of the concept of freedom within Luther’s essay and his theology.417 Practically, and, in particular, in an already revolutionary situation that had directly affected all of Western Christendom, Luther’s word ‘freedom’ was understood literally and as a reality. Freedom was no longer understood as ‘Christian freedom’ (christliche Freiheit) alone, but as ‘bodily/embodied freedom’ (leibhaftige Freiheit). Luther’s sophisticated theological interpretation, which led to a radical internalization and de-politicization of freedom, did not matter at all for the growing masses of common men who understood themselves as Christian freedom fighters.418 The common man understood the normal use of the word ‘freedom’ – but not Luther’s tricky theological explication that perverted freedom into a weapon in the hands of the Obrigkeit and made it compatible with hierarchical rule and social serfdom.419 For the common man, this made no sense. Therefore, he understood the Lutheran call for Freedom from the Church as an exodus that led not to new serfdom in the iron cage of the Protestant prince, but, on the contrary, to comprehensive political freedom in the promised land of this


420The emancipatory effect of the exodus went far beyond the Protestant revolutions: see Michael Walzer, Exodus und Revolution. Berlin: Rotbuch, 1988.421See Witte, Law and Protestantism, p. 76.422This was the crucial point that also distinguished the English Calvinist and radical liberals such as the Levellers and John Locke from Luther and the Lutheran reformers and jurists. Because for modern liberals such as the Levellers and Locke, property was at the very core of freedom, their idea of freedom (despite its Calvinist roots) could not be reduced to Christian freedom. In a similar way to the Levellers, the common man of 1525 combined freedom with property, and the farmers’ republic of Gersau in Switzerland in 1433 already had a constitution that was liberal in the modern (Levellers’) meaning of that word (Blickle, Von der Leibeigenschaft zu den Menschenrechten, pp. 78–80). Therefore, in the revolutionary programme of the common man (as well as in the revolutionary programmes of the Dutch and English Calvinists), the abolition of oppression and poverty correlates with salvation and beatitude (Blickle, Die Revolution von 1525, pp. 182, 238). The only, but crucial difference between Locke and the Levellers was that the latter (like the later Rousseau) wanted to restrict the accumulation of capital to a level of a relatively equal distribution of goods (between the lower ‘haves’, but in any case excluding the have-nots), whereas for Locke, the meaning of freedom of private property was that it could and should be accumulated indefinitely, hence leading to and reinforcing an unequal distribution of goods.

and the other world.420 While Luther combined the call for Freedom from the Church with the authoritarian call of ‘All Power to the (high) Magistrates!’, the common man combined the first call with the anti-authoritarian call of ‘All Power to the People!’421 It was the die-hard Lutheran Hegel who showed that – from a conceptual point of view – the common man was right: To have a consciousness of my own freedom (which for Hegel was the great advance of the Lutheran Reformation’s sola fide), it is necessary to be really free in this world, or to fight for real freedom in this world.422

Everywhere, in Southern Germany, in the Netherlands and in England, exodus became the slogan of the revolution – a revolution that resulted finally in the seventeenth and eighteenth century not only in institutions that were to abolish slavery once and for all (from the nineteenth century onwards), but also (sinister irony of history) in peculiar new, economically effective and brutally racist and exploitative institutions of slavery, never seen before. Not only the common man, but also Christian heretics had long been taking the egalitarian biblical message of freedom literally, politically, even socially, as Engels rightly observed:

A totally different character was assumed by that heresy which was a direct expression of the peasant and plebeian demands, and which was almost always connected with an insurrection. This heresy, sharing all the demands of middle-class heresy relative to the clergy, the papacy, and the restoration of the ancient Christian church organisation, went far beyond them. It demanded the restoration of ancient Christian equality among the members of the community, this to be recognised as a rule for the middle-class world as well. From the equality of the children of God it


423Engels, Bauernkrieg, p. 345, quoted from the English translation: http://www.marxists.org/archive/marx/works/1850/peasant-war-germany/ch02.htm.424Preuß, Martin Luther, Von weltlicher Obrigkeit, pp. 141, 145. The quote in brackets is from: Luther, Von weltlicher Obrigkeit, p. 253 (Preuß, ibid., p. 141).425On the latter: Hofmann, Repräsentation, pp. 321–8.426Blickle, Der Bauernkrieg, p. 56.

made the implication as to civil equality, and partly also as to equality of property.423

But only the Christian Associations and their Zwinglian intellectual leaders made the step from Luther’s merely theological concept of a spiritual and voluntary association of Christ based on Christian freedom of faith alone (sola fide), to the political concept of a human right, to individual freedom of conscience. For the bearer of this individual right, the truth of faith was not irrelevant, but conceptually constitutive for freedom.424 Truth is the reason for freedom of conscience because truth cannot and should not be enforced. Freedom is incompatible with enforcement because it is based on truth claims. This implies already the later radical argument against any kind of torture, articulated at its high tide. Moreover, it implies that neither princes, bishops nor any other rulers are authorized by divine will to dominate the people. Only the people themselves are authorized by divine will to elect and determine their leaders and rulers, as Vitoria already had shown. Luther’s theological concept of a free people was replaced by the political idea of a voluntary association that is spiritual and material. Here, the politically most radical factions of early Protestantism took up the older canon law doctrines of cooperative freedom and legitimization through the people, and their conciliarist radicalization.425 But they detached these doctrines from hierarchy. In this respect, they are the first forerunners of the enlightenment’s basic political idea of a unity of truth, human rights and egalitarian self-determination.

The common man fought for freedom from serfdom (Leibeigenschaft), and against the then still valid order that juridified serfdom.426 The intellectual leaders of the insurgents, Christoph Schappeler, Hans Hergot, Thomas Müntzer, Balthasar Hubmaier, Michael Gaismar and others, and a few well-known jurists of that time, among them Ulrich Tengler, Ulrich Zasius and Cuonrad Blicklin, argued against the then valid interpretation of the legal order of canon and civil law, of common law, feudal law and municipal law (Stadtrecht) in the name of the same legal order. Peasants from Stühlingen wrote an extensive legal complaint of 62 Articles against the excesses of serfdom, unfair taxes and unbearable abuses of justice, and brought it as an action before the newly invented Reichskammergericht, justifying their complaints by appeals to reasonableness and divine and natural law (‘erwegen die gottliche naturliche Pilligkeit, Venunft und Verstand’). The insurgents and their legal advisers


427Blickle, Von der Leibeigenschaft zu den Menschenrechten, p. 262; see Oxford Dictionary of Proverbs, 5th edition.428Ibid., p. 11 et seq., pp. 17, 41, 75, 90–3, 261–2, 307, see: 30 et sec.; Renate Blickle, Eigentumsordnung, p. 8, zit. n. Blickle, Von der Leibeigenschaft zu den Menschenrechten, p. 29; Berman, Law and Revolution, pp. 321–3. The complaint of Stühlingen and the Schwabenspiegel is quoted from Blickle, Der Bauernkrieg, pp. 13–14, 63.429MacCulloch, Reformation, p. 152. Bible, New International Version, http://www.centreville-umc.com/Holy%20Bible%20-%20Today%27s%20New%20International%20Version.pdf (7 November 2013).

insisted on the validity of canon law as opposed to the more particular and repressive civil law. They denied their masters’ authority to restrict the right of free marriage to their own regional domain. They articulated the latent contradictions between canon and civil law as contradictions. They used the ius commune of the Schwabenspiegel to turn its universal parts, which (on biblical grounds) did not allow serfdom at all, against its more particular parts, which made serfdom valid under certain historical conditions. They used the old constitution of the manorial system that insisted on the reciprocal equity between feudal landlord and bondsman and the latter’s freedom of movement to argue against its increasingly repressive and restricting concretization during the fifteenth and early sixteenth centuries. They argued with the canon law of the sacrament of marriage, which categorically prescribed the freedom of both sexes to marry whomever and wherever they wanted to marry, and opposed it to contradictory legal practices and norms of local jurisdiction (still using Gratian’s dialectical method of resolving contradicting canons). Their famous revolutionary slogan, the rhetorical question: ‘Als Adam grub und Eva spann, wo war denn da der Edelmann?’ (When Adam delved and Eve span, who was then the gentleman?) refers back directly to legal sources from Schwabenspiegel and Sachsenspiegel. It had been used already from the time of the first peasants’ insurgencies of the fifteenth century in Germany, Austria and Switzerland, but also in England in 1381 long before the revolution: ‘Whanne Adam dalf and Eve span, Who was thanne a gentil man?’427 Similar legal points are made in French law books such as the Coutumes de Beauvaisis, in Bologna and in Spanish legal sources. The Schwabenspiegel, the territorial law of Swabia, was one of the direct sources of the Twelve Articles. It already used the likeness of man to God (‘Got hat den Menschen nach im selben gebildet’) as an argument against serfdom. The insurgents argued that it is not written in the Bible that anyone shall be someone else’s property or bondsman or, in the original late medieval German: ‘in den altvn Schrifte vonden wir niht, das ieman des andern aigen si.’428 They turned the authoritatively distorted Christian legal hierarchy upside down. Instead of trumping Acts 5, 29 (‘We must obey God rather than human beings.’) by Romans 13, 1 (‘Let everyone be subject to the governing authorities. . . . The authorities that exist have been established by God.’), Acts 5, 29 was to trump Romans 13, 1.429


430Luhmann, Die Gesellschaft der Gesellschaft, p. 296 (my trans.)431See Eisenstein, Clio und Chronos, p. 37.432Cromwell’s reasons were religious, he, like today’s American evangelical fundamentalists, believed that the end of the world was close, and that if the Jews were not saved for the final judgement through God, nobody had any chance of being redeemed.

They used the legal remedies they already had, and these remedies now were enhanced by the advances of the printing press that enabled ever more rapid comparisons: ‘[O]ne can review, classify, compare and improve’ legal textbooks and legal practices quickly, and ‘written records of regional legal customs are prepared for printing, and gradually taken out of the control of local (manorial) jurisdiction’.430 From now on, the Codex Juris Justinianum was available as one concrete whole, made up of letters between two boards, and its different parts could be compared easily.431

The common man ultimately lost the revolutionary struggle against the much better trained and equipped troops of the Emperor and his allies – but, as in all great revolutions, the basic ideas of the revolution could not be forgotten and became part of the objective spirit. They were more than that, they were evolutionary universals. Therefore, they reappeared in many variations during the much more radical Calvinist revolutions in the Low Countries and England. The Calvinists were much more interested in the legal implementation and positivization of subjective rights than the Lutherans were, and they were also much more inclined to include political rights and politically understood rights to religious freedom (as in the First Amendment of the later US Constitution). They were excluded from the Compromise of the Peace of Augsburg 1555 and henceforth had to fight for their rights from below, and they began to expand these rights for other confessions, including Catholics and Jews. It was Oliver Cromwell who allowed the Jews to return to England after hundreds of years of exclusion, with still lasting effects of religious tolerance.432 During the Dutch and English Revolution, subjective rights to freedom were, therefore, implemented and concretized for the first time as civic rights, even if still limited to the upper classes. However, the radical liberal Levellers grounded these rights in a system of universal human rights (long before Locke, whom they influenced). Freedom was defined as freedom of property and ownership, and that meant (similarly as later for Locke) the natural rights to (1) inalienable self-ownership, (2) ownership in one’s skills and manpower and (3) ownership in one’s material and intellectual property. These rights necessarily included two classes of positive human rights: (1) the habeas corpus rights to enjoy the freedom of material self-ownership and (2) freedom of speech, freedom of publication and freedom of religious confession to enjoy one’s own intellectual property. For the Levellers, these civic and religious rights were effective if, and only if, they were everyone’s rights. They were either the rights of everyone or the rights of no one. The


433Mt. 25, 40. Bible, New International Version, http://www.centreville-umc.com/Holy%20Bible%20-%20Today%27s%20New%20International%20Version.pdf (7 October 2013).434Wesel, Geschichte des Rechts, p. 403; see Crawford B. MacPherson, The Political Theory of Possessive Individualism – Hobbes to Locke. Oxford: Oxford University Press, 2011 (1962), pp. 142–4.435See Engels, Bauernkrieg, pp. 410–11.436Berman, Law and Revolution II, p. 298.437See Witte, Law and Protestantism, pp. 301–2.438Ibid., p. 71, pp. 132–3, pp. 188, 292; Berman, Law and Revolution II, p. 51.

Levellers generalized the famous sentence of Jesus: ‘Whatever you did for one of the least of these brothers and sisters of mine, you did for me.’433 However, they found good jurists to render this compatible with the exclusion of all have-nots from voting rights: ‘Only he who lives in prosperity is allowed to vote.’434 Like the German peasants, the Levellers lost the Civil War. But ultimately, they won the revolution.435 In England right after the revolution, the old distinction between subjective rights and objective right or law, which was alien to ancient Roman law, but had been introduced and implemented by canon law, was used for the first time to reconstruct a whole legal system of norms. At the top in Blackstone’s (1723–80) famous Commentaries (1765–69) on ‘The Rights of Persons’ (Book 1) stood the absolute rights of ‘natural persons’ (personal security, personal liberty, private property), then came the relative rights of public and private persons (including corporations).436 From here to the French Code Civil (1804), it is only one step further. Both advances together, the first formulation of clear-cut human rights by the Twelve Articles, and the invention of these rights as civic rights and their legal systematization and concretization in England, result from a learning process that established new normative constraints due to the Kantian constitutional mindset that went far beyond the managerial mindset of the Lutheran jurists.437

The struggle of the common man for freedom of conscience and movement was partly implemented by the managerial mindset of the Peace Treaties of Augsburg (1555) and Westphalia (1648). The freedom of conscience, in general, was accepted, at least by the Protestant rulers. The freedom of confession was restricted to the prince or magistrate (as a right to reformation), but negatively complemented by everyone’s freedom of exit (migration), at least in cases of deviant but internationally accepted Christian confessions.438 Finally, many of the peasants’ grievances were alleviated subsequently. Just after the successful counter-revolutionary war of extermination against the insurgents (more than 100,000 lost their life on the battlefield or were executed), the Imperial Diet met at Speyer and the Twelve Articles and their rightness and warranty were on the top of the agenda (even if they were not explicitly mentioned). The institution of Leibeigenschaft was either abolished or severely limited. Taxes to Rome and death taxes were


439Blickle, Die Revolution von 1525, pp. 246–53; Berman, Law and Revolution II, p. 57; Blickle, Von der Leibeigenschaft zu den Menschenrechten, pp. 76–87.440Witte, Law and Protestantism, pp. 302–3.

abolished or reduced, labour services for the landlords were restricted, restrictions on freedom of movement were abolished, fishing waters and land that the rulers had appropriated to themselves were restored to the villages and criminal punishments were reduced. Moreover, in Tyrol and, in particular, in Switzerland the revolution was partly successful, and led to some of the first lasting experiments with republican polities and (more or less) basic or direct democracy.439

Luther’s argument that a person is bound and free at once had important implications for human rights. Even if Luther would have rejected these implications, the insurgents of 1525, the Zwinglians and the Calvinists did not. Luther himself understood the famous dialectical unity of coercion and freedom to mean that the Christian ‘is free in order to follow the commandments of the faith’. Translated into the language of rights, this means that ‘a person has rights in order to discharge duties’. But, in particular, in combination with the Decalogue, which for the Protestant believers was the absolute centre of divine law, and especially in combination with its Second Table on universal neighbourhood, vice versa this means that duties have to be translated into rights, because my duty not to restrict your freedom ‘gives rise to another person’s rights to life, property, fidelity, and reputation’.440 From here, practical inferences can be drawn that lead to the reciprocal ascription of rights. It is only one further step of practical inference to show that reciprocal rights on their part presuppose democratic self-determination once they are realized in a legal community. But this move clearly sublates Lutheran reformatory theology into political theology, or even into secular political theory, and this, secondly, sublates the First Table of the Decalogue into the Second Table (or the monotheistic God into the universal community of mankind). Even if no early Protestant would have ever gone this far, first steps in this direction at least were taken during the English Revolution, as we will see in the next parts.


The medieval hotbed of modern freedom was the city state. Freedom of movement, marriage and contract, and, in particular, freedom of corporation were rehearsed in Memmingen and Lubeck, in Basle and Rothenburg, in Lindau and Ravensburg, in Prague, London, Paris and Bologna, or in the many autonomous cities in Spain. The peasants who carried out the insurgency


441The numbers are indeed impressive, as rightly pointed out by Blickle: Much to the chagrin of Holstein’s nobles, 3010 peasants emigrated to Lübeck in the 15 years between 1340 and 1355. A total of 10,000 went to Zurich between 1350 (when Zurich had only 5300 inhabitants) and 1550. First due to the great push of the Papal Revolution (Berman, Law and Revolution, pp. 81, 102–3, 363), and later (and with growing Leibeigenschaft), in particular, due to Landflucht (migration from rural areas), the number of cities in German-speaking countries increased from 50 at the end of the eleventh century to 3500 in the middle of the fifteenth century. In 1500, on the eve of the Reformation, 16 per cent of the population of the empire lived in cities with more than 5000 inhabitants. A specific institution that simplified access to citizenship was the Pfahlbürger, a kind of double citizenship in a rural Herrschaft and a city. These people lived outside the city, but were subject to city law (Blickle, Von der Leibeigenschaft zu den Menschenrechten, pp. 40–1, 53, 80, 84–5).442Witte, Law and Protestantism, p. 295.443Machiavelli, Il Principe, X, p. 85.

of 1525 in practice learnt the meaning of freedom in the cities. The vertical mobility between the city and the countryside was high. The increase of exploitation, oppression and serfdom increased emigration, urbanization and exchange between city and countryside. Someone who emigrated to the city became a free citizen after a year and a day: Stadtluft macht frei. (It is the air of the city that makes you free.)441 Therefore, the cities were a laboratory of legal reforms that preceded the Reformation:

Particularly important for the Lutheran reformation were the “legal reformations” issued by fifteenth-century German cities and territories that sought both to truncate some of the power, property, and privilege of the Catholic Church, and to transplant some of its learned canon law procedures, structures, and institutions into civil law.442

When Machiavelli praised the German cities in the Prince, he already described reformed cities at the eve of the Reformation.443 Despite, or even because of the worldwide web of commercial relations, the cities with their big walls (in a way) resembled isolated populations where speciation of a new species, in this case a new societal formation, becomes possible. The cities were a hotbed of normative learning processes which, on the technical media basis of the printing press, combined new material class interests, such as those of the common man and the urban magistrates, with the Protestant ideas of freedom of conscience, to make new and powerful ideal class interests. After the outbreak of the revolution, the Protestant ideal class interest materialized itself in the new legal system that was based on the core doctrines of Luther’s theology: sola fide and sola scriptura. Every legal norm was now to be derived from the Ten Commandments, and in all cases of doubt or collision (Dworkin’s hard cases), the individual conscience of each person was considered the final authority. A Protestant’s conscience was internally related to faith. It was the ‘bearer of man’s relationship with God’ and hence directly derived from faith.


444Hoffmann, Repräsentation, p. 331.445Giesecke, ‘Printing in the Early Modern Era. A Media Revolution and its Historical Significance’, http://www.michael-giesecke.de/cms/images/stories/Wissenschaftliches%20Tagebuch/texte_titel/PrintingintheEarlyModernEra.pdf (22 April 2013).446Sebastian Franck, Chronica, Strasbourg 1531, quoted from Giesecke, Printing in the Early Modern Era.447Berman Law and Revolution II, p. 115; see Witte, Law and Protestantism, pp. 62, 81; on Apel’s dialectical method see Friedrich Merzbacher, ‘Johann Apels dialektische Methode’, in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Vienna: Böhlau, vol. 75, 1958, pp. 364–74.

The only access to God that was left (if there was any) was through one’s conscience. Therefore, Protestants repudiated any connection of the clerical class and its spiritual law and institutions with the Holy Spirit.444 However, the complete abolishment of any mediating institutional hierarchy between God and the individual believer could only appear as a realistic utopia in the light of the new technical medium of the printing press that had been invented a hundred years before in Asia, but was now being used for the first time for communicative purposes in Western Europe. The combination of sola scriptura and sola fide in the individual conscience and consciousness presupposed a rapidly emerging great community of readers who had learnt to read alone and silently. This needed holy and other scriptures which were reliable, because there were the same books everywhere, copying errors were minimized and texts were authentic because they were now being verified through rapidly repeated comparisons, and which were accessible everywhere to everybody, because there were endless numbers of copies of written material which were quickly disseminated. The only medium that could guarantee reliability and accessibility technically was the printing press. Such a guarantee was not possible before its invention and communicative use.445 This is why the Protestant humanist and mystic Sebastian Franck (1499–1543) praised the art of printing with educational optimism for having opened up and brought to light the long hidden treasures of written art. Only by the art of printing is divine wisdom distributed to the people.446

Only abstract conscience makes man an imageless image of God. Through his likeness to God (which always must be taken together with the ban on images), man has a share in divine reason. The substance of this reason is brotherly love, and its form the ability to generalize one’s own point of view in the light of any other’s point of view (golden rule and equity). Therefore, the Lutheran jurists developed a radically post-traditional hermeneutic of text interpretation. The only access to the right interpretation of the Ten Commandments that was left was faith alone (sola fide). In this respect, all individual interpreters were equal. Thus, the Lutheran jurist and ex-canonist Johann Apel (1486–1536) argues that (in an overwhelmingly illiterate society) only spirit and not letter can disclose the ‘hidden meaning of Scripture for the contemporary reader’.447 The Holy Scripture is its own interpreter if you read its


448Berman, Law and Revolution II, p. 115.449This conclusion was drawn at once by the peasants in the first of their Twelve Articles of 1525 (Ch. III, Sec. II 7). See Berman, Law and Revolution II, p. 183.450Otto Wilhelm Krause, Naturrechtler des 16. Jahrhunderts. Frankfurt: Lang, 1982, pp. 117–18, p. 120.451Chris Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective. Cambridge: Cambridge University Press, 2011, p. 90, note 20.452Berman, Law and Revolution II, p. 91.453Ibid., p. 96.454Ibid., pp. 89, 92. The first quote is from Emmanuel Hirsch, Lutherstudien, Gütersloh, vol. 1, p. 127, quoted from Berman, Law and Revolution II, p. 75.

individual parts in the light of the totality of the Scripture, which the individual believer can anticipate through his or her conscience alone: Scriptura sui ipsius interpretes. Tradition and traditional interpretation lose any authority: ‘Each reader who had faith and learning was free to give meaning to the text.’448 This already includes the freedom of preaching, which is constitutive for Protestant theology and religious praxis.449 The Lutheran jurist Johann Oldendorp (1487–1567) drew further legal conclusions. Opposing Ulpian’s classical concept of natural law, he reserved all natural law for man, because no other animals are rational. Original sin has not destroyed all our lumen naturale (natural reason) and we are, thus, able to recognize natural law, but only on the basis of faith (sola fide) and of the Decalogue (sola scriptura). The world is fallen, but faithful insight into justice, positive law and disciplined work can help us to improve this world in spite of original sin.450 At the core of natural law is equity. Oldendorp regarded the legal category of equity as the law of conscience. With this move, he generalized the old Aristotelian theory of equity for a second time. While Aristotle had viewed equity only as a methodological exception for the solution of hard cases, the canon lawyers gave it an egalitarian generalization for the protection of the poor and helpless, and Oldendorp and the different schools of Protestant jurists generalized equity further to become the basis of all positive law.451 Therefore, ‘every application of the law needs to be governed by equity’.452 Law, if it is just law, is necessarily general and abstract, and once mechanically, or arbitrarily applied to a case, must therefore be unjust to the case. To correct this injustice, equity is needed in every case, and for Protestants, this could be performed only by sola fide: by the use of conscience.453 Furthermore, Oldendorp expanded Thomas Aquinas’s (and Luther’s) moral concept of conscience into a legal concept. In order ‘to discern what is equitable, the individual jurist, having exercised his civil reason’ – that is, human, legally trained reason – ‘to the maximum degree, must study the Bible’ – sola scriptura – ‘pray to God, and search his conscience’ – that is, sola fide. Oldendorp developed the ‘Lutheran emphasis on conscience into a constituent element of a systematic legal philosophy.’454 In ‘hard cases’ (Dworkin), judges had to


455Ibid., p. 300.456Ibid., pp. 300, 481 note 66.457Ibid., p. 265. The example shows nicely that Weber’s disregard for the constitutive legal side of Protestantism and especially, Calvinism, causes an individualist bias in his theory of Protestantism.

ask their conscience. In particular, the Protestant English lawyers integrated the use of conscience into their methodological doctrines, which (unlike those of the Lutherans) were directly oriented towards the new empirical, experimental and, in particular, probabilistic methods of the advanced physics (Newton) and chemistry (Boyle) of the seventeenth century. Not only were legal methods taken from and rationalized by natural science, but science was also strongly influenced by legal methods: ‘Robert Boyle compared the probative value of repeated experiments in the natural sciences with the probative value of the testimony of multiple witnesses in a law court.’455 If multiple witnesses have made the same statement, what is reached is not certainty (since that is reserved for God). But the multiplicity of witnesses increases rational (scientific) probability, and it is rational probability that satisfies the conscience of a jury and its individual members. This specific mix of Protestant conscience and scientific probability is at the origin of modern science and of the standard of proof which still applies in criminal cases in English and American common law courts: the requirement that the verdict be beyond reasonable doubt.456 Just as for the Lutheran Oldendorp, for the Calvinist Matthew Hale (1609–76), a hundred years later in the middle of the English Revolution, judging involved ‘a deep search by the judge of his own conscience.’ Yet, in a manner different from Oldendorp’s, but typical for the revolutionary common law of England, ‘for Hale, it was not only the conscience of the individual judge but also the collective conscience of the judiciary, the conscience embodied in the line of previous cases, that was crucial.’457

What is true for the Protestant judge is true for the Protestant prince and his subjects. In cases of incompatible advice and unclear norms, whether in legislating, judging or waging war, a prince had to go back to his conscience. Conscience was, as we have seen, the only access to God left for the Protestant. In all cases of assumed and experienced tyranny, the individual subject, therefore, had to ask his or her conscience whether she or he was allowed or even obliged to make use of the general individual right of (Lutheran passive or Calvinist active) resistance. In criminal as well as in contract law, the individual intention now played the crucial role. Therefore, any new law and any application of legal norms had to be balanced between two, and only two sources of positive law: The individual conscience and the civil authority (Luther’s Obrigkeit) that was derived from the Fifth Commandment


458Ibid., pp. 82–3, 89, 93, 95, 178 (Ten Commandments) pp. 96–9 (the two sources of law), pp. 75, 110–13 (epistemic role of conscience), p. 93 (right to resistance), p. 145 (intentional turn), p. 154, on Luther’s ambivalence about the freedom of conscience, see: p. 447 note 37.459MacCulloch, Reformation, pp. 147–50, 200–1, 379–80.460Witte, Law and Protestantism, p. 254.461This might have been one of the origins of the fatal German political tradition of politically neutralizing the Rechtsstaat, which led to the disastrous decoupling of the Rechtsstaat from democracy.462Berman, Law and Revolution II, pp. 138–9, 143, 145, 149, 150–1, 153, 183–4.

(fatherly authority).458 Under Lutheran rule, the theological freedom of conscience had only limited (but by no means unimportant) implications for the legal construction of subjective rights. There are, as we have seen, subjective rights of freedom of conscience and freedom of preaching. There is the right of exit (emigration), and the now strictly universal right of free marriage and the right of divorce. The latter two caused a sexual revolution that is often overlooked if we see Protestantism only through the glasses of Max Weber or Nathaniel Hawthorne’s Scarlet Letter.459 Rejecting the sacramental nature of marriage, all Protestants ‘rejected impediments of crime and heresy and prohibitions against divorce in the modern sense’.460 However, in Lutheran countries, no political rights at all were allowed, except, in the extreme case of tyranny, the right to passive resistance.461

A great step that was taken towards the modern Rechtstaat by Lutheran jurists was the comprehensive codification of capital criminal justice. The close supporter of Luther Johann von Schwarzenberg (1463–1528) drafted the so-called Carolina (imperial Constitutio Criminalis Carolina), which was adopted by the Reichstag (imperial diet) in 1532. It was the first complete codification of capital crime, relying in large parts on the earlier imperial reform Statute of Bamberg of 1507, which was also drafted by Schwarzenberg. The guiding principles were justice and common good (Gerechtigkeit und Gemeinnutz), and the code was written in a language understandable to lay judges (Schöffen). It limited self-defence to self-help, and eliminated private prosecution. It rationalized criminal law on the basis of the new topical method. The Carolina was the first generalized and systematic code of criminal law with clear-cut definitions of the criminal fact and its legal distinction from judgement and guilt. The bad intention (mens rea) was clearly differentiated from the harm an offensive act caused, not only in legal theory, but also (and this was absolutely new) in a legal code. Article 150, for instance, stated expressly that homicide committed in provoked anger is not punishable because of the absence of the necessary intent. Furthermore, in hard cases, judges had to ask for legal advice from higher courts, and even if the sheer list of capital crimes and cruel punishments in our ears sounds like dark times, it was clearly a strengthening of the rights of the accused, and a tempering of justice (requiring that young, mentally ill or feeble people should not be tried).462 It was a great step towards


463Ibid., pp. 278–80; see MacPherson, Political Theory of Possessive Individualism.464Ibid., p. 306.465Ibid., p. 270, p. 277, pp. 284–5, pp. 312–13.

a modern Rechtsstaat, because nothing comparable had existed before in criminal law, except in the very limited sphere of the courts of inquisition (which at that time had already been perverted into a terrorist machinery of witch-hunting and women’s repression).

Unlike the Lutherans, the common man of 1525, together with Zwinglian and Calvinist reformers, understood the freedom of a Christian also as worldly, political and societal freedom. In particular, the Calvinists in the Netherlands and England drew similar conclusions as the common man of 1525. They finally combined freedom of conscience with a new system of subjective rights of movement, contract and property, freedom of scientific opinion, socially highly selective political rights of participation and election and free speech, at least for representatives in (the English) parliament (Bill of rights, rights of the Englishman). In particular, property rights and rights of ownership were strengthened as never before in history.463

From the English perspective of the seventeenth century, the German states and cities were lagging far behind in the ‘dark ages’. ‘English criminal law’, Harold Berman writes, ‘underwent a rapid and fundamental transformation in the late seventeenth and early eighteenth centuries’, a fact that has been obscured ‘by the ideology of the English Revolution itself, which proclaimed the unbroken continuity of English legal history at least from the time of the Norman Conquest’.464 But the so-called Glorious Revolution (with the old and conservative meaning of ‘revolution’) was nothing than one of the first great myths of national history, and it represented only the bloodless end of a long and bloody revolution. Only after the revolutionary triumph of the common law courts over their royal rivals (the King’s courts), independent juries were established everywhere and the rights of the accused were strengthened substantially. Finally, all branches and elements of criminal law were received into the common law courts, and the common law courts retained their monopoly over the death penalty because ‘a person should not be put to death, at least for a nonpolitical crime, without a judgment of his peers’.465 The juries took the requirement that guilt should be proven beyond reasonable doubt very seriously, substantially and methodologically: ‘Where the evidence is obscure, innocence is presumed.’ (Matthew Hale). Proof was, as we have seen, rationalized according to the progress of science. Even if under the rule of the puritan common law courts there was an ‘extraordinary proliferation of capital offenses’ especially in protection of private property, at the same time there was a ‘substantial decline in the percentage of indictments for capital


466Ibid., pp. 317–19.467John Hales, The Grand Jury Man’s Oath and Office Explained. London, 1680, p. 13, quoted from Berman, Law and Revolution II, p. 287.468Berman, Law and Revolution II, pp. 286–7, 290–4.469James F. Stephen, History of the Criminal Law, Vol. 1, p. 358. Later, they were projected far back into the past, and it was argued that they formed part of the ‘good old laws of England’. But this was completely wrong, and simply a counterfactual presupposition that had the legal significance of establishing their legality in common law (see: MacPharson, Political Theory of Possessive Individualism, pp. 358–9).470Stephen, History of the Criminal Law, p. 358.471Berman, Law and Revolution II, pp. 288–9.472Stephen, History of the Criminal Law, p. 358.473On the crucial role of legislative power for the French Revolution, see Marx, ‘Kritik des Hegelschen Staatsrechts’, in K. Marx and F. Engels (eds), MEW 1. Berlin: Dietz, 1972, p. 260, and below Ch. III, Sect. III.

offenses that resulted in hanging’.466 An economically motivated increase in harsh laws was combined with religiously motivated lenient application. Imprisonment and transportation replaced the death penalty in more and more cases. An ambivalent achievement indeed – the birth of prison. In many respects, the legal advances in English criminal law came close to our times. The jury became independent as a trier of fact, but also should ‘take upon itself the knowledge of the law’.467 The adversarial system was introduced together with the assumption of innocence. New criteria for proving guilt were invented on the model of methods of scientific probability.468 Procedural rights of the accused were established: ‘From the year 1640 downwards, the whole spirit and temper of the criminal courts, even in their most irregular and revolutionary proceedings, appears to have been radically changed from what it had been in the preceding century to what it is in our own days.’469 Witnesses against the accused had to be ‘produced face-to-face’, the accused was allowed ‘to cross-examine the witnesses against him’ and to ‘call witnesses of his own’.470 Two counsels were made available to the accused before and at trial, a copy of the indictment had to be given to the accused or his representatives five days before arraignment and ample time had to be allowed for the defence to be prepared. ‘[T]hese rights were first granted to persons charged with political crimes,’ and then generalized to all crimes.471 All the ‘great changes in procedure took place apparently spontaneously, and without any legislative enactment’.472 Unlike the later French revolution, the English Revolution was not made by the legislative power, but by the judges.473 In evolutionary terms, in the isolation of a revolutionary situation, the old ‘species’ of common law¹ spontaneously and in a punctuated burst created the new ‘species’ of common law² that still prevails, and constrains blind adaptive evolution normatively – in the light of norms that can still be accepted even universally because they are the result of a normative learning process: a case of social speciation. The social speciation of modern common


474See MacPherson, Political Theory of Possessive Individualism.475Ibid.476Berman, Law and Revolution II, pp. 330–41, quote from p. 331.477Thomas More, Utopia, Vol. 4 of The Complete Works of St Thomas More. New Haven: Yale University Press, 1963, pp. 65–71, quoted from: Berman Law and Revolution II, pp. 332, 499 note 5.478Henry Sumner Maine, Ancient Law. Bristol: Thoemmes, 1996, Reprint of the 1861 edition.479MacPherson, Political Theory of Possessive Individualism, pp. 53–60.480See Thomas Hobbes, Leviathan. London: Penguin, 1985, book II, chapter 21.

law was a progress in the consciousness of freedom – but at the same time, and through the same law of freedom, it enabled the so far most effective implementation and stabilization of a new and property-oriented regime of class justice ever seen in history. On the broad path of alternatives which the revolution had opened, gradual evolutionary change finally took the alternative that led to the comprehensive cultural, social, economic and political hegemony of possessive individualism. Possessive individualism was the lowest common denominator shared by landed and bourgeois elites, puritan intellectual leaders and counter-revolutionary sceptics such as Thomas Hobbes (1588–1679).474

Property and contract moved to the centre of English civil and economic law.475 Feudalism was destroyed. Feudal land tenure was abolished in 1660 with the effect of ‘subjecting the entire taxing power of the Crown to the will of Parliament’.476 All restrictions on enclosure were eliminated.477 In effect, status was replaced by contract.478 Most restrictions on alienation of land were removed. Land became marketable and the emerging market in land was strongly supported by the new law of mortgages as well as by the Protestant doctrine of absolute contractual liability and, not to forget, a new and barbarian class justice in criminal matters. It was the new freedom of property – celebrated by Marx – that had strong effects on the class structure of the society. Class and social status became more and more dependent on income. Those who had plenty got more, whereas those who had nothing got less than nothing. To protect the haves against the have-nots and to secure the new property and its old and new owners, law was needed. Here again, the conservative but radical thinker and materialist philosopher Hobbes met the fanatic and revolutionary Calvinist believers. Hobbes projected the material interest of the rising ruling class onto the state of nature, which was the state of the early modern ‘possessive market society’.479 The basic instincts of man in the state of nature are focused on real estate, increasing property, comfort, industry, agriculture, shipping, architecture, fine arts and sciences, and the basic theory that equips him with sufficient reason to leave the state of nature is rational choice: the theory of the ‘free trader vulgaris’.480 The common law lawyers, the landed gentry of the ‘country’ and the wealthy merchants of the City of London ultimately were the winners of the English Revolution (as


481Berman, Law and Revolution II, pp. 315–16.482Ibid., p. 357. To establish bourgeois society in England, no further revolution was needed, and the worldwide impact of the French and American revolutions and the rapid growth of productive forces in the nineteenth century did the rest. Yet, the system ‘whereby the estates of the great landed families remained intact for many generations, lasted until 1925, when it was ended by new legislation on taxation of property and inheritance’. (Berman, Law and Revolution II, p. 335). In 1925, this was already the effect of another great legal revolutionary transformation that had been shaking the world since 1917 (Ch. III, Sec. IV).483This differentiation is reflected by contract theories that distinguish the state of nature, which is the personal system, from the state of society, which is the social system (see Brunkhorst, Einführung in die Geschichte politischer Ideen. Munich: Fink-UTB, 2000, pp. 190–3). Paradigmatically, Hobbes excludes the psychological system of thinking, imagination and all achievements of consciousness, including conscience, from the state of society by means of the social contract. Consciousness no longer is part of societal legal status and remains free from the clutches of the police. A law

were people with more or less similar class status all over Europe). Protecting their property rights became the leading maxim in interpreting, applying and concretizing common law, the law of precedents and of parliamentary legislation. In 1671, the Game Act reserved the right to hunt exclusively to the owners of large freeholds. The Black Act of 1723 imposed a death sentence for the game of poaching and for a host of other offences, which formerly had been the customary rights of peasants and poor people. The Act ‘made it a capital offense for any person armed or with his face blackened or otherwise disguised merely to be present in places deer and hares or conies “were or are or are to be” usually kept. . . . This was clearly class legislation’.481 A short time later the list of capital crimes also included the stealing of gates, railings and other objects attached to buildings, and of fruit, vegetables or trees from landed estates. Finally, the new class rule established by the revolution was backed by the legal institutionalization of an advanced school system that was designed to ‘strengthen the system of class relation’ by means of a comprehensive Protestant disciplinary revolution.482

However, the new freedom of the individual human being from the church, and from virtually all involuntary associations, which was based on individual conscience – sola fide – was combined not only with possessive individualism and the naturalization of possessive individualism by the theories of the state of nature (Hobbes, Locke). The new freedom of individual conscience – and here we can use the theories of Parsons and Luhmann to generalize MacPherson’s thesis – also enabled a total detachment of the individual conscience and consciousness from all societal institutions. This detachment opened the path for a normative learning process that consisted in the emergence of post-conventional moral universalism. This societal, public and private learning process then was stabilized by the systemic separation of the personal system from the social system: the de-socialization of the psychological system.483 The emergence of a post-conventional moral consciousness and the disembedment of the personal system (as described


that regulates thought is no law, because it already fails against the concept of law. That is why he rejects torture, that is why thought is free and that is why laws are only negative prohibitions and no longer moral obligations (Brunkhorst, ‘Menschenrechte und Souveränität – ein Dilemma?’, in Brunkhorst, Wolfgang R. Köhler and Matthias Lutz-Bachmann (eds), Recht auf Menschenrechte. Frankfurt: Suhrkamp, 1999, pp. 157–75, at 159–61).484Thornhill, A Sociology of Constitutions, pp. 143–4.485Luhmann, Legitimation durch Verfahren, p. 250; see already: Luhmann, Funktion und Folgen formaler Organisation. Berlin: Duncker & Humblot, 1964 (1999), p. 25.486Luhmann, Funktion und Folgen formaler Organisation, p. 26 (my translation and emphasis). The social systems of politics and economy immediately made use of their newly acquired relative independence from specific individual motivation, which was one of the many unplanned side effects of the Protestant Revolution. Especially the wielders of coercive power now redefined personal domination and dependence as the abstract rule over a whole population of unified subjects, subject to taxes and military call-ups, and they did the same with the indigenous populations of the ‘state of nature’ of ‘the other heading’ (Derrida) of Africa and America (see Tilly, Coercion, Capital, and European States, AD 990–1990; Buck-Morss, Hegel, Haiti, and Universal History; Osterhammel, Die Verwandlung der Welt, pp. 204–5; see Bayly, The Birth of the Modern World, 1780–1914: Global Connections and Comparisons. Oxford: Blackwell, 2004).

in historical studies concerned with the sixteenth and seventeenth century, such as those by Foucault) finally resulted in the emergence of an enlightened public sphere on the one hand, and a completely unintended further push of functional differentiation, in particular of political power, on the other hand. The anarchic impulses of the new Protestant freedom from society (Michael Kohlhaas), the new ‘sources of resistance’ – are ‘coherently . . . integrate[d]’ by the differentiation of the social from the personal system.484 After the differentiation of personal and social systems is made, the person can keep a consistent identity by attributing acting in different and highly specialized role contexts to his or her own personality alone, on the basis of individual belief: sola fide. On the other side, the social system now can operate rather independently from the different constellations of individual motivation.485 Once the human being is confronted with a variety of functional systems and formal organizations which are absolutely essential for her or his life and self-preservation, she or he must realize that he or she lives in a world of social systems which are no longer necessarily in accordance with his or her individual needs, and therefore, ‘the social integration of systems of action and personal integration are more than ever disintegrated.’486

One of the most important political and social conclusions to be drawn from the original Protestant slogan Freedom from the Church was the complete secularization and decoupling of the secular rights of corporative freedom from the sacred sphere and supremacy of the Catholic Church (and any other church). But the successful and progressive exodus of the Europeans established at the same time the conditions for the new slavery of the non-Europeans. Revolutionary progress opens an evolutionary path by erecting normative constraints against (in this case) serfdom and slavery, but the ongoing incrementalism of blind evolution based on the selective


487Berman, Law and Revolution II, pp. 27–8, 342–3, 348.488For the communitarian element, see MacCulloch, Die Reformation 1490–1700, pp. 523–4 (critique of Weber).489Gorski, Disciplinary Revolution, p. 76.490For a good, brief overview, see Osterhammel, Kolonialismus. On the legal process of globalization, see Anghie, Imperialism, Sovereignty and the Making of International Law. All the Great Powers of Europe and a lot of smaller ones were involved in the Seven Years’ War, and it was fought in Central Europe, Portugal, North America, India and the Caribbean.

mechanisms of new hegemonic class interests, hegemonic opinions and functional imperatives turns the revolutionary advances into evolutionary regression. Through the decoupling of corporative freedom from clerical control, corporative freedom was unleashed especially by the Calvinist reformations (which were completed by the Prussian Revolution from above in the first half of the eighteenth century). Together with the Protestant ethics (which Weber described and which was based on the moral and legal freedom of conscience), corporative freedom caused an explosion of the productive forces of communication and cooperation (including science and technology), which had its centre in England and the Netherlands, but quickly spread all over Europe and the world (even if it did not achieve global hegemony until the middle of the nineteenth century).487 Corporative freedom was the communitarian and legal complement to the Protestant ethics.488

(1) Political and communicative rights paved the way to new forms of constitutional monarchy, republican aristocracy, the beginnings of parliamentary legislation and (with far-reaching effects) even democratic self-organization in the isolated cantons of Switzerland and in the Protestant colonies of New England. In particular, the early modern state, but also the American democratic communities soon proved to be much more effective and powerful than any earlier political formation. It is no accident that ‘two of the small states that lived on into the modern era had Calvinist roots: the Netherlands and Switzerland’.489

(2) The new system of property and contract law enabled the emergence of early and proto-industrial formations of modern capitalism, ranging from a completely new and highly effective form of colonial plantation economy based on slave labour (the number of slave imports to Europe, the Caribbean, Brazil and Louisiana increased between the middle of the seventeenth and the middle of the eighteenth century to 3,300,000) to a global system of free trade, the beginnings of world economy and world politics (with the colonial ‘prerogative state’), including World War I (the Seven Years War 1756–63), the beginnings of English as a world language and, for the first time, the emergence of global international law from the seventeenth century onwards.490 The very basis and backbone of the emerging world economy was


491See Buck-Morss, Hegel, Haiti, and Universal History (with further literature).492Davis, Problem of Slavery in the Age of Revolution, p. 267. In the property-centred version of the theory of natural law, slavery in a way became (or at least could become) a necessary condition of freedom. As far as it was natural property, slavery was indispensable, and at least in these cases a constitutive condition of freedom based on the state of nature (Uday S. Mehta, ‘Liberal strategies of exclusion’, Politics and Society 18 (1990), 427–53, at 119; David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770–1823. Ithaca: Cornell University Press, 1975, p. 267, quoted from: Buck-Morss, Hegel, Haiti, and Universal History, p. 28). Already, the Levellers (who strongly influenced Locke) had used this crucial argument in the contest over the extension of suffrage that was fought out between them and the Independents (Oliver Cromwell 1599–1658, Henry Ireton 1611–51) during the 1640s. Freedom is a function of individual property and ownership: self-ownership, ownership of one’s own skills and manpower, ownership of material property. As ownership, freedom is a universal subjective right, a human right that is the ultimate reason for all other rights. The basic rights of property and ownership in one’s person, one’s skills and manpower, and one’s material goods include first habeas corpus rights (enabling ownership of one’s body), and secondly, freedom of speech, publication and religious confession (enabling ownership of one’s intellectual capacities). The basic rights of property and ownership belong to natural law, which precedes all positive law, and hence cannot be changed by parliamentary legislation. The Levellers now argued that these rights are, as we have seen (Ch. III, Sec. II 5), the equal rights of everyone, even foreigners, Jews and Heathens, women and servants, employees and beggars. Civic and religious freedoms must be the freedoms of everyone, or there is no freedom at all. Natural law, therefore, prohibits legislators, judges or wealthy gentry from enslaving anybody (except for punitive reasons). At least self-ownership is inalienable. But for the same reason, the Levellers argued (as Macpherson has shown) that servants, employees and beggars could and should be excluded from the right to vote for Parliament. The Levellers argued that they should be excluded from parliamentary elections first because they were dependent on someone else’s will, or because they had no material property of their own and hence were dependent on other men’s property (like women or beggars), and secondly – and this was essential – the exclusion from the right to vote could not harm the basic rights of self-ownership and freedom because Parliament was not allowed to make laws restricting the basic rights of free ownership (MacPherson, Political Theory of Possessive Individualism, pp. 142–7).

slave labour and slave trade.491 Locke considered slavery a decent institution because his theory of the social contract distinguished political discourse (polis) sharply from the sphere of the economy (oikos). While political discourse belonged to society and depended on the changing decisions of the people and their representatives, the economy still belonged to the state of nature, which positive law not only protected, but should also never touch or change. Hence, slavery becomes something natural: a legal fact of natural law. Like freedom, life and estate, slavery is not subject to the original social contract. The naturalization of slavery clearly is due to Locke’s liberal dualism, which is the birth defect, or in the language of Protestantism, the original sin of liberalism. If one confuses the logical construction of the state of nature with the empirical knowledge of the then so-called primitive societies (as in Africa and America) or does not make that difference explicit (something all early contractual theory failed to do), one can easily come to the conclusion that once you have made slaves in the state of nature that is Africa, they become the natural basis of universal freedom, and that slavery, is therefore, protected against legislative revisions by natural law.492


493Bermann, Law and Revolution II, pp. 342–3, see: p. 322.494Ibid., pp. 344–5.495‘East India Company’ (1911), in Encyclopaedia Britannica Eleventh Edition, vol. 8, p. 834, (https://archive.org/details/Encyclopaediabrit08chisrich_201303, accessed 15 November 2013).

Both the progress in the consciousness of freedom and the new forms of slavery, oppression and exploitation were enabled, reinforced and stabilized by the same Protestant legal reforms (in Protestant and non-Protestant countries), and especially by the new (English and soon global) system of contract and corporative rights, and a law that was deeply influenced by the Calvinist ethics and spirit. The first step was taken by the invention of the joint-stock company, which was a crucial condition for ‘overseas trading enterprises which were designed not only to make profit but also to serve public causes’. An example is ‘the 1692 Act of Parliament granting a corporate Charter of Merchants of London to carry out trade with Greenland’. It was accompanied by the creation of the Bank of England in 1694, which was also a joint-stock company, ‘principally in order to finance the government’s war against France’.493 The economic law reforms attacked all kinds of monopolies, regulated the economy and restraints on trade and reconstructed the system of guilds in the Puritan spirit of the Covenant and the Calling. The Bank of England was ‘authorized to sell bonds backed by the Crown, thus acting as an agent of public finance’.494 The Bank of England was the first central bank of history. Thanks to the invention of the printing press, it was the first bank that printed money. A prosperous economy adopted the new technique of reproducing money without limit and at (nearly) no cost, which enabled the kingdom to pay its debts, build the biggest and strongest navy ever seen and to trigger an enormous economic boom. The Hudson Bay Company was founded in 1670 and the Royal African Company in 1671. The latter organized most of the transcontinental slave trade. The most powerful of these aristocratic mercantile joint-stock companies (which from 1690 were reserved for English men, and controlled by landed gentry and leading merchants elected to the House of Commons) was the East India Company. Under the rule of Charles II (king of England, Scotland and Ireland from 1660–85), in a series of five Charters, the East India Company was equipped ‘with the right to acquire territory, coin money, command fortresses and troops, form alliances, make war and peace, and exercise both civil and criminal jurisdiction’.495 Together with the other, initially even more powerful Dutch East India Company, the British East India Company rapidly grew into the most modern organization of the world, which ran the European colonization of India and great parts of Pacific Asia. The British and Dutch East India Companies were neither a national state nor an Empire, but political communities sui generis on the basis


496Berman, Law and Revolution II, pp. 360, 367.497The political theology of national electness equipped the English ruling class with an appropriate imperial ideology to reform, educate, discipline, punish, control and civilize the world and the others in the name of the divine order. This was quickly copied all over Protestant and Catholic Europe, penetrated its colonies and shaped colonial rule; see Bermann, Law and Revolution II, pp. 264, 376. On the role of private-public partnerships and cooperation, see Gorski, Disciplinary Revolution, pp. 76–7.

of state-centred corporative freedom, which were at once private and public, oriented towards individually shared economic profit and the common wealth of the British or Dutch Empire. The disciplinary industries of Protestantism, namely, education and social work, were also partly organized as joint-stock companies and private-public partnerships.496

It was the legal form of private-public partnership that enabled these organizations (at least partly and in their field of praxis) to bypass public law, constitutional restrictions, parliamentary control and judicial review. This was highly important for the prerogative measures that enabled colonialism as well as great parts of the disciplinary revolution. As we will see, it is not a mere accident that private-public partnerships are playing an important role again today, in particular, as a means of neo-liberal counter-revolution. The first joint-stock companies were all private-public partnerships, legitimated theologically by reference not only to the Weberian ascetic work ethics of the lonely individual, but also to the communitarian biblical covenant, which was furthermore combined with the interpretation of the English people as the elect nation. The English Revolution was, thus, the birth of modern nation building, nationalism and imperialism, quickly copied by all the other European countries. It is neither the private property of British Calvinists nor a specifically English national heritage, but just the dark side of the evolutionary universal of cosmopolitan statehood. The specific combination of Calvinist communitarian theology with the political theology of national electness made the English common law a secular equivalent of biblical law, and superior to any foreign law, replacing papal law supremacy by national law supremacy.497


This part offers a very brief discussion of three founding documents, the Ninety-Five Theses of 1517, The Twelve Articles and the Order of the League of Christian Associations of 1525 and the Declaration of the True Levellers, who were called Diggers from 1649. The human rights core of the third of the Twelve Articles and the Digger’s Declaration have already been discussed in Chapter III, Section II 5.


498Engels, Bauernkrieg, pp. 347, 349, my translation.499Most of the theses were concerned with indulgence and expiation.500Witte, Law and Protestantism, p. 53. The quote is from: Luther’s Works, 55 vol. Philadelphia, PA, 1955–68, vol. 48, p. 192.501See Maximilian Herberger, ‘Juristen, böse Christen’, in Adalbert Erler, Hg. Handwörterbuch zur deutschen Rechtsgeschichte, vol. II, Berlin, 1978, pp. 482–3, quoted from: http://rechtsgeschichte-life.jura.uni-sb.de/Herberger_Juristen.htm.

Friedrich Engels has rightly characterized the Ninety-Five Theses as an attack against the ‘constitution of the Catholic Church’, and the Augsburg Confession from 1530 as the ‘constitution of the reformed civic church’.498 The legal programme of Luther’s Theses was negatively directed against canon law as such.499 For Luther, the only purpose of canon law was to stabilize the class rule of clerics over laymen. Therefore, the Ninety-Five Theses entailed a critique of clerical class justice, a point that later was repeatedly made by the common man and by Diggers and Levellers. In 1520, at the University of Wittenberg, Luther publicly burned the books of canon law and sacramental theology, among them Gratian’s Decretum and later books of the Corpus iuris canonici, together with the papal bull that threatened him with excommunication. Later he praised himself: ‘I am more pleased with this than any other action in my life.’500 For Luther, who had studied canon and civil law alongside theology and philosophy, and who was engaged throughout his life in Protestant legal reform of secular law, canon law was a profoundly inconsistent and fallacious foundation of papal authority. Luther hated the law and appreciated spirit and faith instead. He railed against the jurists: They were bad Christians, good for nothing, enemies of Christ and so on.501 He considered that human law and the traditions of the Roman Catholic Church were totally in contradiction with divine precepts and practices. In a typically revolutionary polemic, Luther emphasized only the repressive side of canon law. Canon law, he argued, perverted the law. Under the rule of clerics, the mother of equity changed her sex, and became the father of tyranny. Canon law, so the charge, was in the service of the illegitimate privileges of the clergy, was an instrument of greed and exploitation, and – here Luther anticipated Pufendorf’s monster with two heads – led to a dangerous division of the legal authority of princes and magistrates. Shortly after the Ninety-Five Theses, Luther recommended that canon law should be abolished altogether. Everything that stood against his sola fide interpretation of the Gospel’s good news had to be eradicated. Luther imagined himself as God’s prophet of the last days of mankind, who had come to fulfil the Mosaic plan and finally free the elect from the law. For that holy purpose he even manipulated and bastardized the Bible in his famous German translation. In Roman 3, he changed the whole meaning in adding the one crucial word only: ‘Man is justified without the works of the law, only by faith’.502 Luther’s radicalism nowhere falls short of the Dictatus Papae: ‘Neither


502MacCulloch, Reformation, p. 130.503Witte, Law and Protestantism, pp. 55–7. The quote is from Luther’s Works, vol. 36, p. 96.504Berman, Law and Revolution II, p. 47. Like Luther, Robespierre once wanted to abolish not the law, but the jurists.505Thornhill, A Sociology of Constitutions, pp. 89–90.506Berman, Law and Revolution II, pp. 76, 81, 94, 96, 375.

pope nor bishop nor any other (clerical) man has the right to impose a single syllable of law upon a Christian.’503 Similar to the earlier revolutionary monk Hildebrand, who later became Gregory VII, the former monk Luther appeared to his contemporaries as a Holy Satan – and in this respect resembled later secular monks such as Robespierre and Lenin.504 Luther and his comrades turned the slogan of the Papal Revolution: ‘Freedom for the Church through law!’ into its opposite: ‘Freedom from the Church and its law!’ Luther’s negative and polemical criticism set the agenda for the coming legal revolution: Back to individual conscience – sola fide! Back to divine precepts and practices! Back to the law of scripture – sola scriptura! Back to the Ten Commandments! Like Gregory VII and the canon lawyers, Luther and the Protestant jurists referred to the original sources of law with the purpose of constructing a completely new system of law, legal doctrines and legal methods. Only a short time later, Henry VIII (1491–1547), who remained a Catholic, expropriated the monasteries. He supported the English translation of the Bible, and especially triggered major reforms which entailed the assertion of royal supremacy over the courts of church law in 1533, which ‘led to the submission of the judicial powers of the clergy and the integration of canon-law courts into the sphere of royal jurisdiction’. Henry’s minister Thomas Cromwell (1485–1540), an early English Protestant and distant ancestor of Oliver Cromwell, went further and ‘prohibited the university study of classical canon law’.505 The effect of the early Protestant reforms in England was the same as the effect of Luther’s assault on canon law, even if Luther was more radical in his rejection of canon law. Of the existing law, he was willing to accept only Roman law, because he understood it as an imperfect embodiment of justice which was useful in correcting sinful man. He enthusiastically endorsed the efforts of legal humanists to reconstruct the original texts of Roman law. Law for Luther was useful primarily as an instrument of correction and education, necessary to get the evil effects of original sin under control. Law secondarily should help fallen man to fulfil his calling in this world, and insofar, Lutheran Protestants and, more firmly, Zwinglian and Calvinist reformers also followed the older Catholic path of reformism, which consists in the improvement of this world through law.506 Moreover, like their Catholic predecessors, they wanted to make a still further, third use of law for emancipatory purposes of salvation. The internal relation of law and emancipation (salvation) prevailed through all great modern revolutions. To achieve these purposes, all law (1) had to be


507Ibid., pp. 74–5, 184–95.508Besides Oldendorp, Schwarzenberg and Apel, one should mention, in particular, Konrad Lagus (1500–46), Johannes Eisermann (1485–1558), Hieronymus Schürpf (1481–1554), Ulrich Zasius (1461–1535), Matthew Wesenbeck (1531–86), Justus Jonas (1493–1555), Lazarus Spengler (1479–1534), Joachim von Beust (1522–97), Melchior Kling (1504–71) und Kaspar von Teutleben (1500–46). Especially Zasius was (like Luther) a hard-core anti-Semite who significantly restricted the rights of Jews in Freiburg’s Stadtrecht.509Witte, Law and Protestantism, pp. 55–64 (on the radical attacks against canon law), pp. 73–83 (on the critical reception of canon law), quote from p. 82; see Berman, Law and Revolution II, pp. 123, 150, 152, 159.510Witte, Law and Protestantism, p. 58.

derived sola scriptura from the Ten Commandments, and (2) should be under the exclusive control of the confessional state.507

The Lutheran jurists held firm to sola fide, sola scriptura and confessionalization.508 However, they only reluctantly followed the radicalism of the theology professor from Wittenberg. They were nonetheless radical as reformers, because they immediately started to change the whole legal system whenever they had an opportunity, and they had many of those at a time when more and more states and cities became Lutheran. They wrote new legal textbooks on the basis of new legal methods, reformed the law schools, founded new ones and turned the legal practice of all Protestant territories upside down. But having begun this work, the jurists could not do it from scratch, first for pragmatic reasons. They needed a spiritual law codified in canons for theological reasons, and they just did not have the time or the facilities to invent everything anew. Secondly, from the point of view of the Reformation, not everything about canon law was bad – nor everything about Catholic city law (Stadtrecht), Catholic territorial law (Landrecht) or Catholic imperial law (Reichsrecht). On the contrary, large parts of canon law accorded nicely with Protestant theology and confessional teaching. Therefore, Luther’s jurists often only reinterpreted and revised the existing imperial, territorial, city and canon law in the light of the radically new substantial and methodological principles of Protestantism, and sometimes even included large parts of Gratian’s codex – but transplanted it into a completely different context. What was left of canon law and the other Catholic codifications was canon law filtered by the ratchet effect of confessionalization and individualization, but even then it ‘retained a formidable influence’.509 Against Luther and most of the Lutheran jurists, but with an important turn to Zwingli, the revolution of the common man of 1524–26 was the first large insurgence that took the theological message and the legal programme of Luther seriously politically. The revolutionaries drew direct political consequences from the spiritually restricted egalitarianism of the Lutherans that all ‘are priests and stand equal before God; they are not divided into higher clergy and lower laity’.510 The intellectual leaders of the common man transformed Luther’s reformatory


511There is a strong family resemblance between the Calvinists’ and other Protestant sects’ affinity to democratic self-organization, see Tilly, European Revolutions, p. 61; see Weber, ‘Die protestantischen Sekten und der Geist des Kapitalismus’, in Weber (ed.), Gesammelte Aufsätze zur Religionssoziologie I, pp. 207–36.512Blickle, Der Bauernkrieg, p. 24.513Blickle, Die Revolution von 1525, pp. 240, 243; Blickle, Von der Leibeigenschaft zu den Menschenrechten, p. 87.514Berman, Law and Revolution II, p. 184.

theology into a Zwinglian political theology. The revolutionaries of 1525 were the first who politicized the spiritual egalitarianism of the saints and overcame the dualism of the two realms that was the Augustinian corner stone of Luther’s theology.511 This world and the other world for them were closely entangled, and both transcendence and immanence were justified by one overall divine will. The common man understood himself not as a man of two worlds, but as a non-divided man within the continuum of one world with two chambers. This theological basic idea was constitutive for the Twelve Articles of Memmingen. In only two months in the spring of 1525, the Twelve Articles reached an enormous audience all over the German-speaking world, and were recorded even by the English Court, who had a translation of the peasants’ letters of complaint made – to be prepared for the imminence of similar uprisings in England. In a very short time, 28 editions of the Twelve Articles were printed, and even the Order of the League of Christian Associations (Bundesordnung) reached 11 editions.512 Together with the Bundesordnung, the Twelve Articles were the first modern constitutional document at the beginning of the era of Protestant revolutions, at the end of which, more than 150 years later, stood the English Bill of Rights (1688), which was not a document of human rights, but of English civic rights alone.

The Twelve Articles of 1525 were adopted, together with the Bundesordnung, on 20 March at Memmingen, a commercially important Freie Reichsstadt (independent city of the Empire), which was an ally of the League. By now it is almost certain that Christoph Schappeler (a close friend of Zwingli’s, who chaired Zwingli’s second doctoral disputation in Zurich) and Sebastian Lotzer (a disciple of Schappeler and a Zwinglian) were the authors of the Twelve Articles.513 For the revolution of the common man, ‘law of divine grace’, which operates without coercion, is the ‘measure of whether positive human law can be adhered to’. The freedom of preaching and the communal choice of pastors are founded in ‘a law higher than the prince’.514 From this starting point, which they shared with the Lutherans, the insurgents of 1525 invented the idea of a system of federally tiered elections of priests, bishops, army leaders, judges, parliaments (Landtag), chapters and rulers (Landesherr). They designed a mixed system of corporate-democratic federalism, even if they (in the same way as the Levellers in England or, another century later, even Kant in his


515Blickle, Die Revolution von 1525, pp. 212–36.516Blickle, Der Bauernkrieg, p. 89 (my transl.).517Because usually Protestantism has not been seen as a legal revolution, historians, sociologists and philosophers have frequently argued along with Hegel that (1) the Reformation disclosed the free self-realization of the rational subject, whereas only (2) the French Revolution invented legally regulated equality and justice (and (3) both things together then make the Hegelian modern state). See for a recent reconstruction of that argument: Ruda, Hegels Pöbel, p. 24.518Action of the city of Blaubeuren, 19 March 1498 (quoted from: Blickle, Der Bauernkrieg, p. 89, see: 94).519Blickle, Der Bauernkrieg, p. 70.520Ibid., pp. 91–2. In Machiavelli’s theory of republican freedom, a similar idea is being developed, in a different way perhaps, but at the same time (see with further references: Bargu, Problem of the Republic; Vatter, Between Form and Event.)521See Hofmann, Repräsentation, pp. 324–8.522Blickle, The Revolution of 1525. Baltimore: Johns Hopkins University Press, 1981, p. 156. The federal system erected by the Dutch Calvinists a few decades later was very similar, see Gorski, Disciplinary Revolution, pp. 46–7.

notion of Selbständigkeit) excluded servants, employees and beggars. Some of the insurgent groups, particularly in Switzerland, even introduced elements of grass-roots democracy for the first time.515 Blickle assumes that ‘there is probably no more radical new beginning in the history of Old Europe than that of the peasants in March and April 1525’.516 The insurgents derived positive law directly from political freedom, practically anticipating eighteenth-century political theory.517 Sovereignty was located in the assemblies of autonomous rural or urban communities or congregations. It is not yet popular sovereignty, but the sovereignty of the community/congregation (Gemeinde) from which all power (‘volle[n] und ganze[n] Gewalt’) emanates.518 Power was transferred to the representative bodies of the Bundesordnung by elections for offices and judicial and legislative bodies in a multi-level system of representation. All law had to be legitimated directly by the affected legal community.519 The late medieval idea that government belongs to the divine rights of born nobles alone was replaced entirely by legitimation through a voluntary act of the associated people of the congregations.520 Here, the old constitutional law of the corporation and the council was turned against hierarchical rule in itself. Nobody (not even the most radical conciliarist, such as Nicholas of Cusa) could have argued that way before the end of the fifteenth century.521 In the cities, the insurgents often abrogated privileged rights of guilds (Landstände) and insisted on direct legitimization of magistrates by citizens’ and farmers’ majorities. The Twelve Articles and the Bundesordnung clearly contradicted the basic social structure of stratified class society: ‘The principles of community, elections, godly law, the common good, and Christian brotherly love neutralized and overwhelmed the particular interests of any group or estate.’522 An anonymous author wrote a Flugschrift that was printed only two days before the greatest defeat of the common man in early June 1525. This Flugschrift delivers something like the


523Blickle, Der Bauernkrieg, pp. 98–101.524Blickle, Die Revolution von 1525, p. 240; see on the general context and the more reluctant turn of Luther and the Lutherans from gospel to law: Witte, Law and Protestantism, Chapter 5, pp. 177–98. Herein lies the crucial difference between Luther and Zwingli, because Luther’s Christology is one of Christmas, Zwingli’s Christology is one of Easter (Gottfried W. Locher, ‘Grundzüge der Theologie Huldrych Zwinglis im Vergleich mit derjenigen Martin Luthers und Johannes Calvins’, in Locher (ed.), Huldrych Zwingli in neuer Sicht. Zurich: Zwingli Verlag, 1969, pp. 173–274.) Zwingli insists, against Luther’s strict thesis of identity, on the difference between Jesus as God and Jesus as man: ‘Luther emphasizes the revelation of God, Zwingli the revelation of God. . . . Luther’s Christology is one of Christmas, Zwingli’s one of Easter’. (pp. 209, 213–14, my transl.) In the Christology of Easter, first law has a much more prominent place (good law, bad idolatry) than at Christmas (bad law, good gospel); and, secondly, it is combined with the utopian idea of a total change and improvement of social and political life through legal reformation (Blickle, Die Revolution von 1525, p. 241). While for Luther, ultimately the law was evil and the gospel good, for Zwinglians (and Calvinists), the law was good and idolatry was evil (see MacCulloch, Reformation, pp. 135, 142–4. This has the consequence that for Luther, the old biblical law which says one must obey God, not man, was valid primarily for the non-political and de-legalized, merely moral and inner sphere of the Church as a community based on Christian freedom of conscience alone. In legal and political terms, the idea that the believer has to obey God more than man for Lutherans meant at best that under certain conditions, passive resistance in matters of conscience is allowed or even morally urgent. Quite unlike Luther, Zwingli and his followers argued from the beginning that Christian princes must make laws that are in accordance with divine and natural law, otherwise active resistance and revolution is unavoidable and, in fact, legally required. While Luther was a monk whose life was centred in the salvation of his soul, Zwingli was a ‘Leutpriester’ (popular priest) and a popular prophet (Locher, Theologie Zwinglis, p. 178, see 180). Hence, for Zwingli, a Christian government is not only (as for Luther) something desirable, but also something indispensable. Every legal norm, therefore, must be justified by the universalizing principle of the golden rule, and therefore is founded on subjective rights that citizens must grant one another reciprocally (Blickle, Die Revolution von 1525, pp. 241–2). Instead of one-sided subordination and the merely inner freedom of the Christian man, the spiritual community of saints and the legal state of sinners had to confront each other, with equal rights and within this world. The church and the state, therefore, were to complement each other within a constitutional unity of faithful citizenship.525For a recent reopening of the debate, see Loick, Kritik der Souveränität, pp. 269–312.

political theory of the Twelve Articles and the Bundesordnung in a nutshell. The Anonymous (who was at Memmingen when the Twelve Articles were drafted) argues that (1) all government is legitimated by its contribution to the common good (gemeiner Nutzen) alone, (2) it loses all legitimacy once it becomes tyranny, hence (3) tyrants must be impeached and (4) tyranny then has to be replaced by republican government. Furthermore, Anonymous (5) sharply rejects the Lutheran theology of the two realms because divine law should have a direct effect in political matters.523 The revolutionaries of 1525 started immediately to transform the gospel into law.524 The English Levellers and Diggers later argued in a similar way, asking for more inclusive (Levellers), even egalitarian and democratic reforms (Diggers) of the already existing census suffrage under Cromwell’s parliamentary dictatorship. Even if these radical movements did not succeed during the Protestant revolutions, their egalitarian claims and their radical criticism of the unholy unity of law and violence reappeared again and again.525 They could not be forgotten (Kant).


526Arthur S. P. Woodhouse, The True Levellers’ Standard Advanced (1649), quoted from: The online Library of Liberty (http://oll.libertyfund.org/?optioncom_staticxt&staticfileshow.php%3Ftitle2183&chapter201124&layouthtml&Itemid27).527This was a basic principle of Lutheran theology. ‘No ruler’, Luther wrote in his infamous reply to the Twelve Articles, ‘ought to prevent anyone from teaching or believing what he pleases, whether Gospel or lies. It is enough if he prevents the teaching of sedition and rebellion’. (Luther, ‘A reply to the Twelve Articles’, in Luther’s Works. St Louis: Concordia Publishing House, 1956, vol. 4, p. 223, quoted from: Berman, Law and Revolution II, p. 183). In this respect, even the Lutherans radicalized the old biblical imperative that man shall obey God more than man, and reserved for their religious praxis, teaching and preaching ‘freedom from the law (vom Gesetz)’ because ‘in subservience to Christ is the law (Recht) of the Christian’. (Calenberg-Göttinger Kirchenordnung of 1542, quoted from: Berman, Law and Revolution II, p. 183).528Here, Georg Jellinek in his famous debate with Emile Boutmy followed Luther and decoupled religious freedom from political freedom and democracy, with a fatal history of impact and reception (Wirkungsgeschichte) in Germany and for the liberal ideology of the politically neutral Rechtsstaat. See Oliver Lepsius, Die Religionsfreiheit als Minderheitenrecht in Deutschland, Frankreich und den USA, Leviathan 3 (2006), 321–49.529Blickle, Die Revolution von 1525, p. 29.

The Zwinglians thought that this world would continue to exist for a long time, and that Christians, therefore, had the moral and legal obligation to realize at least parts of the realm of God in this world. They had to use the means of political and legal reforms dialectically to get rid of the coercive power of state and law step by step. Much later, Protestant thinkers such as Karl Barth would follow this dialectical track of political theology. So would the Twelve Articles. They are moderate in their legal claims, but revolutionary in substance. The Preamble compares the goals of the insurgents with the biblical exodus of the Israelite slaves from the old Egyptian Empire. This comparison was ubiquitous at that time. Nearly all Protestants drew it, and the English Levellers more than a hundred years later described themselves as ‘poor enslaved English Israelites’.526 The message in both cases was clear: Freedom from slavery and serfdom. Article 1 called for the election of the parish priests by the municipality or the local parish.527 This was Protestant mainstream, but unlike the Lutherans, Schappeler and Lotzer understood the freedom of preaching as a political right of man, as in the First Amendment to the much later US Constitution.528 The effect of Article 1 on the power of the clerics is, in fact, evident. It simply means nothing less than the complete destruction of the Catholic system of parishes that was the backbone of 400 years of clerical power over Europe.529 Articles 2, 4, 5 and 10 concern tithing, hunting, fishing, wood and the commons as a whole. This was also one of the main issues of the English Diggers later. In its political effects, these Articles meant nothing less than the destruction of the feudal system and the end of noble and clerical rule over the farmers. Articles 11 and 12, together with 6, 7 and 8, required the abolishment of the heriot (Todfall) (surrender of the property or parts of the property of a deceased unfree peasant to his master), the abolishment of exploitation through one-sided, unbalanced and hard services,


530The quotes are from the Declaration from the Poor Oppressed People of England of 1649, see http://www.bilderberg.org/land/poor.htm531Blickle, Die Revolution von 1525, pp. 228–35.532Ibid., p. 235.

and the reconstruction of the divine legal order of protection on the basis of equal freedom. This was backed by Article 9, which required legal equality on the basis of written law, at least in criminal cases.

Like the common man of 1525 in the central human rights Article 3, the True Levellers in their Declaration from the Poor Oppressed People of England of 1649 directly (and in much less moderate language) confronted natural and divine law with the ‘unrighteous Law’ of the ‘Tyrant-flesh’ of the ‘Land-lords’. They appealed to the ‘Law of Creation’ when they drew from the ‘equal right to Bread’ and the ‘equal’ ‘freedom in the land’ the legal conclusion that he who ‘calls himself the Lord of the Mannor’ ‘shall share’ that freedom as well as the Bread ‘with us as a fellow-creature’. They directly confronted the ‘Law of Creation’ to the existing ‘Laws of Oppression and Tyranny, that shall enslave or spill the blood of the Innocent’. The True Levellers took the speeches of ‘Isiah’ on the people’s free ‘enjoyment of the Earth’, together with his ‘promise’ ‘that they shall buy Wine and Milk, without Money, or without price’, as the ‘Law’ ‘set up by the King of Righteousness’, and used this as his ‘Law’ to declare the prevailing ‘murdering, governing Laws’, or the ‘cheating law of the sword’ null and void.530 Here, they coincide with the Christian communism of the radical leaders of the common man such as Thomas Müntzer (Omnia sunt communia) and Hans Hergot, who constructed the new Protestant order as a global and cosmopolitan order of communism, more or less in the same way as the Diggers.531


Cosmopolitan statehood did not vanish after the Protestant Revolution. In utopian terms, the year 1525 again was the most advanced. In Hans Hergot’s pamphlet Von der Neuen Wandlung des Christlichen Lebens, the dualism of the two realms is sublated into the project of a comprehensive new world order which unifies mankind according to the biblical model of ‘eyn und eynerley schaffstall’ (one and the same sheepfold) – the same metaphors that at the end of the century Campanella used in his intellectually more sophisticated and ironically disrupted project of one utopian world.532 The followers of Zwingli and Calvin centred their whole theology on the Old Testament’s idea of a Covenant (foedus) between God and his people. They used it not only to bind their Christian communities to the laws of the Old Testament, but also to


533MacCulloch, Die Reformation 1490–1700, p. 174.534Bernd Diestelkamp, ‘Das Reichskammergericht im Rechtsleben des 16. Jahrhunderts’, in Hans-Jürgen Becker, Gunter Gudian, Ekkehard Kaufmann, Wolfgang Sellert (eds), Rechtsgeschichte als Kulturgeschichte, FS Adalbert Erler, Aalen, 1976, pp. 435–80; Bernd Diestelkamp (ed.), Die politische Funktion des Reichskammergerichts. Cologne, 1993; Ingrid Scheuermann (ed.), Frieden durch Recht. Das Reichskammergericht von 1495–1806. Mainz: Scientia-Verlag, 1994.535Thornhill, A Sociology of Constitutions, p. 94.536See Asbach, Europa, pp. 126–9.

extend it to all peoples and all individual human beings, thus anticipating later ideas by Kant and others of a Völkerbund, a foedus pacificum and a republic of world citizens.533 Via the emigrant Protestant sects, the idea of federal expansionism much later became constitutive for American revolutionary self-understanding.

However, reality was different. Here, cosmopolitanism was radically decentralized, and the states (princes) and cities (magistrates) became the major organs of the law of nations (ius gentium). Only some important relics of the old centralized and hierarchical cosmopolitan order were left or newly introduced, as in the famous Reichskammergericht that was founded in 1495. It was not only a transnational, but also a transconfessional court. It had original jurisdiction in cases involving immediate subjects of the Empire, and appellate jurisdiction in other cases, on the legal basis of Roman canon and German common law. It dealt, in particular, with constitutional (actions against territorial princes) and civil cases (including religious freedom, rights to exit, property rights, judicial review, denial of justice, etc.), and in appellate criminal cases, on the basis of the Protestant Carolina of 1532, in particular, in applications to have lower court judgments quashed (Nichtigkeitsklagen), and on that of the ordinary rules of processus ordinarius. Actions by poor and impecunious people or inmates received preferential treatment. From 1648, the judges and their assistants were recruited equally from both Christian confessions, Catholics and Protestants (Lutheran), of the Reich.534 The most important relic, the Heilige Römische Reich Deutscher Nation, was reorganized and reformed from 1434 onwards (Reformatio Sigismundi), and several times during the age of the Protestant Revolution. It was ‘a complex body of interwoven feudal, territorial and imperial jurisdictions’.535 The Reich was still a kind of empire consisting in (a) a cosmopolitan, multicultural and multi-confessional monarchy, (b) an economic union with the common leading currencies of the Reichstaler and the Rheinischer Gulden, (c) a weak common army and (d) a small common tax (Gemeiner Pfennig). Within the emerging European order of Westphalia, the Reich was considered as a central part of the new European system of balances that was oriented towards the then central political metaphor of mechanical weights (Machiavelli).536 The Reich covered not the whole of Europe, only the greater part of the German and Italian (and


537Witte, Law and Protestantism, pp. 187–8; see Berman, Law and Revolution II, pp. 178–92; Johannes Süßmann, ‘Die Wurzeln des Wohlfahrtsstaats – Souveränität oder Gute Polizey?’, Historische Zeitschrift Bd. 285:1 (2007), 19–47, at 39, 41–2.538See Forsythe, Murray, Unions of States. The Theory and Practice of Confederations. New York: Holmes, 1981. Especially the Netherlands had ‘extremely strong’ local states and cities (Gorski, Disciplinary Revolution, p. 67, see: 46–7).

smaller parts of the French, Flemish and Slavic) speaking regions of Europe, but that was still an impressive space. The decision-making procedures were complicated and incomplete. There were – as in the UN security system today – legal exceptions for a few big powers. The system worked only as a mutually supportive community.

In the German intellectual tradition, from Hegel’s early essay Die Verfassung Deutschlands to Carl Schmitt’s book Nomos der Erde, the importance of the Reich for the Ius Publicum Europaeum – that is, the European constitutional order after the Protestant revolutions – has always been underestimated, neglected or denounced as ‘reactionary’ (whereas national centralism was evaluated as ‘progressive’). But this evaluation misses the essential role of the Reich as the first and paradigmatic transconfessional order to include, from 1555, the Catholic and Lutheran, and from 1648 all the Protestant confessions. Besides the Protestant Carolina, the imperial legislation of the Reich essentially assimilated the new Lutheran Ordnungen (ordinances/ regulations) and Calvinist Ordonnances: the church-ordnungen, school-ordnungen, matrimony-ordnungen, disciplinary-ordnungen, poor-ordnungen, federal-ordnungen, constructural-ordnungen, police-ordnungen, Länder-ordnungen, market-ordnungen, court-ordnungen and so on. The Ordnungen were at the centre of the Protestant legal reforms. The German Protestants’ categorical imperative was ‘Ordnung muss sein!’ (Regulation is a must). Like the Carolina, the new Reichspolizeiordnungen, the imperial public policy ordinances of 1530, 1548 and 1577, were named for the Catholic Emperor Charles V, but essentially drafted by the Lutheran jurist Johann Schwarzenberg. They all insisted ‘on faithful religious observance and adherence to public Christian morality, but they left the precise confessional identity of each polity to local officials to define and enforce’.537 This mode of federal coordination of powers resembles the transnational order of the EU today. It was not only the Reich that was a new and viable federation of states and cities, the United Kingdom and the Netherlands also were such imperial federations.538 The decision of the Reichskammergericht and Reichshofrat were universally binding for all members of the Reich. They, in a way, were the successors of the papal court of last appeal in Rome, and the predecessors of the international and transnational courts of the twentieth century. The jurisdiction of the Reich partially included direct effect (as in the cases of the old papal and the new European Courts of today). Another important transnational institution was the


539Asbach, Europa, pp. 101–8; on the evolutionary relevance of the Reichstag see Michael Sikora, ‘Formen des Politischen. Der frühmoderne deutsche Reichstag in systemtheoretischer Perspektive’, in Becker (ed.), Geschichte und Systemtheorie, pp. 157–84, at 162–72.540Peter Oestmann, ‘Reichskammergericht und Hexenprozesse’, in Gudrun Gersmann, Katrin Moeller and Jürgen-Michael Schmidt (eds), Lexikon zur Geschichte der Hexenverfolgung, in historicum.net, URL: http://www.historicum.net/no_cache/persistent/artikel/1668/ (02 July 2012), pp. 1–17.541Even the enlightened members of the Royal Society in the seventeenth century did not, and in 1665, Matthew Hale condemned two women accused of witchcraft to death by hanging.542Oestmann, Reichskammergericht und Hexenprozesse, pp. 10–14.

Reichstag, which had been founded in 1495 and made permanent from 1663. It decided unanimously and made only few important decisions in foreign politics. But it functioned fairly well as the one central common public and informational pool of the Reich. Finally, the new media of the printing press played a crucial role for the first emergence of a specific European identity that went far beyond the borders of the Reich. Printed pamphlets disseminated the threat from the East in all European languages. The successful propaganda campaign against the Turks was the first European media event.539

As a case study on the role of the Reichskammergericht in witch trials shows, the Reichskammergericht had not only an empire-wide rationalizing, pacifying and dispute-settling impact. It also showed the humanizing and – in a way – liberating effects of legal formalism, in particular, in the darkest times of religious fundamentalist, state-terrorist and chauvinist witch hunts.540 Admittedly, it never rejected the legal concept of spiritual witchcraft.541 But it insisted on the legal rights of the accused. The judges used their ‘managerial’ professional competencies to apply and implement at least parts of the Kantian mindset of the Papal and the Protestant revolutions. They rejected the crimen-exceptum doctrine that allowed witch-hunts and summary trials. The Reichskammergericht’s jurisdiction in cases of serious and capital offences was limited to actions for the annulment of lower court orders (Nichtigkeitsklagen), and applications for interim orders against prosecutors brought by affected families, the so-called Mandatsklagen. But once they had intervened in witch trials, a wave of persecution not infrequently abated – an effect that was reinforced by the doctrinal activities and expert reports of the Protestant law schools. The Reichskammergericht, in particular, required sufficient evidence before arrest or torture could be ordered, it required the observation of the strict procedural rules of the Carolina or the processus ordinarius, it rejected any ordeal, special inquisition or denunciation through personal enemies of the accused, insisted on the observation of the subjective rights to legal counsel, supported provisions for public defence, rejected solitary confinement of prisoners, insisted on humane conditions in prisons, and last but not least saved the life of a considerable number of accused or condemned people, mostly women.542 All in all, the intervention of the Reichskammergericht in


543For more illuminating cases, see Diestelkamp, Reichskammergericht und Rechtsstaatsgedanke. Die Kameraljudikatur gegen die Kabinettsjustiz. Heidelberg: Müller, 1994.544Witte, Law and Protestantism, pp. 133–4.545Ibid., p. 133.546Berman, Law and Revolution II, p. 124.547Ibid., p. 97.

witchcraft cases was a veritable process of constitutionalizing an existing legal praxis, even if it was the constitutionalization of legal practice in witchcraft cases.543 The expert reports of the law schools were another crucial element of the transconfessional constitutionalization of the Reich. Hard cases often were sent to both law faculties and theological faculties for resolution. The Aktenversendung (literally the process of ‘sending the file’) lasted in Germany until 1878. It ‘had a way of drawing together the best legal and theological learning of the day to address the hard moral and theological questions that came to the state for resolution by positive law’.544 The legal instrument of Aktenversendung resembles the preliminary ruling proceedings of the European Court of Justice today. Between the sixteenth and nineteenth century, it became an important means of controlling the magistrates and princes in all issues of possible conflict between positive law and natural law as it was expressed in the Ten Commandments. Here, Coke’s ‘artificial reason’ (see previous part 3) was needed for a resolution that went back to the Bible and the old canon law texts to transplant them into the new civil law.545

At the same time, the Protestant Revolution implemented a stable system of confessional territorial states and cities. The reformed states, together with the free cities, were the main organs of the law of nations (ius gentium) that was the Ius Publicum Europaeum (the public law of Europe). It was based on the equal sovereignty of princes and magistrates: the ‘territorial law was supreme, and was not to yield, in cases of conflict, to the imperial law’.546 The states and cities were the main organs, but not, as in Kelsen’s ‘primitive cosmopolitan legal order’, the only ones. Alongside them, there were also the recently reformed or even new organs of the Reich. However, the new cosmopolitan basic order was not grounded in the legal order of the Reich (which finally became one particular power besides others). It was grounded in the new Protestant ius gentium that was valid all over Europe, and included divine, natural, common and treaty law. Roman law, in particular, still functioned as a ‘transnational jus commune’.547 It was this law, and not national or state law which (after the revolutionary Peace of Augsburg of 1555 and the Pax Westphalica at Muenster of 1648) guaranteed (1) the equal sovereignty of all European monarchies, (2) from 1555, the right of the monarch or magistrate to make a choice between at least two Christian confessions (cuius regio eius religio) and (3) from 1648, the specific mix of the confessions as they had existed in each reign in 1623. This included (4) the subjective right of exit, at


548Witte, Law and Protestantism, p. 132.549See Schmitt, Nomos der Erde.550Bright and Geyer, Benchmarks of Globalization: the Global Condition, 1850–2010, pp. 6–12.551Stichweh, Die Weltgesellschaft. Frankfurt aM: Suhrkamp Verlag, 2000, p. 8; see Stichweh, Der frühmoderne Staat, pp. 113–22.552Rüegg, Themen, Probleme, Erkenntnisse, pp. 40–1.553Ibid., pp. 31–2.

least for a small number of male heads of families, who had the privileged freedom of doing so. The principle of cuius regio eius religio ‘rested ultimately on Melanchthon’s theory that the magistrate’s positive law was to use the First Table of the Decalogue to establish for his people proper Christian doctrine, liturgy, and spiritual morality’.548

My representation of the co-evolution of cosmopolitan and national statehood since the Protestant revolutions so far has been incomplete and eurocentric. The Protestant revolutions not only sealed the end of the old cosmopolitan and imperial entities of Europe, or modified their role significantly, but also created the legal, political and economic conditions for new, and this time, for the first time, global empires, even if these were more projected than real until the punctuational break of the nineteenth century.549 Protestantism is at the beginning of the age of globalization that lasted from the seventeenth to the nineteenth century. At the end of the nineteenth century – if we follow the convincing thesis of Bright and Geyer – globalization was finalized, and since that time we have lived in the global age.550

The irreversibly disintegrated Roman-Catholic universal state was replaced by a more virtual and intellectual universal republicanism. Intellectuals such as Vitoria did not write just for the European world, but for an emerging or at least imagined and anticipated world public, what a little later would be called res publica literaria.551 It consisted not only in printed books, pamphlets, the first journals and even newspapers, but also in an enormous European-wide and even transatlantic network of handwritten letters that went beyond all differences in status, confession or nationality.552 The first newspapers were reports of the fascinating news about America. In 1521, Cortes’s report on the conquest of the Inca empire was published in German as Newe zeittung (new tiding or report), and together with the reports of Magellan and Columbus, it was published under the title of Ein schöne Newe Zeittung (a beautiful new tiding or report); and a hundred years later, at the same time as the blossoming of the new public law, Neue Zeitungen (a term which now began to acquire something like the modern meaning of newspaper) and monthly reviews delighted the (still very small) reading public.553 From now on, modernity, or the new, was identified with America. López de Gómara praised the discovery of America 1552 as ‘the greatest event since creation, with the only exception


554López de Gómara quoted and translation from: Rüegg, Themen, Probleme, Erkenntnisse, p. 28.555Rüegg, Themen, Probleme, Erkenntnisse, p. 31.556Ibid.557Osterhammel, Kolonialismus, p. 67. There had already been archaic globalization, but archaic globalization never covered the globe (see Bayly, ‘Archaische’ und ‘Moderne’ Globalisierung). As we have seen (Ch. III, Sec. I 3), Osterhammel and Peterson, therefore, call the processes of archaic globalization Globalisierungsanläufe (globalization attempts or start-ups). These attempts go back to the early Axial Age, had been combined with the mentality of proto-modern globalization since the Papal Revolution and then replaced by the first real pushes to Globalization. Osterhammel and Petersson, Geschichte der Globalisierung, pp. 24–7. On the history of globalization, see Bardo, Taylor and Williamson, Globalization in Historical Perspective; Hopkins, Globalization in World History; Reynolds, One World Divisible; Conrad, Eckert and Freitag, Globalgeschichte.558On the ‘age of globalization’, see Bright and Geyer, Benchmarks of Globalization, pp. 6–7.559Bayly, ‘Archaische’ und ‘moderne’ Globalisierung; Bright and Geyer, Benchmarks of Globalization.560See Bayly, ‘Archaische’ und ‘moderne’ Globalisierung.561But I am not following Parsons’s thesis on the making of the system of modern societies here (see Parsons, The System of Modern Societies). For the reasons, see Ch. III, Sec. III.

of the incarnation and the sacrificial death of our Saviour’.554 As in the days of the Papal Revolution, the new was celebrated (see previous part 3), but celebrated with a new meaning deeply affected by Columbus, who became the paradigmatic novi orbis repertor (discoverer of the new world). ‘New’ now was associated with globalization, and more generally became that which had been unknown to the ancients, not to mention the medieval darkness.555 The printed academic world was full of the new: Nova de universis Philosophia (Patrizi 1591), Novum Organum (Bacon 1620), New Atlantis (Bacon 1624), Nova methodus (1684 Leibniz), Scienza Nuova (Vico 1725), to mention some of the most famous titles.556

The Protestant Revolution was the second push towards globalization, which followed the Spanish-Portuguese beginnings and the merely fictional global legal claims of the Catholic popes.557 Protestantism opens the evolutionary path to the age of globalization.558 But once the age of globalization begins, and world society emerges, globalization no longer is a Protestant and European endeavour, but an endeavour of entangled histories and modernities, of a new mix of archaic, proto- and modern globalization that is no longer centred in Europe or the Western hemisphere, even if it finally did lead to Western hegemony (but never to Western control) over the rest of the world.559 With the second push towards globalization, the decentring of Eurocentrism and occidental rationalism begins. At the latest from the second push towards globalization onwards, there are no longer different societies, but only one world society (as a whole still characterized, however, by segmentary differentiation), which emerges during the age of globalization.560 Since that time, all four (Parsonian) basic functions of the social system have been in a process of globalization.561 If we take only the European or Western perspective into account, the adaptive function (A) is driven to globalization by


562Tommaso Campanella, The City of the Sun, trans. by D. J. Donno. Berkley: University of California Press, 1981 (1627), p. 121. The original Latin version uses more biblical metaphors: ‘simulque organis congregationis mundigenarum in unum ovile’ (http://la.wikisource.org/wiki/Civitas_solis, 01 May 2013) that is: the congregation of mankind in a fold. Engels still uses the three ‘historischen Glanzpunkte’ of the invention of gunpowder, printing press and the Hanseatic League as signifiers that mark the beginning of the modern world (Engels, Bauernkrieg, p. 330).

the slowly emerging, slave-labour-based world economy. The function of goal attainment (G) is driven to globalization by the beginning of world politics, world wars and (however ficticious) claims to European world rule. The integrative function (I) is driven to globalization by the emerging global ius gentium, and the beginning of imperial prerogative law. Finally, the function of latent pattern maintenance (L) is driven to globalization by the dissemination of English as a world language. The starting point for the differentiation of these four functions on the global level is reached in the middle of the eighteenth century, at the beginning of the next great revolution:

More than 150 years after the invention of the printing press and more than a century after the discovery of America, communication already existed between the big continents, initiated by the Europeans. For a long time hidden from European eyes, the globe’s enormous uncharted areas were rapidly becoming smaller and smaller, before they disappeared entirely from the ever more precise sea charts and maps. During the sixteenth century, the globe had turned into a delimited and traversable ball. At the threshold of the seventeenth century, Tommaso Campanella identified the ‘stupendous inventions – the compass, the printing press, the harquebus’ as ‘mighty signs for the imminent union of the world’.562 As of 1600 at the latest, Europe was on its way into McLuhan’s global village. Every place came within reach of communication intensified by new media, of technically perfected guns, and of systematically organized sea and land expeditions. The entire globe became the stage for European wars; conquerors, looters and robbers were followed by an ever denser network of commercial routes and streams of emigrants, by settlers, humanists, slave traders, lawyers, bureaucrats and missionaries,

Table 3 Emerging world society (from western perspective)

I

Law: Global ius gentium (imperial prerogative law)

G

Politics: World wars (emerging semantics of European world rule)

L

Culture: World language (English)

A

Economy: World trade (Atlantic slave plantations/ global slave trade)


563Only at the height of Western world rule, in the early twentieth century, did half of the continental landmass consist of colonies. Western world rule began only after Western industrialization in the middle of the nineteenth century (Osterhammel, Kolonialismus, p. 29; Bright and Geyer, Benchmarks of Globalization).564Osterhammel, Kolonialismus, pp. 64–6.565Anghie, Imperialism, Sovereignty and the Making of International Law, p. 22. I have to thank Thore Prien for a critical discussion of this point, see Prien, Is the Evolution of International Law taking notice of Imperialism and Colonialism? Comment on Hauke Brunkhorst’s paper, IUC-Dubrovnik 2013.

by torturers and geometers, by naturalists and hangmen, by physicians and ethnologists. If European absolute despotism was – as recent historical research shows – a myth, in the world of colonies and imperial rule it was not. Often, the colonies were the private property of the princes or the de facto property of partly or fully private corporations and settler associations. However, anywhere outside Europe where Europeans were in power, they, in fact, achieved at best limited and contested regional control, ruling over some port cities and coastal regions.563 Of particular importance is that the export of European institutions goes back to the Protestant revolutions. But the West exported religion, authoritarian rule and prerogative law, not freedom of conscience, rule of law and corporative self-organization.564 The greatest heritage of Western modernity for the colonized world became modern administrative and disciplinary techniques of oppression and exploitation, modern weapons and armies drilled to kill the opposition, and finally modern class and racist justice.

However, from the beginning, the praxis of enslavement and the pro-slavery legislation of the papal authority (papal bulls legalized the slave trade and the enslavement of the indigenous population of the Americas) triggered sharp protests like Vitoria’s. Vitoria treats the Indians as equal with the Spanish, at the level of individual human beings and their rights as well as at the level of peoples and their rights. But, as Anthony Anghie has objected, by abstracting from ‘the Indian’s specific social and cultural practices’, he treats them as if they were Spanish.565 This, Anghie argues, is an overly abstract equality measure that (in a way) opens the door for European cultural and specifically Christian missionary imperialism. The argument that applies Christian natural law to the Indians in the same way as to the Spanish overlooks that the Europeans’ concept of law is often in conflict with the concept of law of the Indians. Therefore, it cannot be an adequate means of deciding in the case of contradictory legal claims between the Europeans and the indigenous people. Anghie argues convincingly that (1) idealizing specific Spanish norms, (2) filtering the natural law substance out of them and (3) applying them again to both the Spanish and the Indians might not be enough to avoid at least cultural imperialism, and to do justice to the Indians’ own legal and cultural point of view (and the


566Ibid., pp. 26–31.567See, for instance, James Tully: On Law, Democracy and Imperialism, Edinburgh 2005, Ch. 7, pp. 20–31, http://web.uvic.ca/polisci/people/faculty/tully/publications/Tully%20Presem%20-%20Edinburgh%20draft%20criculation%20paper.pdf (01 May 2013); for a more moderate criticism, see Tom McCarthy, Race, Empire, and the Idea of Human Development. Cambridge MA: Cambridge University Press, 2009.568See Vitoria, De Indiis, Prima Pars: II, 20; III, 2–3, 5, 7, 8, 10, pp. 446–7, 464–75. On Kant’s position in this respect, see: Fine, ‘Rights, Law and subjectivity: configuring Arendt and Adorno’, in Samir Gandesha and Lars Rensmann (eds), Arendt and Adorno: Political and Philosophical Questions. Stanford: Stanford University Press, 2011 (forthcoming), quoted from the e-man., p. 9. If one goes back to Vitoria’s construction of a right to have rights, may be one could even argue, using Vitoria’s own conceptual means against his conclusion, that the Indians have no right not to let the Spanish traders and missionaries in and allow them to perform their commercial business and religious mission. But these are philosophical questions which are not of immediate relevance here.569Osterhammel, Kolonialismus, pp. 101–2, 106–7.

difference between conceptual frameworks of rights).566 Anghie’s argument is plausible, but the question is why Vitoria’s abstraction from the specific perspective of the Indians does not do justice to their specific legal claims? – Because the idealization and naturalization of a European legal praxis is too abstract, or because it is not abstract enough to enable a legal discourse that does justice to both contradictory claims and conceptual frameworks? Even if natural law universalism is related to Western imperialism, that does not mean that there is no universal point of view that is not related to imperialism. Anghie’s own approach already is an example of a higher-level point of view that is comparative, and tries to do justice to both frameworks. Today, Kant is frequently and rightly criticized for his conceptual imperialism.567 But that does not mean that the Kantian principle of generalizing maxims reciprocally in the light of possible universal laws would not be a strong argument that allows one to avoid the affinity of Vitoria’s excessively concrete universalism of natural law and to overcome Vitoria’s form of conceptual imperialism. If one takes the Kantian universalism of possible legislation (as opposed to real natural law) seriously, any claim of the Spanish to a peaceful commercial or missionary ‘invasion’ of Indian territories would have to be denied.568

Moreover, the Kantian mindset was not totally outside the cultural, normative and legal reality of the colonial world. For a comprehensive assessment of (1) religious mission in the colonies, one must take into account that besides the majority of more or less racist mission in the service of private and public domination, there existed also a considerable missionary ‘left’, which protested and resisted the excesses of colonial oppression and exploitation. Missionaries corrected the one-sided export of authoritarian modernity with at least partially effective egalitarian reform and educational reforms that took the perspective of the colonial other seriously.569 Liberation theology is a late product of the oppositional forces that were weaker than those supporting the


570Ibid., pp. 103–5.571On the latter see Olivier Roy, L’Islam mondialisé, Le Seuil 2001.572Osterhammel, Kolonialismus, pp. 110–11.573See Bayly, Birth of the Modern World.574Osterhammel, Kolonialismus, p. 67, English translation quoted from: Osterhammel, Colonialism. A Theoretical Overview, trans. S. L. Frisch. Princeton: Markus Wiener Publishers, 1999, p. 60; Osterhammel and Petersson, Geschichte der Globalisierung.575Given the fact that this was a burst of executive state power, one must keep in mind that the resulting state formation was still far from the end of the story of the modern national state. The so far greatest abstract power of the state was reached only by fully fledged democratic constitutional regimes that were designed to get that power under the control of the people. See Dietrich Jesch, Gesetz und Verwaltung. Eine Problemstudie zum Wandel des Gesetzmäßigkeitsprinzips. Tübingen: Mohr, 1961.

slaveholders, but still inherent in Christian missionary praxis. In particular, the interaction of Western Christian religion with the colonial religious background produced a series of hybrids, of mixed and entangled modernities.570 They included the subversion of an authoritarian enforced Christian monopoly by the indigenous religions; an autonomous self-Christianization and copying of Christian praxis that resulted in new modern hybrid religions; the emergence of non-Christian counter-movements such as Hinduism, which was alien to pre-colonial cultures; or fundamentalist hybrids which often had a strong modernization drift themselves (Islamism).571 The same ambivalence can be observed in (2) the hegemonic enforcement of the English language in most of the colonial world. The colonized cultures often appropriated the English language using the means of their own culture, and counter-colonized it, again with highly productive hybrid effects on both sides, the native English-speaking world and the colonized English-speaking world.572 Nor were the peoples that were the involuntary addressees of Western gifts passive or inert victims of the West. The way they interpreted, accommodated and transformed Western ideas, Western technologies and Western law also set limits on Western world rule.573 Even (3) the totally one-sided use of colonial law for merely instrumental reasons of securing and consolidating Western power (originally based on slave labour) also led to a growing knowledge and familiarity with procedural legal equality among the colonized peoples. It was this growing familiarity with procedural legal equality that ‘nourished a demand for substantial equality. The partial Europeanization of the colonial legal system [against the intentions of the colonial rulers – HB] contained a potential for emancipation that extended beyond colonialism.’574


In the course of the Protestant Revolution, national statehood was most advanced by the English Revolution.575 The Protestant Revolution transferred


576Stolleis, Geschichte des öffentlichen Rechts in Deutschland I, pp. 66–7, 69, 71, 74.577Thornhill, A Sociology of Constitutions, pp. 93, 101, 107–9.578MacCulloch, Die Reformation 1490–1700, pp. 58–60.579Thornhill, A Sociology of Constitutions, p. 103.580Ibid.; see Blickle, Von der Leibeigenschaft zu den Menschenrechten, pp. 191, 194.581Thornhill, A Sociology of Constitutions, p. 104.582See, for the territorial regimes of the Holy Roman Empire of the German Nation: Süßmann, Die Wurzeln des Wohlfahrtsstaats, pp. 28, 35, 42 (The political society is engendered by the Polizey).

the legislative power of the church to the state or to the city. Only now, after a further reception, was Roman civil law used to complete the functional differentiation of public law which had reluctantly emerged since the thirteenth century.576 At the latest from the turn of the sixteenth to the seventeenth century, a paradigm change to public law is observable everywhere in Europe. All public law now was ascribed to the state. Already since the turn to the sixteenth century in Spain, and since the beginnings of the Tudor regime in England, a public state apparatus had evolved: ‘that is, it departed from the model of semi-private governance characteristic of the Middle Ages’. A short time later, the same happened in the Netherlands between 1576 and 1581 under the States General, and simultaneously in France.577 In the Spanish case, one even could speak of a reformation before the reformation.578

Within a couple of decades, ‘a distinct and specialized corpus of public law’ was engendered, something that had never existed before. Constitutionally, it was based on a ‘strong doctrine of fundamental laws (leges fundamentales)’.579 Inviolable fundamental laws are an old concept of natural law that was now internalized by the state, and became the foundation of the public law of the state. In this way, statehood was abstracted from its personal or societal origins.580 Between 1519 and 1600, ‘the principle of fundamental laws was transformed from a doctrine of practical external compacts into a theory of the state’s internal organic personality’.581 All social reality now appears as something made by man and engendered by the legislative machinery of the state.582 The radically state-oriented reinterpretation and internalization of the fundamental laws into the public law of the state was performed by Protestant and Catholic regimes. As we have seen in this section, the Protestant intellectual leaders wanted – for theological reasons of sola fide and sola scriptura – the transplantation of all law into state law, the law of the Obrigkeit. They wanted the purification of the spiritual life of the Christian community from all this-worldliness, and they wanted the confessional Protestant state as a watchdog for the fallen world and as an educational disciplinary machinery for those who were condemned by divine will. But they never intended, nor even imagined that this would have the unintended side effect of the real abstraction of political power from law, religion and morality. They wanted the confessional, not the secular state. They never intended to transform the fatherly authority


583See Thornhill, A Sociology of Constitutions, pp. 88, 95, 109–10.584Ibid., p. 158.585Helmut Willke, Ironie des Staates. Frankfurt: Suhrkamp, 1992, pp. 72–3.586Thornhill, A Sociology of Constitutions, p. 160.587Ibid., pp. 141–3.588Ibid., pp. 109, 160–1.

of monarchical rule into abstract statehood that is nobody’s father, but just the central organ of a functionally differentiated political system. They never planned a political system that was completely one-sidedly specialized in the maintenance and accumulation of power for power’s sake.583 But this is just what they ultimately got: A functionally differentiated and socially disembedded power ‘constructed as a resource that was relatively indifferent to singular persons’; a power that was ‘utilized in increasingly constant procedures’ and ‘not fully reliant on direct conflict or coercion for its usage’; a power with a structure ‘which allowed it to be applied’ in ‘legal formulae’ and socially inclusively.584 Whatever the actors thought they were doing, the state began to reflect and describe itself as the unity of the political system.585 In the English Revolution, the state had ‘acquired the ability to project itself as a personally consistent public personality, which greatly facilitated its use of power’.586 The kings wanted power for themselves and their families and for the glory of God, and resisted everywhere the real abstractions of power. Charles I had to pay for his stubborn lack of understanding of the ongoing process of real abstraction of political power with his life, the kings of Spain with the decay of their public authority, and the king of France met the same fate as his English predecessor only a little over a century later. On the other side, the English Parliament used the emerging difference between the abstract Obrigkeit, the state ‘regulated by law’ (Henry Parker) and the office of kingdom on the one hand, and the mortal person of the ruler on the other to defend their good old rights and privileges and the constitution of the supposedly age-old common law of the Christian community of England against a notorious law-breaker and tyrant. Radical Protestants used the normative universalism of Obrigkeit, kingdom, statehood and common law (which all entailed divine and natural law) for a fundamental critique of the monarchic principle.587 To realize these sublime purposes, they strove for the absolute power of Parliament and erected a parliamentary dictatorship. However, ultimately both mortally opposed sides of the ‘great tragedy’ (Marx) of the revolution, who each fought for different versions of theocracy, created the complex, differentiated and pluralistic constitutional order of a parliamentary monarchy that both sides could accept as a compromise – but with the unintended result of the real abstraction and original accumulation of power, the functional differentiation of politics and the beginning formation of the modern Anstaltsstaat (Weber).588


589Stolleis, Geschichte des öffentlichen Rechts in Deutschland I, pp. 142, 145–6, 153, 212–22.590Ibid., pp. 74–6, 130–1, 197; David Zaret, ‘Petitions and the “Invention” of Public Opinion in the English Revolution’, American Journal of Sociology 6 (1996), 1497–555.591Luhmann, Grundrechte als Institution. Berlin: Duncker&Humblot, 1986 (1965), pp. 8, 202–3, 294. In German: Vernunft des Vergleichs.592Zaret, Petitions and the “Invention” of Public Opinion in the English Revolution, p. 1530.593Habermas, The Structural Transformation of the Public Sphere, trans. Thomas Burger. Cambridge: MIT Press, 1989.594Zaret, Petitions and the “Invention” of Public Opinion in the English Revolution, pp. 1526–30, pp. 1538–53.595Berman, Law and Revolution II, p. 352.

The differentiation of ius civilis into ius privatum und ius publicum had been accomplished by the end of the sixteenth century.589 But from that time, not only administrative state power increased, but also communicative public power. A new understanding of publicus (publicity) was formed not only on the basis of public law and printed legal textbooks, but also through the emergence of a journalistic public sphere.590 During the English Revolution, more and more controversies and debates on constitutional issues of public law were printed, and the readers were busily engaged in the comparison of the different constitutional suggestions, in order to draw their own conclusions sola fide. The rationality of substance is replaced by the communicative and functional rationality of comparison.591 Who is right, the King or Parliament; the Levellers, the landed gentry or the Diggers; Christopher Love, the presumed perpetrator of high treason or Richard Keble, who mercilessly condemned the favourite of the people to death? Constitutional problems suddenly became general public concerns beyond the social borders of the estates.592 A modern public sphere emerged.593 A good example is the invention of the subjective right to petition during the English Revolution. In the beginning, the old subservient form of petitions by subjects addressed to their masters was still in use. Petitions had to be confidential, were not to question existing law and were to be worded in a positively abject manner. But suddenly one party would start to print a petition. More and more petitions and counter-petitions were published, sometimes together by the same printer. The censor was helpless, as usual. More and more petitions were disseminated in great numbers, debated, attacked and counter-attacked. Finally, petitions were combined with the legal language of rights and the call for unrestricted information.594 The kneeling supplicant had become an active citizen who made public use of his right to petition. To put an end to the kneeling position of man was the crucial emancipatory issue of the Protestant Revolution. As Baxter once stated, ‘if the Puritan demand to eliminate the requirement of kneeling and vestments had been granted, the Civil War could have been avoided’.595 But to establish a subjective right to petition that would work legally, a great legal revolution was at any rate necessary, a revolution that was a total revolution of public law and


596Stolleis, Geschichte des öffentlichen Rechts in Deutschland I, pp. 131–2 (my translation).597Horkheimer and Adorno, Dialectic of Enlightenment. New York: Herder and Herder, 1972, p. 37.

the public sphere, of the no longer kneeling individual human being and self-organized society as a whole. Public media effects can augment the ‘political’ (Arendt, Rancière), that is, the communicative power (Habermas) of the public. But at the same time, the ever denser network of public law augments the ‘police’ (Rancière), that is, the administrative power of the wielders of coercive means. The Protestant Revolution unleashed the productive forces of administrative and communicative political power at once. The revolution of the communicative media of dissemination was a necessary condition for the unleashing of the communicative productivity of politics. The printing press

permitted the immediate distribution of the law to the courts and offices. Now that authentic texts had become available in any desired quantity, legislation was able to react much more quickly to change and could enforce new law much more effectively. Legal texts and arguments became mass products. . . . The oral judgment pronounced out of doors, or the decree issued from the saddle are now replaced – cloaked in ancient Roman terminology – by edict, mandate, rescript and lex, vz. decree, arbitrariness, statute, regulation and law, all enacted while sat at a desk and imparted to the nation in printed form. . . . The new medium of the printed word multiplied the volume of communications. There was formal standardization. The possibility of rereading and checking increased the uniformity and rationality of administration, and the reproduction and dissemination of texts raised the social significance of those who were literate, in particular where they used Latin and thereby monopolised expert knowledge.596

But this knowledge could also be translated, popularized and critically reinterpreted, and the interpretation could be disseminated by the new media with its growing class of writers and journalists –with unpredictable effects. The dialectic of enlightenment always has two sides:

The instruments of domination, which would encompass all – language, weapons, and finally machines – must allow themselves to be encompassed by all. Hence in domination the aspect of rationality prevails that is also different from it. The “objectivity” of the means, which make it universally available, already implies the criticism of that domination as whose means thought arose.597

What is good for the stabilization of monarchy can also be used to eradicate it, and was so used. At the same time as the Protestant revolutions, a new, and


598See Merton, The Puritan Spur to Science, p. 252.599Augustine, De Ordine II, pp. 5, 16.600Asch and Durchhardt, Der Absolutismus – Ein Mythos?; see Thornhill, A Sociology of Constitutions, pp. 92–102.601Thornhill, A Sociology of Constitutions, p. 117; see Reinhard, Kriegsstaat – Steuerstaat – Machtstaat, pp. 291–4. The twentieth-century striving of fascism for absolute power is the best example of its ‘self-destructive’ (Arendt) weakness, see only Neumann, Behemoth; Fraenkel, Der Doppelstaat; Petwaidic, Die autoritäre Anarchie; Arendt, The Origins of Totalitarianism.

more sober and secular political philosophy emerged. The philosophers, from Machiavelli and Hobbes to Spinoza and Pufendorf, all supported the Protestant epistemic paradigm shift which required that all legislative and jurisdictional power should be concentrated in the secular polity. They used philosophical arguments alone. Not only did they resist all support from theological doctrines (that had already been done by Anselm), but they strictly separated and demarcated philosophical arguments from theological doctrines – and this did accord exactly (as a complement) with the sola fide and the predestination doctrines of the Protestants. They overcame the rationalist optimism of the Papal Revolution, according to which all doctrines of faith can be derived entirely from rational discourse and finally substituted by reason (as in Hegel’s philosophy of mind later).598 However, in the public discourse of the Protestant revolutions, the theological doctrines were much more crucial. Only the religious and not the philosophical arguments reached and motivated the revolutionary masses. Had not Augustine already argued: ‘Philosophy promised reason, and only with difficulty liberated a very few’?599 The religiously inspired, oppressed and exploited people did not understand that the great Leviathan was the mortal God whose laws were authoritarian decisions beyond truth and justice. But they understood that they (and their oppressors) should obey God more than men, that they had been free before their masters took over and that the common law was God’s law, and England the elect nation. Furthermore, with the exception of city-state-based republicans such as Machiavelli, philosophers completely overestimated the meaning of sovereignty and developed a theory of absolutism that was a transfiguration of the princes, their self-representation, their vanity and their wishful thinking, but nowhere in accordance with the new pre-parliamentary or even parliamentary order of the real existing constitutional monarchies in Europe.600 The kings strove for absolutism, but they were forced to experience that ‘absolute power is weak’ (Luhmann), and that, once erected, absolute power is exposed to a process of re-privatization and fragmentation – causing often nothing less than state terrorism and a ‘traumatic degeneration of governmental authority’.601 Finally, the princes were not the only actors. The independent republican cities played a role as crucial as that of the territorial states. The states had the soldiers; the


602See Tilly, Coercion, Capital, and European States, AD 990–1990, 12ff, 156ff; Tilly, Democracy. Cambridge, MA: Cambridge University Press, 2007, Preface pp. XII, 27; Reinhard, Kriegsstaat – Steuerstaat – Machtstaat, p. 287.603Berman, Law and Revolution II, p. 65.604Ibid., pp. 69, 97, 202–3; Schilling, Die neue Zeit, pp. 356–60, 366–7, 378–9; Stolleis, Geschichte des öffentlichen Rechts I, pp. 72–3.605See Taylor, A Secular Age; Berman, Law and Revolution II, p. 203. On the affinities with democracy, see Tilly, European Revolutions, p. 61.606Sir Thomas Smith, De Republica Anglorum – A Discourse on the Commonwealth of England, Cambridge: Cambridge University Press, 1906, p. 69, quoted from: Hoffmann, Repräsentation, p. 338.

cities had the capital.602 Admittedly, the monarchs ‘had acquired more and more power vis-à-vis the estates; yet they had remained dependent on the estates for revenues, and the estates – especially the ecclesiastical prelates – were also a chief source of their counsellors. . . . Assemblies of representatives of the estates continued to be called.’603 Not successful absolutism, but the new constitutional arrangement of a variety of different national and transnational powers in coordination with a long since autonomous legal system finally explains the original accumulation of power. The Obrigkeiten, the sovereign authorities of the respective states and cities of the Reich and elsewhere in Europe, were also constitutionalized directly through (1) supranational divine and natural law (Ten Commandments), and, in particular, through the paternal law of the Fifth Commandment, (2) a rapidly growing quantity of written public law, (3) transnational and transconfessional Roman Law, (4) the international law of the treaties that bound them, for instance, to the principle cuius regio eius religio and the implied right to emigration and (5) the obligatory advisors of the prince, assemblies of estates (Landstände) or old parliaments, including more and more jurists and a growing formal and informal influence of the law schools.604 Last but not least, (6) the princes’ power was limited by the right to resistance against tyranny.

Unlike the moderate Lutheran mainstream, the Calvinists (like the Zwinglians) strongly opposed monarchy and preferred aristocratic republicanism with some affinities to democracy.605 Already, the English ambassador to France in the 1560s during Elizabeth I’s Protestant regime stated that ‘the consent of the parliament is taken to be everie mans consent’.606 Even if the great revolutionary experiment with republican parliamentary legislative sovereignty under Cromwell’s Calvinist regime was defeated by the Royalist counter-revolution, it was sublated into the ensuing constitutional monarchy, which had a legislative parliament. Again, the avant-garde of the revolution, Cromwell’s Calvinist republican Commonwealth, was abolished immediately after Cromwell’s death, but it won the revolution. The Kantian constitutional mindset, which the Calvinist Independent Puritans had implemented for a short period, was never forgotten and had become an integral moment of


607Thornhill, A Sociology of Constitutions, p. 145.608Samuel Rawson Gardiner (ed.), The Constitutional Documents of the Puritan Revolution, Oxford: Clarendon Press, 1906, p. 388, quoted from: Süßmann, Die Wurzeln des Wohlfahrtsstaats – Souveränität oder Gute Polizey?, p. 32.609Thornhill, A Sociology of Constitutions, pp. 145–6. The Nineteen Propositions and the Instrument of Government are available on the Web: http://www.constitution.org/eng/conpur053.htm and http://www.constitution.org/eng/conpur097.htm (17 February 2012).610See Hoffmann, Repräsentation, pp. 324–8, 338–45.611Mansfield, ‘Modern and Medieval Representation’, in J. Roland Pennock and John W. Chapman (eds), Representation. New York: Atheron Press, 1968, p. 79.612Mansfield, Modern and Medieval Representation, p. 72.

the objective spirit of the following centuries: the idea that, as William Prynne (1600–69) stated in 1640, the High Court of Parliament was the ‘Highest Souveraigne power of all the others, and above the King himselfe’, that, as the Nineteen Propositions of 1642 prescribed, parliamentary statutes have legal supremacy (Propos. 11), and that the justice of Parliament, ‘not the justice of privately appointed judges, was the supreme judicial force in the nation’ (Propos. 13). Even before the execution of Charles I, the Commons of England proclaimed that the people are the origin of all just power, and that Parliament is the supreme power as representative of the people.607 Four months after the execution of the king, and the abolishment of the House of Lords, on 19 May 1649, the now republican Members of Parliament declared themselves the only ‘representatives of the people’.608 Cromwell’s Instrument of Government of 1653 confirmed that

“the supreme legislative authority of the Commonwealth of England, Scotland, and Ireland, and the dominions thereunto belonging, shall be and reside in one person [the Lord Protector – HB], and the people assembled in Parliament” (Art. I). The Instrument prescribed that “the laws shall not be altered, suspended, abrogated, or repealed, nor any new law made, nor any tax, charge, or imposition laid upon the people, but by common consent in Parliament” (Art. VI).609

The English parliamentary monarchy was the first constitutional monarchy that institutionalized the fundamental opposition against monarchy within the monarchy by representing the nation as a whole in parliament.610 The ‘modern debate’ on representation ‘assumes’ that the people are ‘a whole to be represented by their government, whereas the medieval debate assumes that the people are a part to be represented to their government’.611 The move from a condition in which people are ‘represented to government’ to one in which they can ‘be represented by government’ is the move from ‘government from on high’ to ‘government from below’.612


613Thornhill, A Sociology of Constitutions, p. 140.614This function of the common law, not as a branch of power simply defending the rights of the people, but as one organizing their collective will formation, is crucial for an adequate understanding of the English constitutional monarchy, which could be transformed into a power-founding democratic regime through a few radical reforms. The point here is that common law is not only customary, but also common, because it is not simply an instrument like the tools of shoemaking and because ‘law belongs to everybody’ (Gray, Reason, Authority, and Imagination, p. 38). It is not just made, but found and declared on the basis of a common experimental praxis of the peoples’ courts. For this, and only for this reason are a court’s decisions considered as a ‘source of (law’s) binding force’ in common law (against Hobbes) (Berman, Law and Revolution II, p. 274).615Thornhill, A Sociology of Constitutions, p. 141.616Mansfield, Modern and Medieval Representation, p. 80.

In the English constitutional system, the institutional pillars of parliamentary representation of the people as a whole initially grew out of the courts of common law. Parliament and the courts were not immediately functionally distinct, and up to the seventeenth century, Parliament itself was ‘characterized as a court of common law, which was sanctioned by, and in turn provided protection for, the rights accorded to subjects under common law’.613 The common law, and, in particular, the constitutional law of the common law courts and of Parliament were completely reconstructed during the Revolution. In public and constitutional legal terms, Parliament had not only the primary function of a constitutional court (directed against executive prerogatives, and in defence of citizen’s rights). The whole system of common law courts and Parliament together was now primarily designed to enable comprehensive civic self-organization, and Parliament, or rather the King-in-Parliament, became the first modern parliamentary legislative body which had, among other functions, the function of a constitutional court that could judge even the king.614 In particular, the two now differentiated functions of the parliament (1) as supreme legislative body and (2) as a constitutional court ultimately had the effect of conditioning the exercise of royal power and regulating the king by law.615 From now on, the King-in-Parliament (and only in Parliament and together with Parliament) represented nothing other than the people. The king as a representative organ no longer was ‘part of the community which [he] represents’, and in his ‘private capacity’, he now is a mere member ‘of the people that first consent to government.’ While the pre-modern representative ‘constitutes part of the community he represents’, the ‘modern representative is made entirely by his “constituents”’.616 Even if Protestant society still remained a society of estates, from this time on the functionally specialized political system (together with the legal and scientific system) contradicted the stratified and hierarchical social structure of society. Subsequently, English Parliament became the institution where the opposition of the two principles of monarchy and republican self-organization could be transformed step by step into mutually contradictory political programmes, and finally opposing


617Berman, Law and Revolution II, p. 261.618See Martin Seliger, ‘John Locke’, in Iring Fetscher and Herfried Münkler (eds), Pipers Handbuch der politischen Ideen. Munich: Piper, 1985, pp. 388–9.619Thornhill, A Sociology of Constitutions, p. 109. See Reinhard, Kriegsstaat – Steuerstaat – Machtstaat, p. 285: ‘Die öffentliche, parlamentarische Kontrolle dieser wachsenden Staatsgewalt macht diese eher stärker als schwächer. . . .’620Thornhill, A Sociology of Constitutions, p. 143.

parties. In 1689, after the invention of the Bill of Rights, the King-in-Parliament still was the sovereign with an impressive list of prerogative powers. However, he was a sovereign ‘within a legal framework’.617 Moreover, only together with Parliament was he a representative of the people who had constituted him, could bind him through law and even could charge and judge him.

The invention and pre-democratic, still aristocratically restricted implementation of the Kantian mindset of popular representation by a national parliament (or the King-in-Parliament) was the most important normative constitutional constraint achieved by the Reformation. It did not yet exclude the estates and all other involuntary corporations from society (as the later Loi Le Chapelier of 14 June 1791), but it excluded all kinds of corporative representation. In this point, Locke was as radical as he was clear. Sovereignty must reside with Parliament (because it represents the people) – and not with the small aristocratic social class of voters.618 However, to stabilize the normative advances of the revolution and this new form of social integration, it was necessary to have the functional achievements of a state that could only preserve itself through the systemic mechanism of unlimited accumulation of administrative, financial, military and police power. It was just this ‘translation of dispute over positive law into debate over divine law’ provoked by the Protestant Reformation which ‘enabled states to detach their legal sources from specific persons, customs or privileges and to extract from their own functions a highly coherent definition of their power’.619 The theological debate accompanied and shaped the ‘rapid revolutionary transformation’ and renewal of ‘the constitutional order that was progressively elaborated throughout the period of the Stuart Rule’ between 1603 and 1714, and especially ‘the revolutionary interregnum’ of Cromwell’s republican state (1649–60).620 Through the constitutionally established normative constraints of blind adaptive accumulation of power (rule of law, independence of judicial procedures from political encroachment, entitlement of all people to fair and equal treatment under the law, parliamentary representation of the people, parliamentary legislation), a new constitution and a fully fledged public law order were established, ‘which allowed the state’ as an abstract formal organization ‘coherently to integrate sources of resistance’ (against taxes, conscriptions, the nationwide implementation of disciplinary, police, workfare, educational and bio-power) and ‘to elevate the positive abstraction


621Ibid., pp. 143–4.622Ibid., p. 167, see: pp. 162–6. ‘In particular, rights made it possible for states to dictate the activities in which private groups could appear relevant for the state, to impose highly selective restrictions on the processes in which actors outside the state needed to be politically internalized, and generally to consolidate their boundaries against prominent bearers of private and local status.’ (p. 167).623Süßmann, Die Wurzeln des Wohlfahrtsstaats, p. 38; Berman, Law and Revolution II, 192, pp. 364–5.

of its power’.621 It was the ‘normative institutes’ such as public and private subjective rights and the differentiation of government and opposition that ‘played a deeply formative role in the creation of the state as a positive political actor’.622 Finally, the autopoiesis of the political system pushed all religious, normative and legal plans, ideas and practices that had accompanied and shaped its emergence aside into its environment. As Max Weber rightly saw, Baxter’s saints wanted a religious republic of universalized and laicized pastoral power, and they implemented the confessional state wherever they came to power. But ultimately they got an autopoietic machinery of secular police power that was blind to the damage it caused in the lifeworld of Baxter’s saints, and that was blind to their religious feelings, their moral convictions and legal claims. Nobody had expected, planned or wished for such a real abstract functional machinery. But suddenly the machine was there. And the people had to cope with it, whether they wanted to or not.

However, from now on (and within the still stratified society), the class interests of the wielders of coercive state power and the class interests of the people became more and more incompatible. Functional differentiation of political power had caused the social difference between these two classes. The entanglement of political class rule and functional differentiation of politics lead to the subsumption of the living power of the people under the dead power of the bureaucratic state. The state wanted to consume the money of its subjects and the living bodies of their sons for war, forced labour, administration and Polizey – but the people wanted to keep both their money and their sons. Coercive state power and Protestantism taught them to obey the Obrigkeit that erected a new disciplinary regime, transformed welfare into workfare and covered the gap between the contradictory class interests for a while, but could never resolve them.


Protestantism introduced a new and comprehensive Sittenzucht (moral discipline). Welfare was replaced by workfare, poor relief by correction of the poor.623 Protestantism blows the walls of the monastery to pieces, only to


624Weber, Gesammelte Aufsätze zur Religionssoziologie I, p. 119.625Süßmann, Die Wurzeln des Wohlfahrtsstaats, p. 38, note 46.626See Nathaniel Hawthorne, The Scarlet Letter. New York: Bantam, 2003; The White Ribbon, Austria, 2009, director: Michael Haneke.627Gorski, Disciplinary Revolution, p. 20.628Weber, Gesammelte Aufsätze zur Religionssoziologie I, p. 96. Engl. translation: http://www.marxists.org/reference/archive/weber/protestant-ethic/ch04.htm (23 February 2012).

make every Christian a lifelong monk.624 Protestantism models everyone’s behaviour through its basic imperative of worldly ascetism. Through varias carnis mortificationes (‘various mortifications of the flesh’), every Christian was to do holy work throughout his or her daily life625: The Scarlet Letter and the White Ribbon.626

The dark secret of Protestant prosperity and productivity was the creation of a modern system of surveillance and punishment. This was done by all three great confessions of Catholics, Lutherans and Calvinists, but the Calvinists were the avant-garde and set the benchmark. Calvinism combined outward disciplina, ‘conformity of the church . . . with the scriptural law’, with an inward work ethic related to predestination (Weber) and an ethic of self-discipline as practical proof of the theological doctrine of justification, consisting in ‘regular Bible reading, daily journals, moral log books, and rigid control over time’.627 Even if Weber overestimated Protestant individualism and completely neglected the great communitarian advances (from cooperative law to the idea of an originally democratic community of believers), he was right in his observation that Protestant individualism was strong enough to infiltrate any community of trust with a methodological caveat of universal distrust, which anticipated Stalinism. Weber’s pendant to Hegel’s Herrschaft des Verdachts is no other than his favourite Calvinist Baxter. Again and again English puritan literature warns us

against any trust in the aid of friendship of men. Even the amiable Baxter counsels deep distrust of even one’s closest friend, and Bailey directly exhorts to trust no one and to say nothing compromising to anyone. Only God should be your confidant.628

Through the negative caveat of distrust, concrete confidence in individual persons, status groups and corporations was replaced by confidence in God and the abstract community of the elect people. Confidence in God and the elect could easily be supplemented (and in the end replaced) by generalized confidence in the system: in the real abstractions of power, law and money, of Obrigkeit, legality and economic efficiency. The central function of ‘the consistory’, Gorski writes, ‘was to supervise the morals of the congregation’.


629Gorski, Disciplinary Revolution, p. 21.630Ibid., p. 67; see Berman, Law and Revolution II, pp. 356–7.631Ibid., p. 53, see: 51–4.632Ibid., p. 36.633See Berman, Law and Revolution II, pp. 357–61.634Sidney and Beatrice Webb, quoted from: Berman, Law and Revolution II, p. 362.635Lutheran poor law and poor care followed the trajectory of medieval canon law, which emphasized ‘every Christian’s duty to work in a vocation and to avoid idle parasitism’. The Lutheran reformers expanded existing anti-begging laws and developed the Catholic programme of redemptive charity – charity ‘as a means of bringing the receiver into salvation’. (Witte, Law and Protestantism, p. 194).636Gorski, Disciplinary Revolution, pp. 57–8.

Church members had to avoid ‘even the appearance of sin’. Not accidentally, the elite of the elect were in charge of the discipline of the whole res publica Christina. They charged themselves and others, alone and together, to obey Baxter’s rule of distrust and ‘to keep a watchful eye over other members of the congregation. . . . Each watched each, and all watched all.’629 As Foucault remarked of Bentham’s panopticon, ‘one wonders who was the watcher and who the watched’.630 The system worked insofar as reciprocal watching became the real abstraction of the power of surveillance. The rates of violence and criminality decreased dramatically, whereas the rate of detections increased. At the same time, the Calvinist Dutch and English police force was ‘much smaller and far less professionalized’ than the French one, despite much higher rates of criminality in France.631 The new discourse of power was in accordance with the new social and political class structure that was the effect of the intertwinement of high-flying revolutionary plans and blind evolutionary muddling through. It required that everyone be disciplined, but especially the poor: the managerial mindset’s post-revolutionary business-as-usual.632 Protestant class justice was completed by Protestant class education: reading the Bible for the poor, higher education for the rich, harsh discipline and correction for everybody.633 Poor Laws became ‘laws against the poor and the rights of labor’.634 Begging was prohibited. Workhouses were established. Pickpockets were hanged.635

Protestants eliminated the institutional distance between the clerical agent of charity and his client. Besides the welcome material side effect of confiscating monastic properties, the power structure underwent a spiritually inspired disciplinary revolution. The disciplinary revolution focused not so much on (Weberian) inward religious faith, but much more on (Foucaultian) outward ‘social and sexual behaviour’.636 Power was reconstructed from below, and in local face-to-face interaction systems. But the new microphysical formation of power had to be invented together with the democratic construction of power


637Emancipated from clerical mediation, the Lutherans ‘translated their belief in the spiritual efficacy of the direct personal relationship between giver and receiver into a new emphasis on local charity for the local poor, without dense administrative bureaucracies’. Redemptive charity was no longer to be mediated by the ecclesiastical guilds, endowments and foundations of the hierarchical society that was so deep-rooted in the old Europe. Redemptive charity was to arise out of ‘the direct personal encounter between the faithful giver and the grateful receiver’ (Witte, Law and Protestantism, p. 194).638Kant, Perpetual Peace. A Philosophical Sketch (First Definitive Article), quoted from https://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (13 May 2013).639Marx, Kritik des Hegelschen Staatsrechts, p. 260, English quoted from: Marx, Critique of Hegel’s Philosophy of Right, p. 57.640Osterhammel, Die Verwandlung der Welt, p. 740.641Bayly, Birth of the Modern World, p. 104.

from below.637 The function of institutionally unbound interaction systems was to urge the individual person to form herself removed from any lifelong and total bonds to a specific status group, and to define her identity beyond all given institutions in direct relation to God and any contingent group of faithful Protestants. The deeply ambivalent effect was the growth of personal autonomy and post-conventional moral judgment on the one hand, and the availability and manipulability of the de-socialized personal system for any purpose of functionally differentiated social systems, such as the system of political power.

III Atlantic World Revolution

Government is either republican or despotic.

KANT638

The legislature produced the French Revolution

MARX639

In 1789, ‘ancient’ and ‘modern’ regime change met for a last time. In the very year that counts as the outbreak of the French Revolution, the African Empire of Oyo broke apart under the pressure of elite struggles at the centre and upheavals in the provinces.640 Thereafter, all revolutionary upheavals were more or less linked up. In the same year of 1789, a civil war broke out in Japan that lasted for three generations and was caused by a similar structural crisis as that of the European stratified societies. It consisted in socially motivated insurgencies of peasants and the urban poor, and caused a crisis of legitimization of the ruling dynasty.641 Already some


642Ibid., pp. 101–6; Thornhill, A Sociology of Constitutions, p. 182 et seq.643See, with revisions of older Marxist assumptions: Buck-Morss, Hegel, Haiti, and Universal History; Linebaugh and Rediker, Die vielköpfige Hydra; Bayly, Birth of the Modern World, pp. 85–7, 90–2. On the constitutive role of slave labour for the making of modern Western capitalism, see Bayly, Birth of the Modern World, pp. 40–1, 86–8 et seq.

time before 1789, many revolutionary upheavals were so closely connected that one must address the great constitutional revolutions of that era as a system of entangled revolutions, a system which constituted the first world revolution. Its centre was neither France nor North America, but the whole Atlantic region. In the period between 1750 and 1830, governments all over the world were confronted with a similar type of crisis. Everywhere, new and renewed old ideologies, among them enlightened Deism, chiliastic Buddhism, Muslim Wahhabism, radical Sikhism, Christian chiliasm and popular Taoism, were mobilized to resist and sweep away the old authorities in the name of a new moral economy. In all cases, moral discourse and social conflicts formed new political movements. A culture of opposition began to emerge worldwide. At the same time, and as an unplanned side effect of the successes of the revolutions, state power grew further, on an up-to-then unknown scale.642

The second European push towards globalization had been unleashed by the Calvinist Protestant revolutions in the Netherlands and England, as has been described earlier, and had been reinforced by the Prussian Calvinist Revolution from above in the early eighteenth century and by the counter-reformation in France. Under the lead of the Dutch, British and French East India Companies, the British Hudson Bay Company and Royal African Company, the British Navy and the Royal Navy, global free trade was established, European institutions were exported and a pre-industrial modern capitalist world economy emerged at the periphery of the recently discovered new continents. Its basis was slave labour and the mass production of sugar, tobacco, rum, coffee and cocoa. Adam Smith reputedly had only one vice: eating one piece of sugar after another. Most of the new companies and military agencies, operating globally and organized transnationally in one way or another, were private-public partnerships. The sailors and the labour force they employed were selected from a globally mixed multicultural society, a cosmopolitan proletariat.643 During the eighteenth century, not only a potentially global and certainly European-wide intellectual public emerged, but economic booms and depressions also became globally effective occurrences. World politics emerged together with the intellectual inventions of modern constitutional theory, the construction of new cosmopolitan utopias, the individualistic foundation of international law and the construction of a universal and supranational ‘right’ of all men


644Johann Gottlieb Fichte, Grundriss des Völker- und Weltbürgerrechts, in Fichtes Werke III. Berlin: de Gruyter, 1971, § 22, p. 384 (my translation).645Linebaugh and Rediker, Die vielköpfige Hydra; Osterhammel, Die Verwandlung der Welt, pp. 105, 747–77; see Buck-Morss, Hegel, Haiti, and Universal History.646Haiti successfully crushed first the armies of the British invasion, which consisted of 100,000 men, then of a smaller Spanish invasion, and finally of the Napoleonic invasion, which had 42,000 men. Tropical nature helped the Black Jacobins’ army of between 20,000 and 80,000 men. Most of the soldiers of the European invasion armies died of yellow fever. The fear of a ‘second Haiti’ became a Western colonial nightmare, and caused several pre-emptive massacres and state terrorism, even a hundred years later, as in 1904 in British Jamaica (Osterhammel, Die Verwandlung der Welt, pp. 659–60). Only during the last 30 years has the repressed Black Atlantic been re-remembered, see Sérgio Costa, Vom Nordatlantik zum ‘Black Atlantic’. Postkoloniale Konstellationen und Paradoxien transnationaler Politik. Bielefeld: transcript 2007.

to ‘acquire subjective rights’.644 The first world wars were waged, beginning with the Seven Years War, 1756–63, followed by the revolutionary wars from Washington to Napoleon, 1776–1815. Together with the emergence of English as a world language, global migration and displacement began.

The constitutional world revolutions were not French or American Revolutions, and the French revolution was not only (as the young Marx suggested in a strictly Hegelian and Eurocentric perspective, generously ignoring America) a revolution in the European fashion, but also an Atlantic Revolution.645 The decentred centres of the revolution ranged from Ireland and England in the North via France to North America in the West, and Africa, the Caribbean and Central and South America in the South. In addition, the revolution had a strong impact in Asia and, with decreasing intensity, even in the Pacific region. Napoleon’s troops tried to reach Asia, India and the Pacific world several times, once via Egypt, another time via Haiti and Louisiana, and a third time via Russia. The constitutional world revolution consisted in the American Revolution (1763/1775–88, Civil War 1861–65); the French Revolution (1789–1814, 1830, 1848–51); the Revolution of Haiti (1791–1804); the Latin American Revolutions (1809–29: Bolivia 1809–25, Argentina 1810–18, Mexico 1810–21, Chile 1810–21, San Salvador 1811, New Granada 1811–16, Venezuela 1811–23, Gran Columbia 1819–29, Ecuador 1820–22, Peru 1821); the revolutions of Spain (1820), Naples (1820), Sicily (1820) and Piedmont (1821). Slave revolts broke out all over the Caribbean, and that before the American Revolution: Jamaica (1760, 1765, 1766, 1776), Bermuda and Nevis (1761), Surinam (1762, 1763, 1768–72), British Honduras (1765, 168, 1773), Grenada (1765), Montserrat (1768), St Vincent (1769–73), Tobago (1770–71, 1774), St Croix and St Thomas (1770), St Kitts (1778) and Louisiana (1811).646 The French Revolution in Europe was followed not only by further French revolutions, but also by the Greek Revolution (1821–29), enthusiastically supported by the European intellectual


647Osterhammel, Die Verwandlung der Welt, p. 752. Between 1788 and 1791, huge insurgencies in Ireland, Yorkshire and London challenged the established powers with a radicalism unknown in Britain before. But all insurgencies in Britain at that time were drowned in the blood of the insurgents, and their persecution lasted until 1801 (in 1798/ 99 alone, more than 570 alleged insurgents were sentenced to death).648Ibid., pp. 744–5, 751–2, 755–6, 768; Bayly, Birth of the Modern World, pp. 90–2; Linebaugh and Rediker, Die vielköpfige Hydra; Buck-Morss, Hegel, Haiti, and Universal History; Rasmussen, Daniel, American Uprising. The Untold Story of America’s Largest Slave Revolt. New York: Harper, 2011.

public. Immediately after the Greek Revolution, the Portuguese (1832–34) and Spanish civil wars (1833–40) broke out. During the 1780s and 1790s, the British Isles came close to a revolution, and then reacted internally, too, as a counter-revolutionary power that successfully defended the aristocratic system through harsh repression, before giving in to the post-revolutionary new epistemic framework, and starting a tentative reformism from above.647 The whole world approached a state of permanent turmoil and riot.648 There were early revolutions in Asia at that time, such as the great peasant revolution of 1773–1802 in the part of Asia known today as Vietnam. Osterhammel calls it ‘a revolution in the slipstream of history’. It was fought for equality between rich and poor. French, Portuguese and Chinese mercenaries and pirates fought on both sides. Since the early eighteenth century, the Sikhs fought a religiously and morally motivated revolution of integrity and righteousness that lasted until 1800, Islamic puritans (Wahhabists) followed with a revolt against the religious and political establishment in Cairo, the Ottoman Empire and the African Emirates. In 1760, Chinese sects denied the divine mandate of the Qing dynasty, and criticized the oppression of the people. In 1796, the insurgency of the White Lotus followed.

In particular, the American Revolution accelerated and reinforced the process of crisis, revolution and massive change in the Atlantic world region and beyond. The first German translation of the Declaration of Independence of 4 July 1776 was published less than a week after the original on 9 July. The revolutionary slogan ‘No taxation without representation!’ had some impact in France and increased the pressure on the Ancien Régime. La Fayette’s French voluntary brigades paraded across Paris, singing revolutionary American songs. From that moment onwards, the Kantian mindset of reform by and through representation of the people remained at the top of the political agenda. Finally, the Revolution changed the global map. Armies of white American settlers went to the West. The British compensated their losses in America with India and China. They robbed soldiers and money from India, satisfied their enormous appetite for tea, opium and cotton in China and fulfilled their unlimited longing for sugar in the Caribbean slave


649Bayly, Birth of the Modern World; Hermann Wellenreuther, ‘Die Amerikanische Revolution’, in Peter Wende (ed.), Große Revolutionen der Geschichte. Von der Frühzeit bis zur Gegenwart. Munich: Beck, 2000, pp. 101–20, at p. 106; see Osterhammel, Die Verwandlung der Welt, pp. 103–5, 646–62.650Marx, Der 18. Brumaire des Louis Bonaparte, p. 112, quoted from: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch02.htm (19 March 2012).651Tom Lehrer, ‘Send the Marines’, in Lehrer, ‘That was the year that was’, CD available at Amazon.com.652Eric Hobsbawm, The Age of Revolution. London: Abacus, 2003 (1962), pp. 107, 116, 129–30; Volker Sellin, Die geraubte Revolution. Der Sturz Napoleons und die Restauration in Europa. Göttingen: Vandenhoek, 2001.653Bayly, Birth of the Modern World; see Osterhammel, Die Verwandlung der Welt, p. 776; for a left Hegelian universal history of ‘the rest’, and the shock waves back and forth, see Buck-Morss, Hegel, Haiti, and Universal History; Linebaugh and Rediker, Die vielköpfige Hydra.

plantations.649 The same is true of the French Revolution: Napoleon’s troops brought the Kantian ideas of 1789 from Egypt to Poland and from Spain to the Caribbean. These ideas started on their journey around the world, and everywhere met people who yearned for change. But first of all the alien people met with the managerial mindset of French military rule, together with the ‘splendid invention, periodically employed in every ensuing crisis in the course of the French Revolution . . . that of itself made its way over the whole Continent, but returned to France with ever renewed love . . . – the state of siege’.650 Marx ironically describes the state of siege as a Gehlenian or Luhmannian mechanism of relief (reduction of complexity): ‘freeing civil society completely from the trouble of governing itself’. The same was said much later of the dark side of the American Revolution and its aftermath: ‘Stop calling it aggression,/ We hate that expression!/ We only want the world to know/ That we approve the status quo./ They love us everywhere we go!/ But when in doubt,/ Send the marines!’651 However, Napoleon left Europe not only with the state of siege (which was invented co-originally by the British), but also with a whole new map, new legal codes and new constitutional regimes, and something similar happened in the American world region.652 The managerial mindset of revolutionary realism not only repressed the Kantian constitutional mindset, but also led to its (at least partial) implementation. After no more than a century, not only the ‘peculiar institution’ of slavery was legally banned worldwide, and monarchy as a gestalt of real power had withered away. Borders, national and international law, political institutions, social mentalities and culture had changed completely, and not only for the West, but also for the ‘rest’, and by and through the ‘rest’. The ‘rest’ was not at all a passive receptor of Western communicative acts. On the contrary, the ‘rest’ assimilated and accommodated the enforced Western import, transformed it and threw it back, causing several shock waves in far distant regions – including the spectre of communism.653


654Bayly, Birth of the Modern World, pp. 88–99.655Ibid., p. 88 et seq.656Michel Vovelle, Die Französische Revolution. Frankfurt: Fischer, 1987, p. 130.

The constitutional revolution was caused by the global crisis of the eighteenth century, which lasted from 1720 to 1820.654 Historians have suggested a decentring of the Eurocentrism of Koselleck’s concept of a saddle period (1770 to 1830). It was, in fact, a global saddle period, which was (in evolutionary terms) the final crisis of the stratified society that had spread all over the world during the last 3000 years. Everywhere in Eurasia and America, a need for reform and ‘modernization’ arose, due to the growing financial pressure on government which primarily was caused by bigger and better trained armies and more expensive military technologies. At the same time, economic productivity could not balance the steadily growing costs anywhere. State deficits increased dramatically, and the new financial system, like that in England, in most countries was not advanced far enough. The fiscal crisis of government became structural.655 It finally resulted in a crisis of motivation. The reluctance of landed gentry, merchants and common men to pay taxes and duties and to give away their sons as soldiers was answered with more oppression and despotism which, in a vicious circle, caused growing disloyalty, popular riots, peasant insurgencies, civil wars and finally, revolutions. Moreover, the globalization push of the Protestant revolutions had confronted every regime in Europe and elsewhere with a growing need for the functional differentiation of power. However, the still dominant, stratified social structure of the old Eurasian society worked against further completion of functional differentiation. Therefore, the fiscal crisis became a comprehensive crisis of functional rationality. The reaction of the power bloc was increased oppression. But this awakened the sense of injustice. Growing protest was intellectually shaped by the successive global dissemination of egalitarian ideologies. In particular, in societies with a legal system that already included universal subjective private and political rights of a certain degree, the exacerbation of the fiscal, motivational and rationality crises increased the likelihood of a legitimization crisis of the whole societal system of old Eurasia dramatically.

The Atlantic Revolution was the first great revolution that was no longer Christian. Even if the masses (as in all great revolutions) were strongly motivated by religious convictions, the great majority of intellectual leaders of the constitutional revolutions were enlightened deists or agnostics. But that did not prevent the Parisian poor from treating Marat like the ‘sans-culotte Jesus’ and to transfer the Catholic cult of the Sacred Heart of Jesus directly to him. The Parisians sang their psalms in honour of both hearts: ‘O cor Jésus, O cor Marat. . . .’656 The revolutionary slaves of Haiti combined enlightened ideas


657Walzer, Exodus und Revolution, p. 15. Even Marx described the past as well as the lost present revolutions in the biblical terms of the exodus. In 1850, looking back at the revolution of 1848, he wrote: ‘The revolution . . . is no short-lived revolution. The present generation is like the Jews, whom Moses led through the wilderness. It has not only a new world to conquer, it must go under in order to make room for the men who are fit for a new world.’ (Marx, Die Klassenkämpfe in Frankreich 1848–1850, in Marx and Engels (eds), Werke 7. Berlin: Dietz, 1973, p. 79). The failure of the revolution of 1848 in France Marx explains by the freedom-forgetting longing of the former slaves for the fleshpots of Egypt, which the ascetic revolutionaries overcame in the years of privation in the desert: ‘They hankered to return from the perils of revolution to the fleshpots of Egypt, and December 2, 1851 was the answer.’ (Marx, Der 18. Brumaire des Louis Bonaparte, pp. 98–101, English quoted from: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch02.htm, 19 March 2012).658Jean-Jacques Rousseau, The Government of Poland, trans. Willmoore Kendall. New York: Bobbs-Merrill, 1972, p. 6.659See Rawls, John, A Theory of Justice, 1971. Cambridge, MA.: The Belknap Press of Harvard University Press, 1975; Rawls, Political Liberalism. New York: Columbia, 1993.

with Catholicism and African Voodoo. And in North America, the leaders were enlightened deists, but the vast majority of the revolutionary masses were Protestant fundamentalists. In 1776, Benjamin Franklin proposed that Moses, with raised staff and the Egyptian army drowning in the sea, be depicted on the official seal of the new federation of states, while the enlightened agnostic Thomas Jefferson recommended a motif from the biblical march of the people through the desert, led by God’s column of cloud and fire.657 The red caps of the Jacobins represented the headgear of the freed Roman slaves, but with that the Jacobin caps also referred, at least implicitly, to the exodus of God’s people from slavery in ancient Egypt. The French philosophers and the American Founding Fathers still used the same metaphors of the exodus of the slaves from old Egyptian tyranny as their Protestant predecessors had done in the sixteenth and seventeenth century and as their communist and social democratic successors, who out of the red caps made the red flag, would do in the late nineteenth and early twentieth century. Rousseau praised Moses because he formed ‘a swarm of wretched fugitives . . . who, without an inch of territory to call their own, were truly a troop of outcasts upon the face of the earth’, into a people and was able ‘to transform this herd of servile emigrants into a political society, a free people’.658 Hence, the religious motivation of revolutionary upheaval did not vanish, it remained central, but it was, first, no longer a Christian monopoly, and secondly detached from the now completely secularized justification of the normative and constitutional constraints imposed by the successful revolution.659

Like all great legal revolutions, the Atlantic Revolution implemented new normative constraints of blind adaptive evolution and the violent enforcement of the strongest class interests. They consisted, in particular, in (1) written constitutions, (2) the inseparable unity of subjective rights and popular sovereignty and (3) a system of checks and balances of public powers that


660Osterhammel, Die Verwandlung der Welt, p. 817.661Because the king’s body was male, the allegories of the revolution that denied power inherently embodied in the king were female. Because the King embodied power in one single person, the power of the people was allegorized in a multitude of female bodies. Symbolically, the execution of Louis XVI opened the path, first to the establishment of popular sovereignty, and secondly to the completion of the process of the real abstraction of power; see Diehl, Historische Entwicklung der demokratischen Symbolik, pp. 20–2, 28–9. Democracy and representation in the classical, Schmittian sense of physical and organic embodiment are incompatible: ‘Popular sovereignty that has become the prior reference of democratic representation shapes the structure of symbolic representation and prevents the occupation of the empty place of power.’ (p. 28, my translation).662Emmanuel Joseph Sieyès, ‘What is the Third Estate?’, in Michael Sonenscher (ed.), Political Writings. Indianapolis: Hackett, 2003, pp. 94, 97. On Sieyès’s pathbreaking role, see Thiele, Ulrich, Advokative Volkssouveränität. Carl Schmitts Konstruktion einer ‘demokratischen’ Diktaturtheorie im Kontext der Interpretation politischer Theorien der Aufklärung. Berlin: Duncker & Humblot, 2003.

should enable the legislative creation, implementation, interpretation and concretization of the rights of the people by the people and through the people. It replaced the state-centred Protestant ius gentium (law of nations) with (4) international law and opened the path for a new cosmopolitan law that was based on the individualized self-determination of peoples. The most important unplanned effect consisted in a direction of gradual evolutionary adaptation, which opened the path of a fully fledged functional differentiation that did not care about national borders and rapidly circled the globe.

(1) Ratchet effect

With the globalization of the rhetoric of constitution, popular sovereignty and universal rights, the global struggle over the wielding of state power began, and ‘Power to the people!’ became a slogan that has not vanished from public life since the days of the constitutional revolutions of the eighteenth century: ‘Authority no longer was considered something naturally given. Power could be obtained through conflict and then shaped by institutional innovations.’660 That, in a nutshell, is the global ratchet effect of 1789.

Cromwell’s republican state came too early. When King Charles I was impeached, the English argued still within the old paradigm of the two bodies of the king: ‘We have to fight the king to defend the King.’ Only after the impeachment and beheading of Louis XVI could the paradigm shift take place, because his cruel Jacobin judges took the life of the king together with the life of the institution: ‘Le roi est mort, vive la République!’ Only now was power disembodied and the de-Christianization of political power accomplished.661 From this post-Christian point of view, the Jacobin Abbé Sieyès posed his famous question: ‘What is the Third Estate? Everything – a complete nation.’ And what is the nation? – ‘It is a body of associates living under a common law, represented by the same legislature.’662 And what is the law? – It is as if it


663Sieyès, Third Estate, p. 156.664Gentz, letter to Metternich, 15.2.1814, in Friedrich von Gentz, Briefe, 3 Vol., Munich 1909–13, Vol. 3, Part 1, No. 145, p. 247, quoted from: Sellin, Die geraubte Revolution, p. 108.665Nearly every popular upheaval anywhere in the world from now on referred to the new ideas, in India as well as in Spain, in Egypt as well as in China, in Morocco as well as in Vietnam, in Africa as well as in America (Bayly, Birth of the Modern World).

is ‘at the centre of an immense globe. Every citizen, without exception, is at an equal distance from it on the circumference of the globe, and each individual occupies an equal place.’663 The citizens are eye-to-eye with the law; law has lost every sacred, unapproachable and bewitching force over them. The law-making republic is no more and no less than the ordering of the citizens’ own freedom for, by and through the citizens. Lincoln’s famous wording closes the self-reflexive circle between universal subjective rights and popular sovereignty. The ratchet effect consists in the appeal to the universal rights of the people: that is, popular sovereignty. This was accurately detected by the German reactionary Friedrich von Gentz during the peace negotiations in 1814: ‘So called popular sovereignty is the hinge of circulation of all revolutionary systems.’664 Gentz himself tried to push the wheel of ratchet back, but without any effect. Even if Sieyès and the constitutional textbooks of the French and American Revolutions still refer to natural or rational law as its sub-societal basis, this reference has become weak, and by its own legal institutionalization and procedural implementation all natural law is transformed into positive law. And all positive law has to be interpreted, changed and engendered again and again by the individualized will formation of the people who are defined as the addressees of the same law. Before the revolution, there was still a need for Wittgenstein’s ladder of an unwritten social contract, which was at the core of the political philosophy of the Protestant Revolution. The social contract still presupposed the constructivist dualistic divide between a ‘state of nature’ ruled by ‘natural law’ and a ‘state of society’ ruled by ‘positive law’. After the Revolution, social contract and social contract theory were replaced by written constitutions, constitutional law and constitutional theory. The dualism of state of nature vs. state of society was abolished. From now on, constitutional law became a completely reflexive self-creation of the people. With the written constitution of popular sovereignty, normatively the point of no return was reached. Immediately, the normative ideas of the rights of the people and the people as the one and only source of legitimated legal norms and government were globalized.665 The secularized status of the new ideas of political self-organization made them compatible with all Eurasian world views. The legal form followed the idea. The people became (1) the one and only addressee of law, including the whole spectrum from legalized surveillance to social welfare rights (democracy for the people). They became (2) the only point of ascription of representative decision-making (democracy by the people). They became


666See Müller, Wer ist das Volk.667Gentz an Metternich, 15.2.1814, p. 250.668Hegel, Philosophie der Geschichte, pp. 528–9, English translation quoted from: Leiter, B., Rosen, M. (eds), The Oxford Handbook of Continental Philosophy. Oxford: Oxford University Press, 2007, p. 636.669Sellin, Die geraubte Revolution, p. 124.670Ibid., pp. 133–4, 148.

(3) the only subject of political participation (democracy through the people). Even in authoritarian regimes and also in liberal democracies (4) the people were (mis)-used as the only rhetorical icon of public appeal.666

Every single one of these four conditions is incompatible with the old European formation of hereditary monarchy, as Friedrich von Gentz rightly recognized. Therefore his caveat in a letter to Metternich of 15 February 1814 against paying any lip service to revolutionary rhetoric in the new order of post-revolutionary Europe by founding the reinvention of hereditary monarchy on the counterfactually assumed will of the people: ‘If we stay with the principle that it is the French nation that even today [after the total defeat of Napoleon] has the competence to decide as it pleases between old [monarchy] and new [republic], then the revolution would be validated again, and this time once and for all.’667 What Gentz opposed so strongly was the revolutionary idea that modern law is based on the ‘principle of the freedom of the will’, because this is, politically speaking, the principle of popular sovereignty that, as Hegel says, ‘validated itself all at once, and the old framework of injustice could offer no resistance’ against the new idea of a ‘constitution’ that requires that ‘from now on everything is to be built on this basis’.668 Therefore, Gentz’s opposition in 1814, at the end of the French Revolution, was understandable but pointless – just like the arguments of the Norman Anonymous 700 years before at the height of another great revolution. In 1814, when Napoleon had been utterly defeated and the czar was reviewing the victory parade in Paris, all the governments of the counter-revolutionary coalition had already accepted the constitutional principles of the revolution and declared that only the French nation could bring about regime change in France. Only the general will of the nation – so the official argument of the coalition – could put an end to Napoleon’s rule.669 All parties to the Napoleonic world war finally accepted that only the Napoleonic Senate could perform regime change, and only because it acted as the representative of the will of the nation. It was not the Restoration that trumped the Revolution – the Revolution trumped all restorative alternatives. The only role models of the Senate in 1814 were the Assembly of the States General of June 1789 (when the representatives of the Third Estate transformed the States General into a National Assembly), or the American Continental Congress of July 1776 (which declared Independence from the English Crown).670 The temporary restoration of hereditary monarchy


671Ibid., pp. 136, 139, 144.672Ibid., pp. 151, 162, 278. Therefore, the King had to swear by the constitution and was referred to as King of the French (as in the constitution of 1791, or as the Emperor had been in the Napoleonic constitutions) and not like the old kings as King of France. A similar observation is made in Bellomo, The Common Legal Past of Europe 1000–1800, p. 14.673Hegel, Philosophy of Right: http://socserv.mcmaster.ca/econ/ugcm/3ll3/hegel/right.pdf (20 March 2012), § 274, p. 222; § 258, p. 195.

in France in 1814 was possible only as a revolutionary act in the name of the people and by a representative assembly that was legitimated by the will of the people alone.671 The Senate’s decree on Napoleon’s dismissal stated that the old Emperor as well as the new king exists only because of the constitution, and the constitution was due to the constituent power of the nation.672 In 1820, in his Philosophy of Right, Hegel summarized this crucial result of the revolution, which consisted in the fact that a constitution of a popular sovereignty depends only on the unity of the general will with the individual consciousness.673


The Atlantic Revolution took the first step from the immanence of transcendence to transcendence from within this world and back to this world. The immanence of transcendence for Catholicism since the Papal Revolution had been due to the doctrinal switch from overcoming death, which was beyond the law, to overcoming sin through legal reform and the improvement of law. Therefore, the icon was replaced by the legal symbol of the cross, and the deification of man was replaced by the incarnation of God. However, the overcoming of sin through abstract legal incarnation was still institutionalized top-down, and thus within the boundaries of the old European hierarchical society, and of the hierarchy of the church that mirrored the social hierarchy. Protestant Reformation, in particular, Calvinism, radicalized the idea: Overcoming sin was now meant to be possible for everybody and without regard to any social hierarchy and any difference between clerics and laymen, due to sola fide and the cooperative legal implementation of a good society alone. But Protestantism still retained the old Augustinian distinction between people with an internal access to virtue and faith (the elect) and people with external access only (the damned). Therefore, the latter had to be disciplined and corrected by law enacted and executed by the former, hence the Protestant preference for educational and disciplinary dictatorship.

To overcome hierarchy and disciplinary dictatorship, the Enlightenment and the Atlantic Revolution first abolished the distinction between internal and external access to the divine or profane sources of morality and virtue.


674Kant quoted from: J. B. Schneewind, ‘Autonomy, Obligation and Virtue: An Overview of Kant’s Moral Philosophy’, in Guyer, Paul (ed.), The Cambridge Companion to Kant. Cambridge, MA: Cambridge University Press, 1992, p. 336).675Yirimiyahu Yovel, Spinoza. Das Abenteuer der Immanenz. Göttingen: Steidl, 1996.676Taylor, A Secular Age. Harvard University Press, 2007, p. 3.677Reinhard, Geschichte der Staatsgewalt, p. 93 (my transl.); see Diehl, Historische Entwicklung der demokratischen Symbolik, pp. 6–10: ‘[Die] direkte Verbindung Gottes zum König [wird unterbrochen] und relativiert auch die heiligen Eigenschaften des Königskörpers’, and conversely ‘[emanzipiert sich die] Königsmacht vom Prinzip der Inkarnation’ (Diehl, p. 7, see 16–17) – as long as abstract power emancipated itself from the king and his body, as we have seen in previous sections.678Reinhard, Geschichte der Staatsgewalt, p. 93.679See Brandom, Making It Explicit.

There is no longer any difference between an elite group of educated people (philosophers, saints, the elect) and the rest of the people when it comes to moral knowledge and moral insight. Kant learnt this from Rousseau: ‘I despised the know-nothing rabble. Rousseau set me straight.’674 The categorical imperative is equidistant from everybody’s understanding and insight, like the law in Sieyès’s constitutional theory. The Atlantic Revolution secondly solved Spinoza’s theological-political problem of citizenship, which consisted in the fact that even in the most tolerant Protestant republic, there was no place for a Marrano of reason who had no confession, and therefore was persecuted by the Catholics, the Protestants and the Jews.675 ‘Belief in God is no longer axiomatic. There are alternatives.’676 The Atlantic Revolution reduced not only Christianity, but also all religions and cultural world views to one of many (and possibly unlimited) sources at the motivational basis of communicative action and social integration. The German historian Wolfgang Reinhard, therefore, describes the transformation from Protestantism to Enlightenment as ‘the seeping away of transcendence from the minds of the European elites’.677 This is the conceptual reason why monarchy could not survive the Enlightenment: the Enlightenment destroyed the discursive basis of its legitimacy.678 Because arguments matter in history, the enlightened turn from transcendence to immanence weakened the arguments that inherently legitimated the monarchy.

Only now the whole potential of communicative criticism and negation could be unleashed. Kant replaced the transcendence of another world beyond this world with the transcendental condition of the possibility of experience, knowledge and action. A transcendental condition is an insurmountable limit of the continuum of practical activities and intersubjective inferences.679 It constitutes this-worldly experience and praxis, but is no longer beyond this world. While transcendence is presupposed for the immanence of the transcendence (Berman), a transcendental condition enables transcendence from within and back into this world (Habermas). This condition distinguishes Hegel’s God from Anselm’s God. In accordance with Anselm, Hegel’s God


680Kesselring, Die Produktivität der Antinomie; on the central role of negation in Hegel’s Logic, see Marcuse, Reason and Revolution; Theunissen, Sein und Schein.681See Luhmann, Die Gesellschaft der Gesellschaft.682The German is ‘Es gibt kein Aussen mehr/ Kein Drinnen und kein Draussen mehr’ http://www.magistrix.de/lyrics/Kettcar/Kein-Au-en-Mehr-264059.html (10 May 2013). Thanks to Christoph Haker for the link.683Habermas, The Philosophical Discourse of Modernity. Twelve Lectures. Cambridge, MA: MIT-Press, p. 7. German original: Habermas, Der philosophische Diskurs der Moderne, p. 16.684Wolfgang Schmale, Entchristlichung, Revolution und Verfassung. Zur Mentalitätsgeschichte der Verfassung in Frankreich, 1715–94. Berlin: Duncker & Humblot 1988.685Quoted in Schmale, Entchristlichung, Revolution und Verfassung, p. 13 (my translation).

must be explained completely by reason, but unlike Anselm, Hegel no longer needs faith and divine grace. Philosophers such as Hegel, Schelling and Marx criticized transcendental philosophy, but tried to keep the speculative concept of the ‘absolute’ or ‘absolute spirit’ (Marx calls it ‘revolution’), which stems from the Roman synthesis of religious monotheism and philosophical idealism (Plotinus). But they completely dissolved it in history. History was conceived by Schelling, Hegel and Marx as an evolutionary process that proceeds driven by the practical operations of critique and negation alone.680 They understood cooperative praxis as changing the world from within. In the age of the Atlantic Revolution, society is beginning to describe itself as a self-referentially closed system.681 If the German rock band Kettcar today sings: ‘There is no outside any longer/ no inside and no outside any longer,’682 they are still following this Enlightenment trajectory. From Hegel to Habermas, the insight prevails that modern society must achieve the normativity needed to transcend all norms from within modern society alone, hence without any reference to a transcendent or at least transcendental norm:

Modernity can and will no longer borrow the criteria by which it takes its orientation from the models supplied by another epoch; it has to create its normativity out of itself. Modernity sees itself cast back upon itself without any possibility of escape.683

In France, Christianity was widely marginalized or at least supplemented by a new belief in the redemptive force of the constitution. A kind of constitutional fever had permeated the masses of urban and rural population.684 The idea of a constitution was almost religiously transformed. ‘A constitution is the object of every longing,’ wrote the weekly Révolutions de Paris in its twentieth issue on 21 November 1789.685 However, while every longing of the devout Christians had ultimately been directed towards the salvation (at least) of the soul in the other-worldly kingdom of heaven, at this point all yearnings were withdrawn from the kingdom of heaven and transferred to the republican constitution of an existence in this world. Thus, in the years of the Jacobin rule (1793–94),


686Quoted in Schmale, Entchristlichung, Revolution und Verfassung (my translation).687Ibid., p. 14 (my translation)688On the thesis of a monotheist recrediting of power from man to God, see Jan Assmann, Politische Theologie zwischen Ägypten und Israel. Munich: Siemens-Stiftung, o. J., and above Chapter I.689See Michel Foucault, Discipline and Punish. The Birth of the Prison. New York: Vintage, 1995.690Wood, The American Revolution, p. 124.

one could read: ‘A constitution – that must be the catechism of the human race.’ Or: ‘In the future, married priests will, recognizing the mistakes that they had earlier preached, declare the sacred constitution as the gospel of the day.’686 It is by no means merely an instrumentalization of the language of the sacred for the purpose of political propaganda that is behind this, but rather a ‘complete re-orientation of the world view’ from God to humanity.687 All power is now withdrawn from God, and recredited to the account of the constitution. The monotheist concept of divine power was politically internalized.688

(3) Modernism

Like all great revolutions, the Atlantic Revolution was a total revolution. The American Revolution was not only a constitutional revolution, but at the same time a revolution of civil and criminal law. The harsh British penal codes were liberalized, and Pennsylvania abolished the death penalty for all crimes, except murder. The cruel and bloody public penal rituals were replaced by solitary cells in correctional institutions equipped with reformation and resocialization programmes that soon spread all over the world. A short time later, all correctional institutions looked more or less like Bentham’s panopticon, and their advances were celebrated as modernization, progress and humanism: The birth of the prison.689 However, the revolution was also a cultural and, like the Papal and the Protestant Revolutions, a religious revolution. In America, the ‘virtuous republicans’ (Heine) of the French Revolution were strongly supported by Protestant sects struggling to liberate America ‘from sin and luxury’. The clergy ‘made the Revolution meaningful for most common people’. Ordinary people ‘looked to their ministers for an interpretation of the millennial meaning of the Revolution. The Puritans’ “city upon the Hill” now assumed a new republican character, becoming . . . “the Christian Sparta”’.690 Everywhere, new religious sects (mostly Protestant fundamentalist ones) were created and replaced traditional religions throughout the country. Post-traditional religious modernism was blossoming:

Everywhere countless numbers of common people were creating new egalitarian and emotionally satisfying evangelical religious communities. . . . The Baptists expanded from 94 congregations in 1760 to 858 in 1790. . . . The Methodists had no adherents at all in 1760, but by 1790 they


691Ibid.; see Ulrike Brunotte, Puritanismus und Pioniergeist. Berlin: de Gruyter, 2000, p. 76 et seq.692Berman, The Impact of the Enlightenment, pp. 314, 324, 329.693Wood, The American Revolution, p. 128.694Hegel, Systemprogramm, English: http://control-society.livejournal.com/10718.html (30 April 2012).695Wood, The American Revolution, pp. 128–30.696Ibid., p. 131.697Berman, The Impact of the Enlightenment, pp. 316, 327.698Hegel, Systemprogramm, English: http://control-society.livejournal.com/10718.html (30 April 2012) (see below p. 256).

had created over 700 congregations . . . served by uneducated itinerant preachers.691

Even more remarkable than the growth of European Calvinist sects was the ‘sudden emergence of new sects and utopian religious groups that no one had ever heard of before – Universal Friends, Universalists, Shakers’ and many other millennial sects.692 Already the names signify a synthesis of Protestant Christianity and enlightened Deism, of reason and faith. The Atlantic Revolution created a new unity of faith, rationality and law ‘by destroying traditional structures of authority’ ‘almost overnight’.693 This new ‘unity’ was later, in the Oldest Systematic Programme of German Idealism, called a ‘mythology of reason’.694 The very point was that the Revolution opened ‘new religious opportunities for the illiterate, the lowly, and the dependent’, and for women, who from then on feminized American Christianity. The Shakers

became the first American religious group to recognize formally the equality of the sexes at all levels of authority. . . . New, half-educated, enterprising preachers emerged to mingle exhibitions of book-learning with every kind of emotionalism. Their revivalist techniques were effective because such dynamic folklike processes were better able to meet the needs of rootless egalitarian-minded men and women than were the static churchly institutions based on traditional standards of deference and elite monopolies of orthodoxy.695

Fragmentation had vitalized Christianity, and the American popular religion ‘with much enthusiastic folk music and hymn-singing’ became the first cultural industry.696 Furthermore, and far beyond religion but strongly reinforced by religion, the English aristocratic ideology of the gentleman was abolished completely, and the egalitarian public opinion of the French Revolution prevailed over the elitist public spirit of the Calvinist English Revolution.697 Finally, ‘the enlightened and unenlightened’ shook hands698 – in America, 50 years before these words were written down by young German philosophers in the disciplinary camp of the Tübinger Stift. The American


699See Grit Straßenberger and Herfried Münkler, ‘Was das Fach zusammenhält – Die Bedeutung der Politischen Theorie und Ideengeschichte für die Politikwissenschaft’, in Hubertus Buchstein and Gerhard Göhler (eds), Politische Theorie und Politikwissenschaft. Wiesbaden: VS, 2008, pp. 45–79, at 72–3.700Wood, The American Revolution, p. 127.701See Richard Rorty, ‘Heidegger wider die Pragmatisten’, neue hefte für philosophie 23 (1984), pp. 1–22.702Wood, The American Revolution, p. 121.703Ibid., p. 129.

Revolution was also a media revolution designed for a mostly illiterate mass audience, which was, however, quickly increasing in literacy. The American and Caribbean Revolutions democratized religion radically.699 And it took the Catholic Church much longer to accept this than to accept the results of the Protestant Revolution. Not only religion, ‘truth itself became democratized, and the borders the eighteenth-century Enlightenment had painstakingly worked out between religion and magic, science and superstition, naturalism and supernaturalism, were blurred’.700 The mythology of reason worked and became a driving force of modernization, pragmatism and democratization.701

The American Revolution not only legalized slavery in the name of human rights. It also

had a powerful effect in eventually bringing an end to slavery in America. It suddenly and effectively ended the social and intellectual environment that had allowed slavery to exist everywhere for thousands of years without substantial questioning.702

Until 1776, slavery everywhere was perpetrated legally and without compunction, and the marginal number of critics nowhere reached the critical mass of communicative variation that was needed for structural change. After 1814, slavery everywhere was perpetrated with an increasingly guilty conscience, and became more and more illegal. Already in 1774, the Northern States had unsuccessfully tried to abolish slavery nationwide. In 1775, Quakers founded the first anti-slavery society in the world, and soon others followed, even in the South. Baptists and Methodists condemned slavery and welcomed blacks to full membership in their communities in the 1780s and 1790s.703 For the first time, everybody in every sphere of society and more and more new groups of people claimed equal rights, and what began as a top-down process quickly turned into one that ran from the bottom up. Like in France, women’s liberation began in the upper strata of society in the late eighteenth century, but then reached the lower classes through religious mediation, and finally came back from the lower strata directly. In Haiti in the 1790s, women who worked on the sugar plantations suddenly demanded equal pay for equal


704Buck-Morss, Hegel, Haiti, and Universal History, p. 148.705See the film: Made in Dagenham, Nigel Cole, GB 2010.706Wood, The American Revolution, p. 118.707Eder, Geschichte als Lernprozeß, p. 129 (my transl.)708Wood, The American Revolution, p. 121.709Hegel, Grundlinien der Philosophie des Rechts, §§ 158–81, pp. 309–39.710Ibid., § 159, p. 308.711Ibid., §§ 1, 4, 29. pp. 29–30, 46, 80.

work, probably for the first time in history.704 This was re-enacted again nearly 200 years later with British female workers demanding the same thing, and this time more successfully.705

Finally, the Atlantic Revolution was an educational revolution and a revolution of family relations and family law. ‘America’s national obsession with education was born with the revolution.’706 Literacy increased rapidly. Not only in America, the power of innovation was shifting from the top to the bottom of the social class structure. While ‘innovation [das Neuern] until the end of the eighteenth century’ was exclusively the business of intellectual elites and a matter for the top-down education of the rest of the society, creative and learning perspectives turned around in the time of the Atlantic Revolution, which followed the egalitarian ideology ‘that everybody can create new ideas’. Early modern ‘upper-class communication’ is replaced by ‘self-educated’ mixed groups of ‘collective self-enlightenment’, ‘organized on an egalitarian basis’, warily observed by conservatives as the ‘reading and writing addiction’ of ‘morbid bookworms’.707 Within the American family, sons, daughters and women suddenly started to strive for equal rights, and with some success. Intimate relations were deeply transformed. Republican marriage was to be ‘based on love, not property, and on reason and mutual respect’.708 The family described as modern by Hegel 50 years later was the family of the revolution, and its modernity consisted, in particular, in its potential to unleash the negative communicative productivity of conflict and collision.709 Modern law and romantic love had penetrated the family’s original substance of piety, and sublated and transformed it into an ethical life that is real (existing in and for itself). New family law (contract, marriage, inheritance, divorce, majority etc.) and family rights (property, rights of family members, in particular, children’s rights) based on the Code Civil were stabilizing the advances of romantic love and the free universality of intimate relations.710 The ethical life of the family is stabilized by emancipatory law (marriage on the basis of love alone, socialization without exploitation etc.) and of functional law constituting the family as a social system (as in Kant’s famous definition of marriage as a civil contract for the reciprocal use of sexual organs).711 Emancipation and systemic differentiation intertwine, for good or ill. The emancipatory potential of modern family life becomes manifest only at the moment ‘when its downfall


712Hegel, Logik II, p. 252.713Hegel, Elements of the Philosophy of Right. Cambridge: Cambridge University Press, 1991, trans. by H. B. Nibet, §§ 159, 163, 171, 176–7, 180, pp. 200, 209, 215.714See Habermas, Der philosophische Diskurs der Moderne. Frankfurt: Suhrkamp, 1985, pp. 13–27.715Hegel, Philosophy of Right. New York: Cosimo, 2008, p. xx.716Marx, ‘The Leading Article in No. 179 of the Kölnische Zeitung’, in Raines, John (ed.), Marx on Religion. Philadelphia: Temple University Press, 2002, p. 50.

is beginning’.712 The actions of family members must ‘collide’, and family as a form of life must be ‘negated’ and ‘dissolved’ in order that ‘the members of the family’ can ‘become self-sufficient and rightful persons’.713 The parents must die so that the children may receive their inheritance and found a family of their own. The couple must divorce so that the emancipation of women may begin.

Like earlier revolutions, the Atlantic Revolution has developed a new, modern consciousness of time. It has some general features in common with the Papal and Protestant Revolutions, such as the assumption of having reached the threshold of a new historical age, which is being polemically opposed to the past as a whole, and combined with the openness of the present for a better and improvable future. The latter is accompanied by a consciousness of the present as an intermediary age, which in everyday life is experienced as time pressure and borne out by substantial evidence of scientific, moral and aesthetic progress.714 However, there are also some unique features in modern temporal consciousness that stem from the Atlantic Revolution, in particular, the reflexive closure of the philosophical self-understanding of modernity as modernity. Hegel has articulated this with the unsurpassable statement that ‘philosophy also is its time apprehended in thoughts.’715 Reflexive closure makes modernism and revolution co-original and permanent. Finally, mass communication forced philosophy, as its time apprehended in thoughts, to break its (upper-class) ‘silence’, to go public, and to become a ‘newspaper correspondent’.716

(4) Class struggle

The abysmal dialectic of the great revolutions is that they are trajectories of moral progress but can never be justified normatively. Therefore, as we have seen, Kant rightly classified them as a kind of natural force: an evolutionary factuality that as such is beyond justification (at best ‘allowed’), but at the same time a moral event that results in justifiable moral progress:

Revolution is no dinner-party, as the young Mao Zedong – who should know – wrote in 1927. The same is true of the Atlantic Revolutions. . . . The number


717Osterhammel, Die Verwandlung der Welt, pp. 772–3 (my translation).718Ibid., p. 773 (my translation).719Gordon S. Wood, The American Revolution. A History. London: Weidenfeld 2003. In World War II, ‘only’ 0.25 per cent of the American population died (300,000); compared in absolute numbers, this was half as many as in the Civil War (620,000), see Reynolds, One World Divisible, pp. 13, 18.720Osterhammel, Die Verwandlung der Welt, p. 773.721Ibid., p. 194.722See Reinhard Koselleck, Kritik und Krise. Frankfurt: Suhrkamp, 1973, pp. 51–2; see Bayly, Birth of the Modern World.723See Thornhill, A Sociology of Constitutions, p. 206.

of victims of the French terreur of 1793/94, estimated at approximately 50, 000 for the entire country (to which must be added the 150, 000 to 200, 000 dead of the Vendée civil war), has to be set beside the more numerous victims of the European wars between 1792 and 1815 (including the horrible terror perpetrated by all sides in Spain after 1808), the hundreds of thousands of dead in Latin America from the Túpac-Amaru insurgency in 1780 to the end of the civil and liberation wars, which were often conducted without inhibition as total wars of extinction, and finally those who lost their life in Saint-Domingue/Haiti, the worst of all the revolutionary infernos of the epoch. . . .717

Even the revolution of the American Jacobin Thomas Jefferson (which avoided internal terror) led to a degree of mobilization during the War of Independence 1775–81 ‘that was far beyond all former wars of Great Britain. . . . It became the first modern war. The rebels alone lost about 25, 000 men.’718 In the eighteenth century, this number represented ‘nearly 1 per cent of the population, second only to the Civil War in deaths relative to population’.719 The American War of Independence produced more refugees and emigrants than the entire French Revolution.720 The revolutionary wars between 1792 and 1815 led to an estimated 2.5 million deaths, counting military casualties only.721

The Atlantic Revolution was a continuum of class struggles between people and wielders of coercive power, and wars between revolutionary and counter-revolutionary state power, often overlapping with religious factions.722 While the societally isolated North Americans had already overcome the stratification of society, but still had to get rid of colonial authority, the French had to get rid of stratified privilege in the midst of a still overwhelmingly stratified society, and the Caribbeans and South Americans had to struggle with both colonialism and social class stratification.723 A clear distinction between revolutionary and counter-revolutionary parties was not always possible. Sometimes, as for instance in Haiti, the opposite sides changed a couple of times. And so did the class coalitions. Many nobles were members of the Jacobin Club. The French king fought on the side of America’s revolutionary armies against the British. At the end of the Napoleonic Era, it even seemed


724Sellin, ‘Heute ist die Revolution monarchisch’, in Legitimität und Legitimierungspolitik im Zeitalter des Wiener Kongresses, in Quellen und Forschungen aus italienischen Archiven und Bibliotheken, Bd. 76, 1996, pp. 335–61.725Sellin, Die geraubte Revolution.726Diehl, Historische Entwicklung der demokratischen Symbolik, p. 17; see Natalie Scholz, Die imaginierte Restauration. Repräsentationen der Monarchie im Frankreich Ludwigs XVIII. Darmstadt: Wissenschaftliche Buchgesellschaft, 2006, pp. 2–3, 38, 42.727Tilly, European Revolutions, p. 167 et seq; see Koselleck, Kritik und Krise, pp. 50–2.728Ibid., pp. 167–8.

to contemporaries that the revolution had become monarchical.724 England was the strongest counter-revolutionary world power, consistently fighting vigorously against the American, Haitian and French Revolutions all over the globe. But despite their total victory over Napoleon at Waterloo they – and all the other reactionary powers of the Holy Alliance – lost the societal struggle: the legal, political, cultural and social revolution.725 Not even symbolically was it possible to restore the pre-revolutionary emblems and allegories of monarchy and power.726 Reform and constitutionalization, and ultimately self-determination and egalitarian rights became unavoidable everywhere, and even England had to take the path of structural and radical reforms.

The great winners of the revolutionary class struggles were the members of the Third Estate, which now declared itself to be the nation – on both sides of the Atlantic. In 1789, ‘two distinct blocs . . . claimed power and both received support from some significant part of the population’.727 On the one side was the Ancien Régime: king, nobles, office holders and higher clergy. On the other side was the popular bloc of the Third Estate: lawyers, officials, merchants, notaries, bankers, judges, tax farmers, undertakers, physicians, academics and the new class of intellectuals, the philosophes. They

rapidly displaced the old intermediaries: landlords, seigneurial officials, venal office-holders, clergy and sometimes municipal oligarchies as well. At the local level, the so called Municipal Revolution widely transferred power to enemies of the old rulers; patriot coalitions based on militias, clubs and revolutionary committees and linked to Parisian activists ousted the old municipalities. . . . Village “republics” of the Alps, for example, found their ancient liberties. . . .728

In both Americas and in the Caribbean, plantation owners and slaveholders were part of the anti-colonial revolutionary side, and where a slave revolution was successful the former slaves had to do the same job as before, but now as free labourers whose labour power was bought and exploited by the new non-white plantation owners. The production rate sank dramatically due to the less effective exploitation of free labour in what was nothing more than


729Brief outline: Bayly, Birth of the Modern World, pp. 71–6.730See Habermas, The Structural Transformation of the Public Sphere (new Introduction with further literature).731Jack Censer, ‘Die Presse des Ancien Regime im Übergang – eine Skizze’, in Reinhard Koselleck and Rolf Reichardt (eds), Die Französische Revolution als Bruch des gesellschaftlichen Bewußtseins. Munich: Oldenbourg, 1988.

wage slavery (Marx). Once the Kantian mindset had triumphed, and We, the people were declared to be sovereign and endowed with inalienable rights, the managerial mindset implemented the Kantian mindset and immediately restricted the suffrage of the new sovereign to those of its members who were property holders, and reduced the long lists of human and civic rights to property rights (including those regarding the property of slaveholders). Nonetheless, it was not only on paper that the will of the people mattered. Bondage (Leibeigenschaft) and slavery were abolished not only in France. The Haitian slave revolution was successful and slavery was immediately nullified. At least some of the urban poor, of the peasants, even of the non-white people were included in egalitarian participatory practices of political self-determination and self-organisation for the first time in the development of modern society – even if (for the next one and a half century) this took very limited forms and was in most cases only temporary. Emancipation of the people as a whole was not mere ideology, because it was enabled by the structural contradictions of existing society: The functional differentiation of the political system and the national state organization had caused a structural social class conflict between the wielders of coercive power and the people.

It was not only in Europe and America that a critical public emerged, fed by the republic of letters (Gelehrtenrepublik, res publica literaria) – but also in Asia and Africa, where Islamic and Confucian intellectuals and Sikhs formed the enlightened and moral vanguard.729 Everywhere clubs, societies, Masonic lodges, reading and discussion circles, and other voluntary associations without strict class barriers, such as religious and non-religious groups, popped up, together with a rapidly growing number of libraries and coffee and teashops in the bigger cities and an ever denser network of continental and intercontinental correspondence.730 Long before the outbreak of the Revolution, urban public opinion – mediated through widely disseminated books, brochures, leaflets, and weekly and daily newspapers – had become a countervailing power to the so-called ‘good society’ of the royal court. There had been a gradual shift from obsequious reporting from the court towards coverage of social conflicts, from the glorification of the royal and ecclesial authority towards the informal portrayal of the everyday lifeworld.731 Censure tried hard to stem the flood of printed materials and to get public opinion under


732Eisenstein, The Printing Press as an Agent of Change, pp. 147–8; Arlette Farge, Lauffeuer durch Paris. Die Stimme des Volkes im 18. Jahrhundert. Stuttgart: Klett-Cotta, 1993, p. 45.733Farge, Lauffeuer durch Paris, p. 45.734Ibid., pp. 40–1, 47, 50–5.735Friedrich Schiller, On the Aesthetic Education of Man: In a Series of Letters. Oxford: Clarendon Press, 1967, Letter XVI, p. 113; see Paul Guyer, ‘Marcuse and Classical Aesthetics’, Revue internationale de philosophie 4 (2009), 349–66, the quote is at 356.736Kant, Zum ewigen Frieden, p. 206, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012).

control – but without success. More than 800 authors, printers and publishers were incarcerated in the Bastille between 1600 and 1756. In the eighteenth century, most of them were indicted for offences of Jansenist speech.732 Critical discourse did not remain limited to the geographically widespread, but small learned society. It found its way to the people. From the first third of the eighteenth century, Paris police reports are full of observations which indicate free speech everywhere. They state that people swamp Paris with public talk; that everybody, big or small, is deliberating loudly and freely; that everybody requires reasons for and against; and they warn of bad effects, insurgency and gruesome civil war.733 Public opinion and critical discourse suddenly take shape from the top down and from the bottom up. The Jansenist underground press mediates between learned discourse and the discourse of the illiterate poor.734

The emerging deliberating public sphere opened a discursive process of self-description and self-identification of the people as a collective actor whose ideals and material interests were strictly opposed to those of the wielders of coercive power. The latter were now described polemically as despots and agents of the cold and abstract machinery of a state that was alienated from civil society. It is highly significant that Friedrich Schiller’s letters On the Aesthetic Education of Man, one of the first paradigmatic diagnoses of modern alienation, which today reads like a passage from the early Marx or a description of Chaplin’s Modern Times (‘fragments of human beings, allowing each to develop only a part of his or her potentialities’) – was directed not against the (then not yet existing) functionally differentiated industrial economy, but against the cold and abstract machinery of the functionally differentiated state.735 Functional differentiation everywhere produced nearly the same alienating effects. Kant was only one of many who made use of the political basic distinction of Enlightenment polemics: ‘Government is either republican or despotic.’736 Kant also always distinguishes sharply between the people and the state, and relates the people to (latent and coming) republican and the (existing) state to despotic government: The state makes war, not the people. And therefore the state


737Kant, Metaphysik der Sitten, Rechtslehre II. Teil, § 57, p. 471, English translation quoted from: http://www.marxists.org/reference/subject/ethics/kant/morals/ch04.htm (23 April 2012). Much earlier, Vattel did the same, to mention one further example from among the vast mass of similar statements by Enlightenment intellectuals. Vattel confronts the ‘happiness of all the people’ to ‘most kingdoms’ where a ‘crowd of servile courtiers easily persuade a proud monarch that the nation was made for him, and not he for the nation. He soon considers the kingdom as a patrimony that is his own property, and his people as a herd of cattle from which he is to derive his wealth, and which he may dispose of to answer his own views, and gratify his passions. Hence those fatal wars undertaken by ambition, restlessness, hatred, and pride;–hence those oppressive taxes, whose produce is dissipated by ruinous luxury, or squandered upon mistresses and favourites. . . . Who can, in this unhappy government, discover an authority established for the public welfare?’ Emer de Vattel, Le Droit des Gens ou Principes de la Loi Naturelle, Book I Chapter IV, § 39, quoted from English translation: http://www.constitution.org/vattel/vattel_pre.htm (29 April 2012).738Hegel, ‘[Das älteste Systemprogramm des deutschen Idealismus]’, in Hegel, Frühe Schriften, Werke 1. Frankfurt, 1971, pp. 234–6, at 234–5 (English: Philosophy of German Idealism: Fichte, Jacobi, and Schelling, edited by Ernst Behler, translated by Diana Behler, Continuum, 1987 (http://control-society.livejournal.com/10718.html, 30 April 2012). It is still an open question whether this fragmentary manuscript is by Hegel, Hölderlin or Schelling.

(or the prince) could be charged by the victor with contributions, but not the people:

It is permissible in war to impose exactions and contributions upon a conquered enemy; but it is not legitimate to plunder the people in the way of forcibly depriving individuals of their property. For this would be robbery, seeing it was not the conquered people but the state under whose government they were placed that carried on the war by means of them.737

In a political-philosophical fragment from the end of the eighteenth century, the fundamental opposition of people and state reads as follows:

There is no idea of the state because the state is something mechanical, just as little as there is an idea of a machine. Only that which is the object of freedom is called idea. We must therefore go beyond the state! – Because every state must treat free human beings like mechanical works; and it should not do that; therefore it should cease.738

Opposed to the abstract administrative power of the state is the communicative (and aesthetic) power of the people, who shall unite with the intellectuals (the philosophers) in a free association of equals, that is, civil society as opposed to bourgeois society and the state. The medium of that unification is reason, combined with an aesthetic and sensual mythology that is at the service of ideas and makes ideas understandable for the mass of the people:


739Hegel, Systemprogramm, p. 236, English: Philosophy of German Idealism (http://control-society.livejournal.com/10718.html, 30 April 2012).740The total number of periodical journals (daily, every three days, weekly, biweekly, monthly) grew from 4 to 184 between the end of 1788 and the end of 1789. See Jeremy Popkin, ‘Umbruch und Kontinuität der französischen Presse im Revolutionszeitalter’, in Reinhart Koselleck and Rolf Reichardt (eds), Die Französische Revolution als Bruch des gesellschaftlichen Bewußtseins. Munich: Oldenbourg, 1988, p. 167.741Rolf Reichardt, ‘Revolution und Presse, Öffentlichkeit und Struktur der politischen Kommunikation’, and Pierre Rétat, ‘Die Zeitungen des Jahres 1789: einige zusammenfassende Perspektiven’, in Reinhart Koselleck and Rolf Reichardt (eds), Die Französische Revolution als Bruch des gesellschaftlichen Bewußtseins. Munich: Oldenbourg, 1988, p. 178 et seq.742François Furet and Denis Richet, French Revolution, trans. Stephen Hardman. New York: Macmillan, 1970, pp. 40–1, 58.

Until we make ideas aesthetic, i.e., mythological, they hold no interest for the people, and conversely, before mythology is reasonable, the philosopher must be ashamed of it. Thus finally the enlightened and unenlightened must shake hands. . . . Then eternal unity will reign among us. Never again the contemptuous glance, never the blind trembling of the people before its wise men and priests. Only then does equal development of all powers await us, of the individual as well as of all individuals.739

What young German philosophers in the isolation of the Tübinger Stift – an educational institution designed in the controlling spirit of the Protestant disciplinary revolution – imagine as an aesthetic, sensual and popular ‘mythological’ mediation of revolutionary ideas of a rational society, was already realized in the public sphere of mass communication in Paris during the early days of the Revolution. The Parisian daily newspapers, whose number grew from 1 to 23 between January and December 1789 and which – for the first time in history – served a mass public, were printed at night in order to distribute the news on the streets and in the public squares of the city in the morning.740 Here (as in America), the (supposedly) enlightened intellectual elites and the (supposedly) unenlightened mass of the people had already shaken hands for unity. In Paris, towards which the spellbound and longing eyes of the young men of the Tübinger Stift were turned, the ‘rapid intensification, acceleration, democratization, and politicization of the press in 1789’ was simultaneously a reflex of, and a driving force of, the revolutionary acceleration of social processes.741 Those who sided with the new French Nation that was born out of nothing expressed ‘a single, coherent public opinion’ in ‘the pamphlets printed in thousands’, and the great ideas of the Enlightenment achieved material power in being ‘thought through to the last detail’ by ‘thousands of secondary authors whom nobody recognizes anymore today’.742

The sharp opposition between the people (as civil society) and the state (as abstract power-bloc) is constitutive for the whole intellectual discourse of the Age of Enlightenment. With this polemical turn, the revolutionary goal was


743Koselleck, Kritik und Krise, p. 70.744Kant, Metaphysik der Sitten, Rechtslehre II. Teil, § 53, p. 466.745Eder, Geschichte als Lernprozeß? Zur Pathogenese politischer Modernität in Deutschland. Frankfurt: Suhrkamp, 1985, pp. 155–60.746Kosellek, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society. Cambridge: The MIT Press, 1988, p. 83, see p. 93. Many of Koselleck’s observations are very useful for evolutionary purposes. But one must abstract them from the Schmittian obsession with ‘indirect powers’ and the related overly concrete action-conspiracy-theory. Kosellek’s whole book is a rendition of Schmitt’s programme in his fascist Leviathan book of the late 1930s: Critique is the crisis, and begins with the restriction of the law to the regulation of bodily movements in Hobbes (allowing for the freedom of critical thinking) and finally ends with the decapitation of the French King. However, Koselleck avoids the repulsive anti-Semitism of Schmitt’s Leviathan.

declared: the alienated state apparatus should be overcome or reintegrated in the civil society. Its coercive power should be controlled exclusively by the legislative will of the people. The polemical turn of public opinion made the latent antagonism between people/nation and the wielders of coercive state power manifest and expanded the specifically political conflict over state power to society as a whole and made it a conflict that was fought at once over the legal foundation of (a) political state power, (b) social and economic estates (class-structure/ stratification) and (c) churches, that is, over religious, cultural and ideological hegemony. This quickly led to a Jacobin radicalization of long-term objectives, culminating in the abolishment of states, estates and churches.743 It was not just a rhetoric from above that declared the people to be the makers and the driving force of history. They really did make history from below. They formed a reading, talking and hearing mass public, made literal use of the theories of equal rights and popular sovereignty disseminated from above, organized insurgencies and transformed themselves from a population of subjects into a self-aware people.744 United as ‘We, the people,’ they fought for their rights on the streets of the cities and went in for a career in the new popular and guerrilla armies. Their mass mobilization finally transformed not only the political difference of haves and have-nots of power into a revolutionary conflict within the state, but also the war between states into a revolutionary war between counterrevolutionary armies of ‘the hired gun’ (as they are called in John Ford’s The Man who Shot Liberty Valence) and revolutionary armies of the people (and battles between princes into battles between nations). At the same time, egalitarian norms were established and egalitarianism was practised, politically and privately. In the isolation of the American colonies as well as in the isolation of the secret Masonic societies, networks of deviant societal formations, loaded with negativity, spread over the whole Atlantic region, including Northern and Eastern Europe.745 ‘From the soil of the lodges a wholly new value system was deliberately placed next to the existing political order.’746 The first written constitutions were the colonial constitutions of America and the constitutions of Freemasons in France and


747Koselleck, Kritik und Krise, pp. 57–63.748Eder, Geschichte als Lernprozeß, pp. 156, 159.749The Constitutions of Freemasons 1723, re-printed 1734 (see University of Nebraska – Digital Commons, http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article1028&contextlibraryscience 26 October 2013), quoted from Koselleck, Kritik und Krise, pp. 57, 183 (note 49), see pp. 65, 78.750Rasmussen, American Uprising, p. 39.751Marx, Das Kapital I, p. 787.752Bayly, Birth of the Modern World, pp. 40–1 (German translation: p. 58); see Buck-Morss, Hegel, Haiti, and Universal History; on the advanced modernity and productivity of the slave plantations, see Rasmussen, American Uprising, pp. 73, 78, 80.

elsewhere. Neither in the North American Colonies nor during the secret meetings of the Freemasons did gentility matter. Here, where the masons would often be masked during their meetings, people experimented with egalitarian freedom and self-legislation.747 Secrecy had the practical purpose of keeping differences in estate between members unknown and to draw a sharp distinction between morality and politics that could then be used for a moral criticism of existing political regimes. This way, discursive cultural practices were combined with egalitarian social structures: the first formation of a new species of societies.748 In a deist double front against prince and church, ‘noblemen, gentlemen and working men’ acted as equal human beings, imagining themselves in a cosmopolitan state of nature that was as artificial and constructed as in the theories of Hobbes, Locke and Rousseau.749 The organization of Masonic networks proved itself as the organizational core of the coming revolution.


The first who took the idea of human rights seriously were the black slaves of Haiti. In August 1791, when the revolution broke out, the farmland of Saint-Domingue (now Haiti) ‘was perhaps the single most valuable property on earth’.750 The Caribbean slave plantations were by no means characterized by pre-modern ‘patriarchalism’, but stood at the origin of the original accumulation of capital in modern society:751

In some ways, the most advanced form of economic specialization and long-distance deployment of capital were the slave plantations of Southern North America and the Caribbean. The violence and cruelty of the slave trade and of the exploitation of slaves cannot obscure the fact that this was a flexible, financially sophisticated, consumer-oriented, technologically innovative form of human beastliness.752

African slaves were


753Rasmussen, American Uprising, pp. 40–1. The ‘colonial plantations were as close to a death camp as one could come in the late eighteenth century. . . . Few slaves lived past forty and most died within a few years of starting plantation work.’ (p. 41). But the replenishment with young, strong and cheap bodies was almost immeasurable.754Bayly, The Birth of the Modern World, 1780–1914, p. 234.755Buck-Morss, Hegel, Haiti, and Universal History.756Marx, Das Kapital I, pp. 787–8, English translation: http://www.marxists.org/archive/marx/works/1867-c1/ch31.htm (23 April 2012)

the Enlightenment’s greatest and most productive labouring class. . . . Atlantic trade fuelled wars across the African continent, cost untold millions of lives, and, of course, brought unprecedented prosperity to the slave traders and the planters and merchants who depended on them. . . . [The Atlantic was] a vast network of death and profit.753

The issue of slavery was about racism, but it was also about class. Since the eighteenth century, the West African Asante had formed a pre-colonial African state that modernized quickly. They built up a rational bureaucracy and gained in wealth in the same way as Europe’s big powers. The nobility organized the slave trade and participation in both businesses: ‘the archaic style of North African slaving system’ and the modern capitalist ‘Atlantic slave trade’. Their polity was resilient enough ‘to survive the abolition of the British slave trade in 1807.’754 Once slave labour was banned and replaced by free labour, the former slaves of Haiti and English Abolitionists began to transfer the highly productive system of discipline, surveillance and exploitation from slave labour to free labour and from slave plantations to the emerging industrial system of capitalism. At the origin of Western civilization was modern slavery.755 Marx was wrong to attribute slave labour to the level of premodern patriarchalism, but he was right when he wrote:

In fact, the veiled slavery of the wage workers in Europe needed, for its pedestal, slavery pure and simple in the new world. Tantae molis erat, to establish the “eternal laws of Nature” of the capitalist mode of production, to complete the process of separation between labourers and conditions of labour, to transform, at one pole, the social means of production and subsistence into capital, at the opposite pole, the mass of the population into wage labourers, into “free labouring poor,” that artificial product of modern society. If money, according to Augier, “comes into the world with a congenital blood-stain on one cheek,” capital comes dripping from head to foot, from every pore, with blood and dirt.756

It was not the French or American, but the Atlantic Revolution that abolished slavery as a result of the first successful revolution of slaves in Haiti, untold slave revolts, a strong international human rights movement and the American


757Rasmussen, American Uprising, pp. 42–3; see Buck-Morss, Hegel, Haiti, and Universal History.758Buck-Morss’s speculative interpretation of the scarce sources arguing that the religious background of the revolutionary leaders of Haiti could have been Muslim is also supported by the appeal of Boukman to the imageless god who will destroy the image of the god of the whites, that is, of Jesus and the cross (Buck-Morss, Hegel, Haiti, and Universal History).759Buck-Morss, Hegel, Haiti, and Universal History.760Kant, Toward Perpetual Peace.

Civil War. What here becomes evident again is that great revolutions never can be reduced to their supposed evolutionary function to improve adaptive capacities (as in Marx’s midwife thesis). In this case (and in accordance with the central thesis of this book about normative constraints), the opposite is true: The Atlantic Revolution did not unleash the productive forces of labour for the improvement of adaptation, but constrained the adaptive capacities of cooperative labour power by banning slave labour.

The revolutionary invention of an evolutionary universal ban on slavery began at night on 21 August 1791. In that night, when the black slaves of Saint-Domingue committed themselves to start a war to the death against the whites, the constitutional mindset changed from the instrumental to the Kantian direction. The religious leader of the insurgents, Dutty Boukman, appealed ‘to the voice of liberty that speaks in the hearts of all of us’. He invoked ‘our god’ who only ‘asks good works of us’ to ‘throw away the image of the god of the whites’ who ‘thirsts for our tears’ and is called by the ‘white man . . . to commit crimes’.757 Boukman’s call for the imageless god who ‘orders revenge’ – the revenge of the violated communicative sense of justice – was accompanied by a kind of voodoo ceremony. This ceremony cannot be explained as tribal or traditional African because all African tribal traditions were destroyed by the total catastrophe of slavery, as Susan Buck-Morss rightly argues. Her interpretation is that Haitian voodoo is a hybrid creation of the transatlantic networks of secret Masonic societies, which spread all over America and the Caribbean. This interpretation matches the almost deistic faith expressed by the appeal to a god that lets liberty speak through the voice of the heart.758 The revolution of the slaves was backed by their knowledge of the Declaration of Human and Civic Rights and the semantics of the French Revolution. Not only did they go to war singing the Marseillaise, something which caused much irritation among the French soldiers. In addition, their ideal interest clearly was equal liberty for all human beings.759 For the first time, those who were forgotten and excluded when universal human rights were declared in Paris insisted on being included because their rights were violated. The normative text struck back, and the massive violation of rights in the Caribbean and in Africa was felt throughout the world, thanks to the revolutionary insurgence.760 The outbreak of the revolution affected the Atlantic cosmopolitan proletariat and Lumpenproletariat of the Atlantic harbours and


761Rasmussen, American Uprising, p. 48.762http://www.marxists.org/history/haiti/1801/constitution.htm (24 April 2012).763Rasmussen, American Uprising, p. 45.764Ibid.; see Buck-Morss, Hegel, Haiti, and Universal History.765http://en.wikisource.org/wiki/Constitution_of_Hayti_%281805%29#Preliminary_Declaration (24 April 2012).766Rasmussen, American Uprising, p. 46.

sailing routes: ‘the vast underworld of sailors, slaves and debtors that made up the Atlantic underclass. Stories of the revolution, violent political ideals, and a commitment to freedom at all cost were spreading like a contagion from person to person.’761 In August 1793, the French commissioner for Saint-Domingue declared the abolition of slavery. Reluctantly the French National Convent followed. It abolished slavery in February 1794. From then on, the former slaves fought against the British who (together with emigrated white slaveholders) wanted to usurp the valuable island and reinvent slavery. But in 1800, they finally lost against the blacks fighting under the command of Toussaint-Louverture, who was an educated former house slave who had read the French philosophers. In 1801, already after the Napoleonic invasion, Toussaint-Louverture and the Constitutional Assembly designed a Colonial Constitution for Saint-Domingue, which remained part of the French Empire. Citizenship was defined by human rights, and in this respect, the constitution was much more progressive than all contemporary constitutions of the eighteenth century. Article 3 reads: ‘There can be no slaves on this territory; servitude has been forever abolished. All men are born, live and die there free and French.’ Article 4: ‘All men can work at all forms of employment, whatever their colour.’762 The rest was similar to contemporary French constitutional texts. Only 2 years later, in 1803, after another bloody revolutionary war, the French General declared a war of extermination and ordered bloodhounds from Cuba. But they were ‘ignorant of color prejudice and ate French soldiers as well’.763 In 1804, after the final victory over the French, the island declared independence, and in 1805 ratified a new constitution, abolished slavery again and declared racism to be illegal. Under the new name Haiti, the island became the first American state that guaranteed civic rights for all citizens.764 Article 2 reads: ‘Slavery is forever abolished.’ Article 12 excluded white immigration.765 When slave labour was replaced by wage slavery, the export of sugar declined from 70,000 tons in 1789 to only 9000 tons by 1801.766

In 1807, 2 years after the successful revolution, the slave trade was banned on British ships. The human rights movement for abolition grew in America, France and England from the 1820s onwards. In July 1833, the Slavery Abolition Act banned slavery throughout the British Empire – but with exceptions for ‘the Territories in the Possession of the East India Company’, the ‘Island of Ceylon’ and ‘the Island of Saint Helena’, which were


767http://en.wikipedia.org/wiki/Slavery_Abolition_Act_1833 (24 April 2012).768Rasmussen, American Uprising, pp. 90, 102.769Ibid., p. 215.770Ibid., p. 216.

later repealed.767 Slavery, which was explicitly included in the original US Constitution of 1788, was explicitly excluded by the 13th Amendment to the Constitution after the Civil War in December 1865.

Long before the Civil War, the first successful revolution of slaves against the domestic class of slaveholders and all major imperial powers of Europe triggered a radical politization of the slaves of Louisiana, which led to the largest slave revolt of the United States in January 1811. The intellectual cadres of the slaves of Louisiana were ‘well armed with revolutionary ideology’. They were ‘aware of the powerful example of the Haitian revolutionaries’ and ‘conversant in the doctrines of the French Revolution’. A secret message of the French Declaration of Human and Civic Rights had circulated in the slave camps since 1795. The goals of the revolutionaries were freedom, equality, independence and a new republic.768 For the whites they simply were terrorists, and when they lost the battle a ‘great example’ was made. Nearly everybody who survived the massacre by the bloodhounds underwent a bloody ritual. They were court-marshalled, hanged and beheaded, and finally their heads on pikes lined the road. The long-term effect of that legal massacre was the mental repression of the first, and of all following violent revolts of black people throughout American history. The price for the official triumph of Martin Luther King was at least a very one-sided memory politics, which excluded those who did not keep to the rules of peaceful protest, from Williams’s armed defence movement of the 1950s to Black Power in the 1960s. But those who broke the racist law ‘contributed greatly toward the struggle for civil rights’. This struggle finally was successful because people like King ‘embraced American ideals and appealed to the nation’s best self’ and people like Williams ‘pointed out the hypocrisies, evils, and injustices of the nation – often through alliances with America’s enemies in the cold war’.769 While Williams and King ‘promoted vastly different strategies, their goals were the same: equal rights and African American freedom’.770

However, those who were excluded by the respective concretization and legal implementation of human rights had to take them seriously as universal legal principles. They all made more or less the same demoralizing experience that human rights legislation and jurisdiction, in a perverse managerial reinterpretation of the Kantian mindset of these rights, excluded non-white people from being human, and much more effectively than any former legal system that was not based on the combination of universal


771Rawls, John, Political Liberalism, New York: Columbia, 1993, p. XXIX.772Arendt, Origins of Totalitarianism, p. 291.773See Thornhill, Fascism and European State Building.774See Berman, ‘The Impact of the Enlightenment on American Constitutional Law’, Yale Journal of Law & the Humanities 4:2 (Spring 1992), S. 311–34.775Thornhill, A Sociology of Constitutions, pp. 185–7, 191.

rights and popular sovereignty. The first women who claimed human rights for women were beheaded – in the name of human rights. The first workers who claimed human rights for workers were hanged – in the name of human rights. But they also could make the encouraging experience that once established, legal principles can be used to change their actual concretization and to include formerly excluded populations. Insofar Susan Buck-Morss is right to interpret radical anti-slavery as part and parcel of the practical project of universal history – or, in our language, as an evolutionary universal with a Kantian mindset that was engendered by a great legal revolution: ‘The same equality of the Declaration of Independence which Lincoln invoked to condemn slavery can be invoked to condemn the inequality and oppression of women.’771


The eighteenth century’s new idea of freedom is universal political freedom. In a critical account of human rights, Hannah Arendt mentioned that for the eighteenth century ‘it seemed only natural that the “inalienable” rights of man would find their guarantee and become an inalienable part of the right of the people to sovereign self-government’.772 The eighteenth century did not even distinguish rights from popular sovereignty. When talking about human and civic rights, one meant popular sovereignty, and vice versa.773 It was popular sovereignty, defined as legislative sovereignty, that finally separated the American universal idea of subjective rights from the particularistic concept of the rights of the Englishman.774 Out of the isolation of America, a new species of universal rights was created that could be directly expressed in the language of popular sovereignty, and implemented in representative government. Only because of the internal and direct connection of rights with popular sovereignty could ‘No taxation without Representation!’ become the slogan that made the revolution work.775 The basic assumption of Jefferson and Sieyès, Rousseau and Kant, Paine and Robespierre was that natural human rights could become positive law if and only if they were implemented by a constitutional organization of political


776Rights were needed as rights of defence against state power only in a political regime that Kant associated with a provisional state of law (provisorischer Rechtszustand). And the provisional state of law was a state of law that was – following the Erlaubnisgesetz of practical reason – a state that only was permissible as long as a revolution or a ‘radical reform following principles of reason’ (Reform nach Prinzipien) would not yet have achieved a state of law that is popular sovereignty – which Kant calls an ‘eternal state of law’ (peremtorischen Rechtszustand). See Maus, Zur Aufklärung der Demokratietheorie; on Kant’s idea of a Reform nach Prinzipien, see the brillant book: Claudia Langer. Reform nach Prinzipien: Untersuchung zur politischen Theorie Immanuel Kants. Stuttgart: Klett-Cotta, 1986.777Kant, Metaphysik der Sitten, Rechtslehre, Einteilung B., p. 345, English translation: http://www.marxists.org/reference/subject/ethics/kant/morals/ch04.htm. (23 April 2012).778Kant, Metaphysik der Sitten, Rechtslehre, Rechtslehre § 46, p. 432, English translation: http://www.marxists.org/reference/subject/ethics/kant/morals/ch04.htm. (23 April 2012).

power that enabled the effective performance of popular sovereignty.776 Therefore, a constitution in principle needs only one part: the part that specifies and collates the rules of checks and balances. They shall guarantee the individualized performance of popular sovereignty by equally free citizens. Hence, for Kant, a constitution is what the German lawyers later called an Organisationsverfassung (constitution of the legal organization of public power). A good example is the US Constitution, which only contains seven Articles on checks and balances.

Kant argued that there is one and only one ‘inborn right belonging to every man in virtue of his humanity’, and that is ‘freedom’ from ‘the compulsory will of another . . . in so far as it can coexist with the freedom of all according to a universal law’.777 To realize and implement the one human right of equal freedom in a state of positive law, nothing more is needed than a constitution which consists in legal norms governing a legal procedure which guarantees that the ‘legislative power . . . belong[s] to the united will of the people’. This means that ‘all determine and decree what is to be Law to themselves’, in other words: ‘each of them determines the same thing about all, and all determine the same thing about each’. Therefore, the people themselves ‘ought to have the power of enacting law in the state’.778 Kant quoted the Roman legal principle of the civil law of ‘Volenti non fit injuria’, which Hobbes, Locke and other social contract theorists had cited already, but he generalized it and transplanted it into public law. All addressees of a legal norm should be the authors of that very norm. Therefore, constitutions of popular sovereignty are designed for no other purpose than to enable the implementation of the subjective rights of the people by and through the people. Therefore, the

whole system of the constitutional law of checks and balances, of reciprocal commitments and determinations as election, countersignature, parliamentary legislation, referenda, initiative, and of all the other provisions


779Heller, Hermann (1928), ‘Souveränität’, in Heller (ed.), Gesammelte Schriften 2. Leiden: Sijthoff, 1971, pp. 39–40 (quote translated by Poul Kjaer).780Kelsen, Allgemeine Staatslehre. Berlin: Springer, 1925, p. 321 et seq.; Kelsen, Vom Wesen und Wert der Demokratie, 2. Aufl. 1929, Aalen: Scientia, 1981, pp. 94, 101–2; see Margit Kraft-Fuchs, ‘Kelsens Staatstheorie und die Soziologie des Staates’, in Zeitschrift für öffentliches Recht, Bd. IX, 1930, pp. 511–41, at 522, 527 (quoted from the photographic reprint: Frankfurt: Sauer & Auvermann, 1969).781Jesch, Gesetz und Verwaltung, p. 140, note 184.782Rousseau, Gesellschaftsvertrag. Stuttgart: Reclam, II, 3; IV, 8, note 5.783Lutz Wingert, ‘Unpathetisches Ideal’, in Brunkhorst (ed.), Demokratischer Experimentalismus. Politik in der komplexen Gesellschaft. Frankfurt: Suhrkamp, 1998, pp. 35–6.784Müller, Wer ist das Volk, p. 76; for the placeholder thesis, see Brunkhorst, Solidarity, pp. 71–7. An illuminating allusion to the problem can be found in Alexander Meiklejohn, Political Freedom. Westport: Greenwood, 1979, p. 94: ‘Self-government’ requires to answer ‘Who are The People of the United States by whose consent and authority our government is maintained’, and within the notion of The People there is always a tension between insiders with all rights and ‘“outsiders” and “aliens”’ who are clearly ‘subject to the laws’, but ‘with no part in the making of them’.

that determine the competences of presidents, governments, legislative bodies and so on – this whole constitutional apparatus has the one and only legal meaning to enable and guarantee that the power of the government factually originates in, stems from, and is performed by the people.779

Heller’s argument is in accordance with Rousseau and Kant. For them, a constitution is nothing else than a ‘generative method’ (Kelsen) to form the general will of those who are subject to the law.780 On that score, all public powers must not just be limited by law, but constituted through democratically enacted law; even if with regard to the eighteenth century, ‘democracy’ should be used in quotation marks.781 Constitutional law is needed to coordinate the many different interests, plans, beliefs, confessions and ideas of the individual citizens equally. Therefore, the equal freedom and inclusion of all those affected must be secured from the beginning, and through procedures that guarantee (1) equal access to all those affected and (2) the equal independence of everyone who is participating. That is why Rousseau insists (against Cicero) on a secret ballot.782 For procedural legitimization, subjective rights were needed not only to guarantee equal access and individual independence. As historical experience immediately showed, rights were also needed to overcome the unavoidable gap that always opens up again between the factual addressees and the factual authors of the law. For those who are excluded from active citizenship, human rights function as door openers.783 Since the principle of democracy now demands precisely that every single member of the ‘actual people’ ‘be taken seriously as a legitimating factor of state action and be treated as significant’, human rights must step into the gap. They are a placeholder for democratic autonomy.784


785Eugen Lennhoff, Oskar Posner and Dieter A. Binder, Internationales Freimaurer-Lexikon. Munich: Herbig, 2000, quoted from: http://de.wikipedia.org/wiki/Erkl%C3%A4rung_der_Menschen-_und_B%C3%BCrgerrechte#cite_note-IFL-0 (6 October 2011). English translation of the French Declaration: http://en.wikisource.org/wiki/Declaration_of_the_Rights_of_Man_and_of_the_Citizen (26 April 2012); French original: http://archiv.jura.uni-saarland.de/BIJUS/constitution58/decl1789.htm (26 April 2012).786Vgl. Hasso Hofmann, ‘Zur Herkunft der Menschenrechtserklärungen’, Juristisches Studium 11 (1988), 840–48, esp. 846ff.787The Declaration of Independence and The Constitution of the United States. New York: Bantam, 1998, p. 53.


On 24 May 1773, the proto-Jacobin Masonic Grand Orient de France adopted a constitution. Among the Freemasons were philosophes such as Voltaire and Condorcet, and the heroes of the later revolution, Mirabeau and the later Jacobin leaders such as Danton and Hébert. A Masonic circular of 1775 anticipates already the exact wording of the first sentence of Article 6 of the Declaration of Human and Civic Rights (Déclaration des Droits de l’Homme et du Citoyen) of 26 August 1789: ‘The law is the expression of the general will.’ (La loi est l’expression de la volonté générale).785 This was the basic idea of Rousseau’s Social Contract (previous part).

The French Declaration of Rights consists of 17 short Articles. Ten contain only one short sentence, six are made up of two sentences and one, Article 6, contains four short sentences. In particular, the constructivist universalism and theory-laden character distinguishes the French Declaration from the earlier American Declaration of Independence of 1776.786 Never before had the universalism of natural and rational rights been expressed so sharply and unconditionally. The Preamble already reduces the old European conceptual schema of political theory, the ‘bonheur de tous’ or common good, to the egalitarian measures of constitution, separation of powers (‘pouvoir législatif’ vs. ‘pouvoir exécutif’) and human rights (‘les droits naturels, inaliénables et sacrés de l’homme’). In both declarations – the American of 1776 and the French of 1789 – human rights and popular sovereignty are two sides of the same coin. The second sentence (second paragraph) of the Declaration of Independence connects them in one single sentence:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty and the Pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.787


In a similar way, rights and norms of checks and balances are intertwined in the US Constitution of 1788/89. The Constitution of the Union (1) derives all powers from the people: the reserved powers of the states and the functionally separated powers of the Union (Art. IV–VII). Between the Union and the states, popular sovereignty is shared. The Union’s legislative (Art. I), executive (Art. II) and judicial (Art. III) powers are directly derived from the people of the Union (‘We, the People of the United States’). Not only the representatives of Congress, but also the President, the governors and the judges are elected by the people. Furthermore, direct and representative government are mixed in the states, but not at the level of the Union. Equally important is (2) the interpenetration of the branches of power with subjective rights. Rights are regulating and limiting the legal competencies of the branches. For example, the legislative branch is bound by Article I, Section 9, Cl. 2: ‘Writ of habeas Corpus’, and Article I, Section 9, Cl. 3: ‘No Bill of Attainder or ex post facto Law.’ Most important for the real value of rights is (3) their concrete legal implementation. The reservation of statutory powers binds every constraint of rights by state power to a democratically legitimated statutory law (for instance, Art. I, Sec. 9, Cl. 7, Art. II, Sec. 3, Art. III, Sec. 2, Cl. 1 und 2). Without popular sovereignty, rights do not have equal value for every addressee of the respective legal norm, whether or not they have any at all. Conversely, the Bill of Rights of the first ten Amendments to the Constitution does not only declare reciprocally valid equal rights of citizens, but also contains constraints on the use of state power. The prohibition in the First Amendment: ‘Congress shall make no law . . .’, for example, is related to free speech, and the Third Amendment restricts the rights of the executive to require private accommodation for its armed forces. The same applies to the French Declaration, which is only filled with legal meaning once it is included in a constitution such as the French Constitutions of September 1791, 1946 and 1958. The real value of a constitution depends entirely on the constitutional law of checks and balances (Staatsorgansationsrecht, Organisationsverfassung). But the constitutional law of checks and balances is already anticipated in the Articles of the French Declaration of 1789. The Preamble relates the ‘French people’ (i.e. the nation) to the organ of its representatives, that is, the ‘National Assembly’ which represents the constituent author of the Declaration. Additionally, the legislative and the executive branch are mentioned in the Preamble and bound to the ‘aim of every political institution’, this aim being described by the 17 Articles of the Declaration. Article 4, 5 and 7 to 11 prescribe legal obligations (Gesetzesbindung) of public authorities with respect to certain rights. Article 4, sentence 3, Articles 5, Article 6, sentence 1, Article 7, sentence 2, Articles 8–11, 13, 14, 16, 17 are further general regulations of the legislative branch. Article 12 again explicitly binds all public authority to the guarantee (la garantie) of the rights. Article 14 (together with Art. 13) transforms


788http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/constitution/declaration-of-human-and-civic-rights-of-26-august-1789.105305.html, (accessed 16 September 2013).789See Habermas, Faktizität und Geltung, p. 151 et seq.

the American revolutionary slogan ‘No taxation without representation’ into a right that is exclusively reserved to citizens and their representatives. Article 15 obliges the administrative bodies to be publicly responsible and accountable (‘La société a le droit de demander compte à tout agent public de son administration.’). Article 3 (‘The principle of any Sovereignty lies primarily in the Nation. No corporate body, no individual may exercise any authority that does not expressly emanate from it.’) determines the constituent power (‘Nation’) and binds all authority to it. Article 6, sentence 2 and Article 15 refer to the participation of all citizens (tous les citoyens). Article 6 generally regulates the concretization and implementation of human and civic rights by legislative procedures that are legitimated by civil society:

The Law is the expression of the general will. All citizens have the right to take part, personally or through their representatives, in its making. It must be the same for all, whether it protects or punishes. All citizens, being equal in its eyes, shall be equally eligible to all high offices, public positions and employments, according to their ability, and without other distinction than that of their virtues and talents.788

The first two sentences prescribe the legislative implementation of procedures of direct popular or representative legislation. The addressee of this prescription is the constitutive power of the ‘Nation’ (Art. 3) who is supposed to be the author of the Declaration (circular closure) of the projected constitution, and all subsequent legislation. Furthermore, Article 6, sentences 3 and 4 prescribe the legislative implementation of judicial and executive procedures that shall guarantee the equal treatment of all addressees of the law.

In the eighteenth century, all constitutionally guaranteed rights are not understood as an individual legal entitlement (in the meaning of German Grundrechte), but as reciprocally binding claims of private and public autonomy between citizens, which they themselves must implement through legislative procedures of democratic self-determination (as in Habermas’s legal theory).789 This means for a representative regime of popular sovereignty that lists of rights are functioning as a (non-binding) programme for the legislative and other branches of power.

A reflexively closed, rights-based, circular and procedurally organized regime of popular sovereignty that is normatively based on the identity of the ruled and the rulers excludes any natural right to resistance (as it was postulated by the Protestant Revolution).790 Nonetheless, the French


790On the normatively necessary presupposition of the identity of ruled and rulers for an appropriate understanding of democratic legitimation, see Brunkhorst, Solidarity, pp. 71–7.791See Böckenförde, Die verfassungsgebende Gewalt des Volkes – Ein Grenzbegriff des Verfassungsrechts. Frankfurt: Metner, 1986.792Kant, Opus postumum, quoted from: Maus, Zur Aufklärung der Demokratietheorie, p. 81 (my translation).793Maus, Aufklärung der Demokratietheorie.794Habermas, Ist der Herzschlag der Revolution zum Stillstand gekommen?, in Forum für Philosophie Bad Homburg (ed.), Die Ideen von 1789 in der deutschen Rezeption. Frankfurt-Main: Suhrkamp, 1989, pp. 7–36.795The Declaration of Independence and The Constitution, p. 53.

Declaration postulated a ‘right’ to ‘resistance’ in Article. 2, sentence 2. But this obviously is nothing else than a relict of the old Europe and at best a symbolic law. It is contradicted both by the Preamble and by the Article which comes immediately after it, namely, Article 3. The Preamble and Article 3 of the French Declaration (like the Preamble of the US Constitution or Art. 1 of the Constitution of Haiti of 1805) replaced the right to resistance by popular sovereignty. However, popular sovereignty implies (4) a right of the people to revolution. Their constituent power is permanent.791 ‘The people,’ Kant remarks just after the outbreak of the French Revolution, ‘are acting permanently as a constituent power’.792 The people, therefore, can change the law not only according to the rules of the constitution, like the sovereign prince. Unlike the sovereign prince, the popular sovereign can also change the constitution, and even replace it with a completely new one at any time (as long as the new constitution is in accordance with international law and the legal principles of popular sovereignty). No former king was legally entitled to do this.793 Popular sovereignty does not just transform the revolution into a permanent revolution that is legal.794 Popular sovereignty also retains the legal potential (potentia) for a further constitutional revolution. From the same constitutional mindset of individualized popular sovereignty, the American Declaration of Independence claimed a right to revolution:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty and the Pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.795


796A good example for Verfassungswandlung in contrast to Verfassungsänderung. See Georg Jellinek, Verfassungsänderung und Verfassungswandlung. Eine staatsrechtlich-politische Abhandlung, Berlin: O. Haring, 1906.797Parker, ‘The Present Crisis’, 1856, quoted from Wills, Lincoln at Gettysburg, p. 109. Also in the Southern states, in public discourse, the words ‘slave’ and ‘slavery’ were avoided and replaced by the particular institution (see Marx, ‘Zu den Ereignissen in Nordamerika’, Die Presse Nr. 281, 12. Oktober 1862, in Marx and Engels (eds), Studienausgabe IV. Frankfurt: Fischer, 1966, pp. 185–7, at 187.

Here (and in contrast to the French Declaration), a special right to revolution (beginning with: ‘that whenever any form . . .’) is generalized to a universal human right by its internal connection with human rights (beginning with: ‘that all men are created equal . . .’) and popular sovereignty (‘Consent of the Governed’). Only the American Declaration of 1776 makes the right to revolution explicit and universalizes it. Any people can use it against ‘any form of government’ that violates subjective rights in a way that cannot be remedied within the existing legal and constitutional order. That, for example, was the case with slavery within the already democratic constitutional regime of the United States before the Civil War (which had declared itself a democracy since the Jacksonian Revolution of the 1820s and 1830s). The right to revolution explains the original meaning and fundamental status of the now notorious Second Amendment to the US Constitution: the ‘right of the people to keep and bear Arms’. In the eighteenth century, it was equally directed against external and internal attacks on popular sovereignty – or against the silent withering away of republican self-rule by sneaking devaluation and political rigidity. The latter was the case which Thomas Jefferson had in mind when he made his famous remark that every generation needs a new revolution (and the refreshment of the tree of liberty with the blood of patriots and tyrants). The monopoly of power is not with the state, but with the people. Unfortunately, in the course of technical innovations, industrialization and immeasurable growth of military state power, the egalitarian and democratic right to keep and bear arms has been transformed into a privilege of gun lobbies and big business arms traders.796

However, Jefferson was not only the inventor of the idea of a permanent revolution and the main author of the Declaration but also the owner of 200 slaves, and in the Constitution of 1788 (in the drafting of which Jefferson did not participate), the equal freedom of all men is no longer mentioned. Instead, slavery in the Southern states was legalized by the constitution (Art. I, Sec. 2 and 9, Art. IV, Sec. 2). ‘The [Constitutional] Convention was ashamed of the whole thing, and added hypocrisy to its crime: it did not dare mention the word slave.’797 After that, the Declaration was more or less forgotten for half a century and lost any legal relevance for the internal affairs of the United States. Only in the 1820s, a reluctant anamnesis begins. By the middle of the


798John C. Calhoun, Oregon Bill Speech (1848), quoted from: http://teachingamericanhistory.org/library/index.asp?documentprint944 (27 April 2012).799Abraham Lincoln, Speech on the Dred Scott Decision (26 June 1957), quoted from: http://www.freemaninstitute.com/lincoln.htm (27 April 2012).800Abraham Lincoln, Speeches and Writings, Library of America 1989, Vol. 1, 398, quoted from Wills, Lincoln at Gettysburg, p. 105, at 103.801This a phrase used by Max Weber sometimes as a self-description, in German ‘religiös unmusikalisch’, meaning that religious messages do not matter at all, are alien to someone’s life.802Wills, Lincoln at Gettysburg, pp. 132, 145–6.

century, the Declaration is back on the public agenda, framing the subsequent constitutional conflicts. Evangelist critics of slavery are synthesizing the Bible with the Declaration, Christianity with deism, religious fundamentalism with progressive agnosticism. Radical abolitionists appeal to the right of revolution. Defenders of slavery retort with queries about the legal significance of the Declaration and the validity of the claim for universal equality. John C. Calhoun argues that the empirical implications of the equal rights norm are wrong irrespective of colour.798 Others keep the norm, but restrict it to those of white colour, at the racist price of excluding black people from mankind. In contrast, the abolitionists interpret the second sentence of the Declaration as the most basic constitutional principle of the United States, to use it in the struggle for constitutional amendments. President Lincoln supported the idea. He emphasizes the constitutional character of the Declaration as the founding document of the United States and the legal basis for the constitution which had been adopted more than 10 years later. ‘That all Men are created equal’ with respect to ‘certain unalienable Rights’ is the leading constitutional principle, Lincoln explains, from his detailed critique of the notorious Dred Scott judgment of the Supreme Court right through to the Gettysburg Address.799 Lincoln’s consistent interpretation of the Declaration as universal constitutional law finally understood equal rights as a legal claim for ‘all people of all colors everywhere’, and not only in America.800

Lincoln was ‘religiously unmusical’,801 but strongly influenced by the transcendentalism of Emerson, Parker and Bancroft. He associates the deistic-enlightened perfectibilism of the American Founding Fathers in his speeches with the religious hopes of the vast majority of his fellow citizens.802 The Declaration is related to the Constitution in the same way as Jesus is related to the Bible (Parker): as the ideal to the limits of reality, or the great programme to its first imperfect, but improvable implementation. Furthermore, in the middle of the nineteenth century, a more programmatic interpretation of the Declaration is combined with progressive evolutionism. From then onwards, the Declaration is understood as a revolutionary advance and a constitutional mindset, designed to transcend the limited social conditions of the eighteenth century from within. It became the programme of a permanent, legal, yet


803Ibid., p. 108 et seq. On ‘unconventional’ constitutional change, see Bruce Ackerman, We the People, Vol. 2: Transformations. Cambridge, MA: Harvard University Press, 1998.804Wills, Lincoln at Gettysburg, p. 146f.

sometimes quasi-revolutionary and unconventional, and sometimes even illegal and more or less violent revolution.803

After the Civil War (1861–65), the Declaration must be interpreted in the light of Lincoln’s Gettysburg Address (1863). In this second founding document of the United States, which stems from the middle of the Civil War, the ‘proposition that all men are created equal’ ‘is pushed to the centre of American constitutional law, inclusively interpreted and combined with the universal idea of democracy that “shall not perish from Earth”’ (Lincoln).804

Lincoln’s reading of the second sentence of the Declaration of Independence as constitutional law opens (5) the path for a universalistic interpretation of the subjective rights of the US Constitution and the Amendments (Bill of Rights). All particular civic rights now must be interpreted in the light of universal human rights. This comes very close to the original understanding of civic and human rights in the French Declaration of 1789. What is striking about the French Declaration is that it does not distinguish between human beings and citizens. Human beings are – as in the equally universalistic theories of social contract – citizens in the state of nature, and citizens are none other than human beings in the state of society. It is the same population that has human rights in the state of nature and civic rights in the state of society. State-codified civil rights are valid for all human beings as citizens. The Preamble ascribes to civic rights the purpose of guaranteeing the realization of human rights. It explains all former ‘public misfortunes and . . . the corruption of Governments’ by the ‘only causes’ of ‘ignorance, forgetfulness or contempt of the rights of man’. ‘All members’ (tous les membres) ‘of the body politic’ (du corps social) and their branches of power, the ‘legislative power’ and the ‘executive power’, are politically associated and legally coordinated to the one and only end of the realization of human rights. Article 1 then prescribes the observation of the natural rights of man, and obliges all ‘social distinctions’ to be based on the ‘common good’. The only purpose of any association politique is, as Article 2 repeats, the guarantee of ‘the natural and imprescriptible [i.e., inviolable] rights of Man’ (Art. 2, sentence 1). The second sentence of Article 6 for the first time uses the word ‘citizen’ to specify who are the authors of ‘the Law’ (or the ‘general will’ that creates the law). The following Articles specify the individual civic rights. But in all cases they remain related closely to the rights of man. Article 7, which contains habeas corpus, is formulated as a human right: ‘No man’ (Nul homme) ‘may be accused, arrested or detained except in the cases determined by the Law’, and therefore, officials are allowed to act only in performance of the law (which officials and ‘citizens’


805See Hofmann, Zur Herkunft der Menschenrechtserklärungen.806English and French quotes of the French Declaration are from: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/la-constitution-du-4-octobre-1958/declaration-des-droits-de-l-homme-et-du-citoyen-de-1789.5076.html (16 September 2013). Tallien is quoted from: Richard Brubaker, ‘Einwanderung und Nationalstaat in Frankreich und Deutschland’, Der Staat 1 (1989), 10.807Marx, Die Bourgeoisie und die Kontrerevolution, MEW 6, p. 109 (my translation).

must equally respect). The use of the word ‘citizen’ in the second sentence of Article 7, combined with the words ‘no man’ in the previous sentence, again equates ‘citizen’ and ‘man’. No difference remains in Article 7. The same is true of Article 8 (ex post facto), Article 9 (presumption of innocence) and Article 10 (freedom of opinion and religion), which either guarantee rights to ‘any man’ (tout homme) or state that such rights can be denied to ‘no one’. Article 11 specifies the freedom of speech and press to ‘any citizen’ (tout citoyen). But the first part of the Article declares explicitly: ‘The free communication of thoughts and of opinions [la libre communication] is one of the most precious rights of man [plus précieux de l’homme]’ – again no difference. Article 12 binds all public force not only to a civic, but also to a human rights guarantee. Only the following Articles 13, 14 and 15 are reserved for citizens because they concern taxes (Art. 13, 14) and the public control of administrative political power (Art. 15). Private property, already introduced as a human right in Article 2, is again mentioned in Article 17. Once more it is a right guaranteed to everybody. The tautological double mentioning of private property in a legal text that contains no superfluous word is striking, and adds to the human rights character of property a latent social class character, which even is sacralized in Article 17, which refers to it as the ‘sacred right’.805 The universalism that postulates the unity of civic and human rights was concretized, in particular, by the Jacobin Constitution of 1793, which, of course, would never be applied. It granted everyone who lived and worked for at least one year in France all civil rights, including the right to vote, and in 1795, the Jacobin Tallien declared the credo of the new constitutional state: ‘The only stranger in France is the bad citizen.’806

Modesty was not part of the attitude of the revolutionaries in America and France. The revolutionary leaders and intellectuals on both sides of the Atlantic were connected by the same ‘boundless self-confidence of being at top of creation’.807 The Revolution, which always started in one country, understood itself (6) at once as the foundation of a new international law – a term that was invented by the English utilitarian philosopher Jeremy Bentham in 1789. Unlike the ius gentium (literally, law of the peoples, in English law of nations) of the Pax Westphalica order of Europe, the new international law of the two revolutionary Declarations understands itself


808Anghie, Imperialism, Sovereignty and the Making of International Law, p. 32.809Fried, Die Entstehung des Juristenstands, pp. 139, 156.810Carl Schmitt, Nomos der Erde im Völkerrecht des Jus Publicum Europaeum. Berlin: Duncker und Humblot, 1988 (1950). Schmitt and a long tradition of research related to so-called absolutism seems to have overestimated the historical significance and impact of the Westphalian peace and the so-called Westphalian order, see Osiander, Sovereignty, International Relations, and the Westphalian Myth.811Isabelle Ley, ‘Verfassung ohne Grenzen? – Die Bedeutung der Grenzen im postnationalen Konstitutionalismus’, in Ingolf Pernice (ed.), Europa jenseits seiner Grenzen, 2009, p. 91 et seq., at 106; Juristen-Zeitung, Bd. 65, Nr. 4 (2010), 170.812Parsons, Evolutionary Universals in Society.

not only with Bentham as international but, moreover, as universal law, which replaces natural, divine and canon law.808 This law is centred in national self-determination. It is based not on state sovereignty, but on popular sovereignty. The Kantian constitutional mindset of the eighteenth century contains no less than a political and legal programme for the redemption of the world. The integration of universal legal claims in a national constitutional document is not only significant for the French Declaration of Human and Civic Rights. Here again, we can recognize that all great revolutions are equally particular and universal occurrences. They are not only legal and constitutional revolutions, but also revolutions of international and universal law. The academic professionalization of judges and lawyers since the middle of the twelfth century has overcome the diplomatic privilege of kinship and replaced the prince’s relatives with professional lawyers – an institutional rationalization that has lasted to the present and has hence become a kind of evolutionary universal.809 The Protestant Revolution created a completely new international order on the basis of the equal sovereignty of European states/princes and implemented in multilateral (Augsburg 1555, Pax Westphalica 1648) and unilateral treaties – an innovation that is still an important cornerstone of international law today, hence: another evolutionary universal.810 During the founding discourses of the American and French Revolutions, the Pax Westphalica model of ius gentium or law of nations was radically changed once more. The American and French Revolutions declare the form of the constitutional state to be the one and only universal form of government.811 Talcott Parsons, therefore, could argue that democracy is another evolutionary universal.812

The sharpest and shortest formulation of the universalism of the constitutional mindset of the eighteenth century is Article 16 of the French Declaration of Human and Civic Rights. Article 16 declares null and void all other constitutions of any political association in existence at that time or before (with the one exception of the constitutions of the North American Union): ‘Any society in which no provision is made for guaranteeing rights or for


813http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/constitution/declaration-of-human-and-civic-rights-of-26-august-1789.105305.html (accessed 15 September 2013). On the normative relevance of Art. 16 of the French Declaration, see Hofmann, Zur Herkunft der Menschenrechtserklärungen; Fossum, John Erik and Menéndez, Augustín José (2011), The Constitution’s Gift. A Constitutional Theory for a democratic European Union, Plymouth: Rowman, quoted from the e-man. 2010, pp. 23–4; see Waldhof, ‘Entstehung des Verfassungsgesetzes’, in Otto Depenheuer and Christoph Grabenwarter (eds), Verfassungstheorie. Tübingen: Mohr, 2010, pp. 314–15.814Pennsylvania Anonymous: Four Letters on Interesting Subjects. Philadelphia, 1776, in Charles S. Hyneman, American Political Writing During the Founding Era: 1760–1805, vol. 1, 1983, quoted from Online Library of Liberty (http://oll.libertyfund.org/simple.php?id2066); see Wood, The Creation of the American Republic, p. 267; Möllers, ‘Pouvoir Constituant – Constitution – Constitutionalization’, in Erik O. Eriksen, Jon E. Fossum and Augustin J. Menendez (eds), Developing a Constitution for Europe. London: Routledge, 2004, p. 186.815Federalist Papers, quoted from: http://avalon.law.yale.edu/subject_menus/fed.asp (28 April 2012)816Declaration of Independence and The Constitution, p. 53.

the separation of powers, has no Constitution.’813 That means as a legal claim that a constitution based on popular sovereignty is not only an expression of the sovereign will of one people, but also has binding effects for all nations. Article 16 makes direct legal claims that are universal, and the revolutionary troops that invaded the Rhine region and later – under Napoleonic leadership – half the world, were the first who took the claim seriously, and implemented republican constitutions and the Civil Code wherever they went – and along the way safeguarded the material interests of the new French ruling class and catered to the appetite of the great Emperor’s large family for new kingdoms. Unfortunately, as we have seen, this was possible only by simultaneously universalizing the state of siege. In any case, the revolutionary constitution tolerates no other constitution beside itself, as the Americans declared from the beginning: ‘All countries have some form of government, but few, or perhaps none, have truly a constitution.’814 In the same way as the French in Article 16, James Madison argued in Federalist Papers 14 that America has produced ‘a revolution which has no parallel in the annals of human society’. He goes on to say that the Revolution created a constitution for nothing less than the happiness of the ‘whole human race’. In Federalist 45, Madison compares different historical Confederations, but comes to the conclusion that none is comparable to the newly designed American Confederation (of course, because none has a ‘constitution’, but only ‘a kind of government’).815 The second sentence (and the first sentence of the second paragraph) of the American Declaration, therefore, derives the right to secession directly from the right to a ‘Government’ that is determined by the ‘Consent of the Governed’, and that is a consent which the governed produce in performance of their universal and ‘unalienable Rights’ and with a self-referential purpose, that is, in order ‘to secure these Rights’.816


817See David Armitage (ed.), The Declaration of Independence. Cambridge, MA: Harvard University Press, 2007.818Vattel, Le Droit des Gens, L. I Ch. I, §§ 3, 4, 13, 38, 39; see: Paul Guggenheim, ‘Emer de Vattel und das Völkerrecht’, in Vattel, Le Droit des Gens, p. XVI (Einleitung).819Vattel, Le Droit des Gens, L. I, C. I, §§ 32, 33. Vattel even implicitly distinguishes the constituent power of the people from the constituted power of the legislative body, which cannot change the constitution (§ 34).820Vattel, Le Droit des Gens, Introduction, §§ 16, 18, L. I, Kapitel I, § 4; see Armitage, Declaration of Independence, p. 38 et seq.821Vattel, Le Droit des Gens, Preliminaries, § 5.822Vattel, Le Droit des Gens, Introduction, §§ 10, 13, 14, L. I, §§ 15, 21–3.

The most important legal source for the first two sentences was not (as is often supposed) Locke’s Second Treatise of Civil Government (1690), but Vattel’s book on ius gentium: Droit des gens. Vattel’s book was published in 1758 in Leiden and had been regularly taught at American colleges since 1770. A couple of copies were in the Library of Carpenter Hall, Philadelphia, where the Continental Congress met in 1776. It was one of the books that many of the delegates had read, and it was borrowed most frequently in the days of the meetings.817 The right of every people to be governed by a government of its own and by its own laws was at the centre of Vattel’s foundation of international law. Vattel was not yet a proponent of popular sovereignty, but came closer than any other author before Rousseau to drawing democratic consequences from social contract theory. Democracy is the original form of government. The authority of the prince is only derived from the people. Consequently, ‘it is’, as the American Declaration says, ‘the right of the people to alter or to abolish’ a government that misuses its delegated powers.818 Explicitly, Vattel speaks of a right of the people to reform and to change their constitution by majority vote.819 The only, but crucial, difference between Vattel and the Declaration is that the Declaration relates the right to revolution directly and internally to the concept of universal subjective rights, as we have seen. The natural right to independence is especially emphasized by Vattel and derived from the original freedom and independence (liberté et indépendance) of individual persons in the state of nature by analogy.820 The ‘common will’ of the nation ‘is but the result of the united wills of the citizens’, and it ‘remains subject to the laws of nature, and [the nation] is bound to respect them in all her proceedings. And . . . the nation possesses also the same rights which nature has conferred upon men. . .’ .821 Furthermore, the wording of the list of basic human rights in the Declaration, that is, Life, Liberty and the Pursuit of Happiness, also goes back to Vattel’s perfectibilistic (and not utilitarian or atomistic) concept of happiness, which he had taken from Leibniz and transplanted into the heart of international law.822 The Lockean heritage comes only to the American fore in the constitution a decade later. Here, the old list of the Declaration is replaced by life, liberty and property (Fifth Amendment, and again Fourteenth


823Armitage, Declaration of Independence, p. 187.824Ibid., pp. 193–8.825Ibid.826Ibid.

Amendment from 1868), which is much more in accordance with the ‘spirit of capitalism’ (Weber).

The American Declaration had a tremendous impact on international law, beginning with the Manifesto of the Provinces of Flanders in 1790. This Manifesto, in a similar way to the American Declaration, begins with the invocation of ‘our natural rights of liberty and independence’ ‘restored’ by ‘Divine Providence’.823 Next was The Haitian Declaration of Independence, 1804. The Haitian Declaration was an impressive speech of the ‘General in Chief to the people of Haiti’, which appeals negatively to the people’s sense of injustice and the power of revenge that is the reserve bank of communicative reason:

It is not enough to have expelled from our country the barbarians who have for ages stained our blood. . . . It is necessary, by a last act of national authority, to ensure for ever the empire of liberty in the country which has given us birth. It is necessary to deprive an inhuman government, which has hitherto held our minds in a state of the most humiliating torpitude, of every hope of being enabled again to enslave us. Finally, it is necessary to live independent, or die. Independence or Death! . . . Slaves – leave to the French nation this odious epithet; they have conquered to be no longer free – let us imitate other nations, who . . . have preferred to be exterminated, rather than be erased from the list of free people.824

The martial Declaration ends with the power of revenge:

Swear then to live free and independent, and to prefer death to every thing that would lead to replace you under the yoke; swear then to pursue for everlasting, the traitors, and enemies of your independence.825

However, in the middle of the Declaration, there is also an allusion to the Kantian constitutional mindset, and the famous metaphor of enlightenment about the leading strings and the upright carriage which Kant had used in his essay Was ist Aufklärung?: ‘We have dared to be free – let us continue free by ourselves; let us imitate the growing child; his own strength breaks his leading-strings, which become useless and troublesome to him in his walk.’826 In 1811, there follows The Venezuelan Declaration of Independence, in 1822 that of Greece. And in 1823 in the United States, the Monroe Doctrine again refers to the principles of independence and national


827Vattel, Le Droit des Gens, Book I § 37.828See Jörg Fisch, Das Selbstbestimmungsrecht der Völker. Munich: Beck, 2010.

self-determination. When nearly all Latin American former colonies had declared their independence and founded new states, the Monroe Doctrine considered any attack against one of the new states an attack against the United States. The (still valid) principle of non-intervention also goes back to Vattel: ‘In short, all these affairs being solely a national concern, no foreign power has a right to interfere in them, nor ought to intermeddle with them otherwise than by its good offices unless requested to do it, or induced by particular reasons.’827 Throughout the nineteenth and twentieth century, the number of declarations of independence grew steadily, and with it the ambivalence between emancipatory and democratic intentions on the one hand and nationalist and authoritarian ones on the other. Often, the difference was blurred in the course of events.828 In 1835, New Zealand declared independence, in 1836, the people of Texas followed. In 1847, the people of the Commonwealth of Liberia directed the rhetoric of the American Declaration against the slaveholder society of the Southern states of the Union. When the Civil War broke out in 1861, the Southern states reactivated the Declaration, but shorn of human rights. However, Lincoln and the anti-slavery movement also made good use of the original Declaration, and reinforced the human rights part, as we have seen. In 1917, the American President Woodrow Wilson justified the American entry into the war with the universal right to national self-determination. In 1918, the Czechoslovak nation declared independence, in 1945, Vietnam and Austria, in 1948, Israel, in 1965, Southern Rhodesia (dropping human rights and swearing to the Queen), in 1996, the Cyberspace and in 2008, Kosovo. The Vietnamese Declaration of 1945 is interesting. It begins by quoting the second sentence of the American Declaration by using the universalization of Lincoln’s interpretation (and the same argument as Vattel in deriving the rights of peoples from individual rights):

All men are created equal. They are endowed by their Creator with certain inalienable rights, among these are Life, Liberty and the Pursuit of Happiness. This immortal statement was made by the Declaration of Independence of the United States of America in 1776. In a broader sense, this means: All peoples on earth are equal from birth, all people have a right to live, to be happy and free. The Declaration of the French Revolution made in 1791 on the Rights of man and the Citizen also states: “All men are born free and with equal rights, and must always remain free and have equal rights.”


829Armitage, Declaration of Independence, pp. 231, 235.830Vitoria, De Indis: Prima Pars III, Primus Titulus, 2, 4. From the point of view of the globalization of free trade, François Quesnay has argued that laissez-faire presupposes laissez-passer. See Paul Streeten, Globalisation – Threat or Opportunity?. Copenhagen: Business School Press, 2001, p. 25. On the right to associate, see Kant, Zum ewigen Frieden, pp. 203, 213–14, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012).831Kant, Toward Perpetual Peace, p. 328. English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012), translation modified slightly.832Mark W. Janis, ‘Jeremy Bentham and the Fashioning of “International Law”’, The American Journal of International Law 78 (1984), 405–18, at 407.833Kant, Zum ewigen Frieden, pp. 214–15, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012).

And then follows the turn to the power of revenge originally invoked by the Haitian Declaration:

Nevertheless, for more than eighty years, the French imperialists, abusing the standard of Liberty, Equality and Fraternity, have violated our Fatherland and oppressed our fellow-citizens. . . . The entire Vietnamese people are determined to mobilize all their physical and mental strength, to sacrifice their lives and property in order to safeguard their independence and liberty.829

Normative texts can strike back.

(8) The co-evolution of cosmopolitan and national statehood

In a similar way to Vitoria, Kant points out that universal hospitality or the right of anybody to associate with anybody (and not to be treated ‘with hostility’) is at the individualistic core of cosmopolitan law, which is world citizenship (ius cosmopoliticum).830 The right to associate, Kant argues, is not ‘philanthropy, but . . . law’.831 Universal hospitality in the age of the Peace of Westphalia (1648–1814) was considered either as a part of natural law or as universal common law that came from universal and not from municipal sources (customary law of nations, ius gentium). This law was regularly applied by English and American courts.832 On this legal basis, Kant made a comprehensive argument against colonialism in ‘America, the lands inhabited by the Negro, the Spice Islands, the Cape, etc., [. . . and in] East India’.833 Like Vitoria, Kant argues that the Europeans have a legal right to associate with the inhabitants of these countries and to ‘visit’ them, but they have no legal right to ‘inhospitable actions’ such as ‘conquering


834Ibid., p. 214, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012).835Ibid., pp. 216–17, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012). The right to associate has nothing to do with the old archaic ethics of hospitality, as Kant explicitly makes clear: Kant, Zum ewigen Frieden, pp. 213–14.836See Vitoria, Vorlesungen II, pp. 390–1, 402–3, 460–7; Fichte, Grundriss des Völker- und Weltbürgerrechts, § 22, p. 384.837See Sieyès, Third Estate, p. 156 (Ch. III, Sec. III 1); For recent reconstructions of that argument, see Maus, Zur Aufklärung der Demokratietheorie; Habermas, Faktizität und Geltung.838Rousseau, ‘Politische Fragmente’, in Politische Schriften Bd. 1. Paderborn: Schöningh, 1977, pp. 230–1, see Maus, ‘Nationalstaatliche Grenzen und das Prinzip der Volkssouveränität’, manuscript, Frankfurt, 2001, pp. 8–9. On the evolutionary origins, see Bellah, Religion in Human Evolution, p. 323. The utopian perspective of a ‘State-less political community’ seems to be an evolutionary universal that goes back not only to ancient (and diaspora) Judaism but also to the Greek polis (see Bellah, Religion in Human Evolution, p. 340.

them’, bringing ‘foreign soldiers and [using] them to oppress the natives’, exciting ‘widespread wars among the various states, spread[ing] famine, rebellion, perfidy, and the whole litany of evils which afflict mankind’, or, in other words, no right to ‘drink injustice like water’.834 It is crucial for Kant’s argument that the universal right to associate is part and parcel not of ‘national’ (Landrecht, Stadtrecht), but of international law. The existence of a universal right to associate is the legal condition for the possibility ‘that a violation of rights in one place is felt throughout the world’. As far as it is implemented and normatively effective, the right to associate supplements international law with ‘public human rights’.835 Therefore, not only states or princes are subject to international law, but every individual human being, and hence everybody has a right to have rights within the international community.836 Now, for Kant and his contemporaries, the necessary complement to universal subjective rights was popular sovereignty. The individual legal subjectivity of human beings under international law is internally connected with the idea that the people and not the states (or princes) are the proper subject of international law. Kant’s argument for the latter is that rights, including the right to associate, cannot be granted graciously from the top down by princes or states, but must be granted to each other reciprocally by the people themselves.837 This is another reason why the people or civil society, and not the state, is the original referent of the general term ‘constitution’. At the beginning of constitutionalism as we know it, the constitution was already a constitution without a state. Moreover, it was opposed to the category of state.

Rousseau admired the Jews because of the constitutional power of their legislation, which was ‘preserved’ by a legal community of citizens without a state: ‘How strong must a legislation be to be capable of producing such marvels.’838 For Rousseau, the legislative power of the people was the life


839Rousseau, Gesellschaftsvertrag. Stuttgart: Reclam, III, 11, p. 97, English translation quoted from: http://www.marxists.org/reference/subject/economics/rousseau/social-contract/ch03.htm#011, see Paula Diehl, Kapitel 4: Historische Entwicklung der demokratischen Symbolik, Man. Habil. HU-Berlin 2012, p. 14.840Hegel, Ältestes Systemprogramm: http://control-society.livejournal.com/10718.html (30 April 2012).841Büchner, Danton’s Death. Oxford: Oxford University Press, 1998, p. 7 (translation modified).842Thornhill, A Sociology of Constitutions.

or death criterion of a political corporation.839 As the example of the Jews proves, citizenship on the basis of self-legislation is possible even without a state, without political leaders, without a ‘fatherland’. For Rousseau, popular sovereignty presupposes the legislative power of the people and in that sense it presupposes a constitution, but not a state, or even any executive power of its own. A constitution without a state is possible, but not a state without a constitution. Thus, none of the first written constitutions, neither the colonial constitutions of North America nor the constitutions of the Freemasons, were state constitutions. The French Declaration of 1789 did not even mention the words ‘state’ or ‘estate’, instead it used peuple français, corps social (Preamble), association politique (Art. 2), société (Art. 4, 5, 15, 16) and l’ordre public (Art. 10). While ‘state’ was a particular and descriptive category, ‘civil society’ and ‘people’ were conceived as universal and constructive categories with normative implications. Civil society or people opposed the state. The state was portrayed in a gloomy picture as an abstract bureaucratic machine that was an instrument of despotic princes. This state ‘should cease’.840 In sharp contrast, the French Revolution, as well as the enlightened philosophers, considered the alternative of republican government a transparent garb which expresses nothing than the general will of the people, or as Camille Desmoullins argued in Georg Büchner’s Dantons Tod:

The form of the state must be a transparent garment clinging to the body politic. It must register the impress of every artery-pulse, every flexed muscle, every tautening of a ligament. Let the body be beautiful or hideous as it chooses; it has that right. We are not entitled to cut it a coat to our measure. 841

From a functionalist point of view, the enlightened theory of the state as a transparent garb that is completely controlled by civil society was naïve, and soon proved wrong by history when it unleashed all the administrative and coercive powers of the particular state machine.842 But from the normative point of view of the Kantian constitutional mindset, the constitution must be


843Marx, Outline of the Critique of Political Economy (Grundrisse) http://www.marxists.org/archive/marx/works/1857/grundrisse/ch01.htm (06 May 2013).844Kant, Zum ewigen Frieden, pp. 212–13, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (05 May 2012).845With reference to the national state: Stichweh, Die Weltgesellschaft, p. 52.846Ibid., pp. 206–8, 225, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012).847Ibid., pp. 203, 212–13.848Ibid., pp. 208–9, 212–13, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012); see Ulrich Thiele, ‘Von der Volkssouveränität zum Völker(staats)recht’, in FS Maus, Frankfurt: Campus, 2011, pp. 175–96.

detached from the state and reconnected with popular sovereignty. This, in principle, opened up the whole variety of constitutional possibilities within and beyond the national state. At the end of a long evolutionary process, the universality of categories such as constitution, people, civil society and civic rights ‘becomes true in practice’.843

Thus, for Kant it was beyond doubt that the constitutionalization of international law was possible at least as a ‘negative surrogate’ of the ‘positive idea of a world republic’.844 Binding the constitutionalization of international law to universal subjective rights and popular sovereignty, there was no conceptual barrier to universalizing the constitutional exclusion of inequalities from the beginning.845 Kant sharply rejects the idea of a world state because he can imagine a world state only as a universal monarchy, that is, the state of the Ancien Régime. Such a state is a kind of prerogative state that is self-referentially closed and separated from civil society and the people. To universalize such a state would mean universalizing despotism. Despotic for Kant (as for Art. 16 French Declaration, 1789) means a society that has not implemented the separation of powers, as, for example, the state of the Ancien Régime or the ‘so called old republics’ such as Rome and Athens, which, in fact, were despotic regimes.846 But Kant does not reject the idea of a world republic formed by world citizens or by the peoples. On the contrary, the idea of a world republic is necessary for any appropriate construction of a universal state of law.847 While prerogative states such as the Ancien Régime can only form an intergovernmental system of peace treaties (Pax Westphalica), that does not rise above the threshold of universal despotism – peoples as well as world citizens can form a constitutionalized ‘league of nations’. Its constitution would be a constitution without a state, but a constitutional regime that functions as a (provisional?) surrogate of ‘a continuously growing state consisting of various nations’, which Kant calls a ‘civitas gentium’.848 However, Kant stops short of the idea of a world republic because he has no concept of shared sovereignty, like the one the United States had from the beginning. Popular sovereignty for Kant necessarily presupposes one single, indivisible


849Ibid., p. 209, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012). On shared sovereignty in federal regimes, see Forsythe, Unions of States; Schönberger, Christoph, Unionsbürger. Tübingen: Moor, 2005.850Hofmann, ‘Die Grundrechte 1789-1949-1989’, in Verfassungsrechtliche Perspektiven. Tübingen: Mohr, 1945, p. 35.W 851Lehrer, Send the Marines.852Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, written 1781, first published 1789, quoted from: http://www.utilitarianism.com/jeremy-bentham/index.html (5 May 2012). Bentham equals ‘nationstate-commonwealth’. With the concept of a law of nations, he refers to Blackstone. See Janis, Jeremy Bentham and the Fashioning of ‘International Law’, p. 406.853Berman, ‘World Law’, Fordham International Law Journal 18 (1995), pp. 1617–22.

unity of a people of citizens: ‘many nations in one state would . . . constitute only one nation’.849

Even if Kant ultimately did not solve the problem of a consistent construction of a world republic, he made the universal and cosmopolitan implications of the constitutional mindset of the South American, Haitian, French and North American Revolutions explicit. These revolutions were a Kantian Geschichtszeichen with an intensity and luminosity that reached far beyond their respective national borders.850 For good and ill, the enforcement of revolutionary constitutions immediately led to a complete positivization of all legal norms and a highly dynamic political order that was designed to transcend itself : normatively towards a cosmopolitan world republic, factually, however, towards at best democratic, at worst imperial expansionism. National (and national-capitalist) imperialism and new forms of slavery and exploitation always went together with liberation from ancient regimes of slavery, despotism and imperialism: ‘For might makes right,/ And till they’ve seen the light,/ They’ve got to be protected,/ All their rights respected,/ ‘Till somebody we like can be elected/ . . . They love us everywhere we go!/ But when in doubt,/ Send the marines!’851 This is the truth of the functionalist point of view: The realist, managerial and technocratic constitutional mindset is factually (but not conceptually) co-original and interwoven with the Kantian constitutional mindset of the Atlantic Revolution.

In the same year of the French Declaration of Human and Civic Rights, in 1789, Jeremy Bentham, honorary citizen of revolutionary France since 1792, but at the same time a sharp critic of the utopian overspill of human rights, invented the term international law, instead of the older Protestant ius gentium (law of the peoples, law of nations).852 Bentham’s early invention of the term international law is the missing link between the Kantian and the managerial constitutional mindset of the Atlantic Revolution. Bentham argued that the old ius gentium was no longer appropriate, in particular, because it combined three elements that suddenly seemed incompatible with the new conditions of national state sovereignty853: (1) Natural law according


854See Janis, Jeremy Bentham and the Fashioning of ‘International Law’, pp. 406–7.855This is so because ‘every law, or other order, divesting a man of the enjoyment of life or liberty, is void’. Hence, Bentham argues, ‘this is the case . . . with every coercive law. Therefore . . . every order, for example, to pay money on the score of taxation, or of debt from individual to, individual, or otherwise, is void. . . . Every order to attack an armed enemy, in time of war, is also void’ (Bentham, An Introduction to the Principles of Morals and Legislation, notes XXVII, quoted from: http://www.utilitarianism.com/jeremy-bentham/index.html, 5 May 2012; see Bentham, Critique of the Doctrine of Inalienable, Natural Rights, in Works 1842, quoted from: http://www.ditext.com/bentham/bentham.html (6 May 2012).856Bentham, An Introduction to the Principles of Morals and Legislation, Chapter XVII, § 2, p XV, quoted from: http://www.utilitarianism.com/jeremy-bentham/index.html (5 May 2012).857Ibid. Bentham introduced the term ‘international’ here, but refers also to the older work of D’Aguesseau, who had already replaced the droit des gens by the term droit entre les gens (Berman, World Law, pp. 1617–18, note 2).858Heinrich Triepel, Völkerrecht und Landesrecht. Leipzig: Hirschfeld, 1899, p. 111.859Anghie, Imperialism, Sovereignty and the Making of International Law, pp. 38–52.860Janis, Jeremy Bentham and the Fashioning of ‘International Law’, p. 415.

to Bentham was no law at all.854 If natural rights like those in the American Declaration of Rights of North Carolina were taken seriously, he argued, this would lead to the destruction of all law and order – and hence of the rights themselves.855 (2) Lex Mercatoria was declared void by Bentham because it lacked backing by a national sovereign. Therefore, all ‘mutual transactions’ between ‘private persons’ that are legal transactions must be subject to the relevant national jurisprudence, and in that case, they are ‘internal’ operations of the national legal system.856 (3) This led him to the conclusion that all valid law must be produced by a national sovereign. Therefore, no transnational law, no cosmopolitan law and no ius gentium is possible that does not stem from a ‘branch of jurisprudence which may be properly and exclusively termed international’.857 Bentham’s reduction of international law to the two distinct realms of national and international law already anticipates the famous definition of the German Empire’s international lawyer Heinrich Triepel: ‘International law and state law are not just different areas of law, but rather different legal orders. At most they touch each other, like two circles at their tangent, but they never overlap.’858 With Bentham’s semantic invention, the realist path of the new imperial law of ‘the West and the rest’ was created.859 Bentham’s enlightened and utopian Plan for an Universal and Perpetual Peace was forgotten for the time being, but his realism and scepticism about human rights and universal law beyond the state prevailed. In a few years after its publication in 1789, the nomenclature of international law was translated into every language (droit international, internationales Recht, derecho internacional, internationaal recht) and soon everywhere replaced the term and the substance of the ius gentium (or law of nations) that had applied during the Westphalian age of globalization, as well as the cosmopolitan rhetoric of the Enlightenment and of the revolutionary constitutional documents.860


861On the latter, see Nathaniel Berman, ‘Bosnien, Spanien und das Völkerrecht – Zwischen “Allianz” und “Lokalisierung”’, in Brunkhorst (ed.), Einmischung erwünscht? Menschenrechte und bewaffnete Intervention. Frankfurt: Fischer, 1998; Anghie, Imperialism, Sovereignty and the Making of International Law, pp. 52–65.862Declaration of Independence and The Constitution, pp. 54, 56–7 (my emphasis).863Henry Wheaton, Elements of International Law. Boston: Little 1866 (1836), pp. 10, 15 (Wheaton’s emphasis), quoted from: Anghie, Imperialism, Sovereignty and the Making of International Law, pp. 53–4.864Anghie, Imperialism, Sovereignty and the Making of International Law, p. 54.865Ibid., pp. 57–60.

The one-sided reception of Bentham’s work and the career of the term ‘international law’ were only further steps in making the new international law fit for imperialism. The new, de-universalized concept of international law was immediately combined with the basic epistemic schema of imperial prerogative statehood, which consisted in the distinction between civilized and uncivilized (barbarous, savage) nations.861 This notorious schema was already ubiquitous in the eighteenth century, and also part and parcel of the American Declaration of Independence. The Declaration not only accused the ‘King of Great-Britain’ of ‘the Establishment of an absolute Tyranny’ that was ‘of Cruelty and Perfidy, scarcely paralleled in the most barbarous Ages, and totally unworthy the Head of a civilized Nation’. It also delivered a long list of evidence, among the worst of which is the King’s ‘[endeavour] to bring on the Inhabitants of our Frontiers, the merciless Indian Savages, whose known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions’.862 The concept of a scale of ‘civilized’ and ‘most civilized’ nations (supplemented with the idea of the ‘Christian peoples of Europe’) was introduced to international law by Henry Wheaton in 1836.863 With the reduction to civilized nations, the universalism of Bentham’s original category of international law was deducted from the concept. Civilized Europeans now simply were confronted by uncivilized non-Europeans, and nations were identified with states, with the implication that most of the non-European world appeared beyond state, nation and citizenship: ‘In its most extreme form, positivist reasoning [such as that of Austin or Wheaton] suggested that relations and transactions between the European and non-European states occurred entirely outside the realm of law.’864 While international law was defined by the sovereignty of the state that depended completely on the executive branch and its effective control over territory, the distinction between civilized and uncivilized nations which determined membership or non-membership in the family of nations was additionally defined by cultural categories: The closer a people was to so-called primitive tribe or band societies, the less civilized they were.865 And the darker the skin, the more barbarous its bearers and the peoples of ‘naked savages’: ‘unreal’ and ‘ghostly’, ‘belonging to nature, against which they could not hold up a man-made world. . . . [They are] human beings [who] completely


866Arendt Elemente und Ursprünge totaler Herrschaft. Munich: Piper, 1991, pp. 300, 322 The German edition was done by Hannah Arendt herself and revised the English original several times. In these cases, I quote the later German edition and translate it into English.867Arendt, The Origins of Totalitarianism. San Diego, New York, London: Harcourt Brace and Company, 1979, p. 192.868Dred Scott v. Sandford, 60 U.S. 393 (1857). The Court referred to international common law (opinion of the civilized nations) to back its decision, but only to the international common law of the past, explicitly denying the relevance of changes in international common law since the Declaration of Independence. They argued that the inferior status of the ‘black race’ as well as of all ‘colored peoples’ was supported by the ‘civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted’. The conviction of the superior status of the white race, the Court argued, was ‘at that time fixed and universal in the civilized portion of the white race’, even ‘an axiom in morals’, and the exclusion of ‘negroes’ from all civil rights and their ‘doom[ing] to slavery’ was the ‘common consent’ of ‘civilized Governments and the family of nations’. However, at the same time, the Court declared that any present ‘change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe’ did not matter for the interpretation of the Court.869On the Berlin Conference, see Koskenniemi, Gentle Civilizer of Nations, p. 126; on the heart of darkness: Joseph Conrad, Heart of Darkness. New York: Norton Critical Edition, 2005 For a one-sided, but not entirely wrong account (‘The chaotic and bloody world around us is the rule of law’), see China Miéville, ‘The Commodity-form of international law’, in Susan Marks (ed.), International Law on the Left. Re-examining Marxist Legacies. Cambridge: Cambridge University Press, 2008, pp. 92–132, at 131–12. Also see Prien, Is the Evolution of International Law taking Notice of Imperialism and Colonialism?870Fraenkel, Der Doppelstaat.

lack a specifically human reality.’866 Arendt still calls African people ‘a species of men whom human pride and a sense of human dignity could not allow [the Boers] to accept as fellow men . . . so that when European men massacred them they somehow were not aware that they had committed murder’.867 In case of doubt, send the marines.

In the middle of the nineteenth century, the American Supreme Court in its notorious Dred Scott case could refer to the term ‘civilized nations’ in the same Declaration of Independence that Dred Scott used to argue for his own claim of equal rights against the hegemonic interpretation of the Court. Dozens of European legal documents of the eighteenth century made explicit or implicit use of the distinction between civilized and uncivilized nations, not in order to condemn slavery in the name of civilization, but to justify slavery and slave ownership in the name of civilization.868 At the end of the century, and at the height of Western imperial world rule, Article 35 of the concluding protocol of the Berlin Conference on West Africa in 1884/85 finally legalized the distinction between jurisdiction, which rules international relations between civilized Western nations endowed with equal rights (and excluding the Turks), and authority, which rules all hierarchical relations between Western civilization and the uncivilized rest who live in the ‘heart of darkness’.869 The Wannsee Conference was prepared by a few imperial precursors that replaced the cosmopolitan republican state with the global dual state.870


871Arendt, The Life of the Mind (Two/Willing). Boston: Mariner Books, 1981, pp. 195–216.

The so-called realist, but in reality bloody imperialist international law belongs to the evolutionary path enabled by the emergence and implementation of the normative constraints of the Kantian constitutional mindset, which were designed and hard-won with the purpose of limiting or even eliminating the power of real imperialism. However, shaped by the pressure of evolutionary adaptation and the selective mechanisms of hegemonic class interests, the managerial implementation of the Kantian normative constraints engendered a continuum of new evolutionary possibilities between two limiting cases: on the one hand, (1) egalitarian national and cosmopolitan self-determination and on the other hand, (2) authoritarian regimes of national power-limiting constitutionalism and prerogative rule outside of Europe, North America and Japan.

As in all great revolutions, at the beginning, the new and highly experimental constitutional formation of social integration was badly adapted to its societal environment. Hannah Arendt fittingly speaks of a hiatus between the destruction of the old order and the new foundation of freedom. An abyss or void separates the old from the new constitution of society.871 The new civil society that emancipated itself from the despotic and abstract power of the presumably ‘absolutist’ state was urgently in need of systemic re-stabilization. This finally was achieved by the unexpected augmentation of the ever more centralized abstract power of states and empires, combined with the gradually emerging and, decades later, exploding growth of modern capitalism. But self-organized administrative state power did not only stabilize the advances of equal rights and popular sovereignty together with the new, revolutionarily established formation of (in a broad sense) bourgeois class rule. First of all, self-organized state-power stabilized its own executive power within and beyond the limits of the constitution. The citizens of the Declarations of 1776 and 1789 wanted only as much state power as was needed to enforce popular legislation, and they imagined this state to be a simple instrument that they could control as reliably as a hammer. But what they ultimately got was a highly complex, learning machine, which programmes itself. Therefore, from the beginning it was beyond any direct civic control. Not only social individuals, groups and classes learn, but also social systems, once their evolutionary design is that of a learning machine, and they learn cognitively through gradual and incremental adaptation that is normatively neutralized.

The constitutional revolutions of the eighteenth and nineteenth century had an unintended effect that already Marx observed: ‘All revolutions perfected this machine [the self-organized system of administrative state-power] instead of


872Marx, Der 18. Brumaire des Louis Bonaparte, p. 179, English quoted from: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch02.htm. (19 March 2012).873See Claus Offe, Berufsbildungsreform. Eine Fallstudie über Reformpolitik, Frankfurt: Suhrkamp, 1975, p. 13 (‘Interesse des Staates an sich selbst’).874Thornhill, A Sociology of Constitutions, pp. 181–242.875Ibid., pp. 186, 189, 195–6, 199–200, 210.876Ibid., p. 181.877Ibid., p. 207.878Ibid., p. 240.879See Bayly, Birth of the Modern World.880Thornhill, A Sociology of Constitutions, p. 208.881Ibid., p. 209.

breaking it.’872 All revolutionary classes wanted to break despotic state power and sublate it as completely as possible. But once the revolutionaries were in power, they began to change their mind. They had to stay in power, and therefore had to submit to the objective ‘interest of the state in its own self-preservation’.873 Class interest came together with functional imperatives that (casually) were much more in accordance with a rights-based constitution of popular sovereignty than any former constitutional regime. The virtual inclusion of all citizens through equal subjective rights and the legitimizing principle of popular sovereignty enabled the growth of highly rationalized, administrative and coercive state power and the universalization of the real abstraction of power that put every former growth of that power in the shade.874 The private-public double character of rights, the Habermasian co-originality of private and public autonomy, together with the constitutional law of checks and balances that was conceived to implement popular sovereignty effectively, had an accelerating effect on the growth of administrative state power.875 In America, the implementation of civil and political rights completed the differentiation of the public from the private sphere. State power finally was de-privatized completely.876 In France, the revolution established uniform principles of rights, which ‘were applied through society to eradicate particularistic interests from the state’s structure and to concentrate the state’s monopoly over its reserves of political power’.877 Across the whole wave of post-revolutionary constitutional reform, ‘rights acted as a normative formula in which states constantly augmented their inclusive effective power’.878 The reference to the rights of the people not only triggered emancipatory movements, insurgencies and revolutions worldwide, but also the cognitive learning of the political system, in Latin America as well as in India, in Iran as well as in Egypt.879 Rights of property were detached from feudal privilege, personalistic convention was replaced by contract law and equality before the law and equal access to judicial hearing was legally implemented.880 ‘This construction of the state as a primary allocator and guarantor of rights greatly intensified the power stored in the state.’881 Rights are not only legal remedies in the hands of the people


882Luhmann, Grundrechte als Institution; see Luhmann, Verfassung als evolutionäre Errungenschaft.883Marcuse, ‘Der Kampf gegen den Liberalismus in der totalitären Staatsauffassung’, Zeitschrift für Sozialforschung 3:2 (1934), 161–95, at 166; quoted from: Marcuse, Negations. Essays in Critical Theory, London: mayfly, 2009, p. 5.884Ernst Forsthoff, Der Staat der Industriegesellschaft – dargestellt am Beispiel der Bundesrepublik Deutschland. Munich: Beck, 1971, pp. 46–7, 105 (my transl.).885Bayly, Birth of the Modern World, pp. 85–8 et seq.; Osterhammel, Die Verwandlung der Welt, p. 565 et seq., 818 et seq., 950 et seq.886Osterhammel and Petersson, Geschichte der Globalisierung, p. 61.

to protect them against the state and to empower them to perform self-legislation (private and public autonomy). They also fulfil the societal function of enabling, stabilizing and reinforcing the differentiation and growth of state power, of markets and capital, finally of an unlimited variety of functionally specialized systems.882 The managerial function of a constitution that consists in the structural coupling of law and politics (or law and other social systems) can be fulfilled by the Kantian mindset of human rights, autonomy and representative government, but need not. There are functional equivalents beyond representative government. Depending on the ‘social situation’ of hegemony, class rule and functional imperatives, the normative constraints of ‘freedom of speech and of the press’, of ‘complete publicity of political life’, of ‘the representative system and parliamentarism’, of ‘the separation or balance of powers’ could be ‘curbed or dropped’, and ‘were never, in fact, completely realized’, as Herbert Marcuse rightly wrote in 1934.883 At the end of the age of the national state, the German formerly fascist jurist Ernst Forsthoff took up Büchner’s above-quoted metaphor of the transparent garment clinging to the body politic, but turned it the other way round. The ‘true state’, he wrote, consists in the ‘sovereign executive state power’ that is able ‘to get rid of its thin garb of Rechtsstaatlichkeit (rule of law)’ ‘to act as the state sans phrase’ and ‘beyond the command of law’.884

The selective mechanisms of the stabilizing forces of power (Table 4 G) and capital (Table 4 A) everywhere (in Europe, Asia and America, and in the rapidly growing space of the colonial world) channelled the border-transcending, communicative powers of private and public self-determination in the direction of aggressive nationalism and imperialism.885 Since the beginning of the Atlantic Revolution, free trade was enforced globally, and more and more European institutions were exported. The economic organizational advances of Atlantic slave plantations were transferred to free labour, first in Europe and North America, then all over the world. Slave plantations and slave trade were gradually outlawed and finally disappeared. The functionally differentiated system of one world economy prevailed from the turn of the nineteenth century onwards.886 The denser the web of global trade and communication,


887Osterhammel, Die Verwandlung der Welt, p. 583.888Ibid., pp. 570, 818–22.889Osterhammel and Petersson, Geschichte der Globalisierung, p. 69.890Ibid., p. 109 (my transl.).891Kant, Streit der Fakultäten, pp. 284–300.892Bayly, Birth of the Modern World, pp. 74–6 et seq.893Eisenstadt, ‘Multiple Modernities’, Daedalus 129 (2000), pp. 1–29.

the more did depressions and economic booms become occurrences with global impact. Politically, the age of world wars, world revolutions and world politics began. Not nation states, but a new formation of modern empires shaped the political map of the nineteenth century. One look at that map is enough to disprove the still prevalent thesis that the nineteenth century was the century of the nation state. The map shows empires, not nation states.887 Modern administrative and military state power went global. A global system of states and empires evolved and it still forms the centre of the world political system.888 Since the end of the Atlantic Revolution, this system has been structurally coupled with the new system of international law (Table 4 I). National and international constitutionalism went on its journey around the world. Together with its first westernized constitution, Japan acquired sinister imperial splendour. Constitutionalization and empire building reinforced and constrained each other.889 The emergence of world politics, world economy and international law had the effect that more and more universal ‘patterns of earlier times’ were now available everywhere, and could be copied and combined with ever new technical advances.890 Thus, not only power and capital, but also education, science and universities were globalized. The Streit der Fakultäten in a way represented the cultural revolution of the eighteenth century and anticipated its global success. The lowest faculty of philosophy – and with it all the newly emerging sciences – was equalized with the higher faculties of theology, law and medicine. Philosophy was put on the Jacobin left side of the universities’ imaginary parliament, and the old dogmatic faculties were placed on the shrinking right side.891 The sciences (including the new historical sciences) finally prevailed and immediately went global. But this was not limited only to science. Also, enlightened or religious moral fundamentalism made the journey around the world, accompanied by ever larger streams of migrants. What Kant has called moralization was, from the beginning of the Atlantic Revolution, a global cultural phenomenon (Table 4 L).892 Even if global cultural hegemony was Western, and lasted throughout the twentieth century, it was always challenged by new hybrid cultures and multiple non-Western modernities, in particular, since the end of World War I.893

In political, cultural, economic and normative terms, the whole age of globalization was much more a process of reciprocal accommodation of


894Randeira, Shalini, ‘Verwobene Moderne’, Soziale Welt, Sonderband 15 (2004), pp. 155–78; Randeira, ‘Verwobene Moderne: Zivilgesellschaft, Kastenbildungen und nicht-staatliches Familienrecht im (post)kolonialen Indien’, in Brunkhorst, Costa, Sergio (Hg.), Jenseits von Zentrum und Peripherie. Zur Verfassung der fragmentierten Weltgesellschaft. Munich: Mering, 2005, pp. 169–96.895Osterhammel, Kolonialismus, pp. 100–11.896Ibid., pp. 19–20, 112–18.897Bright and Geyer, Benchmarks of Globalization: the Global Condition, 1850–2010.898See Bayly, Birth of the Modern World, pp. 80–93.899Jan de Vries, The Industrious Revolution: Consumer Behaviour and the Household Economy, 1650 to the Present. Cambridge: Cambridge University Press, 2008; on the global extension of the industrious revolution, see Bayly, Birth of the Modern World, pp. 36–42, 65–9.

entangled modernities than of one-sided assimilation of the ‘rest’ to the West.894 Westernization was a powerful trend, and supported by many people and peoples in the non-Western world. But ultimately, Westernization was one of many newly emerging cultural trends triggered or reinforced by globalization.895 European self-awareness since the early days of the Spanish invaders of America, or even since the first Crusades and King Arthur’s Round Table was strongly determined by feelings of civilizing progress and superiority (with strong racist overtones).896 But European or Western world rule also remained wishful thinking until the middle of the nineteenth century.897 Colonialism, imperialism, the highly modern Atlantic plantation economy and slave regimes until the middle of the nineteenth century were part of worldwide (and not only European, but also Asian) pushes to globalization. Western powers were a strong, but by far not the only determining force in the age of globalization.

However, in the course of the nineteenth century, all three conditions of factual Western world rule came together accidentally. First, the accumulation of strong and rationally organized state power was an unplanned side effect of the Atlantic Revolution. Secondly, the accumulation of rights-based private property was promoted and reinforced by the prevailing bourgeois class interests.898 Both of these, together with the industrious revolution, existed also outside the Western world, at least to a certain (far from ‘underdeveloped’) degree – and they were developing rapidly, pushed by globalization.899

Table 4 World society in the middle of the nineteenth century

I

International law

G

World politics

L

World culture

A

World economy


900Marx and Engels, Communist Manifesto, http://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm#007 (10 April 2012).901Ibid.; see Hobsbawm, The Age of Revolution.902In Germany, the total track length of railways increased from 461 km in 1840 to 5875 km in 1850. The number of railway workers increased at the same time from 1648 to 26,084; see Hans-Ulrich Wehler, Deutsche Gesellschaftsgeschichte, 1815–1845/49. Munich: Beck, 1987, p. 615.903Marx, Der 18. Brumaire des Louis Bonaparte, pp. 141–3; Price, ‘“Der heilige Kampf gegen die Anarchie” – Die Entwicklung der Gegenrevolution’, in Dieter Dowe, Heinz-Gerhard Haupt and Dieter Langwiesche (eds), Europa 1848. Revolution und Reform. Berlin: Dietz, 1998, pp. 43–81, at 79.904On the latter, see already the observations of Marx on revolution and counter-revolution in Paris 1848–51: Marx, Der 18. Brumaire des Louis Bonaparte, pp. 118–19, 141–3; see Geoff Watkins, ‘The Appeal of Bonapartism’, in Mark Cowling and James Martin (eds), Marx’s ‘Eighteenth Brumaire’. (Post)modern Interpretations. London: Pluto, 2002, pp. 163–76, at 171 et seq.; Price, ’Der heilige Kampf gegen die Anarchie’ – Die Entwicklung der Gegenrevolution, p. 68.

The augmentation of state power and private property resulted from the Atlantic World Revolution and was not restricted to the Atlantic area. But then, there came the third condition, which consisted in the punctuational burst of the technical and industrial revolution. Here, the West was a small but crucial step ahead in the gear shift of the new machinery, and that was enough for the ‘bourgeoisie’ to erect managerial and imperial class rule over nearly all of the world, by ‘constantly revolutionising the instruments of production, and thereby the relations of production, and with them the whole relations of society’.900 When Marx and Engels wrote the Manifesto in the winter of 1848, everything had suddenly emerged:

machinery, application of chemistry to industry and agriculture, steam-navigation, railways, electric telegraphs, clearing of whole continents for cultivation, canalisation of rivers, whole populations conjured out of the ground.901

In June 1848, the railway network already was dense enough to get troops from all over France to Paris in a couple of hours, and to bring them into the battle against Parisian insurgents.902 Railway campaigns decided elections.903 New printing techniques made newspapers cheap, the electric telegraph was invented and a revolution of the means of dissemination occurred: the beginning of modern mass culture and cultural industry.904 New publications increased from probably 600 or 800 titles in 1750 to 7,685 in 1850 (and this number had doubled again by 1889). Paris newspapers tripled their circulation in one decade from 70,000 copies in 1836 to 200,000 copies in 1846, thanks to the sharp fall in paper prices and the rationalization of production and dissemination technologies. Fifty years later, Le petit parisien already had a print run of 775,000 copies, and at the beginning of World War I, the number


905Priscilla P. Clark, ‘The Beginnings of Mass Culture in France: Action and Reaction’, Social Research 45:2 (1978), 277–91, at p. 279 et seq.; John Merriman, ‘Les “on dit que” – Gerüchte und die Zweite Französische Republik’, in Dowe, Haupt and Langewiesche (eds), Europa 1848, pp. 1139–66, at p. 1142 et seq.906See Dieter Langewiesche, Europa zwischen Restauration und Revolution 1815–48, Munich, 1989, pp. 77–8; Bernhard H. Moss, ‘Parisian Producers’ Associations (1830–51): The Socialism of Skilled Workers’, in Roger Price (ed.), Revolution and Reaction – 1848 and the Second French Republic. London: Croom Helm, 1975, pp. 73–86, at: p. 77 et seq.; Charles Tilly and Lynn H. Lees, ‘The People of June, 1848’, in Price (ed.), Revolution and Reaction. London: Croom Helm, 1975, pp. 170–209, at p. 179 et seq.907See briefly: Bayly, Birth of the Modern World; and above Chapter III Section II parts 4, 6, 8; Section III parts 3, 6).

had doubled again.905 The breakthrough of modern mass communication was assured by the middle of the century, and the French Second Empire yielded a large crop. In less than 20 years, between the publication of the Communist Manifesto in 1848 and of volume 1 of Capital in 1867, bourgeois society had completely changed its appearance. A world of old European urban poor, of small shopkeepers, shabby innkeepers and prostitutes, destitute craftsmen and assistant workers, living in cities that were dark at night – this world that still had been the world of the insurgence of June 1848, two decades later had become a world of industrially organized labour, of huge working places bright by day and night, of machinery and big industry, the topic of Chapter 13 of Capital.906 Nothing necessarily leads from the Atlantic Revolution to machinery, big industry, modern capitalism and the imperial world rule of the West. However, the triumph of bourgeois society and bourgeois class rule, and the repression of the more egalitarian possibilities of the Kantian constitutional mindset did belong to the evolutionary path opened up by the Atlantic Revolution. The functional priority of executive state power and private property rights were evolutionary developments within the normative constraints of that Revolution. Even if nobody had planned (or even anticipated) the evolutionary track of modern capitalism and imperialism in 1776 or 1789, it was taken by the uncontrollable evolutionary incrementalism of social class selection and systemic stabilization. After the three met for the first time – advanced functional differentiation of power and money, bourgeois class rule and the punctuational burst of all productive forces – the relatively small competitive advantages of Europe and the West (huge hinterland; the unique and industrially advanced slave plantation system; reciprocal stabilization of executive state power and private property; private financial and commercial corporations; private-public partnerships based on the differentiation of private and public; positive correlation of national creditworthiness and successful warfare)907 made a crucial difference and enabled a qualitative leap towards a short period of Western imperial world rule.


908On (1)–(4) see above Ch. III, Sec. III 1.909Rancière, Disagreement. It is not accidental that the only significant historical example that Rancière gives in this book to explain the opposition of ‘police’ vs. ‘political’ is the popular insurgency of June 1848 in Paris: that is an insurgency within the constitutional framework of the French Revolution and its copy of 1848 (see Brunkhorst, Kommentar zum 18. Brumaire des Louis Bonaparte).910See Ackerman, We the People.911Habermas, Theorie des kommunikativen Handelns II, p. 228; Nassehi, Der soziologische Diskurs der Moderne, pp. 126–7.

But imperial world rule was never unchallenged. International law from the beginning was characterized by the tension between managerial and imperial constitutional mindset on the one hand, and Kantian and cosmopolitan constitutional mindset on the other. Even if imperialism prevailed, it could not get rid of the Kantian burden of reason. To increase their administrative and coercive power, the imperial states had to take into account the weak but permanent pressure of new normative constraints. Their own self-preservation depended also on the legitimatory resources of popular sovereignty – if not on representative government (2) and civic participation (3), then on a popular iconic rhetoric that was effective (4) and on the (at least minimal) welfare rights of the addressees of the law (1).908 The states and empires needed people endowed with a certain degree of equal rights, and a law that could be changed politically by a ‘sovereign’ power. This power actually remained in the hands of a small political ruling class, but was ultimately ascribed to the people and legitimated by the people, at least virtually. However, in a constitutional regime virtuality can become reality, and the political can trump the police.909 The (legal or illegal, conventional or unconventional) struggle for rights can and must be fought out (‘politically’) within the law (‘police’). The excluded of today can become the included of tomorrow.910 The regime can be changed (to a certain but unpredictable degree), and that was the final reason why all empires and modern imperialism were finally destroyed, beginning at the start of the twentieth century. In one way or another, under the normative constraints of constitutionalism, even authoritarian states, Bonapartistic empires or colonial prerogative regimes had to come to terms with the people and their legal rights.


All great legal revolutions follow a two-stage pattern of constitutional evolution. Catalytic change opens up a new path of gradual adaptation to the societal environment of post-revolutionary class structure and functional requirements. Functional differentiation is needed to stabilize the respective revolutionary advances of social integration.911 Otherwise, the latter would


912See Luhmann, Grundrechte als Institution; see Luhmann, Verfassung als evolutionäre Errungenschaft.913Tuori, The Many Constitutions of Europe (see Ch. III, Sec. IV, part 10). See Teubner, ‘Societal constitutionalism: Alternatives to state-centred constitutional theory?’, in Christian Joerges, Inger-Johanner Sand and Teubner (eds), Transnational Governance and Constitutionalism. Oxford: Hart, 2004.

disappear in the white noise of communicative action. After the invention of written constitutions in the course of the Atlantic Revolution, the functional differentiation of the economy and the unleashing of all productive forces of functional differentiation, a successive step-by-step constitutionalization of distinct functional spheres can be observed. The latter was enabled by the direction-giving power of the legally implemented normative constraints of popular sovereignty and universal subjective rights. However, the new formation of functional differentiation was an unplanned and unexpected side effect of the normative learning process of the revolution that was caused by the institutionalizing force of politically created and concretized subjective rights.912 To reconstruct the gradual emergence of constitutionalized social systems that are structurally coupled with the legal system, I will try to generalize a model of gradual constitutional evolution that Kaarlo Tuori has invented in a case study on the European Union.913 Following the outline of a theory of legal evolution, I will combine Tuori’s idea of managerial gradualism with the revised notion of Koskenniemi’s ‘Kantian mindset’ that becomes a more or less ‘distorted’ (Habermas) and ‘demolished’ (Adorno) existing concept by muddling through the foggy area of accidental communicative variation and social selection. Small legal variations and small constitutional changes (in the legal sphere: everyday juridical puzzle solving in a growing number of cases) are directed by the selective mechanisms of social class structure, hegemonic opinion and functional imperatives. Selection ultimately is re-stabilized by systemic formation.

The incremental process of constitutionalization that followed the Atlantic Revolution led to an inchoate and one-sided implementation of the revolutionary advances of the Kantian mindset everywhere, even in the motherlands of the revolution. The revolution successfully constituted a new political and legal regime, but only as an unrealized programme. Therefore, the subsequent process of gradual and successive evolution had to implement the programme step by step, and to transform the inchoate original constitution into a more and more comprehensive, and more and more normative constitutional order. I will try to give a rough schema of the constitutional development that apparently is paradigmatic, at least for Western societies.


914Udo Di Fabio, Das Recht offener Staaten. Grundlinien einer Staats- und Rechtstheorie. Tübingen: Mohr, 1998, pp. 106–7; Tuori, The Many Constitutions of Europe, pp. 9–10, 15–17.915Thornhill, A Sociology of Constitutions, p. 221; Bellomo, The Common Legal Past of Europe 1000–1800, pp. 7–11.916Ibid., pp. 226–7.917Marx, Der 18. Brumaire des Louis Bonaparte, p. 112, quoted from: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch02.htm. (19 March 2012).

(I) Economic constitution: From a functional point of view, the economic constitution consists in the structural coupling of law and economy.914 The structural coupling of law and economy established the priority of private property rights and expressed the hegemony of the material and ideal class interests of the owners of a considerable amount of private property. The French Declaration of 1789 had mentioned only one right twice: the right to property. The Declaration gave it a singular status in Article 17, and additionally canonized it. What was left of canon law after the French Revolution was precisely private property, a legally protected interest that did not belong to the original lists of canon law. Even if the original plan of the revolutionaries and the enlightened philosophers who made or supported the Declaration was not to establish bourgeois class rule, but to get rid of ‘feudalism’ and social stratification, and to establish an egalitarian society and popular sovereignty – the welcome side effect ultimately was bourgeois class rule. As we have seen, the Jacobins promptly brought the members of their own class to power nationwide. But the Jacobins also tried to take the Declaration seriously and to establish universal male suffrage and a government that represented the general will. However, the attempt finally failed, and the Thermidorean constitution of 1795 (in a sharp turn against the never ratified Jacobin constitution of 1793) ‘gave property rights singularly high status: it specified property ownership as the foundation of social order’, and implemented popular sovereignty as a procedure of legitimization that clearly privileged the rich. Between 1789 and 1814, universal equality was transformed into the equality of property owners.915 The Napoleonic constitutions legitimated Caesarism by popular sovereignty and disempowered parliament, but kept the Senate as the legislative representative of the people. This ‘hardened and functionally consolidated’ the administrative apparatus. The Civil Code established a ‘rights-based legal apparatus for the organization of civil life’, centred in the preservation of property rights and private contracts, sharply separating the private from the public.916 The Napoleonic state was the first paradigm case of Hegel’s rational state: Realizing civic freedom by ‘freeing civil society . . . from the trouble of governing itself’.917 Even if the Charte Constitutionelle of 1814 finally replaced the constituent power of the people with the sovereignty of the prince, it retained the revolutionary advances


918Sellin, Die geraubte Revolution, p, 275 et seq.; see Jesch, Gesetz und Verwaltung, pp. 79–80.919Sellin, ‘Heute ist die Revolution monarchisch’, p. 349.920Honoré de Balzac, Oberst Chabert. Stuttgart: Reclam, 2001, p. 68, English translation quoted from: http://www.gutenberg.org/files/1954/1954-h/1954-h.htm (16 May 2012). Last sentence translation corrected (French original is: ‘Mme la comtesse Ferraud se trouva par hasard avoir fait tout ensemble un mariage d’amour, de fortune et d’ambition’ quoted from: http://www.intratext.com/ixt/fra0032/_p2.htm).921See Benjamin Constant, ‘The Liberty of Ancients Compared with that of Moderns’ (1819), in http://www.earlymoderntexts.com/pdf/conslibe.pdf, 26 October 2013; the quote is from: Marx, Der achtzehnte Brumaire, p. 101 (English transl.: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch01.htm - 04 April 2012).

in the form of a property-centred liberal rights constitution and political representation of a civil society that was reduced strictly to the upper strata of the bourgeoisie and the nobles. After the final defeat of Napoleon, Louis XVIII had the power to suspend popular sovereignty for the time being, but he did not have the power to reject a liberal rights constitution, and that made any restoration of the Ancien Régime illusory.918 In particular, Article 68 took over the whole Napoleonic legal and social order, and formally legalized and constitutionalized the results of the Great Revolution. Furthermore, the international community in the Second Paris Peace Treaty of 20 November 1815 insisted that the Charte constitutionelle was to be mentioned together with the authority of the king, and called the new pouvoir monarchique both légitime [as in the pre-1789 constitution of monarchy] et constitutionelle [as in the post-1789 constitution of representative government]. Therefore, the king’s legitimacy was constitutionally engendered as a norm of international and national law.919 Thus, the so-called restoration established the liberty of the moderns, and the lofty minds of Constant and Guizot formulated its ‘doctrines of government’:

At the beginning of the year 1818 the Restoration was settled on an apparently immovable foundation; its doctrines of government, as understood by lofty minds, seemed calculated to bring to France an era of renewed prosperity, and Parisian society changed its aspect. Madame la Comtesse Ferraud found that by chance she had achieved a love- and money-match that gratified her ambition.920

Constant’s misleading conceptual opposition of the liberty of the moderns (contract, property rights, rule of law) vs. the liberty of the ancients (egalitarian political rights, democratic self-determination) precisely reflected the evolutionary path of the one-sided constitutionalization of the managerial and imperial mindset during the long period when society ‘learns to assimilate the results of its storm-and-stress period soberly’.921 Constitutionalism gradually


922Maus, ‘Volkssouveränität vs. Konstitutionalismus. Zum Begriff der demokratischen Verfassung’, in Günter Frankenberg (ed.), Auf der Suche nach der gerechten Gesellschaft. Frankfurt: Fischer, 1994, pp. 74–83; Möllers, Verfassungsgebende Gewalt – Verfassung – Konstitutionalisierung.923Marx, Die Heilige Familie, in Frühschriften. Stuttgart: Kröner, 1953, p. 322, quoted from: Hoffmann, Repräsentation, pp. 442f, 457 (my translation).924Streek, ‘The Crisis of Democratic Capitalism’, New Left Review 71 (September–October 2011), quoted from: http://www.newleftreview.org/?view2914 (13 May 2012), pp. 1–14, p. 3.925Thornhill, A Sociology of Constitutions, p. 271.

was detached from popular sovereignty.922 Nonetheless, it stayed within the limits of the normative constraints of the Revolution. Only now the social programme of possessive individualism without democracy could be realized, and the most advanced of the ‘lofty minds’ of France replaced popular sovereignty with reason (Guizot). They proclaimed ‘the sovereignty of reason instead of the sovereignty of the people . . . for the purpose of excluding the masses and in order to rule alone’.923 The long list of bourgeois ideologists who were preaching liberalism without democracy ranges from Hobbes to Constant and from Guizot to Schmitt, Hayek and the present neo-liberals who are yearning for a ‘Platonic dictatorship of economist-kings’.924 The prevailing managerial and imperial mindset finally was stabilized by a judicial pouvoir neutre (Constant) that was designed to limit the sovereignty of the representatives of the people and to hamper legislative interventions in property rights. After the failure of the revolution of 1848, the Second Empire established a ‘technical order of governance above the primary conflicts of society’925 – designed to keep civil society free indefinitely from the trouble of governing itself.

The evolution of American constitutional law was not that different. The original political foundation of the United States resulted only in a weak federal constitution that was political, but reduced to foreign politics. What prevailed was the economic constitution. Already, the US Constitution had moved from the Vattelian triad of life, liberty and pursuit of happiness of the Declaration of Independence to the Lockean triad of life, liberty and property in its Fifth Amendment, and had restricted these rights nearly exclusively to the white population. Furthermore, the commercial clause – that ‘Congress shall have Power. . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes’ (Art. 1, Sec. 8, Cl. 3) – until 1937 was interpreted as a ban on federal regulation of the economy and the organization of labour within individual states. Through further legislation that was re-stabilized by several landmark decisions of the Supreme Court (and other federal courts), the evolutionary path to the hegemony of possessive individualism, private property and big business was established for more than a hundred years of capitalist development. Fletcher v. Peck (1810) not only established judicial review of state law,


926Fletcher v. Peck, 10 U.S. 87 (1810): Marshall, Opinion. As the quote shows, there is a long tradition of human rights decisions in the American Supreme Court. In this case, it clearly derogates national statutes.927Fletcher v. Peck: Marshall, Opinion.928Heller, Der Begriff des Gesetzes in der Reichsverfassung (1927), in Gesammelte Schriften, 1971, p. 262 (my translation); for the same argument, see Kelsen, Allgemeine Staatslehre, where he writes under the heading ‘Gesetz und Verordnung’ that ‘der Gegensatz von individuell und generell, von konkret und abstrakt keine absoluter, sondern ein relativer ist’, and that as ‘das als “Gesetzgeber” berufene Organ . . . auch andere als generelle Normen setzen kann, z. B. individuelle Normen, so umfasst der traditionelle Begriff des “Gesetzes im formellen Sinn” auch diese Akte. Es ist daher zweckmäßiger, von der “Form des Gesetzes” zu sprechen und darunter jeden Akt de,Gesetzgebers’ ohne Rücksicht auf seinen Inhalt zu verstehen’. (p. 235, my emphasis).

against Jeffersonian presidential democracy, but also enforced bourgeois class justice. Fletcher established a strong defence of private property against all public claims. With reference to universal law – ‘certain great principles of justice, whose authority is universally acknowledged’ – the judges declared ‘the security of property’ a ‘human right’ which ‘proscribes’ equally sharp ‘limits to the legislative power’ as the universal ‘principles of equity’.926 The Court needed such strong support from universal law to interpret the Contract Clause of the Constitution, which said that ‘No State shall . . . pass any. . . . Law impairing the Obligation of Contracts’ (Art. I, Sec. 10, Cl. 1), as an absolutely binding obligation. Contracts once concluded are binding without any exception. They are even binding if, as in Fletcher, a ‘corrupt’ government had signed the contract with ‘impure motives’. To construct ‘a clear and strong conviction of’ the ‘incompatibility’ of statute and Constitution, and to strike down a parliamentary State statute, the Court had to presuppose something like a doctrine of absolute contractual liability.927 Most important in Fletcher v. Peck was that the contract, ratified by the Georgian government and by real estate agents, was a decision of the elected body of the legislative. In the next election, nearly all of the representatives were kicked out of office by the people because of their corruption, and the newly elected legislator abolished the decision of their criminal predecessors instantly by a law that derogated the former decision of the State Congress. The abolishing law, thus, had an extremely strong democratic legitimization. However, Marshall interpreted the first decision of the corrupt public legislator not as a public statute, but as a private contract. This clearly weakened the power of the legislator dramatically, because it broke with a basic legal doctrine of parliamentary democracy, namely that ‘everything that parliament decides, and only that which parliament decides, is statutory law’.928 Subsequent judgements such as Dartmouth College v. Woodward (1819) extended the Contract Clause to private corporations and opened the path for the emergence of big business and the ‘centralization and concentration of capital’ (Marx). The foundations for the basic legal


929Ackerman, Failure of the Founding Fathers. Cambridge, MA: Harvard University Press, 2005, p. 299; see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).930On comprehensive decision (‘Gesamtentscheidung’), see Schmitt, Verfassungslehre. Berlin: Duncker & Humblot, 1989, pp. 20–36.931Ackerman, Failure of the Founding Fathers, p. 299.932See Tuori, The Many Constitutions of Europe, pp. 9–10, 17–21.933China today seems to be an interesting case where power still works (at least partly) as a functional equivalent for legal solutions of civil law conflicts – but as the Chinese leaders since Deng have very well known, it works badly and at the price of high inefficiencies, friction and structural corruption. Therefore, since Deng, the rule of law has been at the top of the party’s agenda (but obviously it has also been hard to establish).

structure of the later Lochner Era (1905–37) of the Supreme Court are laid in this judgement (which dates from the year in which Hegel wrote his Philosophy of Right). In Lochner vs. New York (1905), the Court decided that liberty of contract was part of the due-process clause of the Fourteenth Amendment. Therefore, the State of New York was not allowed to limit the hours a labourer (in this case, a baker of the New York Bakery Lochner) had contracted with his employer. Substantial rights for unions and federal wage-hour laws as in England (10-hours Bill) were delayed until the end of the 1930s. Contract law trumped the elected legislator. As Bruce Ackerman has rightly argued, the ‘starring role currently assigned to Marbury is a creation of conservative elites during the early twentieth Century’, as well.929 Marbury v. Madison, therefore, must be seen in the light of the ‘comprehensive decision’ of American constitutional law that, in cases of doubt, capitalism trumps democracy.930 The ‘canonization of Marbury was part of a larger effort to celebrate the Court as the ultimate bastion of property rights against the populist threat of regulation and redistribution’.931

The economic constitutionalization, finally, completed the functional differentiation of the economic system that began with the Protestant Revolution, and stabilized the rapid globalization of the capitalist system by copying and pasting and by the imposed export of its advances. However, the constitutional evolution does not end with the managerial implementation and the class justice of the economic constitution.

(II) Juridical constitution: The juridical constitution consists in the reflexive structural coupling of law and law (or, more specifically, of higher and lower law, for instance, of rights and legislation/jurisdiction).932 The juridical constitution is a functionally necessary complement of the economic constitution. Once the economic constitution has stabilized the functional differentiation of the economy so far that the internal complexity of the economy increases rapidly, then in cases of conflict (over property rights, prices, consumer products, wages, commercial contracts, terms of trade etc.), power no longer works efficiently as a functional equivalent for legal methods of conflict solving.933


934For instance by producing truth and justice simulacra, and by the technical isolating, individualizing and pathologizing of cases and persons, Luhmann, Legitimation durch Verfahren, pp. 28, 32, 117, 124–5, 119 et seq.935My translation of the French: ‘laboratoires de la chicane’: Balzac, Le colonel Chabert, quoted from http://www.intratext.com/ixt/fra0032/_p2.htm (17 May 2012).936Balzac, Oberst Chabert, pp. 58–9, English translation quoted from: http://www.gutenberg.org/files/1954/1954-h/1954-h.htm (16 May 2012).937Throughout the Napoleonic regime, France was far from being a dictatorship, but characterized rather by a rule of law subject to (limited) parliamentary checks; see Martin Kirsch, Monarch und Parlament im 19. Jahrhundert. Der monarchische Konstitutionalismus als europäischer Verfassungstyp. Göttimgen: Vandenhoek & Ruprecht, 1999; Thornhill, A Sociology of Constitutions, pp. 223–5.

From a functional point of view, judicial procedures and rule of law make (otherwise inacceptable) decisions of power wielders acceptable for those affected. Legal procedures neutralize the sense of injustice.934 Balzac’s Colonel Chabert, a former Napoleonic favourite who had returned from Russia to Paris in 1818 as a living dead, experienced the new legal system (which, in fact, was not that of the Restoration, but the Napoleonic one) as a system of ‘laboratories of pettifogging’:935

The social and the legal world weighed on his breast like a nightmare. . . . Military justice is ready and swift; it decides with Turk-like finality, and almost always rightly. This was the only justice known to Chabert. As he saw the labyrinth of difficulties into which he must plunge, and how much money would be required for the journey, the poor old soldier was mortally hit. . . . He thought it would be impossible to live as party to a lawsuit.936

But normatively, too, rule of law procedures (at least partly and privately) can make up for the violations of the sense of justice in a way that is acceptable and justifiable from the moral point of view. However, legally enforced individual compensation can never suffice in cases of public and structural oppression, injustice and exploitation caused by class rule and the hegemony of the capitalist economy over all other spheres of society. The real abstractions of the legal system, in particular, its separation from morality, are the basis of a modern juridical constitution that emerged in France from the ratification of the Napoleonic Civil Code in 1804.937 Only if the legal system is neutralized against all moral claims can it fulfil its social function of stabilizing expectations and of guaranteeing a moral minimum of justice, namely, equal treatment of equal cases (or at least negatively: the exclusion or reduction of arbitrary judgements). Legality trumps morality. For good: Divorce makes emancipated women, as Hegel had already seen. And for ill,


938Ibid., pp. 54, 108–9, English translation quoted from: http://www.gutenberg.org/files/1954/1954-h/1954-h.htm (16 May 2012).939Only with the revolutionary transformations of the twentieth century (next Section IV) did the constitutionalization of the rule of law lead to a transformation of programmatic subjective rights into enforceable basic rights (in the sense of German Grundrechte).940Thornhill, A Sociology of Constitutions, p. 233.

Things are not done so in the legal world. . . . “Do you know, my dear fellow,” [says his lawyer to Chabert] there are in modern society three men who can never think well of the world—the priest, the doctor, and the man of law? And they wear black robes, perhaps because they are in mourning for every virtue and every illusion. The most hapless of the three is the lawyer. . . . We lawyers, we see the same evil feelings repeated again and again. . . . How many things have I learned in the exercise of my profession! I have seen a father die in a garret, deserted by two daughters, to whom he had given forty thousand francs a year! I have known wills burned; I have seen mothers robbing their children. . . . I could not tell you all I have seen, for I have seen crimes against which justice is impotent. In short, all the horrors that romancers suppose they have invented are still below the truth. . . . I have a horror of Paris.938

Juridical constitutionalization is mostly due to the managerial mindset of professional politicians and professional lawyers, who, together with the mass of individual plaintiffs and lawsuits, generate legal variation. Courts, judicial review and commentary select and stabilize the incremental evolutionary process of juridical constitutionalization. One could call the juridical constitution by a German phrase: Rechtsstaatsverfassung (rule of law constitution). Civil codes and administrative law are much more important than written bills of rights when it comes to the legal implementation of these rights. Where such bills or declarations of rights existed, they were taken as (non-binding) programmes for parliamentary legislation, throughout the nineteenth and far into the twentieth century.939 Not only in the countries of the Revolution, but also throughout the Atlantic region (and beyond)

this period . . . witnessed an intensification of debate about rights in the civil sphere, and the attempt gathered momentum to recast laws of property ownership in accordance with principles of Roman law and to eliminate legal principles of divided tenure, multiple collective privileges and shared possession.940

Or in the already quoted (Ch. I, Sec. II) words of Marx: This period witnessed


941Marx, Bourgeoisie und Konterrevolution, pp. 107–8. English translation cited from: http://www.marxists.org/archive/marx/works/1848/12/15.htm (16 September 2013).942Hegel, Philosophy of Right, §§ 243, 245, http://socserv.mcmaster.ca/econ/ugcm/3ll3/hegel/right.pdf (20 March 2012).943Hegel, Philosophy of Right, § 248, http://socserv.mcmaster.ca/econ/ugcm/3ll3/hegel/right.pdf (20 March 2012).

the victory of a new social order, the victory of bourgeois ownership over feudal ownership, . . . of partitioning [of the land] over primogeniture, of the rule of the landowner over the domination of the owner by the land, . . . of bourgeois law over medieval privileges.941

In short, the juridical constitutionalization re-stabilized the economic constitution, bourgeois class rule and the emergence of the capitalist system, due to the hegemonic force of that system. But the re-stabilization of bourgeois society could not close the widening gap between private and partial redress for violations of the sense of injustice and the public and structural generation and accumulation of injustice, exploitation and oppression by class rule and modern capitalism (not to mention imperialism). The constitutional advances of the new civic law had already been generalized to the European level in the course of the French Revolution. This was one of the most important long-term effects of Napoleon’s short-term revolutionary imperialism. The first steps in this process were accomplished by the Revolution, and Hegel recognized that this was an irreversible progress in the consciousness of freedom. However, even Hegel recognized the growing gap between public and structural exploitation and private and partial compensation:

By generalizing the relations of men by the way of their wants, and by generalizing the manner in which the means of meeting these wants are prepared and procured, large fortunes are amassed. On the other side, there occur repartition and limitation of the work of the individual labourer and, consequently, dependence and distress in the artisan class. . . . There arises the seeming paradox that the civic community when excessively wealthy is not rich enough. It has not sufficient hold of its own wealth to stem excess of poverty and the creation of paupers.942

But Hegel did not recognize that there were further steps to come (and that some of them had already been taken in America). His solution, that the ‘colonisation . . . provides on a new soil a return to the family principle [for the paupers], and also procures for itself at the same time a new incentive and field for work’, amounted to no more than a delaying of the problem at the price of ever more injustice, exploitation and oppression.943 However, as


944See Alexis de Tocqueville, The Recollections of Alexis de Tocqueville, Gutenberg EBook http://www.gutenberg.org/cache/epub/37892/pg37892.txt, 26 October 2013; Victor Hugo, The Memoirs of Victor Hugo, Gutenberg e-books, Chapter on ‘The Revolution of 1848’, http://www.gutenberg.org/files/2523/2523-h/2523-h.htm#link2H_4_0061, 26 October 2013.945Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).946Federalist 78, my emphasis, quoted from: Federalist Papers, http://avalon.law.yale.edu/subject_menus/fed.asp (28 April 2012).947Ackerman, Failure of the Founding Fathers, p. 12.

Frank Ruda has shown, Hegel knew very well that there is no solution of the social structural problem of the rabble, or the hoi polloi (Pöbel) within the legal framework of bourgeois society and its rational state. After the 1848 insurrection and the bloody suppression of the poor people of Paris, Tocqueville and Hugo came to the same insight.944 When Hegel on 25 June 1820 (in the preface to his Philosophy of Right) wrote the famous sentence that philosophy can only recognize a form of life when night is beginning to fall on that form, he knew already that the moment he had finished his apologetic, yet not uncritical theory of bourgeois society and its state was the moment of its demise.

The American case was not that different from Europe. The juridical constitutionalization of America began with Marbury v. Madison (1803).945 Marbury ascribed to the Court the power (1) to find federal statutes unconstitutional and (2) to strike them down. If that kind of comprehensive judicial review was to be applied regularly by the judicial branch, it would give ultimate power to the judicial branch and establish a hierarchical order precisely where democratic constitutions in general, and for the sake of democracy, are designed to exclude any final hierarchy of representative bodies. Under the American Constitution, as Hamilton said, ‘the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority’.946 It is this authority, the power of the people that is repressed once the system of checks and balances becomes lopsided in favour of the judicial branch. In this case, constitutional law is reduced to ‘the Constitution, the Bill of Rights, and the Supreme Court dedicated to their enforcement’.947 In fact, democracy is marginalized by expert rule, the Kantian constitutional mindset replaced by the judges’ managerial mindset. The ongoing process of judicial constitutionalization easily can result in a repression of democracy, a new dualism of subjective rights and popular sovereignty at the cost of the latter, and, as a side effect, to the stabilization of capitalist class rule. This was the case in the Lochner Era. Since the beginning of that era, ‘the canonization of Marbury was part of a larger effort to celebrate the Court as


948Ibid., p. 299. It is highly significant for the impact of the twentieth-century eagalitarian world revolution (see next Chapter) that the meaning of the Lochner-judgement of the American Supreme Court was globalized, and since the 1950s ‘serves as a negative guide to constitutionalism’ on the whole American continent, in India, Israel and Europe; see Sujit Choudhry, ‘The Lochner era and comparative constitutionalism’, International Constitutionalism 2:1 (2004), 1–55, at 3.949Luhmann, Verfassung als evolutionäre Errungenschaft; Tuori, The Many Constitutions of Europe, pp. 9–10, 21–4.950Tuori, The Many Constitutions of Europe, p. 21.951For the first two, see Scharpf, Fritz, Regieren in Europa – Effektiv und demokratisch?, Frankfurt: Campus, 1999, pp. 18 et seq., 33–4, 111, 167–8; for the latter, see Luhmann, Legitimation durch Verfahren.

the ultimate bastion of property rights against the populist threat of regulation and redistribution’.948

The juridical constitutionalization finally completed the functional differentiation of the legal system (which had begun with the Papal Revolution), and opened the path for its fully fledged globalization. But juridical constitutionalization could not solve the structural problem of democratic legitimization. On the contrary, it, above all, made the problem apparent and acute.

(III) Political constitution: From a functional point of view, the political constitution consists in the structural coupling of law and politics.949 Political constitutionalization implies ‘claims of democracy and democratic legitimacy’.950 While political constitutionalization creates and tends to increase democratic legitimacy (‘input-legitimization’), economic and juridical constitutionalization at best compensate for losses of democratic legitimacy with non-democratic means of economic loyalty marketing (‘output-legitimization’) or procedurally legalized acceptance management (‘legitimization through procedure’).951 In the nineteenth century, imperial constitutional monarchies prevailed, and political constitutionalization, highly contested as it was, followed economic and juridical constitutionalization hesitantly, in a gradual and incremental evolutionary process, and finally overcame constitutional monarchy. However, that happened worldwide only after a further great legal revolution, that of the twentieth century.

In France, political constitutionalization had been delayed since the Thermidor. In 1814, it was replaced by constitutional monarchy. But the renewed constitutional monarchy never could get rid of the normative constraints and the constitutional framework established by the Revolution. The ruling classes could restrict subjective rights to property rights and active citizenship to landed aristocrats and urban bourgeoisie. The ideas of 1789 could be repressed for some time, but not permanently. The repressed could come back. The one-sided implementation and hegemonic interpretation of the Charte Constitutionelle and the Code Civil could be contested legally and


952See Osterhammel, Die Verwandlung der Welt, pp. 63–76, 726, 820–1, in particular, see: 848–65; see Bayly, Birth of the Modern World.953Marx, quoted from: Miguel Abensour, ‘Die rebellierende Demokratie’, Blätter für deutsche und internationale Politik 5 (2012), 90–8, at 96. The German phrase of Marx is Kommunalverfassung.954See Marx, 18. Brumaire, p. 110.955Möllers, Gewaltengliederung, Habilitationsschrift, Heidelberg., 2003, p. 64 (first paraphrase in italics); Marx, 18. Brumaire, p. 110 (second paraphase in italics).956Schönberger, Das Parlament im Anstaltsstaat. Frankfurt: Klostermann, 1997; see Jesch, Gesetz und Verwaltung, pp. 111–12, 123; Eder, Geschichte als Lernprozeß.957Bayly, Birth of the Modern World (see also previous part 7).

politically. Rights ‘established with insincere intentions’ (Müller) could be ‘taken seriously’ (Dworkin), and so it happened: The public pressure to implement procedures of democratic legitimization grew steadily throughout the century, and not only in France. It came from very different cultural backgrounds and many different angles, strongly reinforced by technically advanced media of dissemination and the emerging global public.952 Constitutional monarchy in the long run could not compensate for structural deficits of democratic legitimization by economic and juridical constitutionalization alone. Even the Civil Code of 1804 and the constitutional norms of the Charters of 1814 and 1830 could strike back. And they did in 1830 in France, in 1848 all over Europe and again in France in 1871, but now for the first time combined with the new egalitarian claims of a social and socialist revolution and its struggle for a ‘community constitution’.953 The new ‘monster with two heads’ was due to the dualistic structure of constitutional monarchies (executive prerogative vs. parliamentary legislation).954 It relied on an inconsistent separation of powers that strengthened it until it turned into an unbearable contradiction.955 This contradiction caused a chronic crisis of legitimization. The latter could be kept latent only at the price of massive oppression. But oppression, in turn, reinforced crisis.956 To avoid civil war and revolution, constitutional monarchies had to adapt, and to gradually integrate one element of democratic legitimization after the other. Successively they had to accept (1) the increase of parliamentary powers (parliamentary legislative procedure, reservation of statutory power, ministerial responsibility, administrative legislation and jurisdiction, a power-related party system, mass organizations), (2) the successive extension of suffrage and (3) the formal (democratic) or informal (populist) invention of democratic legitimization of the head of the executive body (monarch, prime minister, president). The hegemonic executive powers with gritted teeth had to learn that executive power could only survive, and even augment, if the sovereignty of the prince disappeared step by step, and finally was replaced by the legislative inclusion of the entire population.957 Marx’s dialectical observation made learning a bit easier for the wielders of coercive power and the bureaucracy of the state. In the course of the century, it became more and more obvious that all republican and democratic revolutions and


958Marx, Der 18. Brumaire des Louis Bonaparte, p. 179, English quoted from: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch02.htm (19 March 2012). See previous part.959Thornhill, A Sociology of Constitutions, pp. 265–6. ‘On balance, through the imperial period the strongest states . . . were those states that possessed the most elaborate and embedded constitutional structure, usually containing, to a limited degree, inclusionary elements of mass democracy.’ In contrast, states ‘that fell short of semi-democratic constitutionalism normally encountered obstruction in their use of power’. (pp. 274–5).960See Jesch, Gesetz und Verwaltung, pp. 93–9, 101.961Ibid., p. 100.962Thornhill, A Sociology of Constitutions, p. 238.

reforms that tried to break the machine of the bureaucratic state ‘perfected this machine’.958 The good news for the wielders of executive power was that democracy could offer them a successive and effective implementation of (ever more) rights and (more and more fully fledged) democratic procedures that made weak and less democratic states (such as Prussia and the German Empire) as strong as more democratic states such as France, America and England.959 Only fully fledged democratic regimes have a branch of power that is truly universal, and that is the modern parliament. Government is completely created by parliament, and remains under comprehensive parliamentary control all the time. In a fully fledged parliamentary regime, no executive body exists beyond parliamentary legislation any longer.960 No (constitutional or ‘absolute’) monarch ever had as much legal power as a modern parliament.961 The power of the executive could only be maintained and increased together with the maintenance and increase of the power of the people. This entailed bad news for both sides: In the last resort, the prince could keep his sovereign power only if he resigned, and hence lost all power to the people and the bureaucrats. Conversely, the growing power of the people was always already accompanied by the highly dynamic abstract power of administration and coercion, prepared to destroy or bypass the rule of democratically engendered law, hence annihilating the living power of the people. And this is exactly what happened. The democratic European Revolution of 1848 failed. But the political system and the anti-democratic establishment had learnt their lesson. After a relatively short time of authoritarian closure, a period of reluctant democratic opening followed, beginning already under the Bonapartist regimes.

In Great Britain, too, the constitutional monarchy transformed itself gradually into a fully fledged parliamentary democracy, and in part for that reason became the biggest national empire of the world between 1850 and 1917. Already during the course of the eighteenth century in Britain, ‘both the fiscal and statutory competences of parliament were substantially extended’. Parliament became ‘the primary centre of governance’ and gradually approached ‘full representative sovereignty’. Parliament ‘incrementally broke through the local structure of noble authority, and it established a more generalized public foundation for the use and legitimization of political power’.962 After the


963Ibid., p. 239.964Ibid., p. 258.965Ibid., p. 238.966Hegel, ‘Über die englische Reformbill’, in Hegel (ed.), Werke 11. Frankfurt: Suhrkamp, 1970, pp. 83–128.967Thornhill, A Sociology of Constitutions, p. 273.968Heinrich August Winkler, Revolution, Staat und Faschismus. Zur Revision des Historischen Materialismus. Göttingen: Vandenhoek & Rupprecht, 1978, pp. 16–17, 43 et seq.; see Hal Draper, Karl Marx’s Theory of Revolution. New York, 1977, Book II, pp. 403 et seq., 412 et seq.

Reform Act of 1832, ‘the tendency towards party alignment became more rigid, and parties formed a stronger link between executive and society’.963 Like in Britain, nearly everywhere in Europe (and elsewhere) the globally successful imperial turn since the 1870s was accompanied by ‘tentative beginnings of mass-political organization, and an increase of parliamentary competence and party-political organization’.964 The British Reform Act of 1832 ‘increased the number of voters admitted to the electorate, it enfranchised new industrial centres, and it eradicated constituencies (rotten boroughs) that provided support for local and noble authority’.965 Living and teaching in Berlin, observing politics all over the world, the old Hegel praised the eradication of the nobility’s power, but sharply criticized the dangerous democratic tendencies of the Reform Act.966 By the late 1880s, after a further series of reforms, Britain had acquired a ‘broad-based male franchise’ – even if half of the working class were still excluded. The dialectical result was that ‘the British state was strengthened by the fact that it possessed the beginnings of a mass-democratic party system’.967

At the same time, Bonapartism with a popular face flourished everywhere in Europe and shortly afterwards made its way around the globe: Louis Bonaparte, Bismarck, Disraeli, Wilhelm II and so on.968 North and South American presidential democracy had, from the beginning, experimented with informal populist (South) and formal democratic Bonapartism (North). However, the functional perspective is not complete. From a normative point of view, political constitutionalization is the attempt to correct, withstand and oppose the strong evolutionary trend of economic and juridical constitutionalization towards stabilization and the growth of bourgeois class rule, capitalist exploitation and comprehensive commodification. Political constitutionalization improves the conditions for resistance against the growing independence of executive state power, against the hegemony of the managerial regime of judges, against the reduction of all rights to property rights, against the perversion of cosmopolitanism to bloody imperialism. Without political constitutionalization there is no promising class struggle against slavery, child labour or low wages, or for the 10-hours bill and for workers’ and women’s rights. Political constitutionalization enables the transformation of privatized


969In American constitutional law, comprehensive judicial review of federal statutes is highly contested. It is not in the Constitution: Art. III of the US Constitution does not say that the constitutionally limited (Art. IV US) power of the judicial branch reaches so far that the Supreme Court has a right to strike down federal statutes; see Alexander Bickel, The Least Dangerous Branch. The Supreme Court at the Bar of Politics. New Haven: Yale University Press, 1986 (1962), pp. 5–6. At best one could say in favour of Marshall that judicial review of federal statutes ‘may be possible; but this is optional. This is the strongest bit of textual evidence in support of Marshall’s view, but it is merely a hint. And nothing more explicit will be found.’ (p. 6). But if it cannot be found in the Constitution, it might be placed in the Constitution (p. 1). Even if judicial review can be placed in the Constitution, it would be extremely problematic to ascribe the ‘ultimate power to apply the Constitution’ (p. 3) to the judiciary, as Marshall did (and as, for example, the German Constitutional Court does today).970A brilliant case study on hegemonic and counter-hegemonic interpretations of constitutional law (which enables and limits both) is Bickel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa (Habilitationsschrift Frankfurt, 2012, forthcoming, 2013).971Ackerman, Failure of the Founding Fathers, pp. 11–13.972For other examples, in particular, beyond the state, see Wiener, The Invisible Constitution of Politics, pp. 197–212.973Hegel, Wissenschaft der Logik II, p. 59 (daseiender Widerspruch). In his worthwhile interpretation of Marx’s theory of law, Robert Fine makes the important point that Marx does not understand the legal ideas of freedom and equality as a (however necessary) illusion (and in that sense as ‘superstructure’ and ‘ideology’), but as a contradiction (Fine, Democracy and the Rule of Law. Marx’s Critique of the Legal Form. Caldwell: Blackburn, 2002, pp. 5, 159 et seq.). On structural contradictions in social evolution, see Wortmann, Zum Desiderat einer Evolutionstheorie des Sozialen, p. 77.

and fragmented class struggle into political and public class struggle, as Marx rightly saw.

The first country that implemented political constitutionalization in co-evolution and permanent dialectical tension with economic and juridical constitutionalization was the United States. Since Marbury, the hegemonic interpretation of the constitution ensured that, in cases of doubt, capitalism trumped democracy. Marbury was used for that purpose again and again.969 However, at the same time the Supreme Court was successfully challenged by a radically democratic interpretation of the American presidency through the counter-hegemonic Jeffersonian party.970 The Jeffersonian or Republican Revolution of 1800 had established a strong counterweight against a totally one-sided solidification of the managerial constitutional mindset. The establishment of a ‘powerful impact of plebiscitarian presidencies’ marked ‘electoral victory’ as a ‘mandate’ for ‘fundamental constitutional change’ that comes from the people.971 Thus, democracy from the beginning had a counter-hegemonic chance to strike back and to trump capitalism, at least as long as the political system worked and generated enough power to get capital halfway under control. Since the Jeffersonian revolution of 1800, the re-politization of civil society became possible because, with the establishment of the political constitution, permanent public contestation was built into the constitution.972 Constitutional law became the existing contradiction.973


974Hegel, Wissenschaft der Logik II, p. 59 (my translation of: ‘lebende Einheit’, ‘(die) diese Kraft ist, den Widerspruch in sich zu fassen und auszuhalten’); Ackerman, Failure of the Founding Fathers, pp. 12–13.975Ackerman, Failure of the Founding Fathers, p. 113.

The Kantian mindset is represented by the triad of (1) Constitution, (2) Bill of Rights and the (3) plebiscitarian presidency (which ensured the peoples’ electoral mandate for constitutional change). The managerial mindset is represented by the triad (1) Constitution, (2) Bill of Rights and (3) Supreme Court enforcement (juridical control of constitutional law). As permanent contestation of the one extreme through the other, the constitution is the ‘living unity’ of contradictory extremes, and it is living as long as it ‘can hold’ and ‘endure this contradiction within itself’.974 While the first, the political (Ranciére) triad moves from the bottom up, and is due to the uncontrollable and anarchic use of communicative power (Habermas), the second, the triad of the police (Ranciére) moves from the top down, and is due to the strategically controlled use of administrative power (Parsons). In the United States, the contradictions between constitutional mindsets and the antagonisms of social classes stayed within the framework of two short constitutional texts, the Declaration of Independence and the US Constitution. The contradiction of the two constitutional mindsets has been part and parcel of constitutional law since Jefferson’s successful campaign in 1800, which stopped just short of the outbreak of civil war. Advancing political constitutionalization successively enabled mass mobilization and mass movements, breakthroughs of political action, civil disobedience, even violent insurgencies, a civil war and finally the revolutionary change of constitution and society in the time of the New Deal and World War II. Radical constitutional change usually was closely linked to counter-hegemonic presidential campaigns: the campaigns of Jackson, which led to universal male suffrage; of Lincoln, which led to the Civil War, the abolishment of slavery and a revised federal system; or that of Roosevelt, which was accompanied and followed by intense class struggles between labour and capital and by global civil war, and finally (and not only in America) led to social welfare constitutionalism, nation-building and the hitherto most comprehensive and most momentous changes of the federal system.

Successful and comprehensive political constitutionalization enables unconventional constitutional legislation and radical, even revolutionary constitutional change. The revolution becomes reflexive. Jefferson, Marx, Fröbel and Trotsky, coming from very different schools of thought, developed a broadly overlapping concept of permanent revolution. The constitution becomes ‘a resource of transcending partisanship’975 that enables its self-transcendence in both evolutionary and devolutionary directions. The third step of political constitutionalization completed the functional differentiation


976Conrad, Globalization effects: mobility and nation in Imperial Germany, 1880–1914; Bayly, Birth of the Modern World, pp. 247–71, 538 et seq.; Osterhammel, Verwandlung der Welt, pp. 819–20.977See Tuori, The Many Constitutions of Europe, pp. 9–10, 24–7; on the crucial role of education for the formation of the welfare state and the social constitution, see: Parsons and Platt, The American University.978Ibid., p. 24.979Therefore, already Rousseau recognized that social security constitutionalization is a formally necessary condition for the possibility of the formation of a majority will that – with good reasons – can claim to be the general will. Rousseau, Gesellschaftsvertrag.980See Tuori, The Many Constitutions of Europe, pp. 24–5; Sunstein, Cass, After the Rights Revolution. Cambridge: Harvard, 1993; Dietrich Hoss, Der institutionalisierte Klassenkampf. Frankfurt: EVA, 1972; Parsons and Platt, The American University.

of the political system (which had begun with the Protestant Revolution), and opened the path for the fully fledged globalization of the political system, strongly reinforced by the short period of Western imperial world rule. Between 1780 and 1914, governments all over the world became ever more similar with respect to clear-cut territorial borders, the introduction of passports, ethnic and racist differentiations, bio-politics, a sharp differentiation between citizens and foreigners, a highly rationalized administrative and legal state (Weber’s Anstaltsstaat), centralized armies, efficient taxation, mass organization, nation-building, (democratic and undemocratic) popular legitimization, rights-based inclusion and everywhere the emergence of written constitutions with still a great variety of regime types.976

(IV) Social security constitution: The social security constitution couples law with social structure and the systems of welfare and security.977 Substantially, the social security constitution reflects ‘the need to guarantee the factual presuppositions of a meaningful and satisfactory life for individual members of society and their families’.978 This is not only functionally important, but also normatively, because it is democratic legitimization that is in ‘need’ of the ‘guarantee’ of these ‘presuppositions’. Without their ‘guarantee’ no equal access on the input-side of public debate and decision-making is possible.979 The social security constitution programme regulates social rights legislation (‘rights revolution’, ‘anti-discrimination norms’): the equilibrated and fair institutionalization of class struggles between capital and labour, the functional differentiation of the educational system and an enormous expansion of higher education across the entirety of a population.980 The social security constitution programme regulates the implementation of all kinds of security systems: of police power, prevention, surveillance and punishment, of disciplinary power, bio-politics and risk control. The security constitution is so closely related to the social constitution that one should take them both together as one process of constitutionalization, in particular, after the revolutionary transformations of the twentieth century.


981Defense of Gracchus Babeuf before the High Court of Vendôme, trans. and ed. by J. A. Scott with an essay by H. Marcuse, 1967.982Marx, 18. Brumaire, p. 105, engl.: The Eighteenth Brumaire of Louis Bonaparte. New York: Mondial, 2005, p. 7.983Tocqueville, Recollections; Hugo, Memoirs.984Marx, 18th Brumaire, p. 105; see T. J. Clark, The Absolute Bourgeois. Artists and Politics in France 1848–51, London, 1999, p. 31 et seq.; Marcuse, ‘Über den affirmativen Charakter der Kultur’, in Marcuse (ed.), Schriften 3. Frankfurt: Suhrkamp, 1979.

There existed no fully fledged social security constitution before the twentieth century, and pre-constitutional security legislation and executive prerogatives continued to be much stronger than social security legislation. However, the Atlantic Revolution established a powerful rhetoric of egalitarianism. The American Declaration of 1776 declared the pursuit of happiness to be a human right. The French Declaration of 1789, Article 2, mentioned security (meaning ‘social security’) as a human right. The Jacobin constitution of 1793 contained the first list of social rights. But when someone took this seriously, as did, for example, Gracchus Babeuf or Olympe de Gouges, they were beheaded.981 The European Revolution of 1848 was fuelled by radical democratic, socialist and communist ideas, parties and movements. The insurgency of the working poor of Paris in June 1848 was interpreted by Marx as ‘the most colossal event in the history of European civil wars’.982 Tocqueville and Hugo viewed it in similar terms, but with the opposite evaluation.983 For Marx, the bloodily repressed insurgency of June 1848 was the first historical sign of the coming social revolution of the nineteenth century (or, as Tocqueville said: ‘of something new’), and Marx, Tocqueville and Hugo accordingly interpreted the insurgency of the urban masses of working poor as a revolutionary social conflict that could not be integrated by the French (or any other bourgeois) society. From the bourgeois perspective, this was, in Marx’s words, the ‘beastly . . . and repulsive revolution’, and the barricade paintings of Meissonier, Manet, Daumier and Leleux became negative art: The end of affirmative culture.984 To solve the social problem of the emerging class of working poor, it either needed a further great revolution (like that of 1789) or massive oppression was the only alternative left: armed forces, state of siege, death penalty and transportation. Hugo and Tocqueville opted for the police, Marx for political action, and the police was the winner (thanks to the railways and military-technical innovation). After June 1848, the democratic experiment was over, and the state of siege accompanied the long demise of the revolution until Louis Bonaparte’s 18th Brumaire in the fall of 1851. If the insurgency of June 1848 was a sign of history (a Kantian Geschichtszeichen), it was not, as Marx assumed in the beginning, a sign of the ‘contradiction’ between ‘modern productive forces’ and the ‘bourgeois form of production’ (whose oppressive machinery worked better than ever with modern productive forces) – but an


985On the former, see Marx, Klassenkämpfe in Frankreich, MEW 7, Berlin: Dietz, 1973, pp. 32, 85, 94, 98; on the latter and the difference, see Brunkhorst, Kommentar zum 18. Brumaire des Louis Bonaparte, Frankfurt: Suhrkamp, 2007.986Neves, Zwischen Subintegration und Überintegration: Bürgerrechte nicht ernstgenommen; Guillermo O’Donnell, ‘Polyarchies and the (Un)Rule of Law in Latin America: A Partial Conclusion’, in Brunkhorst and Costa (eds), Jenseits von Zentrum und Peripherie. Zur Verfassung der fragmentierten Weltgesellschaft. Munich: Hamp, 2005, pp. 53–80; see Neves, Verfassung und positives Recht in der peripheren Moderne.987See Thomas H. Marshall, Citizenship and Social Class, and other Essays. Cambridge: Cambridge University Press, 1950.988Marx, Capital, Vol. I, 1867 Preface, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA0.html (26 October 2013).

indicator of a beginning crisis of legitimization of bourgeois parliamentary class rule. Marx lends his support to both interpretations of history.985

It was indeed the problem of legitimization that seemed to overload the integrative potential of any constitutionalization that was bound to the stabilization of bourgeois class rule. It overloaded the integrative potential because democratic legitimization presupposes social security constitutionalization and the sublation of social class differences – or at least their minimization to a level that did not allow an upper class formation to control the means of production alone. There is no democracy with a class of ‘over-integrated’ haves (who are no longer under the effective control of the law, but control the law) and ‘under-integrated’ have-nots (who are under the control, but no longer under the protection of the law).986 After 1848 and the great explosion of the productive forces, it became successively ever more evident that the system of popular sovereignty, rule of law and universal rights could only survive if all people affected by binding decisions were legally, socially, politically and culturally included as equal citizens, independent of race and sex.987 This presupposed, as Marx wrote in the preface to the first edition of Capital in 1867, quoting American Vice President Wade: ‘a radical change of the relations of capital and of property in land’.988 The punctuational burst of modern capitalism in the years between Communist Manifesto (1848) and Capital (1867) was immediately followed by the emergence of the labour movement, and the struggle for statutory maximum working hours was one of their first great victories. Marx called it the modest Magna Carta of a legally limited working day:

It must be acknowledged that our labourer comes out of the process of production other than he entered. In the market he stood as owner of the commodity “labour-power” face to face with other owners of commodities, dealer against dealer. The contract by which he sold to the capitalist his labour-power proved, so to say, in black and white that he disposed of himself freely. The bargain concluded, it is discovered that he was no “free


989Marx, Capital I, Chapter 8, quoted from: http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April 2012), my emphasis. On the importance of this quote (which refers to the end of Ch. 4 – see Ch. I, Sec. IV) for the interpretations of history in Capital, see Çıdam, Geschichtserzählung im Kapital.990Thornhill, A Sociology of Constitutions, p. 239.991Ibid., p. 273.

agent,” that the time for which he is free to sell his labour-power is the time for which he is forced to sell it, that in fact the vampire will not lose its hold on him “so long as there is a muscle, a nerve, a drop of blood to be exploited.” For “protection” against “the serpent of their agonies,” the labourers must put their heads together, and, as a class, compel the passing of a law, an all-powerful social barrier that shall prevent the very workers from selling, by voluntary contract with capital, themselves and their families into slavery and death. In place of the pompous catalogue of the “inalienable rights of man” comes the modest Magna Charta [sic] of a legally limited working-day, which shall make clear “when the time which the worker sells is ended, and when his own begins.” Quantum mutatus ab illo! [What a great change from that time! – Virgil]989

Marx was very aware of the difference between pompous catalogues of inalienable rights of man which, even as constitutional rights, were at best programmatic, and the binding force of law that attached to the modest Magna Carta of a legally limited working day. Constitutional rights are not nothing, but binding law is much, much more. Even if the former are enforceable basic rights as in today’s German Basic Law, they will not limit exploitation and the working day automatically, a result that is still due to the legislator and the public struggle for change. The possibility to carry on the latter successfully had existed in Britain since the constitutional reforms of the Reform Act of 1832, which moderately extended and equalized suffrage. Functionally, the reforms ‘marked the growth in the effective power of the state’.990 But this ultimately was not only at the price of the monarchy on the one hand and of more radical democratic reforms on the other. The deeply ambivalent growth of effective state power through managerial democratic incrementalism also enabled the promising struggle for a legally limited working day and a radical change of the relations of production, which finally challenged the whole system of bourgeois class rule and modern capitalism. Britain and France were the first European countries which, at the end of the nineteenth century, had ‘begun to assimilate aspects of the labour movement’.991 The struggle of men and women for universal suffrage, popular sovereignty and parliamentary representation stood at the threshold between the Atlantic Constitutional Revolution of the eighteenth and the Egalitarian World Revolution of the twentieth century. It could be invented


992Marx, ‘Zu den Ereignissen in Nordamerika’, Die Presse Nr. 281, 12. Oktober 1862, in Marx and Engels (eds), Studienausgabe IV, p. 186, English translation quoted from: Marx, Comments on the North American Events, in Marx and Engels (eds), Collected Works, Vol. 19. London: Lawrence & Wishart, 1984, p. 250.993Marx, Der 18. Brumaire des Louis Bonaparte, p. 101.

within the constitutional framework of the Atlantic Revolution. But once it had been invented, the struggle for its realization and concretization in an egalitarian or socialist mass democracy began, which burst the limits of bourgeois society and would change the constitution – even if the wording stayed (nearly) the same, as in the United States. Therefore, it is no coincidence that Marx viewed Lincoln as the first eminent embodiment of a revolutionary leader, anticipating the social revolution that he and his comrades expected. Marx described Lincoln as the one who overcame the noble phrases and costumes of all the former revolutions. Lincoln literally appears instead ‘in everyday dress’, anticipating the civilized hero of the coming revolution:

Lincoln’s proclamation is even more important than the Maryland campaign. Lincoln is a sui generis figure in the annals of history. He has no initiative, no idealistic impetus, no cothurnus, no historical trappings. He gives his most important actions always the most commonplace form. Other people claim to be “fighting for an idea”, when it is for them a matter of square feet of land. Lincoln, even when he is motivated by, an idea, talks about “square feet”. He sings the bravura aria of his part hesitatively, reluctantly and unwillingly, as though apologising for being compelled by circumstances “to act the lion”. The most redoubtable decrees – which will always remain remarkable historical documents – flung by him at the enemy all look like, and are intended to look like, routine summonses sent by a lawyer to the lawyer of the opposing party, legal chicaneries, involved, hidebound actiones juris. His latest proclamation, which is drafted in the same style, the manifesto abolishing slavery, is the most important document in American history since the establishment of the Union, tantamount to the tearing up of the old American Constitution.992

Lincoln’s unemotional practicality marks the junction that divides the social from the bourgeois revolution. How could someone like Lincoln become a leading figure and a role model of the ‘revolutions of the nineteenth century’?993 The answer is: Lincoln was the revolutionary of the ordinary game of universal suffrage:

Lincoln is not the product of a popular revolution. This plebeian, who worked his way up from stone-breaker to Senator in Illinois, without intellectual


994Marx, Zu den Ereignissen in Nordamerika, p. 187, English translation quoted from: Marx, Comments on the North American Events, p. 249.995Ibid.996Quoted from: Bayly, Birth of the Modern World, p. 108.

brilliance, without a particularly outstanding character, without exceptional importance – an average person of good will, was placed at the top by the interplay of the forces of universal suffrage unaware of the great issues at stake.994

The Kantian constitutional mindset at work: ‘The new world has never achieved a greater triumph than by this demonstration that, given its political and social organisation’ – Marx refers here to the then nearly unique system of democratic representation (political organization) and the complete destruction of the old European stratified society in the United States (social organization) – ‘ordinary people of good will can accomplish feats which only heroes could accomplish in the old world!’995 Lenin was right when he later argued that the political system of the social revolution should be run by everybody, including even a cook. However, he forgot that this required not only communism, but republican communism, that is, communism enacted through democratic legislation.


The transcendence from within and back into immanence not only opened the way for the Kantian mindset’s normative transcendence from within, but also for the managerial mindset’s instrumental transcendence from within. When Napoleon Bonaparte explained his victory not only over the troops of his enemies, but also over their minds, he exposed the instrumental side of the new possibilities to transcend all cultural and religious perspectives, mindsets and world views from within and back into immanence. It consisted in the unlimited manipulative improvement of domination through a radically new interpretation of the old imperial principle ‘divide and conquer’:

It was by making myself a Catholic that I won the war of the Vendée, by making myself a Muslim that I established myself in Egypt, in making myself Ultramontane that I won men’s hearts in Italy. If I were to govern a Jewish people, I would re-establish Salomon’s temple.996

The microphysics of power is co-original with the revolution, and so is its macrophysics. Its exponential growth was co-original with the punctuational burst of the productive forces in the middle of the nineteenth century. At the


997Tocqueville, Recollections; Marx, Klassenkämpfe in Frankreich, p. 31; see Tilly and Lees, The People of June, 1848; Frederick A. de Luna, The French Republic under Cavaignac. Princeton: Princeton University Press, 1969, p. 149 et seq.998Weber, Wirtschaft und Gesellschaft, p. 1060.999For an apologetic view, see Forsthoff, Der Staat der Industriegesellschaft, pp. 46–7, 105.1000See Thornhill, A Sociology of Constitutions, pp. 191–2, 195.1001Marcuse, Der Kampf gegen den Liberalismus in der totalitären Staatsauffassung, p. 16.

beginning of the Atlantic Revolution in the middle of the eighteenth century, nobody expected what became visible and obvious for everybody in the middle of the nineteenth century. In June 1848, more insurgents than ever before were mobilized in Paris, their resolve and courage was greater than ever, their military efficiency (according to Marx and Tocqueville) was at the highest level ever reached, and finally and most symbolically, the barricades were higher and better than at any previous time in Paris.997 In every preceding revolution, the barricades were evidence enough that the revolution was prevailing. The barricade was stronger than police and military. However, this time it took General Cavaignac only three days to quell the rebellion. He needed no longer the courage of Napoleon, who had rushed at his enemy at the head of his troops. He only needed managerial logistics at the office, and modern railways conducted by civil servants. The banality of evil has a long prehistory inherent in the modern state. What became evident in June 1848 was that an executive, administrative and coercive state power was emerging which, half a century later, appeared to Max Weber ‘unbreakable’.998 The ‘transparent garb’ (Büchner) of republican government that was to replace the ‘mechanical’ state of supposed ‘absolutism’ came closer than ever to Weber’s iron cage of the coming enslavement, macrophysically as well as microphysically. The revolution that wanted to abolish absolutism created absolutism in the first place. The revolution that wanted to subsume all executive power under the law and under popular self-legislation created real abstract state power sans phrase, which was able to get rid of the transparent garb of the rule of law whenever it pleased – at least at the end of one of the many evolutionary paths that the Revolution had opened, one that has been followed a few times.999

Thomas Paine dreamed of strong popular sovereignty and weak property rights, but got a system of property rights, restricting the performance of popular sovereignty. The rapid augmentation and globalization of the power of the administrative, tax-collecting and soldier-recruiting state was accompanied by the enforcement of the hegemony of private property rights over all the other civic and human rights on the list of the Declarations of the eighteenth century.1000 ‘The ideas of 1789 have by no means always been on the banner of liberalism and have even been sharply attacked by it.’1001 The private property rights priority reinforced the growth of private property in the hands of the new ruling class and stabilized the formation of bourgeois class rule. The structural


1002You and Me, Fritz Lang, USA 1938.1003Locke (as a theorist of bourgeois freedom) versus the biblical prophet Habakuk (as a critic of exploitation, injustice and oppression) are contrasted by Marx, Der 18. Brumaire des Louis Bonaparte, p. 98.1004Iring Fetscher, Rousseaus politische Philosophie. Frankfurt: Suhrkamp, 1975.1005Marx, Der 18. Brumaire des Louis Bonaparte, p. 101, English quoted from: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch02.htm (19 March 2012).

coupling of law and economy and the long-lasting hegemony of the economic constitution were other unintended effects of the Atlantic Revolution:

You cannot get something for nothing/You cannot get wise/With sleep still in your eyes/No matter what your dreams might be.1002

Everywhere, the people who ultimately carried out the revolution, that is, the rural and urban masses, understood the promise of equal rights in a way that included some measures of prophetic social justice. The egalitarian promise of the revolution was not Locke’s, but Habakuk’s: pursuit of happiness and fraternity.1003 Rousseau (like the Jacobins) was strongly in favour of private property rights, but imagined a utopian society of self-determined, virtuous and industrious artisans and farmers, based on equally distributed wealth.1004 However, after the ‘ecstasy’ and the following ‘long Katzenjammer [cat’s whinge]’ of the revolution, which left society with new normative constraints and pushed it onto a new evolutionary track, society ‘learned’ over a long period of evolutionary incrementalism and through gradual adaptation ‘to assimilate the results of its storm-and-stress period soberly’. It needed heroism and costumes, the ‘conjuring up of the dead of world history’ to perform the normative learning process of the revolutionary social classes.1005 But then, the cognitive learning process of the social systems corrected the revolutionary dreams:

Camille Desmoulins, Danton, Robespierre, St. Just, Napoleon, the heroes as well as the parties and the masses of the . . . French Revolution, performed the task of their time – that of unchaining and establishing modern bourgeois society – in Roman costumes and with Roman phrases. . . . Once the new social formation was established, the antediluvian colossi disappeared and with them also the resurrected Romanism – the Brutuses, the Gracchi, the publicolas, the tribunes, the senators, and Caesar himself. Bourgeois society in its sober reality bred its own true interpreters and spokesmen in the Says, Cousins, Royer-Collards, Benjamin Constants, and Guizots; its real military leaders sat behind the office desk and the hog-headed Louis XVIII was its political chief. Entirely absorbed in the production of wealth


1006Ibid., p. 98, English quoted from: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch02.htm (19 March 2012).1007See Bright and Geyer, Benchmarks of Globalization: the Global Condition, 1850–2010.1008Osterhammel, Die Verwandlung der Welt, p. 194. Already, the Spanish had killed a third of the indigenous people, of whom there had been ca. 300,000 in 1776 (Osterhammel, p. 481, see 494–8). Before the Civil War, American scientists and political representatives argued that for reasons of race, the Blacks were not able to live as autonomous persons but could do good work as slaves – whereas ‘the Reds’ were good for nothing except killing Whites, and hence had to be exterminated (see: Tom McCarthy, Race, Empire, and the Idea of Human Development. Cambridge, MA: Cambridge University Press, 2009, quoted from the e-manuscript, p. 106).1009See Charles S Maier, ‘Leviathan 2.0 – Die Erfindung moderner Staatlichkeit’, in Emily S. Rosenberg (ed.), Geschichte der Welt 1870–1945. Weltmärkte und Weltkriege. Munich: Beck, 2012, pp. 33–286, at 33–44.1010Quoted from: Koskenniemi, ‘International Law as Therapy: Reading “The Health of the Nations”’, The European Journal of International Law 16:2 (2005), 329–41, at 336.1011Berman, Justice in the U.S.S.R., p. 176.

and in peaceful competitive struggle, it no longer remembered that the ghosts of the Roman period had watched over its cradle.1006

Once the (1) socially selective implementation of the revolutionary advances was (2) re-stabilized by the concentration of executive state power and private property, (3) Hegelian bourgeois society gradually evolved. However, it required (4) a massive punctuational break in the form of the explosive growth of all technical and industrial productive forces, which occurred not only in England but also all over the Western world from the middle of the nineteenth century, to turn (5) the age of globalization (1500–1850) into the global age of a fully fledged world society (since 1850). The global age began (6) with the temporary, but bloody domination of the ‘rest’ by the West.1007 The ‘merciless Indian Savages’ of California alone were reduced from 100,000–250,000 people to 25,000–35,000 people in the decade of the gold rush (1848–60), by terror, mass-murder and genocide.1008 Leviathan 2.0: The beginning of modern technical imperialism.1009 At least throughout the bourgeois nineteenth century Philip Allott’s polemical statement was true: ‘The only human right which is universally enforced is the right of the rich to get richer.’1010

IV Egalitarian World Revolution

We are shocked by the wholesale confiscation of private property by the Bolsheviks in 1917; yet the republican administration, in freeing the slaves without compensation after the Civil War, carried out one of the most colossal confiscations of all times. Revolution is as much in the Western tradition as law.

HAROLD BERMAN1011


1012Kelsen, Democracy and Socialism, in Conference on Jurisprudence and Politics, 30 April 1954 at the Law School, University of Chicago, Conference Series No. 15, Chicago, 1955, pp. 63–87, at 85.1013Thornhill, A Sociology of Constitutions, p. 304.

It is for an unmistakable political purpose, namely, against communism, that private property is interpreted by means of an absurd hypostatization as the embodiment of freedom.

(HANS KELSEN)1012

The Bolshevist Russian Revolution, the communist Chinese Revolution and the rise of the United States to become the global superpower, their unique initial role in the twentieth-century international law revolution, and their turn from capitalist democracy to democratic capitalism – all three revolutionary transformations of Russia, China and the United States were, to modify Marx, revolutionary transformations in the global style – for good and ill.

Since World War II, an astonishingly fast and comprehensive process of global juridification and constitutionalization has been launched. What took place during the 10 years between 1941 and 1951, between the Atlantic Charter and the foundation of the first European Community, was not just legal evolution as usual, but also massive revolutionary change. It was the most effective, but by no means the first or most radical wave of revolutionary change of world society in the twentieth century, nor the last one. The first great wave of massive and rapid change began in 1917 (or even earlier in 1905 when the Russian Revolution originally broke out), and radical social experiments followed immediately after the war and in the next one or two decades. At that time the map changed. Age-old, sometimes millennial forms of government vanished from earth. Rights of ownership were redefined, property came under state jurisdiction, new corporate forms of property were created, universal social and economic rights and socially inclusive mass democracy were launched in Russia, Austria, Germany, Italy, Britain, Poland and other countries. All demanded central and inclusive power for the state – but regularly failed after a short time, reducing social rights and mass democracy to a minimum or zero. Not only in the German, but also in all cases power shifted to ‘a simultaneously authoritarian and business-friendly executive’.1013 Immediately after World War I, plans for a League of Nations were implemented for the first time. Social sciences, socialist studies, work research and labour law increased. International relations departments and institutes were founded, international law boomed. But the year 1917 was not only the beginning of social inclusion, mass democracy, cosmopolitan world organization and the individualization of international law but also ‘a sudden rupture in a pattern of gradually increasing and effective governance’ that enabled the ‘installation of an even more centralizing and resource-hungry


1014Bayly, Birth of the Modern World, p. 267.1015Ibid., p. 262.

state’ not only in Russia but also successively all over the world.1014 Executive state power above all, experienced an enormous boom, because the state was now much better armed and had more credibility than any other social actor, and because the form of rights was globalized together with the form of the modern state: ‘The Declaration of the Rights of Men was more often than not a declaration of the rights of the state, which then attempted to regulate and control in new ways.’1015 Universal equal rights were implemented one-sidedly by eroding differences of status and honour, by overcoming hereditary and local privileges, by the positivization and secularization of religious law, but not always by giving the people voice and vote.

What followed the last year of World War I were 30 more years of world wars and world revolutions. The three decades between 1917 and 1949, when the Chinese Revolution ended, probably were the most catastrophic period in history. It was a period of extremely violent, revolutionary and counter-revolutionary struggles, imperial and civil wars between social classes, states, cultures, ethnic groups and ideologically determined parties, between ‘rough’ states which declared themselves the defender of civilization and ‘civilized’ nations which, to a large extent, proved to be criminal organizations, and between democratic, socialist and fascist regimes. The struggles were fought out in different coalitions and sub-divisions of class organizations, states and empires. Between 1905 and 1975, a huge variety of old and new states and other (governmental and non-governmental) national and international organizations were founded, destroyed, refounded, legalized and constitutionalized, de-constitutionalized and re-constitutionalized, often a couple of times. The map changed again and again. The number of member states of the UN increased between 1945 and 2011 from 51 (with mostly white Christian, agnostic or atheist inhabitants) to 193 (with overwhelmingly non-white and non-Christian inhabitants). Today, all states, with one or two exceptions and a handful of unclear cases (failed states, civil war regions), are members of the UN. The Nuremberg Trials were the first trials representing the entire world population in an action against the German war criminals. Since the mid twentieth century, there are no more legal black holes on Earth (and even no legal black hole in the outer space within reach of our rockets). Most of the new members of the UN are new states. The vast majority of them were founded in the process of decolonization that began immediately after World War II with the foundation of the two states of British India (1947), and the subsequently intensified struggle of the colonial world for national liberation. Nearly all the European countries were founded anew at the end of World War II, or a short time later. Whole governments and sets of political leading personnel were replaced,


1016Marx and Engels, Communist Manifesto, http://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm#007 (10 April 2012).

new classes took charge and old classes were extinguished (as, for example, the nobles of Russia or of Germany’s East Elbe region). The system of political parties and social organizations was recomposed nearly everywhere. Whole populations were killed and murdered, subjected to compulsory resettlement or expulsion, and migrated and re-migrated. The ownership of the means of production was revolutionized and socialized (in very different ways) in large parts of the world. Everywhere, the means of production came under more or less restrictive public control. Property rights were completely reinterpreted and constrained worldwide. Everywhere, constitutions were newly invented or deeply revised again and again from 1918 onwards. Even countries that did not constitute themselves anew after 1918 and/or 1945 (such as the American states, England and Switzerland) changed their constitution so thoroughly that, at the end, the wording of the constitution had the opposite meaning. For example, the commercial clause of the US Constitution in 1917 was the legal basis of an aggressive system of capitalist class rule and exploitation that excluded any meaningful intervention of the Union in the industrial relations of the member states. In 1945, the same clause had become the legal basis for the immensely increased and now nationwide power of the unions and the construction of a more and more egalitarian social welfare state by federal government. During the whole period spanning the beginning of the Russian Revolutions in 1905, the Chinese Revolution in 1911, the American entry into the war in 1917 and the unconditional surrender of Germany and Japan in 1945 and 1946, the UN Charter in 1945, the Independence of India in 1947, the Universal Declaration of Human and Civic Rights in 1948, the end of the Chinese Revolution in 1949, the founding of the European Union in 1951, the successful end of the long struggle for decolonization in 1975 with the loss of Portugal’s African colonies, the retreat of the United States from Vietnam, the independence of Zimbabwe in 1980, and finally the implosion of the Soviet Union and the end of South African Apartheid in 1989 – all over the world new states were founded and old ones destroyed, divided, enlarged, obliterated. Again it was no coincidence that after the end of the last great imperial war of the United States in Vietnam, the statist mass crimes of Auschwitz and modern Western slavery became the integrative core of a culture of memory for all mankind that had never existed before. Already the Nuremberg Trials had, since 1945, prosecuted crimes against humanity, and the Universal Declaration was also, if not only, a universal reaction to the technically reinforced mass crimes of the 30-year world war and civil war period.

Between 1917 and 1949, all political, cultural, economic and social relations, ‘the whole relations of society’ ‘melted into air’, were ‘revolutionized’ and


1017See Osterhammel, Die Verwandlung der Welt, p. 858.1018Bright and Geyer, Benchmarks of Globalization: the Global Condition, 1850–2010; see Bayly, Birth of the Modern World, p. 270; Maier, Leviathan 2.0 – Die Erfindung moderner Staatlichkeit, pp. 99–111.1019On the distinction, see Scharpf, Regieren in Europa; on the positive and normative integration of world society, see Stichweh, Der Zusammenhalt der Weltgesellschaft; see already: Parsons, Order and Community in the International Social System.1020Osterhammel and Petersson, Geschichte der Globalisierung, p. 64 et seq.

constituted anew, legally and materially.1016 A new international law was created, which, for the first time, outlawed the right to war and criminalized war in itself. Cooperation replaced coexistence as the basic constitutional principle of all international law. International law became world law and was (however reluctantly) constitutionalized. The nineteenth-century opposition of (with few and incomplete exceptions pre-democratic) parliamentary rule and monarchy was replaced by an open, experimental and ongoing process of democratization that not only coupled parliamentary rule rigidly with democracy, but also went beyond parliamentary democracy.1017

In terms of evolutionary theory, the whole process (as in all great revolutions) was badly adapted and highly experimental. Rapid change generated a new formation of modern world society. It was not only the punctuational burst of all productive forces of communication and technology that happened to the people and their leaders – but intentional, planned, actively prosecuted revolutionary or reformatory change with unplanned results, as usual. And it took place in the global age, after the age of globalization had come to an end in the second half of the nineteenth century.1018 It happened in an already existing world society which, over a couple of decades, became modern everywhere, and began to switch from functional (negative) to normative integration.1019 What had happened repeatedly since the take-off of social evolution was now repeated at the level of world society: Once a shared system of normative integration emerged, the number of class and other conflicts concerning the basic norms of society increased exponentially. The global pool of negative communication exploded, and from conflict to conflict the social integration of world society became denser. Common global conflict formed the horizon of the everyday lifeworld for any human being. The horizon of world society became available for actions and interactions of all individual and collective actors. Enabled and reinforced by negation and conflict, transnational cooperation and solidarity went global with increasing frequency.1020 The punctuational burst of productive forces and systemic complexity intermingled with a further great legal revolution. Osterhammel and Petersson classify the time from 1880 to 1945 as the third push towards globalization. But this time, the entire world population from the beginning experienced it as the destiny of one single community of fate. Successful European imperialism


1021Ibid., p. 63.1022Hegel, Logik II, p. 252.1023Schmitt, Verfassungslehre, p. 231 (‘substanzlose Menschengleichheit’), see 116, 169. See Böckenförde, ‘Demokratie als Verfassungsprinzip’, in Böckenförde (ed.), Staat, Verfassung, Demokratie. Frankfurt: Suhrkamp, 1991; critically: Bryde, Brun-Otto, ‘Die bundesdeutsche Volksdemokratie als Irrweg der Demokratietheorie’, Staatswissenschaften und Staatspraxis 57: 5 (1994). The internal relation of Schicksalsgemeinschaft and legitimacy here is Schmittian and the constitution conceptualized as the existential Gesamtentscheidung of a historical Schicksalsgemeinschaft, see Schmitt, Verfassungslehre. Berlin: Duncker & Humblot, 1989, pp. 20–36, 49, 87–91. This is deeply problematic because the whole construction is dualistic: legitimacy is the legitimacy of the existential and unchangeable constitution of the impermeable Schicksalsgemeinschaft that is beyond the changeable and exchangeable formal legal constitution and its procedural legitimization – founding the latter as a concrete order. See Schmitt, Legalität und Legitimität. Berlin: Duncker & Humblot, 1980. However, as we have seen and will see, not cosmopolitan democracy but Schmitt’s concept of an acclamatory democracy of substantially (or even racially) equal people (Schmitt, Verfassungslehre, pp. 83–4, 240, 243 et seq., 315, 350, 401) is without substance and outdated.

and the politicization of the Scramble for Africa in the 1880s allowed everyone to see that a global community of fate was emerging.1021 At the end of the nineteenth century, the politicization of the global community of fate became irreversible. Just at the moment when modern national state power was at the summit of its ‘unbreakability’ (Weber), ‘its downfall [was] beginning’.1022 Since that time the political exclusiveness of the state as the only substantial community of fate (which has been and still is at the core of mainstream German legal theory since the mid nineteenth century) was challenged by the emergence of a global and transnational community of fate that is political, and hence no longer a mere cosmopolitan dream of ‘insubstantial human equality’.1023 It was no coincidence that not only important formations of states made universal legal claims and fought imperial wars to actualize egalitarian democracy, human rights and socialism, but also powerful and global social movements emerged and organized themselves internationally on a global scale. From the beginning of the Egalitarian World Revolution, these movements and the quickly changing warring parties drew up concrete plans for world revolutions, global reformism and the establishment of a global political community and a new world order. These plans ranged from a cosmopolitan union of nations and states to a post-national communist republic of mankind. They were followed by a great variety of experimental institutional implementations, which finally led to the constitutionalization of inter-, trans- and supranational law. On the cosmopolitan side, the final result of the Egalitarian World Revolution consisted in the universalization of the ‘existing contradiction’ (Hegel) of national constitutional law, that is, the contradiction between the Kantian mindset of political self-determination and the managerial mindset of technically neutralized rule of law, which, at the same time, is the only medium of realizing self-determination. It is just this existing contradiction that is at the core of the new cosmopolitan law and that


1024See the interesting case study Elisa Klapheck, Margarete Susman und ihr jüdischer Beitrag zur politischen Philosophie, Diss. Phil., Flensburg: University of Flensburg, 2012.1025See Hobsbawm, The Age of Extremes. New York: Vintage, 1996 (1994).1026See only the brilliant essay Conrad, Globalization effects: mobility and nation in Imperial Germany, 1880–1914.

is the driving force of global legislation and jurisdiction. It is the contradiction between the ‘purposes’ of Chapter I, Article 1, Para 2 of the UN Charter, which obliges all states and peoples to an international law of cooperation, or friendly relations: ‘To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace,’ and the other extreme that still allows all states to retreat to a much less ambitious international law of peaceful coexistence in Chapter I, Article 2, Para 7, that is, the principle of non-intervention in domestic matters: ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter’ (even though there then follows an important ‘but’ with reference to Ch. VII on ‘Actions’ of the international community in case of ‘threats’ and ‘breaches of peace’, see Ch. III, Sec. IV 7).

Revolutionary rhetoric was ubiquitous throughout the whole first half of the twentieth century.1024 It was accompanied by punctuational bursts not only of the productive forces, but also of the communicative means of dissemination. Already in the 1860s, all continents were connected by the ever denser network of correspondents of London’s news agency Reuter. At the same time, the substantive Marxist theories of imperialism were prospering. They soon were to play an important role, not only for the export of the Western European idea of the socialist revolution to Russia, Asia, Africa and South America, but also for the formation of national liberation movements in all parts of the colonized or imperially controlled world.1025 Since the end of the nineteenth century, conflict and cooperation became more and more global. New global history has ascertained in a breathtakingly short time that theories of allegedly national historical destiny, cultural and mental particularity or Sonderweg ideologies were, in fact, all the causal products of complex global networks, closely connected with imperialism.1026 Similar to the way in which culture and mentality have been globally mediated since the end of the nineteenth century, politics and economy and inner and outer nature are globally mediated. Every political and economic crisis since then has been related to the periodical return of world crises, every war has been related to the expectation of world wars, every revolution has been related, in hope or fear, to coming or ongoing world revolutions. Commodity circulation and viral infections are globalized. A global space of resources, experience and action emerged at a smart pace.


1027See Luhmann, ‘Die Weltgesellschaft’, in Soziologische Aufklärung II. Opladen: Westdeutscher Verlag, 1975, pp. 51–71; Osterhammel and Petersson,Geschichte der Globalisierung.1028Cited from English translation available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/constitution/declaration-of-human-and-civic-rights-of-26-august-1789.105305.html, accessed 2 October 2013.

Time is equalized to world time. Climate and environment are observed as global climate and global environment. All traffic is connected to global traffic. Instead of leading to Rome, every road now is decentred, leading in a circular move around the world, ever faster and ever cheaper. World climate and world ecology, world traffic and world economy, the world system of currency and world politics determine more and more local problems as common problems of mankind which are in need of global solutions.1027 At the end of the nineteenth century, the first world organizations and the first dispute settlement panels were founded by the national states. At the same time, the first non-governmental world organizations emerged. By the end of the twentieth century, a huge number of powerful world organizations intervene in national concerns, regulate national and international economy, direct global and national politics, and shape the global educational system, using many different, hard and soft legal instruments. Today, the world organizations are a state-like global system of international organizations, federations and national states, accompanied and observed by an increasingly dense global network of innumerable non-governmental organizations.

(1) Ratchet effect

One of the first political philosophers who developed a functional theory of society was John of Salisbury. His construction of an independent legal and constitutional order still had two heads and two bodies, a profane and a sacred one. Thus, the functional order of society was sequenced and ranked. Functional differentiation emerged, but remained within the hierarchical framework of a stratified society. Political theory in the age of the Protestant Revolution excluded the two-headed monsters from science and state. But even Hobbes, who radically subsumed the church under the kingdom of the mortal God which is the Leviathan, distinguished two systems of society with two functionally organized bodies and two constitutions: The Commonwealth and the Christian Commonwealth. Enlightenment finally integrated religion as a rights-based subsystem of free communication into the functionally differentiated body of society – as in Article 10 of the French Declaration: ‘No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.’1028


1029Reinhard, Geschichte der Staatsgewalt, p. 93.1030Ernst Cassirer, Substanz und Funktion. Leipzig: Bruno Cassirer Verlag, 1910; see Apel, Transformation der Philosophie II, pp. 188–9.1031Claude Lefort, ‘Die Frage der Demokratie’, in Ulrich Rödel (ed.), Autonome Gesellschaft und libertäre Demokratie. Frankfurt am Main: Suhrkamp, 1990, pp. 281–97, at 295 (tense changed); see Diehl, Historische Entwicklung der demokratischen Symbolik, pp. 37–8.1032Marx, Zu den Ereignissen in Nordamerika, p. 187 (my transl.).1033See Manfred Riedel, Studien zu Hegels Rechtsphilosophie. Frankfurt: Suhrkamp, 1969, pp. 135–66.

Kant’s essay on Religion came out in 1794, the same year as that in which the French king was beheaded. Symbolically, the bloody ritual enabled the ultimate detachment of power from its concrete human embodiments – a literal ‘seeping away of transcendence from the minds of the European elites’.1029 Only then the evolutionary path was opened for both the development of popular sovereignty and the completion of the process of real abstraction of administrative power that had begun in the sixteenth century, but was deferred by the recalcitrant resistance of the king’s sacred body. From January 1793, substance is replaced by function.1030 The same occurs in constitutional theory: ‘Substance [is] replaced by number.’1031 The hostile brothers of functional stabilization and democratic legitimization are interlocked in the ‘ordinary game of universal suffrage’.1032 The dualisms of nineteenth-century German Staatsrecht were deconstructed by Hans Kelsen and his Vienna school, and replaced by a continuum of differences. This made the counter-revolutionary constitutional theory of Carl Schmitt seem as outdated as the political theory of the Norman Anonymous in comparison with that of John of Salisbury in the days of the Papal Revolution.

Hegel was the first who began the great change in the meaning of the notion of society. He dismantled the old European notion that explains society as societas civilis sive politice.1033 The Latin phrase means that the society is a civil or political society where ‘political’ equals ‘civil’, as in the French Declaration. Hegel dissected the concept, depoliticized it and restricted it to the functional relations between the economy (system of needs), positive law (administration of law legal system after deduction of public law) and administration (Polizey, corporation). Civil (political) society became bourgeois society. However, Hegel was not consistent enough and therefore reverted to the old European concept of reason once he had subsumed the new concept of society under the category of spirit. Family and state (public and international law) as well as religion, art and science/ philosophy are de-socialized and excluded from the sphere of society, which is reduced to bourgeois society. In cases of doubt, the upper-class reason (Vernunft) of state and philosophy trumps the lower-class rationality (Verstand) of society and human rights. However, Hegel’s Logic can be read as a radical negativist disenchantment of his own


1034Hegel, Wissenschaft der Logik II. Hamburg: Meiner, 1975, 410, english: http://www.marxists.org/reference/archive/hegel/works/hl/hlidea.htm#HL3_754 (28 April 2013). The negativist interpretation goes back to the seminal book of Marcuse, Reason and Revolution; see Adorno, Negative Dialektik; Theunissen, Sein und Schein; Kesselring, Die Produktivität der Antinomie; Hindrichs, ‘Pure forms of thought’, Panel-Talk, Berlin: Conference on The Actuality of German Idealism, 26 May 2012; Brunkhorst, Theodor W. Adorno: Dialektik der Moderne, pp. 242–321.1035Theunissen, Sein und Schein, p. 68. Thomas Kesselring rightly observes that Hegel ‘never really reflected his own theory, but persisted on a point of view that Piaget would have recognized as egocentrism. This becomes evident when Hegel finally confuses his own conceptual system with reality. This explains his political opportunism, which cannot be justified by his own philosophical and logical categories’. (Kesselring, Die Produktivität der Antinomie, p. 334, my transl.). In his Philosophy of Right, Hegel broke a number of times with his own dialectical method, for example, in order to justify hereditary monarchy, see Karl-Heinz Ilting, ‘Die Struktur der Hegelschen Rechtsphilosophie’, in Riedel (ed.), Materialien zu Hegels Rechtsphilosophie. Frankfurt: Suhrkamp, 1975, p. 68 et seq.; see Theunissen, ‘Die verdrängte Intersubjektivität in Hegels Philosophie des Rechts’, in Henrich and Horstmann (eds), Hegels Philosophie des Rechts. Stuttgart: Klett, 1982, p. 317 et seq.1036Theunissen, Sein und Schein, p. 448, note 23 (my transl.), see: pp. 28–32, 36–7, 46, 59–60, 90, 444–6, 448–51, 477, 486.1037Ibid., p. 448, note 23.1038Kesselring, Produktivität der Antinomie, pp. 140, 263–4, 381 (note 25).1039This is the thesis of Marcuse, Reason and Revolution.

affirmative philosophy of right and state (which therefore might arguably be due to censorship), anticipating Adorno’s much later negative dialectic with its criticism of ‘the dominant notion’ (machthabender Begriff).1034 On this reading, reason is an exclusively negative category of existing contradictions, and the criticism of that which exists.1035 Following Herbert Marcuse’s seminal book on Hegel of 1941, Michael Theunissen interprets Hegel’s Logic and his theory of judgment as ‘encoded political theory’. Its key words are freedom and equality, which are only negatively determined: ‘As political notions the meaning of “freedom” and “equality” is determined only negatively: as the overcoming of relations of domination.’1036 The modernism of Hegel’s Logic goes beyond that of the Enlightenment of the eighteenth century, including any affirmative reading of his own Philosophy of Right. Hegel’s negative determination of freedom and equality, therefore, must reject and abolish any affirmative foundation of equality and freedom in natural law such as that which is at the core of bourgeois society.1037 The very point of Hegel’s Logic is that negativity only is directed against all relations of domination, but negation and, in particular, the negation of negation does not lead to an affirmative end.1038 Like evolution, it has no telos.

The switch (I) from affirmative metaphysics to negative dialectics (critical theory) opens the methodological path that leads to the societal ratchet effect of the Egalitarian Revolution.1039 Marx immediately took up Hegel’s dialectical weapons of negativity and pointed them against Hegel’s mystification of the state as the higher sphere of reason. The state is not the higher sphere of reason, but just a subsystem of society at the same level of reflection as


1040Marx, Kritik des Hegelschen Staatsrechts §§ 261–313, pp. 201–333, at 231 (my trans.), see 207–8, 230–40, 246–9, 252–3, 259–60, 263–82; see: Brunkhorst, Kommentar zum 18. Brumaire des Louis Bonaparte; see Theunissen, Sein und Schein, pp. 477–8.1041Luhmann, Selbst-Thematisierung des Gesellschaftssystems, p. 31 (engl. trans. of quote by Poul Kjaer).1042Marx, ‘Peuchet: Vom Selbstmord’, Gesellschaftsspiegel Bd. II, Heft VII, pp. 14–26, quoted from: Eric A. Plaut and Kevin Anderson, Marx on Suicide, Evanston, pp. 77–101. On Durkheim and Marx, see Anderson, ‘Marx on Suicide in the Context of His Other Writings on Alienation and Gender’, in Plaut and Anderson (eds), Marx on Suicide, pp. 3–27, at 18 et seq. As for Durkheim, for Marx, suicide is not a psychological, but a social phenomenon: a symptom of social pathologies. See Plaut, ‘Marx on Suicide in the Context of Other Views and of His Life’, in Plaut and Anderson (eds), Marx on Suicide, pp. 29–40, at 31 et seq.1043See Brunkhorst, ‘Contemporary German social theory’, in Gerard Delanty (ed.), Handbook of Contemporary European Social Theory. London, New York: Routledge, pp. 51–68.

bourgeois society. The place of objective universality that was occupied by the state is now free for democracy and democratic constitutional theory. Its first sentence is ‘Democracy is the resolved riddle of all constitutions.’1040 The turn from affirmative metaphysics to critical theory, therefore, is the other side of the political turn (II) from state (constitutional monarchy) to democracy.

Both turns form the beginning of a series of categorical conceptual changes that supersede all forms of transcendental idealism together with its time-bound opposition to the materialism of the eighteenth and nineteenth century. However, the very modern sublation of metaphysical idealism as well as metaphysical materialism consisted in Marx and the Young Hegelians replacing (1) spirit with society. This was ‘the idea of society as a social system that reflects and describes itself in abstract categories, hence, the negation of any mental entity, spirit or transcendental consciousness that is external to the society, and explains it from an outside point of view.’1041 With the turn from spirit to society, the path for a sociological understanding of state, law, family, suicide, religion, science, art and so on is opened. Marx and the Young Hegelians (both Left and Right) were the first who understood the state as the state of society, art as the art of society, family as the family of society, science as the science of society, religion as the religion of society and even suicide as the suicide of society, anticipating Durkheim’s famous studies.1042 Moreover, Marx transformed Hegel’s teleological philosophy of history into (2) a theory of social evolution. With the turn from spirit to society, the final abolishment of any hierarchy and stratification (social class formation) prior to functional differentiation becomes unavoidable, and the turn of Marx, Spencer, Durkheim and Weber to (3) functional differentiation as prior to social differentiation is the logical consequence. Replacing reason (4) with rationality and rationalization (Weber) was a further step towards a societal understanding of all concepts and conceptual relations. The latest step so far has consisted in the societal understanding of societal understanding and social evolution (5) as communication alone.1043 The communicative turn of the


1044See Apel, Transformation der Philosophie Vol. I and II; Apel, Paradigmen der Ersten Philosophie.1045Theunissen, Sein und Schein, pp. 433–73, 486.1046Habermas, Arbeit und Interaktion, p. 13; see Theunissen, Der Andere. Berlin: de Guyter, 1977, p. 241 et seq. For comparable developments in Chinese philosophy in the early twentieth century (Zhang Taiyan), see Wang Hui, ‘Die Gleichheit neu denken’, paper presented at the Goethe Institute in Bejing, 5 March 2012.1047Hegel, Wissenschaft der Logik I. Frankfurt: Suhrkamp, 1969, p. 160, English quoted from: http://www.marxists.org/reference/archive/hegel/works/hl/hl136.htm#HL1_143; Theunissen, Sein und Schein, pp. 30, 46–7. For Luhmann, too, communicative freedom is crucial, but conceived as the communicative stabilization of arbitrary subjective freedom (of psychic and organic systems). For Luhmann, communication is the medium of cognitive learning of communicative and hence social systems. The actors do not meet each other within the communicative medium, but coordinate their external expectations of reciprocal decisions through self-referentially closed observation of Alter’s understanding of Ego’s informative utterance and vice versa (Luhmann, Soziale Systeme, pp. 159–60). Understanding is the freedom to accept or reject a communicative utterance (Mitteilung) under changing conditions (pp. 205–6). By the negativity of the variation and selection of binary decisions, freedom is continuously being transformed from freedom into freedom (p. 206). Thus, the communicative system learns cognitively to adapt itself to the changing conditions of its environment, to reduce environmental complexity and to build up its own systemic complexity at least as far as is necessary to stabilize the reciprocal expectation of Ego and Alter.

social sciences (Habermas, Luhmann) was prepared by the many linguistic, hermeneutic and pragmatic turns of philosophy and science between 1880 and 1980.1044 It is internally related to an egalitarian concept of communicative freedom.1045 Prior to subjectivity is communication, the only medium of an absolute mediation of Alter and Ego as subjects, which constitutes their subjectivity. Therefore, there is no possible consciousness of a subject beyond the communicative medium of intersubjectivity where Alter and Ego meet.1046 In the communicative relation of Alter and Ego, the status of both is one of absolute equality ‘in which neither would have the advantage over the other of having an in-itself and an affirmative determinate being’.1047 With the last step, all normative problems have become societal problems of social conflict, social struggle, social discourse, social evolution and social understanding, and the only societal reference of the universalization of communicative freedom left is world society. Once world society has become the singular universal, the first normative implication of communicative freedom consists in the extension from a local, particular or national exclusion of inequalities to the global exclusion of inequalities. The latter is the normative ratchet effect of the Egalitarian World Revolution.


Theodor W. Adorno refuted Heidegger with one single sentence: ‘No Being without to be’ (‘Kein Sein ohne Seiendes’). With that one sentence, Adorno


1048Hegel, Phänomenologie des Geistes, p. 29, English translation quoted from http://www.marxists.org/reference/archive/hegel/works/ph/phprefac.htm (01 April 2012). On the historical and systematic beginning of philosophy, see Hegel, Wissenschaft der Logik I (Meiner), pp. 66–7; see Marcuse, Reason and Revolution; Theunissen, Sein und Schein; Ruda, Hegels First Words.1049Adorno, Ästhetische Theorie. Frankfurt: Suhrkamp, 1973, pp. 45–6; see Habermas, Der philosophische Diskurs der Moderne.1050Horkheimer and Adorno, Dialectic of Enlightenment, pp. 27–8, quoted from Rorty, ‘The Overphilosophication of Politics’, Constellations 7:1 (2000), 128–32, at 129. With reason, Rorty adds ironically: ‘Most members of this left [Adorno, Horkheimer and their posthumous American students] are unaware that John Dewey was making the same recommendation quite a while before Horkheimer and Adorno, fancying themselves the first white Hegelians to set a foot on our continent, reached Los Angeles.’ (p. 229).

dismissed Heidegger on the grounds that he was guilty of reifying societal existence, magnanimously neglecting that throughout Being and Time, Heidegger had, in fact, tried to accuse the entire philosophical tradition of reifying performative action and turning it into imaginable and cognitively recognizable objects. Adorno rightly argued (against Heidegger) that Hegel, at the threshold of modernism, had already criticized all metaphysics since Parmenides for wrongly beginning with reified ‘Being’ and for repressing, with this fatal first move, the ‘portentous (ungeheure) power of the negative’ and the epistemic priority of negations and negative opinions.1048 Adorno used Hegel against Heidegger, but criticized Hegel for finally falling back on the metaphysical positivism of speculative sentences such as: ‘The whole is the truth’ (‘Das Ganze ist das Wahre’). Again, Adorno dismissed a philosopher with one single sentence, this time committing high treason against his own negativism: ‘The whole is the untrue’ (‘Das Ganze ist das Unwahre’). This gesture of surpassing distinguishes modernism from modernity.1049 Hegel accused Kant of idealizing his own discovery of regulative ideas, Kierkegaard and Marx accused Hegel of neglecting his own idea of concrete societal praxis, Nietzsche and Heidegger accused all of them of the same thing and Marcuse did the same to Heidegger. Rorty and Adorno accused Heidegger of a pagan elitism that is still due to metaphysical dualism, and Rorty accused Adorno of the same thing. Dewey, Lukács and Heidegger criticized all former philosophy (and each other) for reifying practical relations between human beings and considering them as something fixed and pregiven that is ahistorical and unchangeable. Horkheimer tried the same with Dewey (with limited success), criticizing him for ‘determining the abstract spatio-temporal relations of the facts which allow them to be grasped’, instead of thinking of these facts as ‘the superficies, as mediated conceptual moments which come to fulfilment only in the development of their social, historical and human significance’.1050 Philosophers such as Heidegger and Horkheimer, Lukács and Dewey have argued that this fatal mistake is due to the understanding of


1051Williard v. Orman Quine, Logic and the Reification of Universals, in From a Logical Point of View. New York: Harper, 1963 (1953), pp. 102–29; Ludwig Wittgenstein, Philosophische Untersuchungen. Frankfurt: Suhrkamp, 1971; see Peter M. S. Hacker, Wittgenstein im Kontext der analytischen Philosophie. Frankfurt: Suhrkamp, 1997.1052Tugendhat, Philosophische Aufsätze, pp. 21–144.1053Marcuse, Reason and Revolution; Theunissen, Sein und Schein.1054See Adorno, ‘Vom Altern der Neuen Musik’, in Adorno (ed.), Dissonanzen. Musik in der verwalteten Welt. Göttingen: Vandenhoeck & Ruprecht, 1956, pp. 102–25.1055Marx and Engels, Communist Manifesto, http://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm#007 (10 April 2012).

the mind (consciousness, thinking) as a mirror of nature. Quine has charged modern and classical logic at once with a similar mistake of the reification of universals, and the late Wittgenstein has criticized his own early work for being a metaphysical reification of the practical use we make of our language.1051 Ernst Tugendhat has raised a similar criticism of Hegel’s and Heidegger’s use of ‘being’ (Sein) as Adorno, but with the advanced means of linguistic and analytical philosophy. Tugendhat (among others) has suggested that one should stop talking about Being (Sein) and Nothing (Nichts) as if they were thing-like entities and instead consider the practical (e.g. the different predicative, existential, tautological or veritative) uses that we make of ‘to be’ and ‘not to be’ in talking, arguing and quarrelling, with other talking, arguing and quarrelsome animals.1052 Other philosophers – such as Michael Theunissen and Herbert Marcuse – have tried to show that Adorno’s criticism of Hegel was already raised by Hegel himself (at least latently), showing that Hegel can defend his own concept of absolute truth only negatively. For this purpose, the Logic functions as a complementary criticism of metaphysics and positivism.1053 Brandom simply made explicit that Hegel’s philosophy implicitly entails Brandom’s own normative logic. Habermas criticized all of them as being either metaphysicians or positivists. The list is endless and goes back and forth in confusing circles, but every critic sees himself at the head of philosophical progress. Progress has become a transcendental notion even in philosophy, and modern philosophy becomes outdated at the same rapid rate as modern scientific theory or modern music.1054

The important point for my argument is that there is a general trend in twentieth-century philosophy and social sciences (frequently in combination with more or less revolutionary gestures) to radicalize again and again the eighteenth-century turn from the immanence of the transcendence to transcendence from within. Drawing up a very rough schema, we can say that there are two different trajectories that both descend from ‘Being’ to ‘to be’, or from ‘Being’ and ‘Nothing’ to ‘to be or not to be’ – making everything ‘melt . . . into air’ before it ‘can ossify’.1055 The first is (1) the fallible (and insofar negative) empiricist (and, again negatively, the deconstructionist) trajectory of abolishing the difference between transcendence and immanence completely (which,


1056Rorty, The Overphilosophication of Politics, p. 131.

however, retains fallibilism and hence has overcome positivism). The second trajectory (2) stays with the post-dualist difference between transcendence and immanence, but in a now completely de-transcendentalized manner. Both (1) and (2) have (more or less) strong egalitarian implications. The controversy between them has not yet been decided, but has become an existing and well-established discursive contradiction. The same is the case with the complementary controversies between (1) instrumental/utilitarian versus (2) deontological ethical doctrines in practical philosophy and (1) liberal versus (2) republican/deliberative models of modern democracy in political theory and legal theory. These two extremes delineate the spectrum of evolutionary possibilities (and the realm of possible arguments).

(1) The (fallible/negative) empiricist trajectory is that of holistic empiricists such as Quine, who abolished the logical autonomy of analytical sentences (and with it their infallibility), made philosophy part of natural science and defined truth as everything that is currently accepted by physics and other natural sciences. The same is the case with holistic functionalism in sociology, as in Luhmann’s theory of social systems. Luhmann has reduced all kinds of truth claims to functional requirements of social systems. Cognitive truth, for instance, becomes the code of the self-referential closure of the scientific system, assisted by the stand-by code of reputation. What is left for super-theories that try to give an account of the totality of modern society (i.e. all sociological theories from Marx to Parsons, from Weber to Habermas, from Durkheim to Luhmann) is the observation, description and functional explanation of society and communicative operations, its subsystems and its environment in the light of a general and abstract theory. But this observation needs a point of reference that is internal to the perspective of a specific system. Hence, it remains within the existing system and cannot transcend that which happens anyway, which is the uncontrollable and contingent occurrence of the evolution. From a systems theory point of view, egalitarian freedom and democracy exist only beyond any claim to truth. Derridean Deconstructionism, Luhmann’s late love, is not that different. It opposes systems theory with radical negativism and unresolvable contradictions, but stays with the stubborn immanentism.

(2) The normative trajectory of immanent criticism is taken by the Frankfurt School, for example. Habermas, in particular, has outlined the idea that ‘human emancipation is an uncompleted project, the only morally worthwhile project on offer’.1056 However, this is so not just because an abstract claim to emancipation is internal to social evolution in itself (which it certainly is, e.g. in terms of the universal validity claims of speech acts), but because there exists a concrete concept of emancipation that is internal to a specific historical formation of


1057On the notion of becoming, see Hegel, Logik I, p. 83 (Suhrkamp edition).1058Gaus, Rationale Rekonstruktion als Methode politischer Theorie zwischen Gesellschaftskritik und empirischer Politikwissenschaft; Patberg, Suprastaatliche Verfassungspolitik und die Methode der rationalen Rekonstruktion For a similar argument, see Brunkhorst, Kommunikative Vernunft und rächende Gewalt, Sozialwissenschaftliche Literaturrundschau Heft 8/9 (1983), 7–34; Brunkhorst, ‘Paradigm-core and theory-dynamics in critical social theory: peoples and programs’, Philosophy & Social Science 5 (1998), pp. 67–110 (orig. in German in Soziale Welt 1983); Brunkhorst, ‘Gesellschaftstheorie’, in Stefan Gosepath, Wilfried Hinsch and Beate Rössler (eds), Handbuch der Politischen Philosophie und Sozialphilosophie. Berlin: de Gruyter, 2008, pp. 416–21; Brunkhorst, ‘Platzhalter und Interpret’, in Brunkhorst, Kreide and Cristina Lafont (eds), Habermas-Handbuch. Stuttgart: Metzler, 2009, pp. 214–20 (english edition forthcoming); Brunkhorst, Neustart – Kritische Theorie internationaler Beziehungen, Zeitschrift für Internationale Beziehungen 17. Jg. (2010) Heft 2, 293–314; ‘Jürgen Habermas und die Kritische Theorie’, in Oliver Jahrhaus, Armin Nassehi, Mario Grizelj, Irmhild Saake, Christian Kirchmeier and Julian Müller (eds), Luhmann-Handbuch. Stuttgart: Metzler, 2012, pp. 288–95; Brunkhorst, Kritik und Kritische Theorie – Personen, Programme, Positionen. Baden-Baden: Nomos, 2014 (forthcoming), Chs 1, 4, 5, 8 and 18.

the existing notion of the Kantian constitutional mindset. The revolutionary legal implementation of the normative constraints of, for instance, autonomy and representative government in the eighteenth century, or the global exclusion of inequalities in the middle of the twentieth century was nothing but a highly unlikely evolutionary accident. At the beginning of the French and American Revolutions, nobody bet a penny on the success of the revolution, and rightly so (given all facts known at the time). If these revolutionary movements had been suppressed successfully from the beginning, evolution would have taken another path (and nobody knows whether for better or for worse). Revolutionary advances are not at all necessary and predetermined as a mysterious potentiality of ‘Being’, or as the ‘essence’ of humanity or the ‘substance’ of communication, or as an ‘existing notion’ that unfolds its telos in a long history of alienation and reappropriation. Only insofar as revolutionary or other contingent evolutionary inventions become evolutionary universals can they be inferentially referred back to earlier inventions (such as language, social norms etc.) – that is, retrospectively, and only retrospectively.1057

These are matters, of course, which are mentioned here only because particularly Habermas’s theory is often misunderstood as a normative theory that confronts bad reality with a kind of transcendental normative ideal of the universal conditions of speech acts (in a similar way as the ‘original contract’ is used in the contract theory of civil society from Hobbes to Rawls as a mirror of nature, which then functions as a measure of social reform). However, this is a complete misreading. The contrary is true, as Daniel Gaus has rightly argued recently.1058 In the social (or socio-psychological or socio-linguistic) theories of thinkers such as Marx, Durkheim, Piaget, Chomsky and Habermas, it is


1059Brunkhorst, ‘Zur Dialektik von realer und idealer Kommunikationsgemeinschaft’, in Andreas Dorschel (ed.), Transzendentalpragmatik. Ein Symposion für Karl-Otto Apel. Frankfurt: Suhrkamp, 1993, pp. 342–59, at 345.1060Luc Boltanski, key-note adress at Frankfurt Soziologentag, 2010.1061See Theunissen, ‘Krise der Macht’, in Hegel-Jahrbuch 1974, pp. 318–29; Bubner, ‘Logik und Kapital – Zur Methode einer Kritik der politischen Ökonomie’, in Bubner (ed.), Dialektik und Wissenschaft. Frankfurt: Suhrkamp, 1973, pp. 44–88; Hindrichs, Logik und Kapital, Lecture (Ms) Flensburg University, 2013.

not the theory or the philosopher who first constructs (or reconstructs) an ideal speech situation (or whatever ideal happens to be available in the market place) and then (as in an outdated correspondence theory of truth) compares the ideal with bad reality.1059 On the contrary, theory has to obtain the power of the negative entirely from its involvement in the practical operations of negation and affirmation which its subjects perform every day within the existing contradiction of society.1060 As in the Young Hegelian and, in particular, in the Marxist tradition of social theory, the concrete notion of emancipation which is the basis of social criticism is the universal and egalitarian freedom of the moderns. The latter cannot be derived from the universal truth and validity claims that are co-original with normative social integration and the take-off of social evolution. On the contrary, the emancipatory power of the negative, which presumably has been inherent in every performance of a speech act since the take-off of social evolution, can be recognized and used as an abstract category of emancipation only from the perspective of the much later and accidentally invented concrete category of emancipation that is the basis of our ‘uncompleted project’ of ‘human emancipation’. The historical existence of the former as an evolutionary universal depends entirely on the later revolutionary invention, and on this invention becoming universal. From our perspective, one can easily recognize that the abstract emancipatory potential of the communicative use of symbolic gestures is a necessary precondition and implication of the concrete idea of egalitarian and universal mass democracy.

The point is that the normative idea (not an ideal, but just a good idea) of an unfinished project of modernity (in accordance with Hegel’s Logic and Marx’s Capital)1061 is not external to society, but completely internal to it, first, as an empirical theory of society that operates within the society as a communicative endeavour, and second, by virtue of the general assumption that the people position themselves, in their own communicative actions, in relation to such a project, because they are themselves constrained normatively by certain standards of rational argumentation, which are those of the Kantian mindset


1062See Gaus, Rationale Rekonstruktion als Methode politischer Theorie zwischen Gesellschaftskritik und empirischer Politikwissenschaft. The standards and constraints are not those of the old Roman Empire. Therefore, by the way, it would be simply self-righteous to criticize the ancient Greeks or Romans for selling and buying slaves, or for killing all males of a defeated city state, which was in accordance with their own rules of virtuous wars. For the same reason, there is a categorical (moral) difference between the black Africans who in the eighteenth century were themselves slaveholders in their indigenous societies and the slaveholders who were committed to the Declaration of Independence.1063Habermas, ‘Die Philosophie als Platzhalter und Interpret’, in Dieter Henrich, Hg. Kant oder Hegel? Stuttgart: Klett-Cotta, 1983; see Gaus, Rationale Rekonstruktion als Methode politischer Theorie zwischen Gesellschaftskritik und empirischer Politikwissenschaft, p. 251; see Brunkhorst, Platzhalter und Interpret.1064Benjamin, ‘Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit’, Kommentar von Detlev Schöttker. Frankfurt: Suhrkamp, 2007, pp. 7–50, at 35.

of modern society.1062 One of the many paradigm cases here is Piaget’s theory of cognitive development, not because it is true, but because of the way in which its methodology differs from ‘idealistic’ contract theories as well as from the older ideal constructions of philosophical and religious world views. Plato and the Buddhists constructed an ideal theory of the polis or the universe to achieve a decentration of egocentrism (which is reached either because ideal education guarantees, behind the veil of ignorance, that I never know whether the man I meet on the street is my uncle, or because the ideal circle of rebirth guarantees, also behind the veil of ignorance, that I take care of the spider in my bath tub because I never know whether it is my mother). Piaget can only show experimentally and from inside every socialization process (if at all) that children themselves are compelled to decentre their egocentrism if they want to solve a certain problem that appears necessary for their societal praxis to work. In this definitively post-Hegelian way, a certain (and important) aspect of the normative heritage of philosophy and monotheism (the decentration of egocentrism) has been transplanted into a scientific research programme, and one can hope that it will work as a ‘booby trap’ (Habermas) within the managerial mindset of scientific empiricism1063: The Blue Flower in the land of technology (Benjamin).1064

However, there is a third trajectory, which is an internal differentiation of the second one. Located in the periphery of normative trajectory (2), this is (3) negative theology or dialectical negativism (for instance, Adorno or Theunissen). The German philosopher Michael Theunissen has reconstructed Hegel’s dialectical logic as a critical theory of communicative freedom that is negative – an endeavour that has become possible only retrospectively, after the sociological turn to society, and after the linguistic and communicative turn of philosophy and social science. Theunissen argues that Hegel’s Logic does not instrumentalize negation for a final affirmation of the existing


1065Theunissen, Sein und Schein, p. 471.1066Hegel’s grave (together with that of Mr and Ms Fichte, which presents the same constellation of agnosticism and cross) can be visited at Berlin’s famous Dorotheenstädtischer Friedhof at the Oranienburger Tor.1067Theunissen, Sein und Schein, p. 40 (my transl.).1068Ibid., p. 415.1069Ibid., pp. 416–17 (‘in seiner Noch-Nicht-Vernünftigkeit gleichwohl schon als Vernunftorgan’), see pp. 415, 451. Therefore, the rational meaning of speculative sentences (such as ‘Being is the Being of everything that is’, ‘God exists’, ‘Reality is the state of reason’, ‘The whole is the truth’) no longer could be presupposed as something unchangeable and immediately given (and Hegel, Adorno and Tugendhat rightly rejected ‘pure Being’ as nothing that is beyond ‘to be or not to be’). On the contrary, the rational meaning of the speculative sentences could only consist in their negative power of ‘liquefaction’ that emancipates us from all affirmative illusions of metaphysics and its ontology of a ‘Being’ that is beyond and before negation (pp. 426–9).1070Theunissen, Sein und Schein, p. 415. I have to thank Tilo Wesche for a discussion of this point.

world order, but that, on the contrary, his negative dialectic has the double purpose of (a) getting rid of positivism and metaphysics and (b) providing a first and last rational justification for his early philosophy of association (Vereinigungsphilosophie), which had strong theological roots. The latter are the source of ‘Hegel’s repressed utopia.’1065 In this utopia, a communicative association of love that is universal should replace and sublate the ancient idea of a polis, which Hegel called the beautiful ethical life of the Greeks (which is still beautiful, but does not work under modern conditions), as well as the Christian theology of salvation (which, for Hegel and his male chauvinism, was good at best for a cross and a consolatory quotation for the grave of his wife – whereas the philosopher needed neither).1066 To bare the theological roots of the philosophy of association, it needed a deconstruction of the whole Christian tradition of onto-theology (which is Heidegger’s term, but nicely matches the basic plan of Hegel’s Logic). This deconstruction consists in a systematic dissociation of metaphysical ontology and (this being the very point) post-metaphysical theology, which is the final result of the one, long argument of Hegel’s Logic. Only then could Hegel hope to ‘emancipate theology from its oppressive clutch by a reifying ontology’.1067 Such a project could be realized rationally if and only if it remained negative to the end, including the negative outcome of the negation of negation. ‘Negativity is the price for our emancipation from the illusion (Schein) of an unchangeable world (Vorgegebenheit).’1068 Under modern conditions, only the discursive rationality (Verstand) of the negative was left to operate as the emancipatory organ of the ‘not yet’ reached ‘state of reason’ (Vernunft).1069 Complete negativity is not the weakness, but the strength of Hegel’s theory (and his weakness is that he did not always follow it, as, in particular, in his Philosophy of Right).1070


1071The classical distinction between context of justification versus context of discovery was invented by Hans Reichenbach in 1938. It functions as a criterion of demarcation between that which counts as a possible (justifying) argument that is right or wrong and that which no longer counts as a possible justification but still is of heuristic value in the context of discovery (and because of the fallibility of all knowledge all outdated or silenced and excluded knowledge may, at some point, get back into the context of justification).1072Theunissen, Sein und Schein, p. 46f.

The point is: From the negative point of view (unsurprisingly and in accordance with the established standards of rational discourse), positive theology could be excluded from the context of justification at the outset.1071 But, and this is the surprising point, the same is not true of negative theology and dialectical negativism. Weber was wrong with his famous statement that for those who could not stand scientific disenchantment like a man, the old churches’ arms were still wide open. This was true, but not for all theological endeavours. Negative theology and dialectical negativism resisted and sustained themselves within the context of justification. Moreover, they became, and still are, thorns in the flesh of empiricism (1) and critical theory (2) precisely because they can point to the limits of the normative universalism of both empiricism and critical theory, namely, their anthropocentrism and the unsolved problem of anamnetic solidarity (which the Papal Revolution had, for its time, solved).1072 Not unlike scientific discourse and critical theory, neither negative theology nor dialectical negativism can justify negatively the utopia of a completely de-centred communicative freedom (where does it end?), a reconciled nature (Adorno), or the solidarity with those who have passed away (Horkheimer). But the utopian decentring perspectives of solidarity, freedom and reconciliation cannot simply be excluded from the context of justification (or of possible arguments), because they are unsolved (and probably unsolvable) problems (but problems still in need of solution) that limit the universality of a rational society which realizes communicative freedom. For Buddhism, for example, the universal inclusion of all living and dead animals was no problem, because the cockroach in my kitchen could be my grandfather who had passed away, and hence should be treated like a relative. Modern critical as well as empiricist attitudes cannot rationally reconstruct the Buddhist moral intuition. They all end up where the morality implied in the Rawlsian veil of ignorance ends up. But the moral universalism of the Rawlsian veil of ignorance obviously is a regression in relation to the moral universalism of the Buddhist veil of ignorance. The same is true of a legal and constitutional universalism that neglects the unresolved contradiction between democratically legitimated law and the violence which is still used to enforce it, but which presumably cannot be legitimated democratically. Therefore, Kant’s cosmopolitan project rejected the very possibility of any just war categorically, and, moreover, Kant explicitly left the Platonic idea of a law


1073See Kant, Zum ewigen Frieden, p. 212 (‘There ought be no war’, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm, 5 May 2012); Kant, Kritik der reinen Vernunft. Berlin: de Guyter, 1969 (second edition 1787), p. 248 (abolition of punishment); on the problem, see Loick, Kritik der Souveränität.1074Recently: Waldhoff, Staat und Zwang. München: Schöningh, 2008, pp. 53–4.1075On the legal doctrinal problems, see Möllers, Staat als Argument, pp. 285–99; from a more speculative point of view, see Benjamin, Kritik der Gewalt.1076See Theunissen, Sein und Schein, pp. 458–9.

that needs no punishment on his agenda of radical reformism.1073 As long as (different from Kelsen, see next part 3) the state is separated from the right, the state can be constructed as the facticity that is defined by its capacity to enforce the law violently.1074 However, once state and right are identified, the deliberative normativity of democratically created law must be dissolved from any concept of a state that operates within a legal vacuum. As a consequence, any construction of an internal relation between law and coercive power (which is at the core of all pre-democratic theories of substantial state sovereignty) becomes problematic, and reveals itself as contingent.1075 Thus far, negative theology and dialectical negativism operate as the existing contradiction of critical theory and fallible (post-positivist) empiricism. Therefore, the whole potential of rationality and communicative freedom has not yet been exhausted by the discourse of modernity. This keeps the discourse open for the irruptive transcendence of a (crypto-monotheist) weak messianic power (Benjamin), the (post-monotheist) non-identical (Adorno), or the small but all-decisive difference between undifferentiated identity (unterschiedslose Identität) and total equality (totale Egalität) that separates the horror from the utopia of an individualistic and republican communism.1076

(3) Modernism

The great and revolutionary transformations of philosophy and social science (including legal theory) occurred mostly between 1880 and 1930: the turn to society, to practical language use and to communication. They were accompanied by a radical (and self-radicalizing) criticism of dualism, representation and reification. For the philosophy of the twentieth century, these three criticisms are significant. Since the beginning of the century, an ever more radical criticism of the metaphysical dualism of an internal consciousness of the subject which mirrors, reflects or represents an outer world of objects has been emerging. Representation is criticized as a misguided form of the reification of thinking, talking and communicating (i). This criticism has massive consequences for a critical political and legal theory. (ii). I will discuss, in particular, the consequences of the newest modernism for legal theory (iii).


1077See Rorty, Philosophy and the Mirror of Nature. Princeton: Princeton University Press, 1980.1078See Karl R. Popper, Objektive Erkenntnis. Ein evolutionärer Entwurf. Hamburg: Hoffmann und Campe, 1977. Res extensa and res cogitans are the famous things distinguished by Descartes.1079Brandom, Making It Explicit, pp. 614–16.1080A lot of very different philosophical schools and philosophers of the twentieth century are in accordance when it comes to the critique of metaphysical dualism and reification, even if not all would agree that this criticism also has practical and political implications. This list includes thinkers such as John Dewey, Georg Lukács, Martin Heidegger, Max Horkheimer, Ludwig Wittgenstein, Ernst Cassirer, William van Orman Quine, Hannah Arendt, John Austin, Gilbert Ryle, Paul Lorenzen, Hans-Georg Gadamer, Wilfrid Sellars, Thomas Kuhn, Richard Rorty, Donald Davidson, Hilary Putnam, Karl-Otto Apel, Michel Foucault, Jacques Derrida, Jürgen Habermas, Robert Brandom, Judith Butler and many others.1081Brandom, Making It Explicit, p. 619.

(i) The dualistic metaphysics consists in the idea that consciousness, thinking or the logical form of language must be understood as a mirror of nature (optical metaphor).1077 From Plato to Popper, the basic ontology of dualism contains two or three separate worlds, for example: World I of physical objects (res extensa), World II of (subjective) concepts and World III of (objective) ideas (res cogitans).1078 The dualisms that survived even the Kantian normative and practical criticism of metaphysics are the dualisms that contrast the conceptual and the non-conceptual, or, in Kant’s terminology, concepts (Begriffe) and intuitions (Anschauungen). The contrast of concept and intuition is divided into the three sub-contrasts of Kant’s Critique of Pure Reason: (1) form versus matter, (2) the general versus the particular and (3) products of spontaneity versus products of receptivity.1079 Linguistic, hermeneutic and pragmatic philosophy has replaced these dualistic contrasts (of categorically different spheres of being) by a continuum of distinctions (related to their practical use).1080 Conceptual knowledge or understanding of meaning does not belong to another sphere of being than empirical knowledge. The idea of something non-conceptual that exists beyond our concepts, judgements and normatively regulated communicative practices has been dropped. Concepts, ideas, idealized presumptions etc. are not compared with anything else that is really actual (wahre Wirklichkeit), but are used, and work or do not work, within a certain praxis that belongs to the same reality as everything else. ‘Concepts’ are related inferentially ‘to other concepts, not to something of another kind’.1081 The difference between the understanding of meaning and empirical knowledge is determined not by the world of objects out there (the thing in itself), but by successful or failing practices, and the discursive acceptance of the better argument that is implicit in these practices. Usually (but not necessarily always), understanding of meaning is more stable than empirical knowledge (and hence withstands criticism longer). In this case, the contrast of concept and actuality has been replaced by a continuum of gradual differences of more or less stable knowledge that is useful for solving problems.


1082See so far in accordance: Habermas, Wahrheit und Rechtfertigung, pp. 7–64; Rorty, ‘Universality and Truth’, paper presented at Frankfurt University on 14 June 1993.1083Luhmann, Soziale Systeme, p. 16.1084See Foucault, Discipline and Punish.1085See Adorno, Negative Dialektik; Theunissen, Sein und Schein, p. 59.1086Theunissen, Sein und Schein, pp. 33–4.1087Hegel, Logik II, http://www.marxists.org/reference/archive/hegel/works/hl/hlidea.htm#HL3_754 (28 April 2013), see Brunkhorst, Adorno and Critical Theory, pp. 3–5, 58, 109–13.1088See Marcuse, Eros and Civilization.

Concepts are changed and replaced by other concepts, if the praxis regulated by them does no longer work in the right way, and if the reasons given for their problem-solving capacity are no longer acceptable. Concepts are means of learning. They are changed if we learn by adverse effects or conflicting reasons. The correspondence theory of truth, which presupposes the dualisms of the intellectual and the actual, and of meaning and experience, therefore, is replaced by a discursive theory of truth, which only refers to a specific kind of conceptually mediated communicative (including technical) praxis – a praxis indeed that cannot construct and do everything, but has to take into account the recalcitrance of an always already conceptually prestructured world.1082 Systems exist.1083 But discourses, arguments and concepts also exist (as Hegel rightly saw). And systems are always already described by themselves or by others.

(ii) Criticism of metaphysical dualism, representation and reification has a political dimension – at least for (neo- and post-Marxist) critical theory and American pragmatism (Dewey, Mead, Rorty and others). All three Kantian (and other metaphysical) dualisms have to face a double criticism that is cognitive and normative. Critical theory has argued that the dualistic contrasts that govern old European thinking until the latest modernity of the twentieth century have a social content: The first contrast of form vs. matter correlates with the disciplinary formalism of power.1084 The second contrast of the general vs. the particular has the social meaning of a repressive subsumption of the particular under the general, or, in Adorno’s terms, of repression of the non-identical by identifying thinking.1085 Metaphysics (as Hegel has shown already) is positivism, and positivism is metaphysics.1086 Therefore, Adorno argues that both metaphysics and positivism are two sides of the same coin of identifying thinking, coercing a false reconciliation and procuring a good conscience for the beneficiaries of the existing order. The very possibility of giving utterance and expression to the non-identical, to difference, alternatives and utopias finds itself repressed: ‘identified’ by ‘the dominant notion’ (machthabender Begriff).1087 The third contrast of cognitive spontaneity vs. sensual receptivity amounts socially to a degradation of the senses, of receptivity and passivity.1088 For Horkheimer, metaphysical dualism is an


1089Horkheimer, ‘Zum Rationalismusstreit in der gegenwärtigen Philosophie’, Zeitschrift für Sozialforschung (ZfS) 3 (1934), 48.1090Horkheimer, Zum Rationalismusstreit in der gegenwärtigen Philosophie, p. 46.1091John Dewey, The Quest for Certainty. New York: Capricorn Books, 1960, p. 243.1092Dewey, The Public and its Problems: The Later Works 1925–53. Carbondale: Southern Illinois University Press, 1984 (1927), p. 371.1093Rorty, Contingency, Irony and Solidarity. Cambridge: Cambridge University Press, 1989, p. 45.1094Rorty, Objectivity, Relativism and Truth. Cambridge, MA: Cambridge University Press, 1991, p. 13.

ideology ‘in the service of transfiguration’.1089 Horkheimer blames the dualism of essence and appearance for degrading the real sufferings of history and of real individuals into something supposedly inessential and accidental, which could not touch the higher truth of the ‘Whole’ and the ultimate meaning of history as a ‘Totality’.1090

In a similar way to Foucault, Adorno, Marcuse or Horkheimer, John Dewey has supported the attack on the hierarchical and degrading structure of dualistic thinking with the argument that ‘dream, insanity and phantasy are natural products as “real” as anything else in the world’.1091 Dewey always opposed the hierarchical contrasts of metaphysical dualism for cognitive and political reasons. Thus, he argued that the optical metaphor accords nicely with aristocratic class rule, whereas the ear is the born organ of democracy: ‘The connections of the ear with vital and out-going thought and emotion are immensely closer and more varied than those of the eye. Vision is a spectator; hearing is a participator.’1092 While our concepts are, as we have seen, cognitively related to other concepts, not to something of another kind, human beings are normatively related to other human beings, not to someone or something of another kind that is higher and more perfect than us, like Nietzsche’s Superman (Übermensch). The process of internalization of transcendence that I have tried to describe in this chapter ‘would, ideally, culminate in our no longer being able to see any use in the notion that finite, mortal, contingently existing human beings might derive the meanings of their lives from anything except other finite, mortal, contingently existing human beings’.1093 Pragmatism has drawn similar political consequences from the same philosophical critique of metaphysical dualism as critical theory. For John Dewey, metaphysics was not much more than an ideology in the service of each ruling class, and democratic egalitarianism overcomes it practically. Marx’s famous theses on Feuerbach had anticipated the pragmatist critique of metaphysics as ideology half a century earlier. Dualistic thinking makes it difficult for us, as Richard Rorty writes in full agreement with Horkheimer and Adorno, ‘to listen to outsiders who are suffering’ (because of a lack of solidarity) or ‘to outsiders who have new ideas’ (because of a lack of irony).1094


1095Horkheimer, Zum Rationalismusstreit in der gegenwärtigen Philosophie, p. 46.1096Habermas, ‘Pädagogischer Optimismus vor dem Gericht einer pessimistischen Anthropologie’, in Habermas (ed.), Arbeit; Interaktion; Fortschritt. Amsterdam: Raubdruck, 1970, pp. 181–218.1097Dewey, Experience and Nature. Mineola: Dover, 1958 (1925); Dewey, Art as Experience, The Later Works, 1925–1953. vol. 10. Boydston, J. (ed.), Carbondale: Southern Illinois University Press, 1989 (1935).1098Horkheimer, Zum Rationalismusstreit in der gegenwärtigen Philosophie, pp. 1, 50; Horkheimer, ‘Traditionelle und kritische Theorie’, ZfS 6 (1937), pp. 253, 282 (my translation).1099Horkheimer, Materialismus und Metaphysik, ZFS 2 (1933), p. 26.

For both pragmatism and critical theory, ‘metaphysical optimism’ is the other side of the coin of ‘social pessimism’.1095 Critical theory and pragmatism instead combine metaphysical scepticism with social optimism. In the early 1960s, Adorno’s assistant Jürgen Habermas defended educational optimism against the pessimistic anthropology of the famous German sociologist Helmut Schelsky.1096 If Adorno criticizes identifying thinking and makes himself an ‘advocate of the non-identical’ (Albrecht Wellmer), then one could compare this to John Dewey criticizing philosophical intellectualism from an experimental point of view, which he calls experience.1097 Experience and experimentalism for Dewey are closely related to future and new ways of life, which are not covered by old and past and eternal ideas. ‘Intellectualism’, therefore, can be compared to Adorno’s ‘identity thinking’. Both criticisms of intellectualism and identity thinking coincide with Freud’s and Marx’s critique of the domination of the future by the past. The inner affinity of Horkheimer and Adorno with Dewey, the early Heidegger and the later Wittgenstein results from their shared rejection and political criticism of the dualisms of reality and thinking, surface and essence, concepts and intuitions. Co-operative praxis, the ready-to-hand character of our being-in-the-world, the intricate interconnection of thought and life-form in the language game, all these lead to a radical overcoming and relativization of those hierarchical relationships which have been erected by ontological and epistemological thought since Plato. For Horkheimer, ‘the bifurcation of the world into two mutually independent realms’, the Cartesian isolation of spiritual thinking substance [res cogitans] from spatial reality [res extensa], ‘the dualism of thought and being, of understanding and perception’, is all part of the fatal flaw of philosophical thought.1098 It consists precisely in the idea of representing a reified world which is the ‘demotion of the known world to something utterly external’.1099 Horkheimer’s anti-Platonism, like Dewey’s, has an essentially social and ethical motivation. He explicitly praises the anti-elitist character of the pragmatic principle of instrumental confirmation. The

critical significance [of this concept] vis-à-vis the assumption of a transcendent, more than human truth (which, instead of being in principle accessible to experience and praxis, is reserved only for revelation and the


1100Horkheimer, ‘Zum Problem der Wahrheit’, ZfS 4 (1934), p. 343.1101Quine, Logic and the Reification of Universals; Quine, ‘On what there is’, in From a Logical Point of View, pp. 1–20, at 5–9. For a similar criticism of reifying thinking, motivated by Heidegger and Wittgenstein, see Tugendhat, Einführung in die sprachanalytische Philosophie, pp. 50–1, 86–8.1102Jeremiah 10: 3–9, Bible, New International Version, http://www.centreville-umc.com/Holy%20Bible%20-%20Today%27s%20New%20International%20Version.pdf (7 November 2013).1103Rorty, ‘Putnam and the Relativist Menace’, The Journal of Philosophy 9 (1993), 453.

insight of the elect) turns it into a weapon against any and every kind of mysticism.1100

This critical theory is Heidegger without the historical a priori of the fate of being (Seinsgeschick), and Marx without the confident philosophy of history. The programme of critical theory is, in the first place, a critique of reification, one which overlaps not only with Kant’s theory of normative judgement (Brandom), with Marx’s philosophy of praxis and with Jewish thought, in particular, the ban on images directed against the rule of the optical metaphor (Rorty) and the ‘big eye of the state’ (Foucault), but also with the late Wittgenstein, the post-empiricism of Quine and his critique of the ‘reification of universals’, or Tugendhat’s criticism of the metaphysical reification of the being of truth (veritatives Sein).1101 Not only Adorno uses the prophetic ban on images for his criticism of Platonic metaphysics, but Rorty does so, too, when he applies prophetic rhetoric against the reification of God directly to the philosophical reifications of truth. According to Jeremiah, the graven images are ‘worthless’ for ‘the practices of the peoples’, just ‘cut’ ‘from a tree out of the forest’.

Like scarecrows in a melon patch their idols cannot speak, they must be carried because they cannot walk. . . . They are all senseless and foolish. . . . What the goldsmith and engraver have made is then dressed in blue and purple, all made by skilled workers.1102

Rorty applies this rhetoric to the being of truth:

When we go, so do our norms and standards of rational assertibility. Does truth go too? Truth neither comes nor goes. That is not because it is an entity that enjoys an atemporal existence, but because it is not an entity at all. The word “truth” in this context is just the reification of an approbative and indefinable adjective.1103

The very point of critical theory is that it combines the cognitive or epistemological critique of the reification of universals, of predicates, names and the copula that is the being of truth (‘S is p’) with a practical and normative


1104Lukács, Geschichte und Klassenbewusstsein, p. 94, English quoted from: http://www.marxists.org/archive/lukacs/works/history/index.htm (22 April 2012).1105Marcuse, Reason and Revolution; Theunissen, Sein und Schein, pp. 23–4.1106Theunissen, Sein und Schein, pp. 39, 59, 68.1107Ibid., p. 59 (my translation).1108Ibid., pp. 438–9; Marcuse, One-Dimensional Man.1109Hegel, Philosophie des Rechts, Henrich. ed. Frankfurt: Suhrkamp, 1983, pp. 203–4.1110See Marcuse, One-Dimensional Man.

critique of the reification of ‘a relation between people’ which, as Lukács wrote at the beginning of the Russian Revolution,

takes on the character of a thing and thus acquires a “phantom objectivity,” an autonomy that seems so strictly rational and all-embracing as to conceal every trace of its fundamental nature: the relation between people.1104

Lukács’s famous essay Verdinglichung und das Bewußtsein des Proletariats is based on a complementary criticism of (1) the reification of the meaning of communicative (or practical) activities such as thinking and talking, acting and working, which transforms natural things that are ready-to-hand into real abstractions of supernatural ideas and of (2) the reification of normative relations between people, such as the relations between capitalist and labourer and between governor and governed, which transforms relations between people into the real abstractions of capital and administrative power.

This complementary criticism of cognitive and normative reifications can be traced back to the negativity of Hegel’s Logic, as Marcuse and Theunissen have demonstrated.1105 The cognitive emancipation from ontology is at once the practical emancipation from hegemonic thinking (‘Herrschaftsdenken’) and the beginning of emancipation from the relation of domination (‘Herrschaftsverhältnis’).1106 In the classical metaphysical understanding of the ‘form of judgment’, the ‘relation of subject and predicate’ is conceived as a ‘relation of subsumption’ that ‘ultimately is a relation of domination’.1107 The negativity of Hegel’s Logic can then be used to dissolve the affirmative reifications of Hegel’s Philosophy of Right, as Hegel himself demonstrated in the turn from the predicative (‘S is p’, for example, ‘Paul is a teacher’) to the speculative sentence (‘S is p’ where the ‘is’ means identity and truth, for example: ‘God is being.’ ‘The actual is the universal.’ ‘Man is free.’ ‘Reason is real.’ ‘Reality is reason.’).1108 If sentences such as ‘Man is free’ and ‘´Reality is reason’ are true, then the copula implies a normative imperative, as Hegel himself said in his uncensored lectures.1109 Marcuse calls the truth of the speculative sentence a transcending, contradicting and subversive truth that can be verified only in the process of its practical and political realization.1110 Only the emphasis on negativity can avoid an identification of subject and


1111Theunissen, Sein und Schein, p. 459.1112Ibid., pp. 474–5.1113See Thomas Nagel, The View from Nowhere. Oxford: Oxford University Press, 1986 – and Kettcar: ‘Es gibt kein Aussen mehr/ Kein Drinnen und kein Draussen mehr’, http://www.magistrix.de/lyrics/Kettcar/Kein-Au-en-Mehr-264059.html.1114Kelsen, Hauptproblemen der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze, Werke Bd. 2. Tübingen: Mohr Siebeck, 2008 (1911).

predicate that is abstract in the bad sense and that transfigures and affirms existing reality. However, the negative use of the speculative sentence reveals its utopian dimension, which consists in the critical idea of total equality (totale Egalität).1111 This precisely is the step that Marx took.1112

The double criticism of the dominant notion had a ratchet effect that established a discourse of criticism which still continues, and which radicalizes itself with every new appearance, whether as deconstruction, post-structuralism, feminism, postcolonial studies, post-Marxism or in any other guise. If the view from outside is the view from nowhere, then the only way open for critical theory is the reflexive self-radicalization of critique from within the system.1113

(iii) The legal theory of the twentieth century begins with a critique of the dualisms. This critique goes back, in particular, to Hans Kelsen and the Vienna school of legal theory (Kelsen, Alfred Verdross, Adolf Merkl, Margit Kraft-Fuchs and others). From the very beginning, Kelsen’s critique of dualism goes beyond the conceptual scope of his own neo-Kantian origins, and signifies a turn that is similar to, and simultaneous with, the pragmatic-hermeneutic-linguistic turn in philosophy. They all have a common starting point, and that is, as we have seen, the critique of dualism and of the reifying concept of representation.

Kelsen has neo-Kantian origins, but was a student of Hermann Cohen and not of the Heidelberg School of Heinrich Rickert. While the latter reinforced and ontologized Kantian transcendental philosophy, the Marburg-based school of Cohen and his students radicalized the strong critical, pragmatic and post-metaphysical aspects of Kant’s philosophy. Like the other famous student of Cohen, Ernst Cassirer, Kelsen began his career with a critique of metaphysical dualism. Kelsen had anticipated the end of all regimes of constitutional monarchy theoretically in his Habilitationsschrift on Hauptprobleme der Staatsrechtslehre as early as 1911, the time when so many intellectual revolutions began.1114 He pulled the conceptual rug out from under the monarchy’s constitutional law. He and his students were the only ones in Germany and Austria who emancipated themselves radically from the conceptual framework of statutory positivism propounded by the schools of Laband and Jellinek, and the then hegemonic political philosophy


1115Schmitt, ‘Die deutsche Rechtswissenschaft im Kampf gegen den jüdischen Geist’, in Deutsche Juristen-Zeitung 20 (1936), 1193–99, at 1195.1116Luhmann, Die Politik der Gesellschaft. Frankfurt: Suhrkamp, 2000, p. 333.

of the Hegelian Right. Kelsen’s life-long antipode Carl Schmitt never did. Schmitt engaged in anti-Semitic tirades against Jellinek and Laband (as also against Kelsen and Heller, and in the 1930s he prompted German jurists to use Kelsen’s name only with the then zoologically understood label of ‘the Jew Kelsen’).1115 But Schmitt always stayed within the pre-existing framework of statutory positivism and its metaphysical dualisms. In a pseudo-radical gesture, Schmitt merely replaced the dualisms of statutory positivism with new dualisms, which presumably were meant to be more existential, historical and original than those of Laband and Jellinek. Schmitt’s remolded and overlapping dualisms contrast the formal constitution with the existential constitution, the unchangeable substantial and historical Grundentscheidung of the constituent power with the arbitrary and changeable norms of the constituted power, representative with direct democracy, the state of exception with the normal state, legitimacy with legality and so on. With his ‘unmatched sensitivity for the outdated’, Schmitt reloaded the old monarchic category of legitimacy (the legitimate king), historicized it and replanted it into the alien context of the Weimar Constitution.1116 At the end of the day, Schmitt looked like a resurrected Norman Anonymous (who had played an important counter-revolutionary role at the time of the Papal Revolution).

The crisis of monarchy for Kelsen was not only a political, legal and social crisis, but also a deep crisis of the world view that had framed the nearly 2000 years of monarchic rule in stratified class societies. And, of course, it was a crisis of legal theory. The world view still providing the pre-existing framework of the constitutional monarchy in 1918 was metaphysical dualism, applied to law, state and society. It relied on a cascade of dualisms which were copied and reintroduced again and again at different levels. The cascade of traditional European dualisms in political and legal theory begins with the dualism of the divine (ideal/ transcendental) and the worldly realm (real/empirical world) in the Axial Age. On the next level from the twelfth century, it is reiterated and joined by the dualism of empire and church. It reappears in the two bodies of the king, and evaporates into the disembodied conscience and the secular world from the Protestant Revolution onwards. After the French Revolution, it is copied into the constitutional law of the new parliamentary monarchies such as Austria and Germany, whereas it begins to vanish in the few semi-democratic republics, in particular, in America under the growing influence of pragmatism at the end of the nineteenth century. Kelsen identified, differentiated and abolished


1117The term ‘Staatsrecht’ (state law, or public law of the state) is a very specific German one, stemming from the legal theory of the German empire, and must be distinguished sharply from ‘Verfassungsrecht’, that is, constitutional law. A good English introduction is Peter C. Caldwell. Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism. Durham, N.C.: Duke University Press, 1997. To publish a book on German Staatsrecht in the United States, one needs to translate the term wrongly (at least in the title) as constitutional law, otherwise nobody would understand that the reference of both Staatsrecht and Verfassungsrecht is constitutional law. However, the meaning and all connected theories are as different as (the poetic meaning of) ‘Morgenstern’ and ‘Abendstern’ in Frege’s famous example that revolutionized modern logic. For a more critical account of Kelsen’s critique of legal dualism that tries find a middle ground between Kelsen and Schmitt, see Jean L. Cohen, Globalization and Sovereignty – Rethinking Legality, Legitimacy and Constitutionalism. Cambridge: Cambridge University Press, 2012.1118Forsthoff, Der Staat der Industriegesellschaft, pp. 46–7, 105 (‘“der Staat” und nichts weiter’).1119For a sound criticism, see Möllers, Staat als Argument. Munich: C. H. Beck, 2001, pp. 138–9, 166–8, 179, 262–3, 311–12, 328, 360, 370, 428–8–429.1120Möllers, Staat als Argument, p. 263.1121See Kelsen, Reine Rechtslehre, 1934, 2. ed. 1960, reprint: Vienna: Franz Deuticke, 1967; see: Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts, 1920, reprinted by copy: Aalen: Scientia, 1981, 45f; on Kelsen’s concept of sovereignty, see Möllers, Staat als Argument, pp. 251, 254–5.1122Schmitt, Politische Theologie.1123Herbert L. A. Hart, ‘The Ascription of Responsibility and Rights’, Proceedings of the Aristotelian Society, New Series 49 (1948), 171–94, at 183.

particularly the following five dualisms of German Staatsrecht (public law of the state)1117:

1. Dualism of state and law. According to this dualism, the state is conceived as sovereign executive state power, which can throw off the thin garb of the rule of law when it pleases, and act as the state sans phrase, beyond the command of law.1118 According to this doctrine, the national (if not nation) state is an indispensable presupposition of the constitution, but not the other way round.1119 Kelsen counters the dualism of state and law with his famous identity thesis, which denies any difference between law and state. The state is conceived as a legal order within which individual actor’s acts are either legal or illegal. The policeman’s use of coercive power is use of state power only because the legal order has authorized him to use it.1120 The very point is that there is no longer a sovereign power, a state or king who acts beyond the law, but is legitimated by its or his higher authority.1121 In his sophistic contrast of legal acts and acts beyond the law, which nevertheless are addressed by him as juridical acts, Schmitt tried to renew and dynamize the old dualism of state and law.1122 In fact, he conflated brute facticity with normativity. Schmitt’s argument is a good example of a reification of legal decisions by assimilating them to descriptive statements.1123 Kelsen was


1124Kelsen, Diskussionsbemerkung, in Veröffentlichungen der Vereinigung deutscher Staatsrechtslehrer, Berlin, 3/1927, p. 54 et seq., at 57.1125Schmitt, Der Hüter der Verfassung.1126Kelsen, Wer soll der Hüter der Verfassung sein?1127See Hegel, Grundlinien der Philosophie des Rechts, §§ 209–29. All the liberal and progressive interpretations of Hegel from Marcuse to Pippin, from Schnädelbach to Brandom do not change the fact that Hegel separates the higher law of the state from the positive law of society in a dualistic (and no longer dialectical) manner when he (in accordance with Hobbes’s ‘mortal God’) writes that ‘so hoch wie der Geist über der Natur steht, so hoch steht der Staat über dem physischen Leben. Man muss daher den Staat wie ein Irdisch-Göttliches verehren’, and this needs not only Verstand (‘Sprechen und Machen von Verfassungen’) and Vernunft but furthermore even intellektuelle Anschauung (a category sharply criticized by the young Hegel): ‘Es ist nötig, dass man zu einer vernünftigen Sache (i.e. the state, HB) auch die Vernunft der Anschauung mitbringe’ (§ 272, Zusatz).

as realistic as Schmitt about the ‘Gorgon’s head of power’, but refused (like Horkheimer) to transfigure its bloody decisions into a higher law of substantial foundation.1124 For Kelsen, everything that parliament decided, and only this, was valid statutory law. It could not be rejected in the name of a substantial constitutional Grundentscheidung (basic decision) by a supreme court or a president who arrogates to himself the role of a guardian of the constitution.1125 A constitutional or supreme court, therefore, only could abrogate legislative acts that violate democratic procedure (and not those that restrict the rights of big business).1126 The dualism of state and law is closely related to the next dualism, which was, and still is, much more influential and important in Germany than elsewhere.

2. Dualism of state and society. This dualism stems from Hegel’s legal philosophy, and had a tremendous impact on German Staatsrechtslehre (public law of the state doctrine) from Laband to Schmitt and Böckenförde. It includes the first dualism of state and law. For Hegel and the right-wing Hegelian Staatsrechtslehre, positive civil law belongs to society, whereas the public law of the state represents the higher law of the always already living constitution.1127 The dualism of state and society has – similar to Hegel’s whole philosophy – an authoritarian and a liberal side. The authoritarian side protects the state from the grip of civil society represented by parliamentary legislation, and the liberal side protects capitalist society from the regulatory grip and the redistributive power of the state. For the Hegelian Right and for German Staatsrechtslehre, authoritarianism and liberalism, therefore, are not hostile concepts that exclude each other, but belong together like two sides of the same coin. Among the paradigmatic counter-revolutionary works of the time of the Egalitarian Revolution are Schmitt’s Verfassungslehre (1928) and


1128On Hayek, see Kelsen, ‘Demokratie und Sozialismus’ (1954), in Norbert Leser (ed.), Demokratie und Sozialismus. Ausgewählte Aufsätze. Vienna: Verlag der Wiener Volksbuchhandlung, 1967, pp. 170–210; On Hayek and Schmitt, see William E. Scheuermann, ‘The Unholy Alliance of Carl Schmitt and Friedrich A. Hayek’, Constellations 4 (2004), 172–88; Vatter, ‘Foucault and Hayek: Republican Law and Liberal Civil Society’, in Vanessa Lemm and Miguel Vatter (eds), The Government of Life: Foucault, Biopolitics, and Neoliberalism. Fordham University Press, 2014, pp.163–86.1129Möllers, Staat als Argument, pp. 68–9; see pp. 233, 244–5 (the differentiation and specific relation of state and society is due to the legal order or legislation, and does not precede it), 316, 423 (state as differentiated part of society).1130Critically Möllers, Staat als Argument, pp. 303, 431.

Hayek’s The Constitution of Liberty (1960).1128 Kelsen’s attacks on these and the subsequent dualisms of authoritarian and neo-liberal legal theory criticize the construction of the realm of law and state as a hierarchical and ontological order of categorically different spheres which are reciprocally impermeable and do not allow for interference. For Kelsen (as for the Enlightenment), the state is nothing else than the civic self-organization of society, and therefore, there are only differences which can be reconstructed as a continuum of (quantitative or qualitative) distinctions, but there is no dualism of different spheres of being that does not allow for reciprocal interference.1129 The dualism of state and society is now combined with further dualisms, especially the dualistic interpretation of the difference between private and public law (3.) on the one hand, and that of national and international law (4.) on the other. On both sides of the state, the inner side and the outer side, there exists a societal sphere, on the inside bourgeois society, and on the outside the society of states (or nations).

3. Dualism of private and public law. This dualism is significant not only for theory, but also has a highly political meaning, which allows for the total exclusion of parliamentary legislation from interfering in the sphere of private property, and hence for a nearly total disempowerment of Parliament in modern capitalist societies. In the dualistic interpretation, the primary and essential law is the public law of the sovereign state, whereas contracts between private actors are secondary and of another category of law.1130 They are (in the same way as we have seen in the case of state versus law) beyond sovereignty, but presuppose sovereignty. The categorical difference between two reciprocally impermeable spheres makes it impossible to transgress the borders without revolutionary and violent change. The practical meaning of the dualism of private and public law during the German Empire and the Weimar Republic, as well as during the Lochner Era in the United States, was to block any social and socialist reform. On this side of the constitution, there is no way out of the dualistic trap – and Schmitt used this to construct the so-called Grundentscheidung of the Weimar Constitution as a constitutional prohibition


1131Schmitt, Legalität und Legitimität, 1932, Berlin: Duncker & Humblot, 1968; for a devastating early criticism, see Otto Kirchheimer, ‘Legalität und Legitimität’, in Kirchheimer (ed.), Politische Herrschaft. Frankfurt: Suhrkamp, 1967.1132See Kelsen, ‘Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffassung’ (1931), in Demokratie und Sozialismus, pp. 69–136; Kelsen, Demokratie und Sozialismus; for an old but still brillant analysis and representation of Kelsen’s position, see Peter Römer, ‘Die reine Rechtslehre Hans Kelsens als Ideologie und Ideologiekritik’, Politische Vierteljahresschrift 12 (1971), 579–98.1133See Kelsen, Allgemeine Staatslehre, p. 235.1134Kelsen, Vom Wesen und Wert der Demokratie, 2. Aufl. 1929. Aalen: Scientia, 1981.1135Kelsen, Staatslehre, 321ff; Kelsen, Wesen und Wert der Demokratie, 94, 101f; see also Kelsen’s assistant and disciple: Margit Kraft-Fuchs, ‘Kelsens Staatstheorie und die Soziologie des Staates’, Zeitschrift für öffentliches Recht Bd. IX (1930), 511–41, at 522, 527 (quoted from the photographic reprint: Frankfurt: Sauer & Auvermann, 1969).1136Heller, ‘Der Begriff des Gesetzes in der Reichsverfassung’, 1927, in Gesammelte Schriften. Leiden: Sijthoff, 1971, p. 262.1137Kelsen, Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffassung, p. 73 et seq., 110 et seq., 118 et seq., 126 et seq.

against any parliamentary legislation that limits liberalism and introduces elements of socialism.1131 Kelsen sharply attacked this dualism throughout his life.1132 Schmitt and Hayek tried to stabilize it with the legal doctrine that Parliament can only enact semantically general laws, and hence cannot enact singular laws or decrees, for instance, ones that regulate the expropriation and nationalization of the estate of the royal family (a famous issue in the early Weimar Republic), or the nationalization of heavy industry, the distribution of assets, the increase of taxes, etc.1133 In contrast, for Kelsen, the distinction of private and public law is a matter of changing parliamentary legislation (or referenda), and everything Parliament decides, but only that which Parliament decides (whether formally it is a general law or a particular law, a decree, or even a judicial decision) is the law. Kelsen and Heller are acting in concert in this respect. They have always argued for the input theory of the generality of parliamentary statutes.1134 Parliamentary statutes (laws, Gesetze) are practically (and not necessarily semantically) general because they are an expression of the general will that is realized through the procedurally (equal, free and fair) regulated will of the majority. Parliamentary statutes are due to a procedural ‘method’ that is designed to construct and engender law democratically.1135 Hermann Heller has put this in a paradigmatic formulation. In a democracy, ‘everything that Parliament [Volkslegislative] decides, and only that which Parliament decides, is statutory law’.1136 General as well as individual laws (decrees) are statutory laws enacted by Parliament. This legally enables the parliamentary transformation from capitalism to socialism and the socialization of the means of production.

The critique of the dualism of private and public law has another important political implication for Kelsen’s double criticism of bourgeois law and the communist legal theory of Pashukanis.1137 What makes Kelsen’s criticism


1138Ibid., pp. 119–20. Without reference to Kelsen, Robert Fine has raised a similar criticism from a Marxist point of view: Fine, Democracy and the Rule of Law, pp. 157–61.1139Kelsen, Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffassung, p. 126.1140Kelsen, Sozialismus und Staat. Eine Untersuchung der politischen Theorie des Marxismus. Leipzig: Hirschfeld, 1920; Kelsen, Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffassung. For a sound critique of the dualistic hypostasization of private property by Hayek, and earlier by Locke and Hegel, see also the late essay: Kelsen, Demokratie und Sozialismus. There is now an ongoing controversy on these issues. The side of Pashukanis is taken by China Miéville, Between Equal Rights: A Marxist Theory of International Law. Leiden-Boston: Brill, 2005; a position of equal distance is taken by: Buckel, Subjektivierung und Kohäsion – Zur Rekonstruktion einer materialistischen Theorie des Rechts, Weilerswist: Velbrück Wissenschaft, 2007; Buckel, ‘Judge without Legislator’, in Brunkhorst and Rüdiger Voigt (eds), Rechts-Staat. Staat, internationale Gemeinschaft und Völkerrecht bei Hans Kelsen. Nomos: Baden-Baden, 2008, pp. 273–86, here: p. 274 et seq.; finally, for a defence of Kelsen’s egalitarian democratic radicalism, see Somek, ‘Das Mehrheitsprinzip in der Demokratie. Überlegungen zu einer Kontroverse zwischen Max Adler und Hans Kelsen’, Deutsche Zeitschrift für Philosophie, 49 (2001), 397–420; Moreover, recently. the great essay: Somek, Kelsen Lives, The European Journal of International Law 3 (2007), 409–51.

so interesting and topical even today is that Kelsen does not just take an intermediate position between bourgeois and communist doctrines of law (as the Third Way theories did in post-World-War-II Europe), but also goes beyond both of them. Kelsen attacks Pashukanis not for being a socialist, or for being a far too radical critic of bourgeois law, but for being not radical enough. Kelsen asks himself why does Pashukanis not understand ‘that methodological criticism is the specific means for the radical destruction of ideologies’. For Kelsen, such doctrinal blindness was characteristic of ‘bourgeois legal ideologists’ who rejected ‘anti-ideological opposition’ as the ‘decadence of bourgeois science’. Bourgeois legal ideologists (by which Kelsen means all of German Staatsrechtslehre) ‘shudder at the thought’ that the ‘dissolution of the different ideological dualisms’ of constitutional theory is a ‘symptom of the final decay of the capitalist era’. However, why does ‘the Marxist Pashukanis’ share bourgeois doctrinal blindness? Kelsen’s answer is that Pashukanis ‘places himself at the service of those whom he claims to combat’, because he still thinks and argues within the categorical framework of bourgeois legal theory.1138 This is so because Pashukanis takes the bourgeois theory of the ‘pre-legal history’ of property as constitutive for the formal relation of property owners, but does ‘not realize that his appeal to the pre-legal “organic principle of private appropriation” uncritically is facing one of the most dangerous bourgeois legal ideologies’.1139 In this respect, Schmitt and Pashukanis belong to the same family as the Norman Anonymous: that of those excluded by the ratchet effect of a great revolutionary transformation. Communist legal theory is still categorically bound to the pre-existing framework of bourgeois legal theory and its basic dualisms.1140 Instead of concluding from his criticism of the illusion of just exchange that the legal form of exchange must be overcome and the bourgeois dictatorship of capital over labour in the realm of production


1141See Fine, Democracy and the Rule of Law, pp. 158–9.1142For the latter thesis on the imperialism which is inherent in the realms of the national and the international, see Kelsen, Das Problem der Souveränität. On the critique of dualism in international law, see Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft. Vienna-Berlin: Springer, 1926, pp. 37–8, 101–7, 128–9.1143Again, we can find both of them already in Hegel’s philosophy of law, see Hegel, Grundlinien, §§ 260–329 (inneres Staatsrecht, based on the dualisms of state and society, private and public law) and §§ 330–40 (äußeres Staatsrecht).1144See Kelsen, Allgemeine Staatslehre, pp. 195–6; Kelsen, Problem der Souveränität, p. 204 et seq.; Verdross, Die Verfassung der Völkerrechtsgemeinschaft, p. 24 et seq., 101 et seq. (against the dualism of covenant/ treaty vs. constitution); 128–9; see Bernstorff, Jochen von, Der Glaube an das universale Recht. Zur Völkerrechtstheorie Hans Kelsens und seiner Schüler, Baden-Baden: Nomos, 2001, pp. 113, 136 et seq.1145Brunkhorst, ‘Der lange Schatten des Staatswillenspositivismus’, Leviathan 3 (2003), pp. 362–81; Christoph Schönberger, Das Parlament im Anstaltsstaat. Frankfurt am Main: Klostermann, 1997. Statutory positivism (see Caldwell, Popular Sovereignty) is only the second best translation. Staatswillenspositivismus (Schönberger) fits nicely with German Staatstrecht, but seems (for that very reason) untranslatable.1146‘Völkerrecht und Landesrecht sind nicht nur verschiedene Rechtstheile, sondern verschiedene Rechtsordnungen. Sie sind zwei Kreise, die sich höchstens berühren, niemals schneiden’. (Heinrich Triepel, Völkerrecht und Landesrecht. Leipzig: Hirschfeld, 1899, p. 111.

simply replaced by the socialist dictatorship of bureaucracy over labour, Pashukanis first should have changed (with Marx) his premise from illusion to contradiction (claiming that bourgeois legal form is not merely unjust, but the existing contradiction of justice and injustice). Secondly, he should then have concluded (with Marx and Kelsen) that not the legal form in itself, but the private form of domination of capital over labour in the sphere of production must be abolished by democratic legislation.1141 Kelsen’s criticism of the dualisms of bourgeois legal doctrines enabled Kelsen to produce a critique of bourgeois law from a leftist point of view that is at once more radical and more reformist than that of contemporary communist legal theory.

4. Dualism of national and international law. This dualism is, Kelsen argues, firmly at the service of political and economic imperialism.1142 The last two dualisms, of private and public and of national and international law, are located on the inner and the outer side of the bourgeois national state. Therefore, they are constitutive for the legal construction of that specific state.1143 Moreover, the dualism between national and international law is closely related to the complementary dualism that splits (national) constitutions off from (international) treaties or covenants.1144 Heinrich Triepel once expressed the dualism of national and international law in a formulation that was exemplary for the whole pre-existing framework of German Staatswillenspositivismus1145 or statutory positivism: ‘National and international law . . . at most . . . touch one another, like two circles at their tangent, but they never overlap.’ Hence, they are two ‘impermeable’ ontological orders of law, and not just different parts of legal theory.1146 Dualism means: No transgression permitted at any


1147See Kelsen, Gott und Staat (1922/1923), in Kelsen (ed.), Aufsätze zur Ideologiekritik. Neuwied and Berlin: H. Luchterhand, 1964, pp. 29; and, in particular, on the authoritarian roots of Jellinek’s Selbstbindungslehre (law as self-binding of the state) see already: Kelsen, Hauptprobleme, pp. 401.1148Kelsen, Das Problem der Souveränität; Verdross, Die Verfassung der Völkerrechtsgemeinschaft, pp. 37–8.1149Kelsen, General Theory of Law and State, trans. by Anders Wedberg, Clark, NJ: Lawbook, 2007, pp. 305ff, 306, 318.1150Verdross, Die Verfassung der Völkerrechtsgemeinschaft, pp. 41, 48–9.1151Kelsen, Eine Grundlegung der Rechtssoziologie, Archiv für Sozialwissenschaft und Sozialpolitik 39 (1915), 839–76, at 854–5; see Horst Dreier, ‘Hans Kelsen und Niklas Luhmann: Positivität des Rechts aus rechtswissenschaftlicher und systemtheoretischer Perspektive’, Rechtstheorie 14 (1983), 419–58; on Kelsen and Luhmann, see also Fischer-Lescano, Monismus, Dualismus? – Pluralismus. Selbstbestimmung des Weltrechts bei Hans Kelsen und Niklas Luhmann, in Brunkhorst and Voigt (eds), Rechts-Staat, pp. 207–35; see Luhmann, Recht der Gesellschaft.

time! Once the young Kelsen discovered the dualistic framework of German Staatsrechtslehre, he recognized that it was irredeemable.1147 To overcome the dualism of national and international law, of national constitution and international treaty, Kelsen replaced the national state with a continuum of statist orders reaching from the evolutionary ‘primitive’ state to the complex, internally differentiated and centralized national state, and finally ending up with the cosmopolitan state.1148 In his General Theory (‘Allgemeine Staatslehre’), Kelsen then analysed and constructed the many different statist formations between the limiting polar cases of totally centralized and totally decentralized regimes as an open continuum of unlimited possibilities of form, different ‘numbers of stages’ and ‘quantitative’, ‘comparatively high . . . and low degrees’ of centralization with ‘certain measures of constitutional autonomy’.1149 But even with a low degree of centralization, the legal order of international law is an order of the law of subordination and not of the law of coordination (the latter being an illusion produced by dualism).1150

Kelsen’s critique of the five dualisms (a) is cognitive criticism and (b) accords well with the sociological insight of the societal character of all law (and the societal turn of the twentieth century): ‘The whole development of law,’ Kelsen stated already in 1915, ‘takes place as a societal process in society’. Luhmann would later connect to this line of thinking, defining law as the law of society and as the carrying out of societal communication.1151 Furthermore, Kelsen’s criticism of dualism (c) had normative implications that were internally connected to the idea of progress towards an egalitarian society (socialism) and a world state (civitas maxima) – even if Kelsen did not admit to himself that this was an implication of his own, presumably objectivist and normatively neutralized legal theory. Therefore, he declared his own declaration in favour of socialism and cosmopolitanism to be an unjustified decision. This is odd, because he himself has shown convincingly that the egocentrism of the alternative decision of the majority of German Staatsrecht in favour of


1152Kelsen, Das Problem der Souveränität ; see Verdross, Die Einheit des rechtlichen Weltbilds auf Grundlage der Völkerrechtsverfassung. Tübingen: Mohr, 1923, pp. 6–8. Verdross’s critique of the dualism of German international law based on the doctrine of the will of the state clearly shows the use of the rational arguments of immanent criticism that justifies his and Kelsen’s cosmopolitan approach: ‘So wird die Lehre vom Staatswillen als Basis des Rechts, wenn sie zuende gedacht wird, dazu getrieben, entweder ihre Grundlagen aufzugeben oder aber das Völkerrecht als ein die Staaten auch im Falle ihrer “Willenänderung” bindendes Recht preiszugeben’. (p. 8).1153Luhmann, Die Politik der Gesellschaft, p. 333.

state sovereignty, legal dualism and national imperialism was deeply self-contradictory, whereas his own so-called decision for cosmopolitan democracy was not.1152 However, Kelsen’s methodological self-deception was due to the philosophical empiricism and deductivism of the Vienna Circle, which influenced him strongly. We are now far beyond that kind of deductivism, and modern theory of rational argumentation and normative logic (from Piaget and Lorenzen to Brandom) clearly reveals Kelsen’s own argument to be a version of immanent criticism that is linked up inferentially with his own normative ‘decisions’ and turns them into ones that are reasonably justified by rational arguments. Kelsen’s criticism of the egocentrism of the theory of state sovereignty is exemplary for a rationally justified de-centring of egocentrism that nicely matches Piaget’s theory of cognitive development and the growth of rational insight.

The critique of dualism, in philosophy as well as in legal theory, is closely related to the critique of representation. It is merely its other side. Here again, Carl Schmitt takes the role of the Norman Anonymous: ‘With an unmatched sensitivity for the outdated, Carl Schmitt held on to the concept of representation, and proceeded to evaluate constitutionally implemented parliamentarism as an infringement of this principle.’1153 Schmitt’s adherence to the concept of representation relies on the time-honoured dualist correspondence theory of truth. It argues as follows: What is represented by our intellect, our statements or our parliaments is the real world, the propositional content, the true will of the people, the people’s real opinion and so on. Hence, representation in the correspondence theory of truth as well as in the theory of parliamentary representation is a mirror of nature that presupposes a dualism of the two realms of the represented and of the representing substance. This theory has been outdated since early Hegelian Marxism, American pragmatism and advanced phenomenology, hermeneutics and linguistic philosophy. Kelsen, therefore, argued on the basis of his critique of dualism that so-called representative organs such as parliaments and courts, because they cannot represent the people, must be conceived as a constructive and procedural method of egalitarian and inclusive will formation. Like any method, this method can be improved and replaced by other methods (functional equivalents even to parliamentarism) which (under certain


1154Bernstorff, ‘Kelsen und das Völkerrecht’, in Brunkhorst and Voigt (eds), Rechts-Staat, p. 181. Cohen in her brilliant study on sovereignty in supra- and transnational law rightly takes the basic idea of a democratic legal state as an abstract model that must be re-specified to analyse global constitutionalism. However, her model is not abstract enough, and therefore still uses (like Kelsen and Schmitt) the statist model of a legal hierarchy with an absolute beginning (be it the Grund-Norm, sovereignty, or competence-competence) to analyse and evaluate, for example, the constitutional quality of the United Nations Charter, Cohen, Globalization and Sovereignty, pp. 289–91.

conditions) are more appropriate than the existing ones. Kelsen’s student Adolf Merkl invented the doctrine of Stufenbau (legal hierarchy) as such a method, and Kelsen took over his student’s suggestion immediately. The doctrine of Stufenbau is revolutionary not because of the hierarchy that ends with the Grund-Norm (which is a dualist remnant in Kelsen’s own theory), but because it transforms the dualism of legislative will and executive performance, of political generation and professional application of legal norms, of general law and specific judgement into a continuum of concretization that (and here we need to correct Kelsen a bit) never ends, but goes on and on in a hermeneutic-dialectical circle.1154 Therefore, if at all levels of the continuum of concretization, legal norms are (politically) created, the principle of democracy (that is, egalitarian deliberation and decision-making) is only fulfilled if those who are affected by these norms are included in a (socially and economically) fair and equal manner at all levels of their creation (albeit in what, in all probability, will be very different ways). Again, Kelsen himself (and again because of his empiricism) did not draw these radical democratic consequences, but they are simply an implication of his construction of legal theory. With the turn from representative correspondence to methodological constructivism, Kelsen abolishes a further dualism: that is the dualist contrast of direct and representative democracy. From Hegel to Schmitt, it was used to demonstrate that democracy either is not truly democratic (as a representative system) or is totalitarian (as direct democracy), and again not democratic. Hegel was right to argue that communicative freedom in a complex society could not be performed without mediations, and hence without institutionalized methods of egalitarian and inclusive will formation. In his Philosophy of Right, he used his dialectical method to criticize the abstract and therefore false extremes of either (1) direct or (2) parliamentary democracy, and thus far he was right in doing so. But from this methodologically correct use of negativity, Hegel draws the wrong, because far too concrete, substantially fixed and politically opportunistic conclusion that (3) corporative representation is the only way to realize egalitarian legal freedom. With this un-dialectical conclusion, Hegel reverts to the dualism and representative thinking that he had criticized so soundly in his Logic. This, by the way, is something Marx pointed out with precision. This is evident, in particular, in Hegel’s dualistic, undialectical and


1155Marx, Kritik des Hegelschen Staatsrechts; see Theunissen, Sein und Schein, p. 479; illuminating on vulgus vs. populus in Hegel: Ruda, Hegels Pöbel, pp. 219–39.1156Möllers, ‘Expressive vs. repräsentative Demokratie’, in Kreide and Niederberger (eds), Transnationale Verrechtlichung (my translation).1157Habermas, Faktizität und Geltung. Frankfurt: Suhrkamp, 1992, pp. 170, 492.

anti-democratic distinction between vulgus (or the evil of the polloi, who by their mere existence already commit high treason) and populus (or the good citizens, who are becoming an impotent icon of the people through their absolute distinction from their own other, which is vulgus).1155 Therefore, the right dialectical conclusion could only consist in (3’) the institutionalization of negativity, for instance, in a permanent, legalized revolution that includes ordinary as well as constitutional law and the constitution as a whole. Kelsen’s and Merkl’s doctrine of Stufenbau is as good an example of such a way of sublating the abstract opposition between direct and representative democracy as Habermas’s procedural theory of democratic legislation.

As we have seen, Kelsen’s double criticism of dualism and representation as the people’s mirror of nature has far-reaching implications for theories of democracy and constitutional design. The different (public and private) organs, forms and procedures of legislation, administration and jurisdiction are all equally distant from the people, and no organ, and no procedure is left to represent the people as a whole: ‘No branch of power is closer to the people than any other. All are at an equal distance. It is meaningless to take one organ of democratic order and juxtapose it with all the others as the representative organ. There exists no democratic priority (or supremacy) of the legislative branch.’1156 In the absence of any substantial sovereignty, democracy allows procedural sovereignty, which consists in the circulation of communication without a subject.1157

(4) Class struggle

The revolutionary transformations of the twentieth century were performed by social mass movements, which operated in their homelands, but were organized in more or less densely structured transnational networks. Their leaders were intellectuals, often professional politicians and sometimes professional revolutionaries. They often prepared themselves for revolution in exile.

All times of great revolutionary transformations are times of exile. ‘Emigration is the first indicator of an approaching revolution,’ wrote Alexander Herzen, one of the many Russian emigrants of the nineteenth century in 1851, adding: ‘Estrangement and voluntary exile enhance the authority


1158Alexander I. Herzen, Du développement des idées révolutionaires en Russie. Paris, 1851, pp. 166–7, (my transl.); see Anina Gidkov, ‘Exil als Lebenswelt: Prägungen einer Generation von Revolutionären’, in Heiko Haumann (ed.), Die Russische Revolution 1917, Köln: Böhlau(UTB) pp. 47–58, at 47.1159Gidkov, Exil als Lebenswelt, pp. 49–50.1160Ibid., p. 58.

of speech. They prove that convictions are taken seriously.’1158 The situation in exile is not that different from the situation of an isolated animal species. It breeds revolutionaries and triggers rapid change that leaves no time for gradual adaptation. The emergence of critical theory (Frankfurt School) in American exile, the highly productive syntheses of logical positivism (Vienna School) and American pragmatism in the 1940s in Chicago and Princeton, or the synthesis of the late Wittgenstein’s linguistic pragmatism with English empiricism in the academic and political isolation of Cambridge/UK at the same time are three of many examples of revolutionary change in science and the history of ideas triggered and accelerated by exile. A similar case was the emergence of a revolutionary mindset, infrastructure and organization in the isolation in which Russian revolutionaries lived in Switzerland in the nineteenth and early twentieth century. Nowhere else on the European continent was there a politically neutral state that guaranteed emigrants a low income, security, long-term asylum and at least some freedoms of the press, assembly and association (in the two medium-size cities of Zurich and Geneva). Since the 1870s, the anarchist and socialist emigrants, mostly petit bourgeois intelligentsia, were closely connected with a growing number of Russian students, in particular, women, who were not allowed to attend university in Russia. Russian intellectual capacities in Zurich and Geneva were much higher and more concentrated than anywhere else in the world. Moreover, the strong emphasis in the subsequent Russian Revolution on women’s rights and the emancipation of women can be traced back to the evolutionary experimentalism of exile.1159 The small circles of Russian political emigrants and students, open for revolutionary ideas, were separated both from the Swiss population and from any immediate flow of information from their home country. This double isolation (together with strong politization) triggered a highly accelerated increase of communicative variation, a flood of new ideas and endless discussions day and night about the coming revolution, about revolutionary strategies and organizations and about utopian concepts of society and radical societal change. Vanguard parties were planned, organized and, even more importantly, habitually put into practice. Models of democratic and authoritarian problem solving were developed.1160 Furthermore, as Alexander Herzen rightly saw, exile sharpened the perception of the weaknesses of Western capitalism and the revolutionary possibilities


1161Ibid., p. 48.1162See Benjamin, Critique of Violence, trans. Edmund Jephcott, in Benjamin (ed.), Selected Writings Vol. 1: 1913–1926. Cambridge, MA: The Belknap Press of Harvard University Press, 1996, pp. 236–52.1163Gidkov, Exil als Lebenswelt, p. 55.1164Eugène Pottier, ‘The International’, Paris: June 1871, quoted from http://www.marxists.org/history/ussr/sounds/lyrics/international.htm (12 May 2013).

of the less developed East and Russia.1161 Hence, exile created a revolutionary revisionism concerning orthodox Marxism and other revolutionary and socialist doctrines. Experimental and relatively safe resistance was practised against both the latent ‘violence’ of international law and the latent ‘violence’ of capitalist contract law.1162 The latter was practised within the social democratic organization of Switzerland, the former in 1914, when the emigrants took the opportunity to resist the Russian law of conscription and to answer the orders from Petrograd in one sentence: ‘We have no homeland to defend.’1163

Before the transformations of the twentieth century became world-revolutionary occurrences, at least four powerful, transnational social movements existed in nearly every region of the world. They demanded social structural and constitutional change and opened the utopian horizon of a new and better world. First, there was the workers’ movement. It had its base in national unions and political parties, but with international ties. The second was the peace movement, which had rapidly increased since the end of the nineteenth century. The third was the transnationally connected and middle-class-based women’s liberation movement, and the fourth the emerging anti-imperial movements of national liberation in the colonized and semi-colonized world. Students and academically trained intellectuals played a fundamental role, which steadily increased with the worldwide growth of the educational system from the second half of the nineteenth century. All four transnational movements overlapped and all had a strong egalitarian appeal. They articulated entangled conflicts which were power-oriented, capital-oriented, law-oriented or knowledge-oriented, and often religiously motivated. They formed all kinds of coalitions, but just as often clashed, both with one another and among themselves, with the result of a fast-growing complexity.

(a) The workers’ movement fought for social and democratic rights, for equal chances, the sublation of class antagonisms and the abolishment of economic exploitation, for democracy, socialism and communism. From the beginning, it was internationally organized: ‘The International unites the human race.’1164 The First International was founded in London in 1864, the Second in Paris in 1889, the Third in Moscow 1919. The working class was always much more diverse and fragmented than its description in the Marxist narrative. However, the workers were virtually united by their shared inferior position in the industrial production process. Their factual unification followed


1165Marx and Engels, Later Political Writings, ed. and trans. T. Carver. Cambridge and New York: Cambridge University Press, 1996, p. 9 (translation slightly corrected).1166Marx, Capital I, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April 2012).1167See, for instance, Kreide, Globale Gerechtigkeit und Politische Praxis. Frankfurt, New York: Campus, 2013 (forthcoming); Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa (forthcoming 2013); Cristina Lafont, Global Governance and Human Rights. Amsterdam: Van Gorcum, 2013.

quickly – due to the new technical media of dissemination, ‘steam navigation, railways, electric telegraphs’ and the emergence of a ‘world literature’ which itself addressed ‘the whole world’. For Marx and Engels, ‘the improved means of communication that are created by modern industry’ were ‘placing the workers of different localities in contact with one another’. Therefore, the ‘unification of workers’ ‘that took centuries for the burghers of the Middle Ages to attain, given their miserable highways, is being achieved by the modern proletariat in only a few years, thanks to the railways’.1165 In a time of large-scale industrialization, the workers’ movement had the power of the general strike. Alongside (and often together with) the national liberation movements, the workers’ movement was by far the most powerful social movement of the nineteenth and twentieth century. Marxists certainly were a little too ready to address the working class as the one and only revolutionary subject. But even if Marx’s prediction that the workers would rapidly become the vast majority of the population was wrong, and the German Social Democrats’ claim that they were the strongest party (‘We are the strongest of all Parties’) was an overestimation, the workers’ movement was strong enough to enforce universal suffrage step by step, to achieve parliamentary majorities for legal change, to invent ‘the modest Magna Charta [sic] of a legally limited working-day’ and to play a crucial role in revolutionary upheavals.1166 In a long process that consisted of some great victories and a greater number of disastrous defeats, they finally achieved most their objectives. It was primarily the permanent pressure from the transnational organized workers’ movement that finally led to the establishment of both socialist party dictatorship and social-welfare mass democracy. Most of the former withered away at the end of the twentieth century, but in the case of China (which includes 1/7 of the world population) was transformed into a kind of market socialism that today looks more like capitalist party dictatorship than socialism. Egalitarian, social and socialist mass democracy during the course of the century was at the top of the political agenda nearly everywhere, determined political rhetoric and structured national and international legal and constitutional programmes.1167

(b) The peace movement had deep roots in European history. The Peace of God Movement (Treuga Dei) was already one of the main triggers and socio-religious sources of the Papal Revolution. Since that time, peace movements had accompanied the history of war in Europe. In the late nineteenth and


1168Osterhammel, Die Verwandlung der Welt, pp. 729–31.

early twentieth century, they still had strong Christian ties, but also Buddhist, enlightened, atheist and other religious or secular roots. The first great international peace and freedom congress took place in Geneva in the 1860s. In 1889, the movement constituted itself as a kind of transnational lobby at the first World Peace Congress in Paris, which was followed by 23 more meetings in the period to 1913, a frequency that is nearly the same as that of the Peace of God councils of the Papal Revolution, which met 26 times between 998 and 1038. Particularly in Europe, America and Australia, the peace movements fought for reform of international law, for consultation procedures and international dispute settlement. The two peace conferences in The Hague were their greatest immediate success.1168 The peace movements were far from being only pacifist in the use of their own means. Militant anarchists joined them, as well as Leninist communists and Wilsonian democrats, who, from 1917, each used the slogan of a war to end all wars, with Wilson meaning World War I, whereas Lenin had in mind the coming socialist world revolution. In the course of the Egalitarian World Revolution (and in coalition with the other social movements), the peace movements succeeded in getting powerful national leaders on their side. Their main purposes were realized in the radical change of international law from a law of coexistence to a law of cooperation, the individualization of international law and the creation of internationally binding human rights regimes and an ever denser network of international organizations which took over more and more state functions.

(c) The women’s movement fought for equal rights and equal wages for all women and the abolishment of patriarchalism. Like the workers’ and the peace movement, the women’s movement was not just a side effect of industrialization and the growth of productive forces, but fought a class struggle sui generis over legal rights and the reinterpretation, reform and radical change of the existing legal order. Already, the existence of the movement made it evident that even the few democratic states of the world of 1900 were not really democratic, because they excluded half the population from active citizenship. To defend their privileges, all male elites (including those of the workers and the national liberation movements) tried to suppress women’s liberation. On the other hand, women’s liberation shared crucial egalitarian objectives with the three other movements, and many of these could only be implemented legally together with those of the workers’ movement. One of the first great successes was early Soviet law, which, for the first time, implemented comprehensive equal rights for women. Women’s liberation emerged together with modern democracy, first in the United States, Canada, Australia and New Zealand, at that time islands of half-fledged democracy. The spill-over to Japan, China and Europe came together with the Egalitarian


1169Ibid., pp. 726–8.1170William E. B. Du Bois, The Souls of Black Folk. New York: Norton, 1999, p. 5; see Jan Hoffmeister, Racial Recognition. W. E. B. Du Bois and the American Dilemma (Ms., forthcoming).1171Hobsbawm, The Age of Extremes, p. 54 et seq.; Osterhammel, Die Verwandlung der Welt, pp. 565ff; 674ff; 798ff; 1055ff, 1105ff.

Revolution and the new debate on franchise after World War I and II. From the beginning, the women’s movement formed a transnational network that enabled the foundation of the International Council of Women in 1888. In 1907, between four or five million women worldwide were already part of its organization.1169 Today, most of the legal objectives of women’s liberation are largely realized in national and international law. However, it took until the end of the twentieth century and needed a strong push from the radical feminism of the 1960s to get and keep the whole range of women’s rights on the political, cultural, legal and economic agenda of world society. As negative normative constraints, women’s rights are now effective all over the world. This is due not least to the global growth of the educational system, which is breeding feminists even in Islamist countries like Iran.

(d) The national liberation movements were the heirs of the Haitian Revolution and the American Declaration of Independence. ‘The problem of the twentieth century,’ Du Bois wrote in 1903, ‘is the color line’.1170 The non-white peoples fought against imperial hegemony, racial and ethnic privileges. They fought for colour-invariant equal rights and public self-determination of all peoples. They combated not only direct imperial rule, colonial conquest and annexation, but also the humiliating system of unequal treaties that was enforced by European intervention troops and battle ships before the harbours of China and other non-colonized countries. Even if nationalism in Europe and the Western world was the main source of fascism, in the colonized and imperially dominated world it was mostly associated with the left, at least until the freedom fighters had reached their objectives. On account of the economic and military exhaustion of the big imperial powers and the increasing global moral and legal pressure against the unequal treatment of whole world regions and their populations, national liberation movements finally succeeded in bringing about the decolonization of the world, the enforcement of equal rights for all peoples and a global ban on colonialism, racism and genocide. However, national liberation often ended in new forms of nationalist rage, brutal oppression, exploitation and injustice, or worse, in civil war, failed states and even genocide.

These four movements have universalized the yearning for democratic self-determination and social justice, and for the first time this was done from the bottom up.1171 Their common denominator was egalitarianism, and the early Bolshevist rage of egalitarianism expressed this as authentically


1172We are the people – that was the slogan of the revolutionary upheaval 1989 in East Berlin and Leipzig.

as the many American movements for a democratic society and human rights. The success of the Communist Party in China had a lot of causes, but was ultimately due to the fact that only the communists took the rights of the overwhelming majority of peasants and the exploited and oppressed rural population seriously. They combined the struggle for the social rights of the majority convincingly with the anti-imperial struggle of the Chinese people for equal rights within the international community. Everywhere, the workers’ movement coincided with the women’s movement in their claims for universal suffrage. Even if the former in their actual demands at first did not remember women, they at least had no good arguments for the exclusion of women (if these arguments were to be compatible with their own universal demands for egalitarian emancipation). The demands of the peace movement for international human rights mostly included basic social rights. Conversely, gender rights, and, in the later course of the century, also gay rights, aboriginal rights and other anti-discrimination norms, gradually became part and parcel of universal and European social rights. Even the more particularistic national liberation movements implicitly referred to universal human rights in their fight against imperial and racist domination and hegemony. The leaders of anti-colonial national liberation only could mobilize the masses with the triple promise of national self-determination, democracy and socialism, and even fascist and other authoritarian leaders on the right and Stalinists and Maoists on the left were forced to pay lip service to the semantics of self-determination, democracy or socialism (as in the most bizarre ideological mix of the century, which called itself ‘national socialism’). One of the weak but steady effects of egalitarian normative constraints established by revolutionary change was that even lip service could be used against authoritarian ruling classes: Wir sind das Volk.1172

The punctuational burst of all productive forces since the mid nineteenth century made this revolution very different from all former ones. Success in civil war depended more and more on technique and technology, and on guerrilla strategies to avoid the enormously enhanced firing power of ever bigger and better organized military units in the hands of the statist power bloc. The first successful revolutionary war of big technology was the American Civil War, which was fought at the threshold from the Atlantic to the Egalitarian Revolution. The modern state’s machinery from then on was deeply involved in the ideological and revolutionary struggles of the twentieth century. Where modern military technique was used in regions of failed states, the casualty figures caused by revolutionary and counter-revolutionary military actions and mass crimes surmounted anything hitherto known. This was reinforced by


1173See Horkheimer and Adorno, Dialectic of Enlightenment.1174Guyer, Marcuse and Classical Aesthetics, p. 362.1175See Tilly, European Revolutions, p. 216.1176See Osterhammel, Shanghai, 30 Mai 1925.

the prevalent reductionist opinion, shared also by the revolutionary leaders, that all social problems were technical problems and that the only reason available to solve problems is instrumental reason.1173 Kant’s insight that ‘various social processes – including military, economic, and religious as well as purely political developments – may be conducive to the development of a just state’ but ‘can never bring about that goal mechanically’ and therefore ‘must always be supplemented by the moral decisions of those who have their hands on power to make their state more just’ was pushed to the background.1174

The growing asymmetry of weapons between state and insurgents, which had been growing since 1848, gave the industrial working class and the capitalist corporation with its disciplined armies of labourers a unique position within the complex constellation of overlapping social conflicts and class struggles. Modern capitalism and the military machinery of the modern state became vulnerable to the organized refusal to work. The strike and, in particular, its extreme version, the general strike, was a completely new revolutionary weapon, which replaced the barricade.1175 The workers’ strike was the strongest power of the Russian Revolution of 1905 and remained crucial for all further social revolutions and social reform movements, insofar as they were urban and industrial. But, as it seemed, a revolution could succeed by a strike movement alone only on the condition, not just that the masses had lost all loyalty to their oppressors, but also that the wielders of coercive power themselves no longer believed in their mission, such as in Poland in the 1980s (or in India after World War II). This was an insight Lenin rightly deduced from the defeat of the 1905 Revolution.

In his famous essay Critique of Violence of 1920, Walter Benjamin related strike and general strike to revolutionary violence on the one hand, and the latent violence of law on the other. He distinguished two kinds of violence internal to the legal form of bourgeois society, the violence of international law and the violence of property and contract law.

First, the latent, imperial violence of international law became manifest when jurisdiction was replaced by authority. Moreover, it became evident in the system of unequal treaties that imperial (‘civilized’) Western governments imposed on formally free and independent (but ‘less civilized’) non-Western states and tribal societies. They were one of the main triggers of the Great Chinese Revolution.1176 The cognitive egocentrism of the sovereign state that


1177Benjamin, Critique of Violence, pp. 240–1. See Fischer-Lescano, ‘Postmoderne Rechtstheorie als kritische Theorie’, Deutsche Zeitschrift für Philosophie 2 (2013), 1–18; Brunkhorst, ‘How is a critique of violence historically possible? – Remarks on Benjamin’s “Critique of Violence” and John Ford’s “The Man Who Shot Liberty Valence”’, Santiago 2014 (forthcoming in Spanish translation).1178Benjamin, Critique of Violence, p. 241; see Loick, Kritik der Souveränität, pp. 171–87.1179See Koskenniemi, The Gentle Civilizer of Nations.1180Benjamin, Critique of Violence, p. 244. The German phrase is Unterredung.1181Ibid., p. 247.

constituted all law was echoed by the repressive violence of imperialism, as Kelsen has shown. Benjamin added the striking argument that the latent ‘militarism’ and ‘military force’ of imperial international law ‘could come into being only through’ the nationally created ‘law of general conscription’.1177 The revolutions in Russia in 1905 and 1917, in many German cities in 1918, in Italy in 1918 and in Budapest in 1919 showed that the general law of conscription was a double-edged sword. It was the internal link between national and international law that was crucial for the increase and stabilization of the foreign and domestic power of the state. However, it also could be used as a mean of revolutionary violence for the same reason. It enabled popular insurgence against the repressive violence of law that was as general as the conscription: refusal of military service, sailors’ insurgencies, soldiers’ councils, finally the foundation of red armies. In 1905 and 1917, therefore, ‘the critique of military violence was the starting point for a passionate critique of violence in general – which taught at least one thing, that violence [as a means toward legal ends] is no longer exercised and tolerated naively’.1178 In 1917, the Vienna Congress order of international law broke down. It had been under pressure for decades. It was attacked by the international peace movement long before the war, and far from the non-academic public, a new order was prepared intellectually by the Institut de droit international in Geneva, which became the ‘gentle civilizer of nations’.1179 The Institute was founded in Gent in 1873. It was the first global professional association of international law. Benjamin was well aware of the gentle civilizer, and integrated its noiseless activities into his framework of ‘revolutionary violence’ that presupposes nonviolent agreements. They are enabling the workers’ strike as well as diplomacy and all other ‘techniques of civil agreement’ by means of a deliberative ‘conference’.1180 Benjamin’s favourite example is the conference [‘Unterredung’] in international relations: diplomacy.1181 The increasing and reflexive critique of military violence through the latently subversive communicative techniques of deliberative conferences and legal diplomacy, through explicit public discourse and conflict, finally through insurgencies and revolutionary violence struck at the foundation of the bourgeois national state as a legal order that is based on warfare and taxes, and hence on the consumption of ever more men’s bodies and their


1182Marx, Capital, Vol. 1, Chapter 6, http://www.marxists.org/archive/marx/works/1867-c1/ch01.htm #S1 (10 April 2012); for an analytical reconstruction of the argument see Tugendhat, ‘Liberalism, Liberty and the Issue of Economic Human Rights’, Tugendhat, Philosophische Aufsätze 352–70, hier: 358–61.1183Benjamin, Critique of Violence, pp. 243–4; see Tugendhat, Liberalism, Liberty and the Issue of Economic Human Rights. Today, this argument is part of the Drittwirkungslehre of the German Constitutional Court, but also the (at least until the Reagan-Thatcher ‘revolution’ of the 1980s) prevailing interpretation of the due process clause of the US Constitution, see Dworkin, Taking Rights Seriously.1184Otto von Gierke, Die soziale Aufgabe des Privatrechts, 1889, p. 28 (my translation).1185See Anatole France, Le Lys Rouge (1894), ch. 7, see https://archive.org/details/lelysrouge00 franuoft (27 October 2013).1186Wesel, Geschichte des Rechts.1187Berman, Justice in the U.S.S.R., Revised edition, enlarged New York: Random House, 1963 (1950), p. 218.

families’ money, extracted from the states’ own population by the wielders of coercive power.

Secondly, the latent violence of property and contract law became manifest in the labour market, where the ‘change in the physiognomy of [the] dramatis personae’ of capitalist and labourer took place that transformed the ‘money-owner’ into a ‘capitalist’ and the ‘possessor of labour-power’ into ‘his labourer’ who ‘has nothing to expect but – a hiding’.1182 The violence of contract law has its focus in the labour contract, but can be generalized. Sanctions are related to the observance of contracts between formally equal but socially unequal parties.1183 Already in 1889, Otto von Gierke, not a socialist radical, had described the freedom of contract as the ‘appearance of an order of peace which in reality brings the bellum omnium contra omnes into a legal form’.1184 Contract law, like the law of militarism, had been under heavy attack at the latest since the mid nineteenth century. At the end of World War I, the famous phrase of Anatole France was on everyone’s lips: ‘The law in its sublime equality forbids both, the beggar and the rich man, to sleep under the bridges.’1185 In 1918, the long period that was (more or less) characterized by the doctrine of absolute contractual liability came to an end.1186 In Russia after the Revolution of 1905, both the latent violence of the law of ownership and private property and the latent violence of international law were symbolically expressed and made manifest in the bloody ritual of the military courts. In close cooperation with the secret police, they condemned thousands of revolutionaries and semi-revolutionaries or revolutionary suspects to death for a huge and far expanded variety of ‘illegal activities’ between 1906 and 1917.1187 From the point of view of the revolutionaries, military justice revealed the truth about the far-reaching liberal legal reforms of constitutional law. The Criminal Code of 1903, watered down and enacted after 1905, and the Civil Code of 1913 (both later served as models for the Leninist New Economic Policy) were never effectively implemented.


1188Benjamin, Critique of Violence, p. 246.1189Ibid., pp. 245, 247.1190Benjamin, ‘Über den Begriff der Geschichte’, in Benjamin (ed.), Gesammelte Schriften I, 2. Frankfurt: Suhrkamp, 1978, pp. 700–1 (XIII. and XIV. thesis), english: http://members.efn.org/∼dredmond/ThesesonHistory.html (14 May 2013).

They remained a superstructure phenomenon of symbolic law, above a base of secret police, military justice and the unquestioned local prerogatives of landed gentry in matters of jurisdiction and execution of law. The general strike then was the great challenge for both: the violence of contract and the violence of international law. The general strike was ‘destroying state power’.1188

The power of the general strike for Benjamin is the power of negativity that consists in the Vernichtung (annihilation) of state power. The German phrase includes both and the tension between both: (a) violent destruction (‘Ver-nichtung’ of a matter, as in revolutionary wars) and (b) non-violent operations of dialogical negation (‘Ver-nicht-ung’ as in diplomacy). Insofar as Ver-nicht-ung (in the English-Latin word: an-nihil-lation) belongs to ‘the proper sphere of “understanding,” language’, it is the negation of negation that is not affirmative justice, but the annihilation of injustice and distorted communication. It is the negation of the latent violence of contract law, the negation of the latent violence of the law of conscription and the negation of the latent violence of imperial international law.1189 Strikes are weapons of the working class to negate the negation of living labour (in the double sense of ‘annihilation’) that is the result of the transformation of living into dead labour once the labour contract is realized in the sphere of production. The general strike for Benjamin is so peculiar because it operates within and beyond existing law at once. The general strike uses the demanded or already existing right to strike as a means against the existing bourgeois form of law as such. It is the determined negation: In generalizing its power of the negative, it remains in a continuum with the particular strike of workers. Discontinuing the repressive violence of the existing legal order, it opens up new possibilities of changing the existing legal order, abolish it by ‘revolutionary violence’ or replace it by another, probably less repressive one. However, there is not an unbridgeable gap that separates the particular from the general strike as it separates the ‘social democratic’ ‘concept of progress’ as ‘progression through a homogenous and empty time’ from the ‘time . . . which is fulfilled by the here-and-now [Jetztzeit]’, that is, the revolution.1190 Benjamin himself mentions the possibility of bridging that gap when he addresses – in his XII. thesis On the Concept of History – the ‘subject of historical cognition’ as the ‘battling, oppressed class itself’ which ‘in Marx’ was the ‘avenging class, which carries out the work of emancipation in the name of generations of the downtrodden to its conclusion’, hence is


1191Ibid., p. 700, english: http://members.efn.org/dredmond/ThesesonHistory.html (14 May 2013). For a de-transcendentalized reading of Benjamin that tries to bridge the gap between general and particular strike as well as between revolutionary violence and reformist politics (and hence does not from the outset exclude, but re-historicizes ‘general strike’ and ‘revolutionary violence’), see Fischer-Lescano, ‘Postmoderne Rechtstheorie als kritische Theorie’, Deutsche Zeitschrift für Philosophie 2 (2013), pp. 1–18; Brunkhorst, ‘How is a critique of violence historically possible?’1192Tilly, European Revolutions, p. 243.1193Ibid., p. 219.1194Ibid., p. 220.1195Similar to the way in which an increase of anomalies in science triggers a crisis that finally is overcome by a scientific revolution Kuhn, The Structure of Scientific Revolutions.

driven by the profane moral resentment of its sense of injustice that is the portentous power of the negative (Hegel).1191

The first revolutionary eruptions came from Russia in 1905 and the Chinese Revolution of 1911. During the 50 years between 1892 und 1941, Tilly counts 65 revolutionary situations in Europe alone. Since 1691, this had only been trumped by the 50 years that followed the French Revolution.1192 Strikes and general strikes are at the beginning of the Egalitarian Revolution. In 1914, ‘almost thirty times as many Russian workers struck as in 1910’.1193 The number went down only at the beginning of the World War, reached pre-war heights again in 1916 and exceeded all parameters in 1917. The strikes triggered and then were reinforced by mutinies of the Russian troops. Together, soldiers and workers quickly gained enough influence and power in factories, army and navy ‘to block central control and instal[ling] elected committees as counter-authorities’.1194 An increasing number of normal strikes triggered general strikes and finally ended in a great revolution.1195 The Russian Revolution of 1905 was carried out by a broad spectrum of the population. It was a republican and a social revolution. What had remained an isolated experiment with a new form of egalitarian self-rule during the revolution of the Paris Commune in 1871 was not forgotten, despite its defeat and extermination. Therefore, it could come back again everywhere, due to the normative memory that separates mankind from its animal relatives. This means, by the way, that while extinction does close a path of organic evolution, this is not so with social evolution. Here, extinction and annihilation can become a driving force of the power of revenge. Retrospectively, the Revolution of 1905 was the final rehearsal for the Great Russian Revolution that broke out in 1917 (and exacted revenge for the defeat of 1905). All structural class conflicts of modern society were involved. In most of the revolutions that followed the Russian Revolution of 1905, the conflict constellation was astonishingly similar (as Lenin rightly saw): The people, the workers, peasants, farm hands, soldiers and sailors, republican bourgeoisie, liberal aristocrats and intelligentsia stood against the wielders of coercive power, the czar, the aristocratic officer corps of army and navy, conservative aristocrats, high clerics and haute bourgeoisie, who


1196Bayly, Birth of Modern World, p. 310.1197Marx, Der 18. Brumaire, Frankfurt: Insel-edition, p. 138; Marx, ‘Die Verhandlungen des 6. Rheinischen Landtags’, in K. Marx and F. Engels (eds), Werke 1 (MEW 1). Berlin: Dietz, 1972, pp. 28–77, at 39; see Karl Kautsky, Die materialistische Geschichtsauffassung, Bd. 1: Natur und Gesellschaft. Berlin: Dietz, 1927, pp. 812–13.1198Bayly, Birth of Modern World, pp. 311–12.

were at the service of, or closely connected with the holy monarchy. From the periphery of the Russian Empire, strong national liberation movements emerged in 1905 as well as in 1917. The Bolshevist leaders of the socialist workers’ movement, which in 1905 was already well organized, at first federated with them and later, after the communists came to power, switched from the role of the associate of all freedom fighters to the role of the czar and the imperial party of central state power. No revolution without a revolution betrayed (Trotsky). In the periphery of the industrial Western world, only in Russia and Japan an important, economically essential and quickly increasing working class existed. The social revolutionaries mobilized the labourers of the rapidly growing industrial sector against capital and the political power bloc. Moreover, they took the lead of the spontaneous peasant revolts against the landed gentry, and of the sailors’ revolts against their officers. The workers’ movement was in a strong position, but still small and absolutely in need of the alliance with peasants and soldiers. The religious dimension was important on all sides of the class struggles. Christian communism of love and peace was mixed up with aggressive atheism, but the atheists, despite their hate of other religions and classes, believed in the same thing. Both provided the masses with utopian energies in their struggles against sacral and secular establishments (and stimulated fundamentalist rage). Not only in Russia in 1905, but also in all radical democratic and socialist movements and revolutions of the nineteenth and twentieth century religion played a major role alongside scientific and aggressively atheist ideologies. The first generations of socialist thinkers often were Christians. The British Labour Party assimilated into its socialist agenda ‘many of the ideas of Christian good works’.1196 German socialism had deep roots in Protestant Pietism, and Marx himself not only laid great emphasis on the reform of consciousness and a revolution of mentality1197 but also wrote in an authentically prophetic language of biblical force, full of biblical metaphors and quotes. Russian socialism was as much influenced by the Old Believers (an Orthodox Christian sect) as by Marxism (later transformed by Soviet communism into an atheistic religion). In China from the beginning of the workers’ movement around 1905, Sun Yat-sen and his followers combined Western socialism and later Marxism with Eastern Confucianism and/ or chiliastic Buddhism.1198 On all levels of conflict, the people, the working class, the peasants and the soldiers fought for a constitutional and legal revolution: for human rights, parliamentary and


1199Maier, Leviathan 2.0 – Die Erfindung moderner Staatlichkeit, p. 232, see 207, 218.1200A contract, which copied the Italian guarantees for the pope, stipulated that the last emperor could keep his title and some ceremonial functions, but no political power at all.1201On the world historical meaning of the Chinese Revolution, see Osterhammel, ‘Die chinesische Revolution’, in Wende (ed.), Große Revolutionen der Geschichte, pp. 244–58.1202Osterhammel, Die Verwandlung der Welt, p. 813, see 803–6, 810.

council democracy, for the modest Magna Carta of the 8-hour day, for the redistribution of land and the end of military violence.

The increasing awareness and accelerated communication of growing global inequality (which followed the explosion of all communicative, productive and destructive powers of imperialism and was reinforced by the world economic crisis of 1893 and a series of wars) caused a first wave of global revolutions.1199 The Russian Revolution of 1905 was accompanied by a number of Eurasian revolutions. In the same year, a revolution broke out in Iran and resulted in the first Iranian constitution. Three years later, the revolution of the Young Turks against the Ottoman Empire began and triggered the long process of societal transformation that finally led to the republican and laicist Turkish national state. Already a few decades earlier (1868), the Eurasian big power of Japan had experienced one of the few revolutions from above that were successful. Five years after the Russian Revolution, the Mexican Revolution broke out in 1910, and the republican Chinese Revolution of 1911 followed and brought a monarchy to an end that had existed in China since the second-century B.C.E.1200 As in Iran, anti-imperial motivation played an important role also in the struggle against local elites and governments. The republican revolution in China ended 1913 with a new presidential dictatorship that could not hold a country of continental proportions together. From then on, upheavals and civil wars never ceased until 1949. China fragmented into several parts. The abolishment of the oldest monarchy on earth in 1911 had an enormous global impact as a Kantian sign of history. The year 1911 was the beginning of a global push of negativity that destroyed all anciens régimes and all constitutional monarchies (deserving the name monarchy) during the next decade.1201 In all Eurasian revolutions of the first decade of the twentieth century, the peasants and republican reform elites of the intelligentsia played a crucial role vis-à-vis an autocratic emperor and his bureaucratic services. All Eurasian revolutions at the beginning of the century made one thing clear: even if they were defeated and destroyed, there was no longer a way back. At least in Russia, it became obvious in 1905 that a simple catch-up bourgeois revolution already had become impossible: ‘Russia’s future was the Bolshevist Revolution.’1202 A second global effect of the early Eurasian revolutions was that only now the basic idea of the Atlantic Revolution was globalized, and affected everybody everywhere on earth: the


1203Ibid., p. 817.1204Hobsbawm, The Age of Extremes, p. 143 et seq.1205For Germany, see Marcus Llanque, Demokratisches Denken im Krieg. Eine deutsche Debatte im Ersten Weltkrieg. Berlin: Akademie, 2000.

idea that social class relations and relations of domination are not natural (or divine), but man-made.1203

Lenin’s militant and authoritarian Bolshevik Party overpowered all its revolutionary competitors in a couple of months. From March to June 1917, Lenin’s party grew from some 1000 members to 250,000 and a short time later to 600,000 members. Lenin’s success is due to the mass support he reached with a strategy that anticipated the later Chinese communists’ strategy of ‘mass line’ (qunzhong luxian). He adapted the demands and goals of the party closely to the demands of the masses and their different social classes. When he and his comrades recognized that the masses’ demands were different from or contrary to the party’s programme, he dropped the programme. The Bolshevik command was the only organization far and wide that was able to cope with the almost insoluble problems of this huge country at the end of a lost war, and the outbreak of a further civil war of reciprocal extermination (1918–21). The war of white and red terror was horror enough, but its disastrous economic side effects were much worse. The whole economy collapsed, and more than four million people died of starvation and epidemics. Despite the international coalition army that fought at the side of the Cossacks against Trotsky’s Red Army, the sympathy in the Western world for the Russian Revolution was great, a sympathy that became more sceptical only after the Moscow Trials in 1936, and turned hostile after the beginning of the Cold War that followed World War II after a couple of months.1204

Massive revolutionary change was caused not only by the Russian Revolution of October 1917, but also by the almost simultaneous American entry into the war in April 1917, the beginning of the Great Chinese Revolution in May 1925, and a series of smaller revolutions and insurgencies. Throughout, the great noise of discourse never stopped, but was continuously intensifying. During the years of World War I, the transnational discourse on peace, socialism and democracy was concretized. All parties prepared themselves for the big bang at the end of the war. The German and Austrian democratic and socialist revolutions were planned during the war and carried out immediately at its end, accompanied by intense class struggles and struggles between the different political party formations and factions.1205 Kant’s essay on Eternal Peace was discussed in more practical terms than ever before, and President Wilson took the essay as a blueprint for his own plan of a League of Nations that finally was actualized


1206Gerhard Beestermöller, Die Völkerbundidee. Stuttgart: Kohlhammer, 1995; Oliver Eberl, Demokratie und Frieden. Kants Friedensschrift in den Kontroversen der Gegenwart. Baden-Baden: Nomos, 2008 (Chapter I. 2: Kant zwischen US-Friedensbewegung, Kriegsrezeption und Genfer Völkerbund).1207Anja Wüst, Das völkerrechtliche Werk von Georges Scelle im Frankreich der Zwischenkriegszeit. Baden-Baden: Nomos, 2007.1208Dewey quoted in ‘Professor Dewey of Columbia’, quoted from Westbrook, John Dewey and American Democracy, p. 227.1209‘Der alte Offizier konnte es bis zum letzten Augenblick . . . nicht für möglich halten, dass ein vielhundertjähriges Reich einfach vom Schauplatz der Geschichte verschwinden könne’. Kelsen, Autobiographie, in Jestaedt, Hans Kelsen, p. 51.

with only a few modifications.1206 Even before Wilson, the ‘Association pour la Paix par le Droit’ (Peace though Law), which was closely associated with Clemenceau’s Jacobin Parti Radical, invented the slogan of a war to end all wars. One of its most influential Members was Georges Scelle, who developed a sociological theory of international law that was very different from Kelsen’s normative theory, but as revolutionary in scientific terms as Kelsen’s ideas.1207 With the entry to war, President Wilson pushed his reluctant allies to support his revolutionary war goals. The leader of the October Revolution, the religious Marxist and social revolutionist Lenin, and the Calvinist Kantian Wilson, who believed in the social gospel and God’s personal mandate, both understood the World War as the beginning of a global revolution and a revolutionary war to end all wars. Both the Bolshevists and the Americans, Lenin and Wilson, were fierce opponents of the then still powerful monarchies and the existing European constitutional pluralism of monarchies and republics, empires, federations and centralized democracies and autocracies. ‘We are fighting to do away with the rule of kings and Kaisers,’ John Dewey wrote in 1918.1208 This negative goal was achieved first: The constitutional monarchy – reinvented in every new, great revolution since the Papal Revolution of the twelfth century – was so thoroughly abolished that hardly anyone remembers it today. It was very different when Kelsen was still employed as legal advisor for the Austrian War Department. When he was called to the minister shortly before the end of the war to explain Wilson’s response to the emperor’s peace offer, he immediately told him that he would be the monarchy’s last War Minister. For the minister, a world was collapsing: ‘The old officer could not believe it until the very end that a centuries-old empire should just vanish from the stage of history.’1209 The brutal Bolshevist extermination of the Tsar and his family in 1918 had the same shocking effect as the dismissal of the last Chinese Emperor without substitution in 1911. With more or less brutal methods, the Egalitarian World Revolution in this respect actualized the constitutional basic plans of the Atlantic World Revolution of the eighteenth century, which had ended in the historical compromise of constitutional monarchy. Among his Western allies, only the French followed Wilson, as long, that is, as their


1210Westbrook, John Dewey and American Democracy. Ithaca: Cornell University Press, 1991, pp. 196, 203.1211Ibid., p. 197.1212Dewey, German Philosophy and Politics (1916), Middle Works 8, p. 203, quoted from Westbrook, John Dewey and American Democracy, p. 198.1213Dewey, ‘In a Time of National Hesitation’ (1917), Middle Works 10, p. 258, quoted from Westbrook, John Dewey and American Democracy, p. 203.1214Dewey, Interview with a New York World reporter July 1917, quoted from Westbrook, John Dewey and American Democracy, p. 204.

imperial interests were respected. When the young Ho Chi Minh went to the Paris Peace negotiations, he was full of hope that Wilson would be able to enforce his claim for universal national self-determination. He was not. Ho Chi Minh went back to Vietnam via Moscow, and Lenin pledged to support the Vietnamese people in their anti-imperial struggle for national liberation. Other leaders of the colonial opposition had to undergo the same experience. Going to Paris with high expectations, they returned home deeply disappointed in the West and its moral position. The Koreans and Chinese tried insurgencies, inspired by rumours that Wilson was coming with an airplane, the new Gospel of the Fourteen Points in his hands and American troops in his train – to take the lead of the freedom fighters. Wilson’s airplane did not show up, and the insurgencies were bloodily suppressed.

John Dewey, together with a host of progressive and socialist intellectuals, many of them former pacifists, strongly supported the American intervention in the war on behalf of the leftist idea of radical democracy, and only after the war criticized the American political turn ‘to the liberal-capitalist version of open-door ideology’.1210 Democracy, Dewey argued in 1916, is part and parcel of modern world society, and it could not be conceived as a national or American affair any longer: ‘The atomistic nation, like the atomistic individual, was a myth.’1211 The intervention in the World War for Dewey was not only a negative issue of securing world peace but also a revolutionary use of power to change the world. The democratic power of war should ‘promote’ a great democratic community within and without national borders and increase ‘the efficacy of human intercourse irrespective of class, racial, geographical and national limits’. It should open the door to ‘the fruitful process of cooperation in the great experiment of living together’.1212 For Dewey, the American intervention was part of a more general use of progressive forces that finally should transform capitalist democracy into democratic socialism, which was the only guarantee for the future of peace and the end of all wars. The World War for Dewey was ‘not merely a war of armies’ but ‘a war of peoples’.1213 Dewey’s hopes went far beyond Wilson’s plans to change the social structure of modern society as a whole. For him, the American war was part of the struggle of ‘the Workman and the Soldier’ against ‘the domination of all upper classes, even of what we have been knowing as “respectable society”’.1214


1215Dewey, ‘What are we fighting for?’ (1918), Middle Works 11, p. 98, quoted from Westbrook, John Dewey and American Democracy, p. 224.1216Dewey quoted in ‘Professor Dewey of Columbia’, quoted from Westbrook, John Dewey and American Democracy, p. 227.1217See Arendt, Origins of Totalitarianism, p. 89 et seq., 123 et seq.1218Osterhammel and Petersson, Geschichte der Globalisierung, p. 85

As for so many intellectuals and ordinary people, the war economy appeared as proof of socialist ideas that at least ‘in the time of great national stress production for profit be subordinated to production for use’.1215 In 1918, Dewey concluded, sceptically but trying to make a virtue of necessity, with an argument that from afar resembled Bukharin’s argument for the New Economic Policy (NEP): ‘When we have finished the job [of doing away with kings and Kaisers] we may find that we [the Americans] have done away with the rule of money and trade. We are fighting for freedom to transact business; but this war may easily be the beginning of the end of business. In fifty years, it is altogether probable, the whole system which we know as “business” today will have vanished from the earth.’1216

Not only American democrats and Russian communists were planning global change. Just as Bonapartism accompanied the Atlantic revolutions from the beginning, the egalitarian revolutions were accompanied by the shadow of a much more irrational ideology and praxis: fascist and authoritarian, anti-egalitarian, ethnic (völkisch) and racist movements which themselves were transnationally organized.1217 Much more so than the nationalist and statist First World War, the Second World War was a war that was also fought beyond national self-interest: on the one side for democracy, human rights and socialism, on the other side for imperial world domination and ‘racial’ selection. Thus, the programmes of all parties mobilized followers across national borders. Members of all peoples involved fought on every side of the many frontlines.1218 World War II broke out in China in 1935 with the brutal attack of the Japanese, who conquered most of China, established a horrible regime of compulsory labour and foreign domination, destroyed several Chinese cities totally and murdered 4 million people (with the intention of democide). In 1939, there followed the attack of the German fascist regime on Poland, which from the beginning was a racist, counter-revolutionary, anti-communist and anti-democratic war of extermination against peoples, ethnic groups, ascribed ‘races’ and all kinds of Untermenschen, as unique as it was exceptional in the amount and kind of murder it involved. In the Second World War, colonial emancipation movements fought with or against their colonial oppressors – depending on ideology, situation and strategy. Whole armies of collaborators and resistance fighters participated in the wars against their own nation. After the war, many of the partisans, mavericks and exiled people became heads of government. During the war, Hobsbawm writes, the meaning


1219Hobsbawm, The Age of Extremes, p. 143. The Stalinist revival of Russian patriotism is an exception but it still was bound (at least rhetorically) to socialist internationalism, and it was ideologically committed to the World Revolution.1220Ibid., pp. 144–7. On the international civil war thesis, see the earlier German debate: Kesting, Hanno, Geschichtsphilosophie und Weltbürgerkrieg. Heidelberg: Winter 1959. Kesting’s diagnosis of a global civil war is not just wrong, but totally obsessed with the still national-socialist propaganda according to which Bolshevism and Americanism fought a revolutionary war of aggression against Germany. One of the few (if any) early critics is Habermas, ‘Verrufener Fortschritt – Verkanntes Jahrhundert’ (1960), in Habermas (ed.), Arbeit, Erkenntnis, Fortschritt. Aufsätze 1954–70. Amsterdam: de Munter, 1970, pp. 112–21; see Parsons, Order and Community in the International Social System. Interesting empirical evidence is delivered by Law and Versteeg, The Evolution and Ideology of Global Constitutionalism.1221Maier, Leviathan 2.0 – Die Erfindung moderner Staatlichkeit, p. 266.

of the West included the Soviet Union. In 1939, the vast majority of Americans (83%) saw themselves at the side of the Soviet Union in the contest with fascism. Never before had simple, straightforward patriotism meant less for the struggling parties, classes and nations. There was no longer any natural loyalty between citizens and their national leaders.1219 Patriotism everywhere had lost its absolute, natural and unambiguous meaning. It became a value among many and was reborn only in hybrid forms. Even intensely nationalist leaders such as Churchill and de Gaulle in World War II committed themselves to ‘a certain idea of England’ and ‘une certaine idée de la France’. These were ideas which, to a great extent, corresponded to the progressive universalism of the Americans and the normative horizon of Marxism and socialism, and had much less in common with their own fascist or semi-fascist predecessor governments, that is, the governments of Chamberlain and Petain. The main frontline of the international civil war was between those who understood themselves as heirs of enlightenment (including the Russians) and transnational fascism.1220

Fascism was defeated in World War II, not least because of the huge sacrifices of the Soviet Union, which finally withstood the German aggression, and defeated their military machinery. Without the total mobilization of the entire Russian population, it certainly would have taken much longer to defeat National Socialism.1221 Finally, the global contradiction between democratic capitalism (USA and the West) and bureaucratic socialism (Soviet Union and the East) became the basic contradiction of the post-WWII epoch. It integrated the latent conflict between North and South in the course of decolonization. The Americans combined revolutionary chiliasm and utopianism with the idea of a democratic society, a normative constitution and the rule of law – whereas the final result of the Russian Revolution was the combination of revolutionary chiliasm and utopianism with a bureaucratic party dictatorship, a nominal constitution and rule through law. However, the global interaction between the Soviet Union and the United States became significant for the


1222Parsons, Order and Community in the International Social System; empirically confirmed with respect to the global differentiation of constitutional regimes, see Law and Versteeg, The Evolution and Ideology of Global Constitutionalism.1223Evgeny Pashukanis, Law and Marxism. Pluto Press, 1983, p. 134, quoted from Fine, Democracy and the Rule of Law, p. 168.1224Choudhry, The Lochner era and comparative constitutionalism, p. 3.1225Reynolds, One World Divisible, p. 20.

course of the revolutionary transformations of the century. As Talcott Parsons has shown in a seminal study (which unfortunately was drowned by the white noise of Cold War science), both belonged together and formed the existing contradiction of the first world constitutional system, which had emerged right after 1945 and the enactment of the UN Charter.1222 While the Russians had been economically successful with the NEP, which enabled a recovery of the economy after a terrible civil war, the socialist system was subsequently engulfed by one of the worst waves of state terrorism ever perpetrated by any revolutionary regime. When Stalin came to power, he stopped the NEP, caused a (partly intended, partly unintended) series of serious economic catastrophes (including the starvation of probably millions of people) and established a terrorist compulsory economy. Stalinists completely abolished the law (at least for a couple of years), but maintained the bureaucratic state-party apparatus. The dark side of Pashukanis’s and the Leninist lawyers’ utopian project of the ‘withering away of the legal form in general’ became atrocious reality.1223 Compared with Stalinism, America indeed was a realm of freedom, which finally, after 50 years of intense and bloody class struggles, had arrived at the triumph of New Deal politics. The meaning of the Lochner judgement of the US-Supreme Court from 1905 that constituted a whole era of radical neo-liberalism now was turned into its opposite and became a global ‘negative guide of constititutionalism’.1224 The New Deal established a new material constitution of a capitalist economy under democratic control. It was the American version of the socialization of the means of production that was either copied or co-originally invented by all other states of the then so-called Western world. Particularly in England, Sweden and the whole of Scandinavia, it came relatively close to democratic socialism. The Western (and especially the American) New Deal version of a socialization of the means of production can be roughly defined as ‘big business being bankrolled by big government’.1225 However, this model works as a (partial) socialization of the means of production if, and only if (1) it is based on high progressive taxation (and not primarily on debt), (2) tax-financed public social welfare services and security systems, (3) enforceable social and labour rights and (4) effective macroeconomic steering and control. Moreover, all this (1–4) is due to the permanence of democratic class struggle, which is enabled by the necessary conditions of


1226See Walter Korpi, The Democratic Class Struggle, Routledge, London, 1983.1227Hobsbawm, The Age of Extremes; Thornhill, A Sociology of Constitutions, pp. 276, 278–80, 282–4.1228Ibid.

an efficient institutionalization of the two generalizing mechanisms of strong unions and strong parliaments.1226 The turn of the West from authoritarian capitalism and capitalist democracy to democratic capitalism was an effect of global economic crisis, national and international class struggles, and the Russian Revolution. The success of the Bolshevist Revolution in October 1917, together with the social revolutionary transformations in Germany and other countries after World War I, engendered (at least through the fear of further socialist revolutions) an enormous pressure for radical social reform on the whole capitalist world.1227 What the Russian Revolution had demonstrated to everybody was that a revolutionary victory is possible in the class struggles between labour and capital, people and wielders of coercive state power – even in technically advanced societies whose state apparatus at the same time appeared to Max Weber as unbreakable. After the outbreak of the Russian Revolution, in the period between 1917 and 1919, social democrats for the first time in history moved from the opposition into government in Sweden, Finland, Germany, Austria and Belgium. Only a couple of years later Great Britain, Denmark and Norway followed, and the debate about a parliamentary road to socialism that had been theoretically anticipated by Lassalle, Engels, Bernstein, Kautsky, Kelsen and the Austrian Marxists became a practical project. Any restoration of the ancien régime of nineteenth-century bourgeois class rule and bourgeois parliamentarism had become impossible.1228 However, the impact was reciprocal. That of the October Revolution on the West was enormous, but also vice versa that of the West on the East, at least since the 1950s, and finally the world-shaking October Revolution was trumped by the enormous economic, political, cultural and moral power of the United States. Modern mass democracy was an American invention.

Co-original and arguably even more sustainable was (and still is) the impact of the Chinese Revolution. The Chinese copied many ideas, revolutionary and evolutionary advances from Soviet Russia, Japan and the United States, but, backed by classical and modern Chinese traditions, they created a hybrid form of communist party rule that deeply influenced the formation of further hybrids in the age of decolonization. Revolutionary change covered the whole Eurasian continent. The Great Chinese Revolution openly broke out in 1925. In the long period of the Chinese revolutionary wars between 1925 and 1949, peasant insurgencies, general strikes of the proletariat of the Treaty Port areas and student revolts overlapped and


1229Revolutions were exported throughout the twentieth century, in particular, into the countries of the so-called Third World. However, the ‘export of the revolution was no longer based on military conquest (as in the French case after 1792)’. This was a specific ‘invention of the twentieth century’. (Osterhammel, Die Verwandlung der Welt, p. 799). As it seems, the normative constraints of the Egalitarian Revolution no longer allowed the effective combination of military conquest with revolutionary regime change in a way that appeared legitimated in the eyes of the conquered populations. The exception of the Soviet Union in Eastern Europe is as characteristic as the disaster of the United States in Vietnam and Iraq. While Russia had the legitimization of a successful revolution, the externally imposed regime change in conquered countries which became de facto colonies of the Soviet Union suffered from the beginning of a structural crisis of legitimization. This crisis became manifest and incurable at the latest in 1968, when the coalition of the willing sent its tanks to Prague. That is why the moment of the Soviet Union’s greatest triumph, when it conquered all of Eastern Europe in 1945, was the ‘beginning’ of ‘its downfall’ (Hegel, Logik II, 252). The cases of West Germany and Japan were different kinds of externally imposed revolutionary change. In both cases, revolutionary change was based on (1) unconditional surrender and the extinction of the former state (see Kelsen, ‘The Legal Status od Germany According to the Declaration of Berlin’, American Journal of International Law 39 (1945), 518 (HeinOnline). For that reason, both needed (2) a new foundation as newly self-determined people.1230See Parsons and Platt, The American University. See Osterhammel, Shanghai, 30. Mai 1925. Die Chinesische Revolution, Munich: dtv, 1997, pp. 11, 80–8, 132, 192. Osterhammel characterizes the students as a ‘zahlenmäßig kleines, aber sauerteigartig wirksames Element unter der städtischen Bevölkerung . . ., [das] sich . . . als Resultat der Erziehungsrevolution in einem Zustand suchender Rollenunsicherheit befand’. (p. 101). Students and intellectuals later were not only preferred victims of the Maoist cultural revolution of the 1960s and 70s. They were as often the main perpetrators of revolutionary mass crimes (see Osterhammel, Shanghai, p. 234).

interfered with one another. The Chinese Revolution was only partially imported, but in the time of decolonization became itself an export hit.1229 Russian communist influence and support was strong, but ultimately not essential. Leninism was a model but not the only one. The Chinese Revolution in many ways was sui generis. First of all, due to the beginning of the global ‘educational revolution’, students and students’ revolts played an important role throughout the revolutionary process.1230 In China, new and reformed universities and academic studies in foreign Western countries were breeders of revolutionaries. Educated either at the new universities of Shanghai and elsewhere in the Treaty Port region, or in Hong Kong, Japan and the United States, students triggered the first of a series of Chinese cultural revolutions in the 1920s, which replaced the rotten mandarin system with modern academic programmes. Students fought for the simplification of written language, for empirical science, for the emancipation of women, against authority and for egalitarian democracy. After the breakdown of the mandarin system, the rapidly growing number of new students became the first academic precariat of the 20th century. Equipped with the weapons of critique, they were supported by Lenin’s travelling cadres from 1919, and the students diffused and fuelled both communism and nationalist anti-imperialism, and their synthesis. Secondly, for the first time, the peasants (under the flexible lead of the communist party) were established as the


1231See Thomas Heberer, ‘Wenhua da Geming: Die “Große Proletarische Kulturrevolution” – modernes Trauma Chinas’, in Wende (ed.), Grosse Revolutionen der Geschichte, pp. 289–311, at 310. From time to time, even the party revitalized the class struggle in China. Once triggered, the manifestation of a variety of conflicts over class and other structural issues could not be kept under total control by the party or the one big leader. The Cultural Revolution did not end, like Stalinism, by a secret decision of the central committee, but through a revolt in the streets and more or less open struggles within the party and its political elites. The peasants arose in spontaneous insurgencies and began to redistribute the collectivized land to the immediate producers. See Beverly J. Solver and Lu Zhang, ‘China als neuer Mittelpunkt der globalen Arbeiterunruhe’, PROKLA 4 (2010), 605–18.1232Osterhammel, Shanghai, 30. Mai 1925, pp. 12–22.1233Osterhammel, Die chinesische Revolution, p. 252.

major subjects of a great and successful social revolution, before they ended up as the losers of history. Thirdly, in contrast to the approach taken by Leninism, Marxist orthodoxy was radically revised and assimilated to the Chinese situation, which was more or less the situation of the whole colonized world. Chinese Marxist revisionism explains a crucial aspect of the success of the communist revolution. In contrast to the situation in the Soviet Union, spontaneous and anarchic class struggle continued in China even after the victory of the revolution, and the party never totally repressed all conflicts. Even today, there is increasing workers’ unrest all over the country that has lasted for decades, and has achieved many changes in labour law.1231 The fourth and most important factor was the fusion of internal class struggle, national liberation and anti-imperial struggle. After the student demonstrations on 30 May 1925 were suppressed and a couple of students were shot, the subsequent insurgency led to a strong communist organization of the workers of the industrial complex of the Treaty Port region that was enabled by the then new combination of socialist egalitarianism and anti-imperialism. This combination united all factions and classes of China in their struggle for colonial emancipation, but held to the basic idea of Chinese communism once the class coalitions broke asunder and social class struggle was pushed to the top of the political agenda.1232 In the beginning in the 1920s, the class struggle was directed against British shipowners and Japanese cotton corporations, and not so much against the (even more exploitative) Chinese capitalists. Over long periods, capitalist national boycott and communist general strike went hand in hand.1233

The long period of global upheaval marked by two World Wars came to an end in 1945 in Europe and, if we include the Chinese Revolution, 1949 in Asia. There were no peace treaties at the end but, as earlier in Russia, China and elsewhere, the extinction and revolutionary new foundation of the formerly authoritarian regimes and their states (German Empire, Japan). This opened the path for a new international law, massive constitutional change in most of the national regimes and the foundation of new global and regional confederations of states and peoples. As after the French Revolution, the map


1234Daniel Maul, The ILO involvement in decolonisation and development, ILO Century Project 2010, available at: http://www.ilo.org/public/english/century/information_resources/download/maul.pdf (04 July 2012).1235On the latter, see Thornhill, ‘National Constitutions in the Transnational Constitutional System: A Sociological Approach’, Ms. 2013.1236Wingert, Unpathetisches Ideal.1237Dworkin, Taking Rights Seriously; Neves, Zwischen Subintegration und Überintegration: Bürgerrechte nicht ernstgenommen.1238Samantha Besson, ‘The Right to have Rights: From Human to Citizens’ Rights and Back’, in Marco Goldini and Christopher McCorcindale (eds), Hannah Arendt and the Law. Oxford: Hart, 2012, pp. 334–55, at 342.1239Brunkhorst, Solidarity, p. 74.1240Kant, Metaphysik der Sitten, Rechtslehre § 46, p. 432.

had changed in a way that reflected an ‘epochal remodelling of the system of states’.1234


Throughout the nineteenth century, human rights were (at best) non-binding declarations enabling both emancipatory public demands and the functional growth of executive state power. Their appeal was universal, but their normative legal force at best reduced to a (non-binding) legislative programme of the nationally and socially restricted exclusion of (certain) inequalities. The revolutionary transformations of the twentieth century have transformed the declamatory, programmatic, nationally and socially limited legal force of human rights into an effective performative praxis of a globally expansive and socially inclusive democratization of state and society – again with some unintended functional side effects concerning the globalization of capitalism and the growth of national and transnational executive power.1235

The Zurich philosopher Lutz Wingert once called human rights door openers for closed societies.1236 They exist only insofar as they are taken seriously.1237 If they are taken seriously, all legal human rights in all their main dimensions (negative, public, social and anti-discriminatory) are internally related to political self-determination: ‘They both enable political equality and stem from it.’1238 Human rights are placeholders for those excluded from egalitarian democratic procedures but included by the principle of democracy.1239 This principle demands that those affected by politically binding decisions or legal norms shall be the authors of these norms.1240 All exceptions from this principle (for instance, non-citizens, young children, prisoners or other inmates of institutions of various kinds), therefore, must be justified in accordance with the principle. That means that at least everybody affected has to be


1241Müller, Wer ist das Volk, p. 76; see Oeter, Stefan, ‘Allgemeines Wahlrecht und Ausschluß von Wahlberechtigung: Welche Vorgaben enthält das Grundgesetz’, in Davy, Ulrike (ed.), Politische Integration der ausländischen Wohnbevölkerung. Baden-Baden: Nomos, 1999, p. 38; Walker, Neil, ‘The Idea of Constitutional Pluralism’, Modern Law Review 65 (2002), 317–59, p. 317 (‘inclusive coherence’).1242Besson, The Right to have Rights: From Human to Citizens’ Rights and Back, p. 353. On productive antinomies, see Kesselring, Die Produktivität der Antinomie.1243Besson, The Right to have Rights: From Human to Citizens’ Rights and Back, p. 343.1244Ibid., p. 342.

‘taken seriously as a legitimating factor of state action and be treated as significant’.1241 The democratizing effect of human rights does not overcome the inclusion/ exclusion paradox, but makes it productive, hopefully in the sense of a virtuous circle to ‘make sure that those boundaries’ between included and excluded populations affected ‘are constantly being questioned and potentially pushed further to include more stakeholders among decision-makers’.1242 Human rights, therefore, are a practical instrument of inclusive democratic politics. They ‘work as a political irritant and as a mechanism of gradual inclusion’, leading to the ‘extension of political franchise’ and of ‘citizenship itself to new stakeholders in the community’.1243 To guarantee the treatment of everybody affected as significant for democratic self-determination is the internal democratic meaning of human rights, and vice versa. Democratic self-determination in a circular movement has to create and actualize human rights as positive law to enable (further and more) democracy. This is so because, without human rights, ‘political equality would remain an abstract guarantee; through human rights, individuals become actors of their own equality and members of their political community’.1244

The idea of a universal democracy that is co-original with human rights was already the constitutional basic idea of the Atlantic Revolution. But only after the egalitarian revolutionary transformations of the twentieth century has human rights universalism been taken seriously. An interpenetrating double structure of international and national human rights regimes was established. Democracy and democratic legitimization now comprise all dimensions of human rights, including social and anti-discriminatory rights. From the beginning of the global workers’, women’s, peace and colonial emancipation movements up to our days, the dynamic function of human rights as door openers, placeholders, political irritant and mechanism of inclusion has challenged static and exclusive bourgeois parliamentarism and triggered a dynamic process of inclusive democratization and mass-democratic experimentalism. On account of the performative and contested character of human rights egalitarianism, the exclusive and elitist democratic exceptionalism of upper-class public spirit has been replaced by democratic iterations and reiterative democratic


1245See Seyla Benhabib, ‘Die Dämmerung der Souveränität oder das Aufstreben kosmopolitischer Normen? Eine Neubewertung der Staatsbürgerschaft in Zeiten des Umbruchs’, in Kreide and Niederberger (eds), Transnationale Verrechtlichung, pp. 209–39; Kreide, Globale Politik und Menschenrechte. Macht und Ohnmacht eines politischen Instruments, pp. 22, 31, 36–7 (on the performative and contested character).1246John Stuart Mill, Considerations on Representative Government. London: Savill and Edwards, 1861.1247Dewey, The Public and its Problems; Walter Lippmann, The Phantom Public. New Brunswick: Transaction, 2009 (1927).1248The German is: ‘Die Internationale erkämpft das Menschenrecht’.1249Kant, Zum ewigen Frieden, English: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May 2012).

expansionism based on public opinion.1245 The work of John Stuart Mill on representative government that tried to safeguard the priority of public spirit through a system of aristocratic constraints on democratic representation is a typical hybrid transitional semantics that has been abolished completely by the Egalitarian Revolution.1246 On both sides of the debate, after 1917, public spirit disappeared in favour of egalitarian public opinion, on the side of the Kantian mindset (Dewey) as well as on the side of the managerial mindset (Lippmann).1247

In English, the refrain of the German version of an old song goes: ‘The International wins us human rights.’1248 What is true of the workers’ movement was true of the women’s, the peace and the colonial emancipation movements and for their revolutionary rhetoric. All fought for their own and for the universal human rights of others. But, as we have seen, successful revolutions and big powers frequently betrayed human rights promises and exploited their rhetorical force. Great revolutions usually began as a struggle for a kind of universal right, caused by serious rights violations which arouse our sense of injustice. But they often ended as regimes of new and sometimes even more serious rights violations – from the Catholic persecution of heretics and the intensified exploitation of peasants via Protestant witch hunts and class justice to democratic slavery – apparently the only thing that modern and ancient democracy have in common – and, not to forget, the socialist Gulag. However, all great legal revolutions also create the potential for correcting their faults due to the establishment of universalizable normative constraints to incremental adaptation and social structural selection. Only now, after the Egalitarian Revolution, can all human rights violations in one particular place on earth be observed, felt, communicated, recognized and (sometimes) even prosecuted ‘throughout the world’.1249 Since the 1980s, the revolutionary advances of international human rights (and the right to have international and national human rights) have become door openers not only for pre- or post-revolutionary autocratic regimes such as South Africa, the Soviet Empire, China and Cuba, but also for many other nominally and


1250See Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa.1251See Kreide, Globale Politik und Menschenrechte; Thomas Risse, Stephen C. Ropp and Sikkink Kathyrn (eds), The Power of Human Rights. Cambridge: Cambridge University Press, 1999. On the emergence of jurisdiction, see: Fischer-Lescano, Globalverfassung. Die Geltungsbegründung der Menschenrechte im postmodernen ius gentium, Weilerswist: Velbrück Wissenschaft, 2004; Bogdandy and Venzke, Ingo (2009), ‘In wessen Namen? Die internationale Gerichtsbarkeit diskurstheoretisch betrachtet’, Lecture: Zurich, 28 May 2009 (quoted from the e-man.). See Law and Versteeg, The Evolution and Ideology of Global Constitutionalism, p. 1180.1252Thornhill, National Constitutions in the Transnational Constitutional System.1253See Fischer-Lescano, Globalverfassung.1254See Emmerich-Fritsche, Angelika, Vom Völkerrecht zum Weltrecht. Berlin: Duncker & Humblot, 2007; Thornhill, National Constitutions in the Transnational Constitutional System.

symbolically constitutional (but, in fact, authoritarian) regimes (Chile, Argentina and so many others). Even the democratic national states and at least semi-democratic transnational federations and confederations have often conflicted with the jurisdiction of transnational human rights courts.1250 The human rights movements that have emerged since the 1980s are composed of international governmental organizations (IGOs) (the Helsinki Accords and CSCE, regional human rights instruments etc.), an impressive and dense INGO/NGO network of human rights groups and supervision (Amnesty etc.), a global human rights culture of public blaming and shaming (which is surprisingly successful) and the emergence of a global jurisdiction of national, and a rapidly growing number of international, courts.1251 The combination of all four factors today enables dissidents everywhere in the world (not without risk) to go public, to get national and international support, and to appeal to human rights legally. The Helsinki Accords (together with NGO networks, social and human rights movements and a revolutionary counter-power from within such as Solidarno) are paradigmatic, and probably were much more important for the catch-up revolution of Eastern Europe than the final stage of military competition with the United States in the 1980s.1252 Another paradigmatic case is that of the human rights of disappeared people and their families under the Argentinian (and other) neo-liberal military dictatorship(s) of the 1980s and 1990s, a case that was hard-won by the protest movements of the Madres de Plaza de Mayo in Buenos Aires and international public pressure, strongly reinforced by national and international courts.1253

In the course of the twentieth century, the universal rights of individual human beings and peoples (social groups) became part and parcel of international and world law, and finally found their way into nearly all state constitutions.1254 The supranational right to have rights that Hannah Arendt missed during World War II (with its millions of stateless people) today is positive international law. Samantha Besson has convincingly reconstructed Arendt’s idea of a right to have rights as a two-level evolutionary process that


1255Besson, The Right to have Rights: From Human to Citizens’ Rights and Back, p. 348.1256Ibid., pp. 343, 348, 354–5.1257Oeter, ‘Jus cogens und der Schutz der Menschenrechte’, in Stefan Breitenmoser, Bernhard Ehrenzeller, Marco Sassòli, Walter Stoffel, Beatrice Wagner Pfeiffer, Hg., Menschenrechte, Demokratie und Rechtsstaat. Baden-Baden: Nomos, 2007, pp. 499–521. I come back to the problem of ius cogens in the next part 4.1258Besson, The Right to have Rights: From Human to Citizens’ Rights and Back, p. 343.1259Ibid., p. 348.1260Ibid., p. 343.1261Ibid., p. 348.1262See Böckenförde, ‘Die Verfolgung der deutschen Juden als Bürgerverrat’, http://schrimpf.com/ph/boeckenfoerde/buergerverrat.html (8 July 2012).

distinguishes it categorically from older concepts of a natural or rational right to have rights, as in Vitoria’s or Fichte’s reading of that right. On the first level, an international right to have human rights as a foreigner in a world of states and international organizations has been emerging since the end of World War II. It pertains ‘to access to membership’.1255 In this respect, liberal and negative rights to freedom (of life, property etc.) are also genuinely political rights because they ‘constrain what equal membership’ in a political society (be it a polis, a national state, an empire or a transnational or supranational organization) ‘can mean if it is legitimate’. Political equality is destroyed and turned into its opposite by a community that ‘excludes’ whole categories of individuals from political membership through ‘genocide, torture and other extreme forms of cruel treatment’.1256 This is at the core of all erga omnes norms which bind all legal subjects in international law, independent of organizational membership and individual recognition.1257 These rights legally imply their extension to ‘asylum seekers, economic migrants, stateless persons and so on’. Therefore, they must be ‘guaranteed legally from outside a political community’ because they work as ‘constraints on [particular] democratic sovereignty and self-determination’.1258 However, they have to be legitimized democratically insofar as they become international legal norms – at best through a formal legislative procedure that is democratic (the Kantian ideal way), or at least through ‘inclusive and deliberative processes of the kind that are incrementally developed in international law-making’ (the managerial way of evolutionary growth).1259 If national law affects ‘the fundamental interests of other individuals outside national borders, those individuals deserve equal protection’, in particular, individuals and groups affected by foreign ‘military – and also by economic – interventions’.1260 On the second level, an international right to have human rights as a citizen is emerging together with first level rights of access. It pertains ‘to actual membership’.1261 On this level, the right to have rights binds the states and other political organizations to certain human rights standards vis-à-vis their own citizens.1262 Since the late 1980s, massive human rights violations are leading to breaches of the prohibition of any intervention


1263Art. 2 (VII) reads: ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’ (Chapter VII regulates military and other intervention in case of threat of peace).1264Fritz Lang, USA 1943.1265On the normative impact, see Kreide, Globale Politik und Menschenrechte; on the functional impact: Thornhill, National Constitutions in the Transnational Constitutional System.1266Marx, Capital, I, English: http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April 2012).

on the part of the international community (or the United Nations) ‘in matters which are essentially within the domestic jurisdiction of any state’ (Art. 2 [VII] UN). The Security Council interprets them now as a threat to international peace that limits the guarantee of Article 2 (VII).1263 In particular, the second human rights progress is ultimately due to the Nuremberg Trials, which, for the first time, gave the avenging power of communicative reason the form of a legal court organization: Hangmen also die!1264

Only with the emergence of inter-, trans- and supranational human rights regimes since 1945 and especially since 1989 have all national states come under growing pressure of human rights compliance, for the normative reasons of the (however distorted) gradual managerial concretization of the Kantian mindset as well as for the functional reasons of the self-preservation of national administrative power.1265 However, this turn to international human rights and a corresponding right to have rights has a long prehistory of political and legal struggle for a modest Magna Carta of fundamental legal limits to imperialism.1266 A good example are the events of 30 May 1925 in Shanghai and their political and legal aftermath – the beginning of the Chinese Revolution and the reluctant beginning of a paradigm shift from an imperial to a cosmopolitan constitutional mindset. Shanghai in the mid-1920s was one of the Chinese Treaty Ports based on unequal treaties enforced under military pressure. The treaties included a special area of certain privileges for the imperial powers of Great Britain, Japan, France, the United States, Italy, Holland, Portugal and Belgium, the so-called International Settlement. On 30 May, in the International Settlement, during a peaceful but (for a British police officer) threatening student protest in support of striking mill workers, 11 protesters were killed by British gunfire. The bloody incident triggered an insurgency that was not only the beginning of the rise of the Communist Party and the combined struggle for universal social rights and equal treatment of all peoples under international law, that is, of the momentous liaison of socialism and anti-imperialism. It was also the trigger for an astonishing internal change of the imperial mindset of international law caused by the managerial business of a sober and prosaic legal report.


1267See Richard W. Rigby, The May 30 Movement. Events and Themes. Canberra: Dawson, 1980; Shanghai Incident Collection, MS 399, Special Collections, Milton S. Eisenhower Library, The Johns Hopkins University 2012.1268Chamberlain quoted from Rigby, The May 30 Movement, p. 92.1269Rigby, The May 30 Movement, p. 94f.1270This is a typical characteristic of nominal constitutional regimes: Neves, Zwischen Subintegration und Überintegration: Bürgerrechte nicht ernstgenommen.

After the uprising, an International Commission of Judges was convened for investigation.1267 Because the international rule of law in the Chinese Treaty Port area was at best nominal, such commissions regularly consented to blaming the Chinese and whitewashing the agencies of Western imperialism, a clear case of imperial justice with a class and race bias. Chinese judges were excluded from the Commission because the judges of the informal empire (British/American/Japanese) considered them biased and one-sided. The exclusion of the Chinese was strongly supported by the right wing Conservative Party leader Austen Chamberlain, who was then British Foreign Secretary. He was a half-brother of the later Prime Minister who was responsible for the notorious Munich Agreement. Austen Chamberlain wrote to the British representatives in Shanghai: ‘I do not think that any Chinese representative should be included,’ giving as his reasons that they had no legal competence in the Settlements, and that they ‘have shown a persistent desire to use the Shanghai incident as an argument in a different and larger issue instead of judging it strictly on its own merits’.1268 British rule of law at its best. As usual in such cases, Sir Henry C. Gollan, Chief Justice of the Supreme Court of Hong Kong, and Kitaro Suga, Chief Justice of the Hiroshima Appeals Court, strictly affirmed the imperial mindset. As expected, they laid the blame on the Chinese and ‘exonerated the police and the SMC [Shanghai Municipal Council] officials from all blame’. But this case was different. Absolutely unexpectedly, the American judge E. Finley Johnson, Associate Justice of the Supreme Court of the Philippines, dissented and extended culpability to the imperial powers of the International Settlement and their leaders and police troops. To the ‘general rage of the foreign community in Shanghai’, Johnson ‘not only censured the police’ but also took the essential historical and societal background into account (this being the ‘different and larger issue’ Chamberlain so urgently wanted to exclude) and ‘seemed to vindicate the Chinese position that the shootings could not properly be treated as isolated incidents’.1269 Johnson argued, first, that the ‘disturbances’ had a ‘cause of many years standing’, and that this cause consisted in a long list of institutionalized breaches of international law, concerning (1) the non-representative legal status of the international Mixed Court, (2) the lack of Chinese representation in the government of Shanghai, (3) the fact that criminals are always Chinese, judges always foreigners,1270 (4) the Chinese


1271Rigby, The May 30 Movement, pp. 94–5.1272See Rainer Nickel, ‘Transnational Borrowing Among Judges: Towards a Common Core of European and Global Constitutional Law?’, in Nickel (ed.), Conflicts of Law and Laws of Conflict in Europe and Beyond. Oslo: Arena, 2009, pp. 281–306.

‘loss of sovereignty over territory’, (5) one-sided ‘modifications of treaties’, (6) road building on Chinese territory without authorization, (7) ‘usurpation of legislative, judicial, administrative, and police powers in Chinese territory’ and so on. Then followed a second long list of ‘immediate and proximate causes’ that mostly consisted in rights violations through legally unjustified use of prerogative law: (1) adoption of by-laws creating new criminal offences, (2) by-laws of the Municipal Council, licensing stock and produce exchanges and punishing free speech and (3) oppression of freedom of assembly by police force. Both of Johnson’s lists must be regarded as paradigmatic for violations of the modest Magna Carta of the Kantian constitutional mindset. Only a few points of Johnson’s list blamed the Chinese, and then mostly the communists and the foreign Bolshevist emissaries. Johnson’s last point directly attacked the basic distinction of the imperial mindset: that is the distinction between civilized and non-civilized peoples. Even if Johnson still retained the asymmetry in the educational position between the developed West and the underdeveloped rest, he inverted the imperial mindset by noting:

The failure on the part of the foreigners . . . to realize that the Chinese people have made greater advancement during the past 10 years in civics, in the fundamental principles of government and in the better understanding of individual rights under law, than they have made in any 100 years of their entire history.1271

This final point on civilizing progress in China, taken together with the blaming of the imperial powers, could only lead to the conclusion that in this case the ‘civilized nation’ of the Declaration of Independence was that of the Chinese, and the ‘merciless Savages’ were the British, the Japanese and all the other nations of the International Settlement. Already in the debate on slavery at the eve of the American Civil War, the fixed relation between ‘civilized nations’ and ‘merciless savages’ began to shift. Later, and throughout the twentieth century, the distinction between civilized and uncivilized, developed and underdeveloped peoples was repeatedly turned inside out, and used to criticize the ‘standards of civilized nations’, to argue against torture in Guantanamo and elsewhere in the Western world, or to defend constitutional borrowing against American exceptionalism.1272 The inversion of the hierarchy between civilized and uncivilized nations is essential for the anti-hegemonic discourse of globalizing the exclusion of inequalities: Black is beautiful.


1273Osterhammel, Shanghai, 30 Mai 1925, p. 21.1274Ibid.1275Usually misrepresented in historiography, critically David Cohen, ‘Historiography, War, and War Crimes: The Representation of World War II’, Rechtshistorisches Journal 19 (2000), 1–19.

For the Chinese, Johnson’s dissent was important, but overshadowed by the outbreak of a first civil war lasting 2 years that was the prelude to the Great Chinese Revolution. However, Johnson made public the silencing tacit consent of imperial class justice. With the forceless force of the better legal argument, he made obvious that the unequal treaties, the special regime of the International Settlement, and the informal empire had no backing in international law. His report found willing and attentive readers in Washington and London. The effect was enormous, because it shook the moral framework of the imperial mindset that had been fixed since the Boxer Rebellion of 1899–1900 in China: the assumption that the ‘civilized’ powers of Europe, America and Japan had to defend themselves (and their public parks) against the ‘barbarian’ Chinese people, and that the scope of legal equality between sovereign nations, therefore, had to be restricted to ‘civilized’ nations alone.1273 Jurisdiction for the West, authority for the Rest. The loss of argumentative legal backing was fatal for a framework that was discriminatory and racist, but also based on an epistemic schema of legal arguments vulnerable to arguments. Until 1925, the imperial system of privileged rights seemed eternal to the Western imperial mindset. After 1925, it was questioned also from within the imperial power discourse. The system still prevailed, but it had lost its false appearance of legality. In 1927, the Chinese authorities, thanks to the mobilizing effects of the 30 May Movement, were strong enough to compel the Western powers to deconstruct their informal empire.1274 The arms of critique were complemented by a critique by way of arms. But the first was as important as the latter for colonial emancipation, which does not work if it is reduced to material interest and a simple take-over of power, in other words to the Leninist illusion and the Maoist reduction of the concept of power (‘All political power comes from the barrel of the gun.’ Mao Tse Tung, 6 November 1938), which Western (so-called) realists love to quote as much as Stalin’s famous: ‘The Pope? How many divisions has he got?’ (for an answer, see Ch. III, Sec. I).

In the course of the 1930s, the crumbling regime of informal empire was replaced by fascist Japanese colonization, which was much worse than the Western one had been, comparable only with the imperialism of the Nazi-Regime.1275 Human rights were reduced to external impact. Critique by way of arms had to decide alone. The longer the Chinese civil and


1276Guyer, Marcuse and Classical Aesthetics, pp. 364–5.1277Bao Tong, ‘Rights for All. Through Peaceful Means’, Chin’s News 6. Dezember 1010, http://chinhdangvu.blogspot.com/2010/12/rights-for-all-through-peaceful-means.html.

anti-imperial war of extermination lasted, the more instrumental and strategic reasons prevailed over all moral deliberations. Considerations of strategic reason, originally ‘supplemented by the commitment of those in power to use them for moral ends’ of ‘social and global justice’, turned into an end in themselves.1276 In 1946, when the communist mindset had long since turned from morality to instrumentalism, imperialism came to an end in China. However, even under the reformed dictatorship of the Communist Party, which today is completely in accord with the economically ruling class of capitalists, an appeal to the rights of the Chinese constitution is not worthless. Even if a written constitution has no legal force per se, at least it may have some symbolic value. Bao Teng, a former member of the Chinese Communist Party’s Central Committee and one of the signatories of Charter 08 living in Beijing, argues on the basis of the constitution and its egalitarian appeal against the privileges of the current party aristocracy: ‘We believe, on the contrary, that we must take action to abolish these privileges, to realize Article 33 of the Constitution: “All citizens of the People’s Republic of China are equal before the law.” . . . Some people have accused Mr. Liu and the rest of us who have signed Charter 08 of “subverting the People’s Republic of China.” But what is a republic? A republic is a form of government that puts the political rights of its citizens above all others, as defined in the Constitution.’ The constitution as a text contains already all the ‘basic rights’ needed for modern republican communism (or communist capitalism): ‘Freedom of thought, religion, expression, assembly and the right to protest and hold demonstrations are unequivocally protected by the Constitution.’ These rights are internally related to the principle of democracy (Art. 2 reads ‘All power belongs to the people’). They are ‘the guarantee of rights for over a billion people’. Even if the Chinese constitution (which is a hybrid of the Constitution of the Soviet Union and the American Constitution) in some respect ascribes a leading role to the Communist Party (and insofar already formally is reduced to constitutional party dictatorship), it explicitly binds the statutes of the official party to the constitution: ‘Some people have thereby deemed the act of saving the republic “subverting the Communist Party.” However, the party charter states that “the Communist Party must conduct its activities within the boundaries of the Constitution and the law”. ’1277



There was no democracy before 1945.1278 There were only a few institutionalized projects of democracy, for example, in Switzerland, Scandinavia, Canada, the United States, France and arguably England, and also in non-Western parts of the world, mostly related to national liberation and socialism. All of the above-mentioned Western cases were capitalist democracies, and that means they were democracies under the control of capital. Therefore, they were at best defective, low intensity or delegative democracies, or democracies as highly unstable and risky projects, and not yet ‘démocratie à venir’.1279 All of them were constitutionally segmented, all excluded women, most of them non-white people and (at least parts of) the lower classes. Hence, the vast majority of the adult population was excluded from active citizenship.1280 Some of them, such as the United States, understood themselves as decidedly democratic, but were not. However, understanding social reality is part of social reality, and the idea of democracy had had a rapidly growing global impact since the early nineteenth century. Egalitarian and social democracy became a more and more powerful project, not only of oppositional social movements, but also of political leaders in the United States or France. Finally, insurgencies, civil wars, revolutions and two world wars were fought in the names of democracy and socialism. Both often were understood as the same, or widely overlapping projects. While the more authoritarian Leninism (which still described itself as democratic centralism) was successful only in the global periphery (Russia, China, Vietnam, Cuba), the centre of the industrially developed world was characterized by democratic class struggle. Capitalist democracy came under attack everywhere, and the great transformation to democratic capitalism and democratic socialism began.1281

What became evident in the course of the Egalitarian Revolution was that modern democracy is either universal mass democracy or no democracy. Universal democracy requires as a necessary condition a ‘certain rough

1278See Thornhill, A Sociology of Constitutions; Thornhill, National Constitutions in the Transnational Constitutional System.1279Jacques Derrida, La démocratie à venir. Paris: Editions Galilée, 2004. See Marks, The Riddle of all Constitutions. Oxford: Oxford University Press, 2000; Hans-Jürgen Puhle, ‘Demokratisierungsprobleme in Europa und Amerika’, in Brunkhorst and Peter Niesen (eds), Das Recht der Republik. Frankfurt: Suhrkamp, 1999, pp. 317–45; Guillermo O’Donnel, ‘Delegative Democracy’, Journal of Democracy 1 (1994), 55–68, at 64 et seq.; see Neves, Verfassung und Positivität des Rechts in der peripheren Moderne; Neves, Symbolische Konstitutionalisierung; Müller, Demokratie in der Defensive, pp. 29, 48, 62 et seq.; Müller, Demokratie in der Defensive. Berlin: Duncker & Humblot, 2001.1280Maier, Leviathan 2.0 – Die Erfindung moderner Staatlichkeit, pp. 209–16.1281On the concept of ‘democratic capitalism’, see Streek, Crisis of Democratic Capitalism.


equality in a real capacity to affect political outcomes by all citizens’.1282 Procedural equality cannot be separated from substantial equality because a democratic decision presupposes a deliberative process that enables the equal articulation of each addressee of a legal norm, but also the equal influence of each on decision-making.1283 While equal articulation is internally related to the majority principle, equal influence must be guaranteed by the rules that govern the whole procedure of public will formation.1284 A self-determined rough equality of conditions of life needed a constitutional basis in universal adult suffrage, universal rights to have liberal, political, social and economic rights, strong unions, well-organized workers’ and mass parties, and effective and structurally unrestricted parliamentary legislation.1285 Universal democracy also requires inter- and transnational universalization of democracy to enable the global exclusion of inequalities. The Egalitarian Revolution never realized this, but established it as a global project, and created crucial legal preconditions. Before 1917 and 1945, there were many semantic alternatives to democracy available in terms of constitutional law, such as (more or less) constitutional monarchy, Bonapartism, fascism and a great variety of modern authoritarian regimes. After 1945, all were excluded from the global semantics of constitutional law and from the semantics of international law.1286 A new system of normative constraints was established that only left the democratic path of social evolution legally open for any country, and for any inter-, trans- or supranational organization. Egalitarian mass democracy became an evolutionary universal that was not at all restricted to Europe and the Western world, but also copied or reinvented (and sometimes even pre-empted) in the non-Western world. Contrary to neo-liberal ideology and its global propaganda machinery, democratic economic growth today (after the Egalitarian Revolution) seems impossible without the equal growth of social welfare and rough equality, as particularly the evolution of the East and South East Asian so-called tiger states unequivocally shows. Wage dumping and the race to the bottom are a neo-liberal myth. South Korea, Taiwan, Malaysia,

1282Colin Crouch, Post-Democracy, Cambridge: Polity, 2004, pp. 16–17; see Judt, Ill Fares the Land.1283Gaus, ‘Qualität statt Partizipation und Gleichheit? Eine Bemerkung zum epistemischen Sinn von Demokratie’, Leviathan 2 (2013), 1–27, at 8–11.1284Möllers, Staat als Argument, p. 180 (with reference to Habermas’s legal theory); see Möllers, Gewaltengliederung. Tübingen: Mohr, 2005, pp. 62, 274.1285See Marshall, Marshall, Citizenship and Social Class. With ‘structurally unrestricted’ legislation, I mean no so-called liberal restrictions on general law (Schmitt, Hajek), or on the political sphere, as opposed to an economic society that is excluded from material legislative control, steering and shaping.1286The remaining constitutional monarchies (with a few and unimportant exceptions) lost nearly all contact with real power and were subsumed under parliamentary rule.


Thailand, Singapore and Hong Kong (and before them Japan) have enacted a growing amount of social welfare legislation ‘remarkably similar to the historical pattern of European countries’, and in co-evolution with economic growth and democracy, sometimes even preceding the latter. Far beyond neo-liberal ideology, they have ‘introduced social security legislation in the same general sequence as was followed by the European pioneers, and social security has been introduced earlier in “developmental time” than in Europe’.1287 Moreover, as in the European cases, international welfarism (and especially ILO norms) seems to have been constitutive for national welfarism. After 1945, rights-based egalitarian mass democracy with rough equality came to the top of the cosmopolitan agenda that constituted the international and national legal order, as we will see immediately from the founding documents of the Egalitarian Revolution. If not yet normatively, then at least symbolically or nominally, nearly all constitutions of the world became democratic, whether as liberal democracy, republican democracy or people’s democracy.1288

It was not only European socialists and Russian and Chinese communists, but also the American ‘New Dealers’ that considered class struggles, revolutions and the world civil war as struggles and wars for the global exclusion of inequalities. Not only was the rhetoric of radical socialists thoroughly revolutionary, but so was that of the American New Dealers and democratic socialists. For someone like John Dewey in the 1930s, the socialization of the means of production in the Soviet Union was paradigmatic. Under the (compared with pre-revolutionary Russia) much better conditions of a modern democratic regime (that had been bloodily established long ago), it seemed possible to ‘enter . . . constructively and voluntarily upon the road which Soviet Russia is travelling with so much attendant destruction and

1287Sven E. O. Hort and Stein Kuhnle, ‘The coming East and South-East Asian welfare states’, Journal of European Social Policy 10 (2000), 162–84, at 166, 168–9, 171–3, 179–81. On the precedence of international welfarism, see Lutz Leisering, ‘Gibt es einen Weltwohlfahrtsstaat?’, in Albert and Stichweh (eds), Weltstaat und Weltstaatlichkeit. Wiesbaden: VS, 2007, pp. 185–205; Davy, ‘The Rise of the Global‚ Social’. Origins and Transformations of Social Rights under UN Human Rights Law, International Journal of Social Quality (www.journals.berghahnbooks.com/ijsq) 3:2 (2013) (forthcoming), quoted from manuscript.1288On the distinction, see Löwenstein, Karl, Verfassungslehre. Tübingen: Mohr, 1997, p. 148 et seq. Stalin’s paradigmatically democratic constitution of 1936 even abolished the death penalty, but was a clear case of a symbolic constitution that existed only on paper. The present constitutions of Russia or Hungary are clear cases of democratic constitutions that are nominal (existing in distorted form without sufficient differentiation between law and politics, state and class structure, etc.). The present constitution of France is a clear case of a normative constitution (existing in a normatively valid and effective manner). The constitution of the international community (UN Charter) and the constitution of Europe are normative, but democratically deficient, low intensity, delegative and segmented constitutions of transnational organizations.


coercion’.1289 John Dewey’s political-economic explanation and diagnosis of the antagonistic relation of modern democracy and modern capitalism and the Marxist explanation and diagnosis were not that different:

Power today resides in control of the means of production, exchange, publicity, transportation and communication. Who ever owns them rules the life of the country, not necessarily by intention, not necessarily by deliberate corruption of the nominal government, but by necessity. Power is power and must act, and it must act in accordance with the machinery through which it operates. In this case the machinery is business for private profit through private control of banking, land, industry, reinforced by command of the press, press agents and other means of publicity and propaganda. In order to restore democracy one thing and one thing only is essential.

This thing is the change of direction of control, from the control of democracy by capitalism to the control of capitalism by democracy, or the change from capitalist democracy to democratic capitalism (or democratic socialism/socialist democracy). Thus, Dewey continues:

The people will rule when they have power, and they will have power in the degree they own and control the land, the banks, the producing and distributing agencies of the nation. Ravings about Bolshevism, Communism, Socialism are irrelevant to the axiomatic truth of this statement. They come either from complaisant ignorance or from the deliberate desire of those in possession, power and rule to perpetuate their privilege.1290

For the change from a capitalist and ‘coercive’ to a democratic and ‘free’ ‘division of labor’ ‘radical political action is necessary’, and for this change education is as necessary as the exercise of power. However, there was no way to socialist democracy (or at least democratic capitalism) in isolation from world society and global change. This insight was fundamental for the whole New Deal. For this reason, throughout the New Deal, radical ideas of industrial democracy and democratic socialism (which usually were watered down to democratic capitalism when it came to political and legal implementation) were closely and directly related to cosmopolitan projects. For New Dealers such as Roosevelt’s

1289Dewey, ION, pp. 97–8, quoted from Westbrook, John Dewey and American Democracy, p. 440.1290Dewey, ‘Imperative Need: A New Radical Party’, Later Works 9 (1934), 76–7, quoted from Westbrook, John Dewey and American Democracy, p. 442.


adviser Charles Merriam, the idea of a ‘world bill of rights’ was ‘revolutionary in nature – far more revolutionary than any other world revolution’, and was thus to be the ‘basis’ of all actual and coming ‘revolutionary movements’.1291 Furthermore, it was not only for Russian communists and European socialists, but also for the ‘capitalist’ American President Franklin D. Roosevelt that the political revolution, once fought for the ‘freedom from the tyranny of political autocracy’, now had to be supplemented by a social revolution fought for freedom from the ‘despotism’ of ‘economic royalists’ and the ‘industrial dictatorship’ which had gained (as Marx might also have said) ‘control over other peoples’ money, other peoples’ labour – other peoples’ lives’. Suddenly, what had been denied for more than 150 years by the ideologists of bourgeois society and blocked as a feasible legal programme by the American Supreme Court and Congress became true, namely that without the ‘right to work’ and the ‘right to live’, that without a secure and decent life, the ‘right to vote’ had no value for the people. Here, Roosevelt makes the same (and, by the way, old socialist) argument that Rawls later used in his reflections on the equal value of freedom. In Roosevelt’s speech before the Democrat National Convention in 1936, it reads: ‘In the face of economic inequality . . . political equality’ is ‘meaningless’.1292 Not far from the basic distinction of Herbert Marcuse’s Freudo-Marxist book Eros and Civilization between necessary and surplus repression, published in 1955, Roosevelt argued: ‘Necessitous men are not free.’1293 Roosevelt and the New Dealers ‘were fighting for . . . economic as well as political democracy’, and some New Dealers even asked Congress for a constitutional amendment to ‘establish the right of the people to have both industrial and political democracy’.1294 Industrial democracy at that time was a synonym for democratic socialism or (as Dewey preferred) socialist democracy.1295 Socialist democracy meant socialization and nationalization of large parts of the means of production and massive public intervention in the economy: the ‘socialization’ of the ‘commando heights’ of the economy,

1291Charles E. Merriam, ‘The Content of an International Bill of Rights’, in W. D Lewis and J. R. Ellinston (eds), Annals of the American Academy, 1946, p. 243 Essential Human Rights, pp. 11–17, at 11 et seq., re-published in: Sage Publications/JSTOR, available at: http://www.jstor.org/pss/1025049.1292Franklin D. Roosevelt, Speech for the Democratic National Convention, 27 June 1936, in Public Papers, 5: p. 230, my italics.1293Roosevelt, ‘Message to the Congress on the State of the Union’, 11 January 1944, in Sunstein, The Second Bill of Rights. New York: Basic Books, 2004, pp. 235–44, at 242; see, further, Merriam, The Content of an International Bill of Rights, p. 14. For an interesting reconstruction and even actualization of Marcuse’s argument, see Guyer, Marcuse and Classical Aesthetics.1294Samuel I. Rosenman, Working with Roosevelt. New York: Harper, 1952, p. 264; the demand for amendment: Cong. Rec. 79 (1935): pp. 14 and 212 (statement by Rep. Hildebrandt).1295Westbrook, John Dewey and American Democracy, p. 430 et seq.


massive programmes of ‘public work, particularly in housing, a thorough redistribution of wealth through taxation’ and the ‘nationalization of banking, public utilities, natural resources, transportation, and communication’.1296 Thus, it was not just the authors of the Communist Manifesto of 1848 who presented a plan for a social revolution that was also to be a world revolution. Ninety years later, and in reaction to the double threat of Soviet communism and the greatest economic crisis in the history of modern capitalism, Roosevelt described the fight against economic inequality as a fight ‘for Ourselves and the World’.1297

It was precisely Roosevelt’s use of the thousand-year-old, and from the very first moment fatal metaphor of the crusade that united the national with the international demands for a rights revolution.1298 As the metaphor of the ‘crusade’ again neatly shows, there is no progress without its own dialectic of enlightenment. Even if there is no conceptual necessity, empirically, imperial projects and democratic human rights rhetoric often go hand in hand.1299 But it is precisely this difference between concept and reality that allows the affected people to turn the conceptual difference against the factual intertwinement of imperialism and human rights. Still, national and international law formed an ever denser unity, and supreme courts used international law and the global discourse on rights, in particular, after 1989, to strengthen rights-based national democracy, with the side effect of stabilizing functional differentiation and administrative state power through international law: Judicial review ‘was tied to the increasing recognition of an international rule of rights’ and national legislation and jurisdiction were ‘progressively determined not only by national constitutions, but by wider normative standards, which impacted on specific statutes and specific rulings of specific courts’.1300 All three global waves of constitutional transformation after 1945, the new constitutions and constitutional reforms of the 1940s (Japan, Germany, Italy and all founding nations of the European Communities), of the 1970s on the Iberian Peninsula, and of the 1990s in Eastern Europe, but also in South Africa and elsewhere, were characterized by judicial review, constitutional borrowing and the determination of national law by international normative standards, in particular, in matters of human rights.1301

1296Ibid., p. 441, see 439–40 (my emphasis).1297Roosevelt, Speech for the Democratic National Convention, p. 230.1298Sunstein, The Second Bill of Rights, p. 73 et seq.1299See Anghie, Imperialism, Sovereignty and the Making of International Law, Nehal Bhuta ‘New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional Transformation’, IILJ (Institute for International Law and Justice, New York University School of Law) Working Paper 2010/1.1300Thornhill, A Sociology of Constitutions, pp. 337, 341.1301Ibid., pp. 360–61; Nickel, Transnational Borrowing Among Judges.



The founding documents of the new world order of the twentieth century are peace treaties like that of Versailles, constitutional agreements such as the Covenant of the League of Nations and the International Labour Organization (ILO), the Atlantic Charter, the UN Charter and the General Agreement on Tariffs and Trade (GATT), the founding treaties of the European Communities and the Council of Europe, revolutionary constitutions such as those of Soviet Russia, Austria and the German Empire after the First, and that of China a couple of years after World War II. They are supplemented by a huge variety of substantially new national constitutions, most of them drafted and ratified at the end of, or immediately after, World War II, followed by further constitutional waves during the time of decolonization and the implosion of the Soviet Empire. As important as treaties, charters and constitutions are some declarations, such as the Universal Declaration of Human Rights, and parliamentary addresses, such as the Second Bill of Rights. I will briefly discuss some paradigmatic documents from the early and from the late period of the revolutionary transformations of the twentieth century: the Treaty of Versailles of June 1919 (A), the Constitution of the Russian Soviet Federal Socialist Republic of 10 July 1918 (B), the Atlantic Charter of August 1941, which was rooted in the New Deal (C), the Second Bill of Rights, which Roosevelt delivered to Congress as a programmatic part of a speech in January 1944 (D), the UN Charter of June 1945 (E) and the Universal Declaration of Human Rights of December 1948 (F). In particular, the latter was shaped by the New Deal.

(A) Peace Treaty of Versailles. Hans Kelsen was one of the very few German-speaking constitutional jurists who immediately recognized the progressive historical meaning of the Treaty of Versailles.1302 The Treaty of Versailles ended World War I. It was historically unique for four reasons in particular. (1) The individualisation of international law was established by the Treaty of Versailles (Art. 227). The United Nations’ London Agreement of August 1945 that established the Nuremberg Court, as well as the United Nations’ Genocide Convention, followed directly in this trajectory, which led to the establishment of the International Criminal Court (ICC) in Rome in 2002.1303

1302Kelsen, ‘Der völkerrechtliche Strafanspruch wegen völkerrechtswidriger Kriegshandlungen’, in Neue Freie Presse, 8. September, Vienna 1920, pp. 3–4; Kelsen, ‘La Théorie générale du Droit International Public’, in: Recueil des cours (de l’Académie de droit international), Bd. 42, pp. 117–351, p. 151 et seq., p. 155 et seq.; Cristina Hoss, ‘Kelsen in Den Haag. Die Haager Vorlesungen von Hans Kelsen’, in Brunkhorst and Voigt (eds), Rechts-Staat, pp. 149–68, at 157–8; Bernstorff, Der Glaube an das universale Recht, pp. 128–9.1303See Kelsen, The Law of the United Nations, p. 47.


The Treaty of Versailles opened the path for a ‘special tribunal’ against an individual person (Wilhelm II) and arraigned ‘for a supreme offence against international morality and the sanctity of treaties’ (Art. 227). Other ‘military tribunals’ for ‘persons accused of having committed acts in violation of the laws and customs of war’ (Art. 228), and for ‘[p]ersons guilty of criminal acts against the nationals of one of the Allied and Associated Powers’ (Art. 229) were established, and combined with an obligation of the (German) state to hand over all relevant evidence to the tribunals. As one-sided as this was, it was the first step towards the creation of the legal subjectivity of individual human beings under international law.1304 (2) The foundation of the League of Nations was stipulated, and the League’s Covenant enacted (Articles 1–26). The latter goes back directly to Kant’s utopian project of 1795.1305 One hundred and twenty years after its first publication, Kant’s project, for the first time, dominated the discussion not only in Germany. Philosophers, political scientists, sociologists, international lawyers and political leaders like Woodrow Wilson now followed the trajectory of Kant’s essay on Eternal Peace (in Wilson’s case, very closely).1306 The Kantian proposal for a League of Nations (Völkerbund) became the blueprint for the first institutional implementation of such an organization.1307 (3) The Treaty formally constituted the law of the Covenant as higher law.1308 (4) The ILO was constituted by the Treaty (Part XIII, Art. 387–427). The ILO was the first international organization that called its founding document a constitution. The project goes back to the International Association for Labour Legislation, founded in 1900. Further strong impulses came from the Second Socialist International, the International Federation of Trade Unions and the British Labour Party. Welfare internationalism was co-original with the Russian Revolution. It was not only an old project of the workers’

1304Kelsen, Der völkerrechtliche Strafanspruch wegen völkerrechtswidriger Kriegshandlungen, pp. 3–4 (Treaty provisions quoted from Kelsen, they are: UKTS [1919] resp. Cmd. 153, UK Law Report Citation, online: https://www.gov.uk/uk-treaties (8 November 2013); more generally, see Verdross, Die Verfassung der Völkerrechtsgemeinschaft, pp. 160–3.1305Eberl, Demokratie und Frieden. Kants Friedensschrift in den Kontroversen über die Gestaltung globaler Ordnung, quoted from the manuscript: Diss. Univ. Bremen, 2007, p. 75; on Wilson and Kant: Beestermöller, Die Völkerbundidee.1306Eberl, Demokratie und Frieden; Bernstorff, Der Glaube an das universale Recht; see Wüst, Das völkerrechtliche Werk von Georges Scelle im Frankreich der Zwischenkriegszeit.1307Beestermöller, Die Völkerbundidee.1308‘The Members of the League severally agree that this Covenant is accepted as abrogating all obligations or understandings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof. In case any Member of the League shall, before becoming a Member of the League, have undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations.’ (Art. 20). See Fassbender, The United Nations Charter as the Constitution of the International Community, p. 103; Hersch Lauterpacht, ‘The Covenant as the “Higher Law”’, British Year Book of International Law, Vol. 17. New York and London: Oxford University Press, 1936, p. 54.


movement, but also preceded the construction of national welfare states in the wake of World War II.1309 It was fuelled by the triumph of socialism in Russia, but emerged not only from socialist, but also from republican and Jacobin sources.1310 With the prominent establishment through the Peace Treaty of the ILO as a tripartite body made up of government delegates (50%) and of personally elected delegates from the employees’ organizations (25%) and the workers’ unions (25%), the Allied Powers reacted to the challenge of the first successful socialist revolution in one of the hugest empires of the world.

(B) In terms of international law, the Constitution of the Russian Soviet Federal Socialist Republic of July 1918 followed the trajectory of Kant’s Eternal Peace. It used nearly the same words as Wilson in his Fourteen Points of January 1918, anticipated Roosevelt’s and Churchill’s Atlantic Charter of 1941, and the much later terminology of the US American propaganda of a democratic peace when it declared the ‘abrogation of all secret treaties’, and the ‘making of all efforts to conclude a general democratic peace without annexation or indemnities, upon the basis of the free determination of peoples’ (Art. 1 III 4.).1311 The international dimension was essential because the main purpose of the Constitution was socialist world revolution. The latter did not work as planned, but the development of social welfare regimes in the Western world was to no small extent caused by the worldwide explosion of socialist radicalism in the wake of the revolutionary success in Russia. It was not least the threat of a domino effect that strengthened the parties of reform, also within the ruling classes.1312 The influence of the Russian Revolution on colonial emancipation movements was immense. They were repeatedly mentioned in the Constitution. Article 1 addresses them directly as the ‘enslaved . . . hundreds of millions of the working population of Asia, of the colonies, and of small countries generally’ (Art. 1 III, 5.).1313 The first of these to turn away from Wilson and Versailles and towards Lenin and Moscow was Ho Chi Minh.

1309Leisering, Gibt es einen Weltwohlfahrtsstaat, p. 200.1310In France, since the end of the nineteenth century (and influenced by the sociology and the scientism of the Durkheim school), political egalitarianism had been expanded to a comprehensive idea of social solidarity, which quickly became popular, and, from the outset, was closely related to the idea of a League of Nations. See Dieter Grimm, Solidarität als Rechtsprinzip. Die Rechts- und Staatslehre Léon Duguits in ihrer Zeit. Frankfurt aM: Athenäum, 1973; Wüst, Das völkerrechtliche Werk von Georges Scelle im Frankreich der Zwischenkriegszeit.1311As so often in history, when revolutionaries came to power, they did no longer care about annexation and indemnities. But even for them, the new international law principles worked as normative constraints, as the Soviet Union’s reluctant retreat from the Tsarist privileges and special areas in China shows, as well as the late integration into the Helsinki Accord.1312See Maier, Leviathan 2.0 – Die Erfindung moderner Staatlichkeit, p. 241.1313Quoted from: http://www.marxists.org/history/ussr/government/constitution/1918/article1.htm.


The list of rights included in the first Bolshevist Constitution addressed all three dimensions of liberal, political and, for the first time in a constitutional document, social and economic rights: The ‘right to religious and anti-religious propaganda’ (Art. 2 V 13.), ‘freedom of expression’ (2 V 14.), ‘freedom of meetings’ and material support for the ‘working class and the poorest peasantry’ (2 V. 15.) to join them. The Constitution established an early version of affirmative action: that ‘assistance, material and other’ has to be granted ‘to the workers and the poorest peasants in their effort to unite and organize’ (Art. 2 V 16.). It guaranteed ‘full and general free education for the working class and the poorest peasantry’ (Art. 2 V 17.). It offered ‘shelter to all foreigners who seek refuge from political and religious persecution’ (Art. 2 V 21.). It guaranteed ‘equal rights for all citizens, irrespective of racial and national connections’, and all ‘privileges on that ground, as well as oppression of national minorities’ are ‘proclaimed’ ‘to be contrary to the fundamental laws of the Republic’ (Art. 2 V 22.). It ensured the ‘right to vote’ for ‘both sexes, irrespective of religion, nationality, domicile, etc.’ (Art. 4 XIII 64.). Together with the enormous socialization and nationalization programme of the first Soviet years, this list of rights had a worldwide impact. Shortly after the enactment of the first Soviet constitution of 1918, the revolutionary German Constitution declared the first comprehensive catalogue of social welfare rights in 1919. ‘[Echoing] the Russian constitution of 1918, it allocates rights as rights of productive groups and classes.’ It placed ‘itself strikingly outside the theoretical perimeters of liberal constitutionalism’.1314 A different, in a way much more radical path to socialist democracy was taken by Kelsen (the main drafter of the Austrian constitution of 1920) and the then ruling Austrian Marxists (Karl Renner, Max Adler). In contrast to the Soviet Constitution, a strong concept of parliamentary sovereignty was to open the path to socialism (and was watered down a couple of years later when the counter-revolution prevailed).1315 Both constitutions, the German and the Austrian, ultimately collided with the fascist counter-revolution. At least the Kelsen constitution (in its revised version from the end of the 1920s) was re-established after World War II and still is the Austrian constitution.1316 The revolutionary advances of social and economic rights remained crucial even after 1989. As in the case of other

1314Thornhill, A Sociology of Constitutions, p. 287.1315Reflected still in Kelsen’s late and crushing criticism of the ordo-liberal Friedrich von Hayek: Kelsen, Demokratie und Sozialismus; see Römer, Die reine Rechtslehre Hans Kelsens als Ideologie und Ideologiekritik; on the Kelsen constitution see Thornhill, A Sociology of Constitutions, pp. 290–2.1316In West Germany, Wolfgang Abendroth, a leftist jurist who was persecuted by the Nazi regime, followed the Kelsian track in his famous controversy with the conservative and former Nazi Ernst Forsthoff over the interpretation of German Basic Law (Ch. III, Sec. IV 7).


great revolutions, the final downfall of the Russian Revolution of 1918 was not identical with the decay of its basic ideas of socialism and communism, because these ideas survived constitutionally in the globalized system of national and international social and economic rights. The Polish case shows paradigmatically how economic and social rights finally enabled a step-by-step transition from the Soviet regime to a democratic national state within the framework of the old constitution. The ‘extensive provisions for positive social and material rights’ in all Eastern European constitutions ‘performed varied legitimating functions for emergent democratic states’.1317 Even if they lacked the status of enforceable basic rights, parliaments and constitutional courts were forced to take them into account and to concretize them at least partially. A first turn to social welfarism was characteristic for constitutional reform after 1918 nearly everywhere in Europe – due to the parliamentary growth of socialist and communist parties and the corresponding realist anxiety that a lack of social reform could cause Bolshevist-style revolutions outside Russia.1318 In the Soviet Union, the constitution and, in particular, the social rights were at least partially realized in a material sense, beginning at the latest in the middle of the 1920s. But their legal concretization took much longer, and started only with the formation of legal professionalism in the 1950s. It took long to replace the total destruction of the Tsarist legal order, and the dissolution of the previous system of courts with a new system of professional law, which was finally established in the 1950s.

The greatest fault of the first, and all later Soviet (and post-soviet) constitutions was the reservation of strong juridical and factual prerogatives for the party and the executive, who were allowed to operate beyond the law. This neatly meets the functional condition for the reduction of a constitution to a nominal status, which consists in the insufficient establishment of the legal code. The party took over the state, and the principle that the winner takes all of the state still seems to be the leading principle of Russia’s failed democracy today. The 1918 constitution was based on the distinction between friendly classes (‘workers, soldiers and peasants’) and hostile classes (‘landowners and the bourgeoisie’), depriving the hostile classes of most of their rights (Art. 1, Ch. I 1., Ch. II 3.). For ‘the present transition period’, the Constitution was to establish ‘the dictatorship of the urban and rural proletariat and the poorest peasantry in the form of an All-Russian soviet authority, for the purpose of abolishing the exploitation of men by men and the introduction of

1317Thornhill, A Sociology of Constitutions, p. 361; Davy, The Rise of the Global ‘Social’. Origins and Transformations of Social Rights under UN Human Rights Law, p. 4; on the actuality of social rights, see Kreide, Globale Gerechtigkeit und Politische Praxis; Lafont, Global Governance and Human Rights; Fischer-Lescano and Kolja Möller, Der Kampf um globale soziale Rechte. Berlin: Wagenbach, 2012.1318Thornhill, A Sociology of Constitutions, pp. 282–3.


socialism, in which there will be neither a division into classes nor a state of autocracy’ (Art. 2, Ch. V 9.). The Federal Socialist Republic was to be a ‘free socialist society of all the working people of Russia. The entire power, within the boundaries of the Russian Socialist Federated Soviet Republic, belongs to all the working people of Russia, united in urban and rural soviets’ (Art. 2, Ch. V 9.). Unfortunately, subjective rights, societal purposes and democratic competences (of workers, peasants and their organs) were combined with the declared disdain of the jurist Lenin and his Bolshevist comrades for the Western ‘legalism of both the capitalists and the socialists’, a disdain that (in the course of the great legal revolutions) was trumped only by Luther.1319 The Bolshevists (in this respect following Pashukanis) combined practical criticism of ‘legal fetishism’ (conceptualized as an ideological reflex of commodity fetishism) with ‘an uncritical adoption of technical fetishism’.1320 Consequently, they deprived communism, originally a republican idea, of its republicanism, and this distinguished them sharply from the Jacobins and opened the path to Stalinism and the regression to primitive communism on the level of modern industrial and political technology. The latter was not at all a necessary development. It was one of the many evolutionary possibilities opened up by the Russian Revolution, but it was the worst.1321 The constitution of 1918 proclaimed a council democracy from the bottom up, but it never established functional differences between party and state, between executive and legislative legal bodies. Instead, it reintroduced a time-honoured czarist institution, the secret police (Cheka), and established revolutionary tribunals and People’s Courts. The latter were democratically designed, but guided by ‘revolutionary legal consciousness’ instead of professional legal formalism, and hence were conducted (just as in the ancient Athenian ‘democracy’) as the ‘completely arbitrary qadi-justice . . . of legally untrained jurors’.1322 In fact, the Bolshevists established a top-down party dictatorship on the basis of an instrumental criminal law that was used for ‘repressing’ the ‘class enemies’,1323 a term which ultimately included all those merely suspected of being such: ‘Being suspected, therefore, takes the place, or has the significance and effect, of being guilty’.1324 As in the case of the state of siege that once was invented by the French Revolution, the Soviet rule of suspicion also became a ‘splendid invention’ ‘that of itself made its way over the whole’ Eurasian Continent and the rest of the world ‘but returned to’ Russia ‘with ever renewed love’, before

1319Berman, Justice in the U.S.S.R., p. 26, see 30–1.1320Fine, Democracy and the Rule of Law, p. 168.1321I am grateful to Miguel Vatter for a discussion of this point.1322Weber, Wirtschaft und Gesellschaft. Cologne: Kiepenheuer und Witsch 1956, 1027 (my transl.).1323Leading Principles of Criminal Law, quote from Berman, Justice in the U.S.S.R., p. 32.1324Hegel, Phänomenologie des Geistes, p. 419, quoted from: http://www.marxists.org/reference/archive/hegel/works/ph/phc2b3.htm (18 May 2013).


and after 1989.1325 The total abolishment of (in Russia never well established) legal professionalism in the first years after the revolution (and later in the Stalinist period), the disdain for legal formalism and the introduction of the political difference of friend and foe into the constitution and the legal order (an idea later copied by Carl Schmitt) led to a terrorist mix of party dictatorship and uncontrolled anarchism that lasted throughout the time of War Communism. It was replaced in the early 1920s by the NEP, which combined party-controlled state socialism with a market economy. The NEP opened an evolutionary path along which China today proceeds successfully to the hybrid formation of socialist capitalism. Legally, the NEP was based on the adoption of the Russian Civil Code of 1913 and the Criminal Code of 1903 (together with a never completely abolished ‘Special Part’ concerning crimes against the state). The NEP rehabilitated (to a certain, still limited degree) legal formalism, increased legislation and reluctantly began with the professionalization of lawyers. The legal package contained the construction of a legal hierarchy of courts and a system of trials and appeals, a progressive and egalitarian Labour Code and a Family Code that made the ‘legal status of women’ in ‘every respect’ ‘equal’ ‘to that of men’.1326 In the federal constitution of 1923, federalism and democracy were strengthened, but still within the system of proletarian dictatorship. The notorious Article 1 of the Civil Code reads: ‘Civil rights shall be protected by law except in instances when they are exercised in contradiction with their social economic purpose.’ This was later copied by the Nazis.1327 If Trotsky and Bukharin had won the race for leadership, maybe Soviet history would have taken a much better course. But Stalin prevailed, and the tragedy of a great revolution was followed by about 20 years of totalitarian fragmentation and destruction (but also the victory over national socialism and fascism). From a functional point of view, it is striking that the first and the later pre-1989 constitutions of Soviet Russia and the Soviet Union all blurred the difference between party and state and between executive and legislative bodies, and hence, in fact, constituted a weak state, which, under Stalinism, for some time came close to a failed state.1328 However, after Stalin’s death in 1953,

1325Marx, 18. Brumaire, p. 112, quote: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch02.htm. (19 March 2012).1326Berman, Justice in the U.S.S.R., p. 35, see 34–7.1327Ibid., p. 36.1328Thornhill, A Sociology of Constitutions, pp. 362–3; see Gerald M. Easter, ‘Personal Networks and Postrevolutionary State Building: Soviet Russia Reexamined’, World Politics 48: 4 (1996), 551–78. Under Stalin, the system came so close to a failed state (as in China during the Cultural Revolution) that Stalin in 1936 applied the emergency brake, enacted a new (literally very liberal, but symbolic) constitution, actuated the legislative machinery, reconstructed the decayed court system and partly went back to pre-1917 law (Berman, Justice in the U.S.S.R., pp. 42–65). Stalinism after 1936 became a duality of law and terror: a universal terror which, unlike that of the Nazis, but terribly enough, was applied regardless of station, race or creed. (Berman, Justice in the U.S.S.R., p. 58).


law was fully professionalized, resulting in the functional differentiation of the legal system, but still under a nominal constitution.1329

(C) Atlantic Charter. An important document of the early development towards a unification of national claims with the international claims for a rights revolution during World War II was the Atlantic Charter of 1941, designed by Roosevelt, and signed by both the American President and the British Prime Minister. The short document was loosely based on the programme of the American New Deal. It resembles the first Soviet Constitution in its strong commitment to social and economic rights, and in the linkage of national and international purposes. Equal access of ‘all States . . . to the trade and to the raw materials of the world which are needed for their economic prosperity’ (Art. 4) was to be guaranteed as well as ‘fullest collaboration between all nations in the economic field with the object of securing, for all, improved labor standards, economic advancement and social security’ (Art. 5). The purpose of peace was qualified as ‘a peace which . . . will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want’ (Art. 6).1330

In particular, the notion of ‘security’ and the ‘freedom from fear and want’ recalled the programme of the New Deal (echoed in utopian outlines such as Marcuse’s Eros and Civilization). From the outset, when he first mentioned them in January 1941, Roosevelt’s ‘four essential human freedoms’ ‘of speech’, ‘of religion’, ‘from want’ and ‘from fear’ were designed as universal human rights.1331 Just as Roosevelt linked equality with the pursuit of happiness, his advisor Merriam linked equality in the conditions of life with Locke’s basic human right to life, and he interpreted life in the spirit of Dewey’s pragmatism as expression and expansion from a small and exclusive (bourgeois democracy) to a great and inclusive democratic community (egalitarian mass democracy): ‘The basic right is the right to life.’ However, unlike Locke, he understood this right as the right to the ‘fullest and finest development of the potentialities of the human personality’. It already implies ‘civil rights, political rights, social and economic rights’ as ‘implements designed to make effective the foundation right of them all – the human personality’ with its claims ‘for life expression

1329The reason for the structural weakness of the Soviet state is that the material constitution came close to establishing ‘absolute’ power, something which, in fact, frequently equals the annihilation of any stable power structure. The reason is simple. If law is replaced by power or even direct violence, then governance, administration and civil relations work best only as long as they work informally. However, if conflict arises, there then is no formal procedure to solve the conflict legally in a way that engenders legitimacy. See Luhmann, Funktion und Folgen formaler Organisation; Luhmann, Legitimation durch Verfahren.1330Atlantic Charter: http://www.internet-esq.com/ussaugusta/atlantic1.htm. The Charter was strictly universal and explicitly addressed to ‘all States, great or small, victor or vanquished’.1331Roosevelt, ‘Message to the Congress, January 4, 1941’, in Samuel Rosenman (ed.), The Public Papers and Addresses of Franklin D. Roosevelt. New York: Harper, 1950, vol. 9, p. 663.


and expansion’ and the ‘recognition of the innate dignity of man’.1332 In order to strive for the realization of the equal dignity of all men (Art. 1 UDH), the institutionalized co-operation of all nations was required. The latter was the basic principle of international law that was anticipated by the Atlantic Charter, and implemented as universal law by the UN Charter, which replaced the old international law of co-existence with the new international law of co-operation and friendly relationships (Art. 1, II–IV UN).1333 The New Dealers argued that these two things belonged together: the ‘co-ordination of social and economic rights with the political rights which guarantee and protect them’, and the ‘development of a jural order of the world, moving in the direction of world government’ because no ‘one system alone is adequate, without a concert of the family of nations in which it must function’.1334 At the latest in the twentieth century, it had become clear that ‘hunger, sickness, unemployment, insecurity, dog-housed dwelling places, inadequate educational, recreational, cultural advantages, unfair shares of production’ were ‘wrongs’ which ‘have their complementary rights’ ‘in the common judgment of mankind’. These wrongs and faults now have become human rights violations: ‘Fear and want are the symbols of wrongs against mankind which violate the recognized claims of common humanity.’1335 Merriam reinterprets the whole history of bills of rights negatively as a history of ‘bills of wrongs – statements of grievances against particular ills’, ‘protests against intolerable conditions, which will not and should not be endured’, and which are ‘directed against oppressors of whatever type, or against indifference of pride and privilege wherever found, in whatever garb of legality or respectability’.1336 Merriam’s notion of human dignity is closely related to a negative dialectical method. As in Piaget, the inclusive decentralization of egocentrism usually begins with the negative experience of injustice.1337 The notion of human dignity works as a detector for the wrongs of marginalized and exploited social classes, the unequal treatment of men and women, and the discrimination against foreigners, races or cultural and/or ethnic minorities, and others.1338

1332Merriam, The Content of an International Bill of Rights, p. 12.1333UN General Assembly, Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970, available at: http://www.unhcr.org/refworld/docid/3dda1f104.html [accessed 4 March 2010].1334Merriam, The Content of an International Bill of Rights, p. 13, and “adequate” here means first: normatively adequate, because the new interpretation of our rights strictly claims to be “universal” (pp. 11 and 15).1335Merriam, The Content of an International Bill of Rights, p. 15.1336Ibid.1337Piaget, The Moral Judgment of the Child, p. 274.1338Habermas, ‘Das Konzept der Menschenwürde und die realistische Utopie der Menschenrechte’, unpublished paper 2009, p. 6 et seq.


(D) Second Bill of Rights. Cass Sunstein has called it the ‘speech of the century’, and in a way – taken its national and international context into account – it is, at least in some respects. On 11 January 1944, President Roosevelt delivered a Message to Congress on the State of the Union. It contained within it what Roosevelt called the Second Bill of Rights, or the ‘economic bill of rights’.

After invoking the spirit of the Allied conferences of Moscow (October 1943), Cairo and Teheran (November 1943), Roosevelt outlined the international context. He reported on the consent achieved between Churchill, Stalin, Chiang Kaishek and the Americans, to reconstruct ‘each nation individually’, and to found the ‘United Nations’, under the heading of ‘security’. Roosevelt added that security for the allies ‘means not only’ physical security and peace but ‘also economic security, social security, moral security – in a family of Nations’. China, Russia, Britain and America ‘are truly united’ in ‘recognition’ that ‘each Nation, large or small . . . shall join together in a just and durable system of peace’, and that it is ‘essential’ for ‘peace’ to guarantee ‘a decent standard of living for all individual men and women and children in all Nations’.1339 The metaphor of the family of Nations and the extension of security to social and economic human rights indicates the above-mentioned paradigm shift in international law from peaceful coexistence to friendly cooperation, which had been prepared at the three conferences in the autumn of 1943, and would be enacted in the Charter of the United Nations (Art. 1 II–IV) in the spring of 1945. The speech then continued with an attack against (to put it in today’s ‘Occupy

1339Roosevelt, Message to the Congress 11 January 1944, pp. 236–7. Mark Mazower draws a much more gloomy picture of the ideological, and even racist (‘Mr. Smuts goes human rights’) origins of the United Nations (Mark Mazower, No Enchanted Palace – The End of Empire and the Ideological Origins of the United Nations. Princeton: Princeton University Press, 2009). That might be true, but does not matter for my argument, which is based not on the original ideologies, but on the law of the United Nations. Law cannot be reduced to the evil intentions and imperial interests of those who have enacted it, because it constitutes an objectivity of its own that works completely independently from these intentions and interests. As I have tried to show throughout this book, Friedrich Müller hit the mark with the last three words of the statement that I have used as an epigraph for this book. No matter how ‘insincere’ the ‘intentions’ of the founders are, constitutional norms ‘can strike back’ (Müller, Wer ist das Volk, p. 56). Jan Smuts, the president of the South African Apartheid regime, in 1945 succeeded in not having racism mentioned in the UN Charter’s preamble. But condemnation of racism was at that time already implied in the one legal term human rights that appeared in the UN Charter, and the international law of human rights struck back heavily at the latest in the 1980s, when Apartheit made the South African regime a pariah in the international community, before being finally abolished. The same was the case with the French and British attempt to exclude the European colonies from the European human rights regime, see Madsen, ‘France, the United Kingdom and the ‘Boomerang’ of the Internationalisation of Human Rights (1945–2000)’, in Simon Halliday and Patrick Smith (eds), Human Rights Brought Home. Socio-Legal Perspectives on Human Rights in the National Context. Oxford: Oxford University Press, 2004, pp. 57–86.


Wall Street’ jargon) the 1 per cent of capital owners in the name of the cheated and exploited 99 per cent, and the usual appeal to national unity in times of war. Towards the end of his short speech, Roosevelt outlined what he considered to be the national and international constitutional consensus on a second Bill of Rights that should be implemented by Congress in a series of ordinary legislative programmes. Then he ended with a final warning against those representatives of big money who ‘emphasize the grave dangers of “rightist reaction” in this Nation.’1340 The wording of the Second Bill of Rights is

It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known. We cannot be content, no matter how high that general standard of living may be, if some fraction of our people – whether it be one-third or one-fifth or one-tenth – is ill-fed, ill-clothed, ill-housed, and insecure.

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights – among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.

As our nation has grown in size and stature, however – as our industrial economy expanded – these political rights proved inadequate to assure us equality in the pursuit of happiness.

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all – regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

1340Roosevelt, Message to the Congress 11 January 1944, p. 243.


The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;The right to adequate medical care and the opportunity to achieve and

enjoy good health;The right to adequate protection from the economic fears of old age,

sickness, accident, and unemployment;The right to a good education.All of these rights spell security. And after this war is won we must be

prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

America’s own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for all our citizens.

For unless there is security here at home there cannot be lasting peace in the world.1341

From the beginning, Roosevelt interprets all human and civic rights of the constitution as ‘political’ rights, following Jefferson and the American Jacobins. Human rights, negative and positive (social-economic rights), are rights to exclude political inequality, in particular, with respect to ‘station, race or creed’. They shall enable the inclusion and political equality of all affected by a legal norm. Then, a list of rights follows which are already guaranteed by the constitution. Roosevelt mentions ‘free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures’. But what is striking and significant here is what he fails to mention. He does not make any reference to property (which was so significant for the Lockean turn of the Constitution of 1789, the 14th Amendment, which replaced the Vattel-Leibnizean ‘pursuit of happiness’ of the Declaration of Independence of 1776 with ‘property’ – Ch. III, Sec. III 7).1342 Instead, Roosevelt not only goes all the way back to the ‘pursuit of happiness’ of the Declaration of Independence, but also adds a further one word, and that is ‘equality’. Seen in the context of the Atlantic Revolution, this is the step from Jacobinism

1341Second Bill of Rights, quoted from: http://en.wikipedia.org/wiki/Second_Bill_of_Rights#.E2.80.9CThe_Economic_Bill_of_Rights.E2.80.9D. (5 July 2012). My emphasis.1342On the significance of the absent for sociological content analysis and text interpretation, see Siegfried Kracauer, ‘The challenge of qualitative content analysis’, Public Opinion Quarterly 16 (1952), 631–42.


to early socialism, from Robespierre and Sieyès to Babeuf and Saint-Simon.1343 In the American context, The Second Bill of Rights doubtlessly was the speech of the century. It was followed by massive constitutional change through ordinary legislation, administrative programmes and judicial landmark decisions. As the national result of the class struggles and wars of the 1930s and 1940s, the speech initiated a rights revolution (Sunstein). Rights now were taken seriously (Dworkin) in all three dimensions of liberal rights to freedom, democratic rights to participation and social and economic rights of inclusion (Marshall). The Second Bill of Rights was not planned as a constitutional amendment, but as the beginning of a series of legislative programmes, which changed the constitution more than any amendment had done before. The legislative programmes, once started, steered themselves in close interaction with the debates and class conflicts in the public sphere and a series of progressive precedents by the Federal and the State Supreme Courts.1344 The first stage of the social and economic rights revolution was followed by the second stage of 1960s’ and 1970s’ anti-discrimination law. Between the early 1930s and the 1960s, the Commerce Clause of the Constitution, which until the 1930s had blocked every social reform, was turned the other way round and became the medium of the democratic control of capitalism. Only now an American nation emerged. Freedom of speech was reinterpreted in a progressively liberal as well as republican manner.1345 The ‘due process’ clause of the Bill of Rights, which had been appended to the US Constitution from the beginning, was radically reinterpreted as a programme of social welfare and anti-discrimination legislation and jurisdiction (as were provisions on equality before the law in other countries such as Germany).1346

(E) Charter of the United Nations Organization. Article 2 I of the UN Charter looks like a codification of nineteenth-century customary international law, but that is not what it is. It declares that the ‘Organisation is based on the principle of the sovereign equality of all its Members.’ If we take (1) an actual interpretation like that of Bardo Fassbender, then already the meaning of sovereign equality only guarantees sovereignty under the rule of the law of the Charter or international law, and hence equality before the law (though the privileged order of the Security Council already is an important

1343Jeffersonian socialism was an idea of John Dewey. See Westbrook, John Dewey and American Democracy, p. 455; on Babeuf see Defense of Gracchus Babeuf before the High Court of Vendôme.1344Ackerman, We the People.1345Ulrich Rödel and Günter Frankenberg, Von der Volkssouveränität zum Minderheitenschutz. Frankfurt a. M.: EVA 1981; Cass R. Sunstein, Democracy and the Problem of Free Speech. New York: Free Press, 1993.1346Dworkin, Taking Rights Seriously.


legal exception).1347 While equal sovereignty refers to the coordinative international law of co-existence, the reverse order of words in sovereign equality refers to an international law of subordination that enables and prescribes co-operation. However, (2) Kelsen, who wrote what is still the leading commentary on UN law (published in 1950), was very sceptical about Article 2 I, because it obviously reaffirmed an already outdated category of state sovereignty that was reinforced by the non-intervention clause of Article 2 VII prohibiting the UN from intervening in ‘matters . . . essentially within . . . domestic jurisdiction’, except in cases of a threat to peace (Ch. VII). Hence, Article 2 I and 2 VII seemed to invalidate all the nice words of the Preamble which appeared to overcome state sovereignty.1348 Moreover, Article 2 VII changed the significance of many other Articles which replaced state sovereignty with national and transnational self-determination,1349 bound it to human rights,1350 or subsumed it under the law of the United Nations, in particular, Article 103. This Article seemed to go far beyond the Chapter VII prohibitions, because it derogated, in case of conflict with ‘their obligations under the present Charter’, ‘any other international agreement’ of ‘Members’.1351 Kelsen was right to be sceptical in 1950, because the frequent mentioning of democracy or human rights had no legally binding character then. Kelsen argued that it was true that already the name of the document, ‘Charter’ instead of the old ‘Covenant’ of the League of Nations, no longer referred to the ‘contractual form’ of a ‘treaty’, but to the ‘form of the content of the treaty’, which was that of ‘the constitution of an international community’; that it is true that the name ‘Charter’, plus the first words of the Preamble, which unequivocally refer to popular sovereignty (‘We the peoples of the United Nations. . .’), plus its final reference to ‘mankind’ clearly did not designate ‘an organisation of states’, but ‘the international community constituted by the Charter’; that it is

1347On this ambivalence, see Koskenniemi, ‘Die Polizei im Tempel. Ordnung, Recht und die Vereinten Nationen: eine dialektische Betrachtung’, in Brunkhorst (ed.), Einmischung erwünscht? Menschenrechte und bewaffnete Intervention. Frankfurt: Fischer, 1998, pp. 63–87.1348‘We the peoples of the United Nations determined . . . to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small . . . to promote social progress and better standards of life in larger freedom. . .’1349Art. 1 II is binding the peoples to the ‘principle of equal rights and self-determination of peoples’.1350As in Art. 1 III (‘[promotion] and encouraging [of] respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’), Art. 55 (‘promotion’ of ‘universal respect, and observance of, human rights and fundamental freedoms for all without distinct on race, language or religion’, of ‘higher standards of living, full employment’, ‘social progress’ and of ‘solutions for international economic, social, health, and related problems’), and Art. 76 (binding the UN ‘to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’).1351See Anne Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’, Leiden Journal of International Law 19 (2006), 579–610.


true that this implied legally that the Organization itself, all its Members and all other states should be democratic. But this was more than ‘doubtful’ already in the case of the Organization, because of the ‘privileged position of the five permanent members of the Security Council’, and it was even more doubtful, both because only a minority of states was then democratic, and because Article 2 I and VII reduced all references to human rights and democracy to the status of soft law.1352 It was true that the national implementation and guarantee of universal human rights in all three dimensions, and, in particular, in the social and economic dimension (Ch. IX, X), was to be promoted and encouraged by the UN, but this could not have any significant legal effect as long as the Article 2 VII provision of non-intervention in domestic jurisdiction was valid. Hence, in order to make the United Nation’s human rights soft law hard, it would need an amendment of the Charter.

Who is right, Fassbender or Kelsen? I would suggest that the right dialectical answer is (3) that both are right, and both interpretations are already implicit in Kelsen’s 1000-page commentary of 1950. Even today, Kelsen’s scepticism has not simply been overcome. However, the state-centred interpretation of Article 2 I and VII came under continuous attack at the latest in 1989 and after, and a second look at history shows us that this was the case already during the long period of the so-called Cold War. This long period, in fact, established a constitutional global regime of a legally ordered contest for global leadership.1353 Both sides took both legal positions alternatively, depending on their own interest at a given moment, and both used Kelsen’s commentary to support their legal arguments.1354 Either they invoked (a) the Kantian mindset of democracy and human rights to justify intervention (however insincerely) or they used (b) the managerial mindset of the sovereignty doctrine to demand non-intervention in their domestic machinations. Today, particularly the latter has become more difficult, not because Article 2 VII has been amended, but because the legally binding interpretation of the qualification of Article 2 VII after the ‘but’ has changed: that the principle of non-intervention ‘shall not prejudice the application of enforcement measures under Chapter VII’. Kelsen himself already had indicated that the legal meaning of the latter depends exclusively on its interpretation ‘by the competent organ of the United Nations’.1355 Today, major

1352Kelsen, The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. New York: Praeger, 1950, pp. 2, 4.1353Parsons, Order and Community in the International Social System. Parsons’s thesis of the globalization of the political difference between government and opposition now has found an impressive empirical confirmation by Law and Versteeg, The Evolution and Ideology of Global Constitutionalism, pp. 1231, 1234–135, 1237–38.1354Oral communication of Martti Koskenniemi at a conference at Bloomington in 2009.1355Kelsen, The Law of the United Nations, p. 19.


human rights violations, international terrorism, arguably even a military coup against a democratically elected government are interpreted by the competent organ (the Security Council) as a threat to international peace. Moreover, it is not only strong human rights movements that are concerned both with the ‘reasons behind’ human rights violations and with the ‘root causes’ of economic domination, such as intensified exploitation, wage dumping, price increases and the ‘abrogation of social protection and redistributive schemes’. The UN High Commissioner for Human Rights and the UN Human Rights Council also ‘have developed a particular attentiveness to the issue’. Susan Marks speaks of an ‘explanatory turn’ in international human rights.1356 These developments, which are developments within the existing framework of UN-based international law, directly challenge the hegemonic interpretation of the Charter. The obvious contradiction that Kelsen pointed out between (a) the ‘equality’ of the equal rights of nations of the Preamble and (b) the ‘equality’ of sovereign equality of Article 1 I has turned out to be not a destructive, but a productive contradiction.1357 Therefore, the Charter can and must be interpreted as the existing contradiction (Hegel) between (b) a static legal programme of the re-affirmation of state sovereignty and (a) a dynamic legal programme of overcoming state sovereignty in the name of universal democracy. In fact, in the course of its evolution, the law of the United Nations proved a stable and functioning instrument, not because it constitutionalized one of the alternative interpretations of (a) vs. (b), but because it represented (c) the existing contradiction between (a) the hegemonic managerial and (b) the counter-hegemonic Kantian interpretation. The Charter worked as a constitution of the international community because (c) it enabled the struggle between the hegemonic position and the counter-hegemonic opposition to take place within the law. Insofar as constitutional law constitutionalizes the existing contradiction between hegemonic and counter-hegemonic opposites, it is at the ‘root of all movement and vitality’ of politics and law, and this explains the movement, vitality and stability of the law of the United Nations over a period of now seven decades.1358 If there is a continuity of the Western legal tradition (which is no longer ‘Western’), then it consists in this dialectical reconciliation of enduring opposites, which had once begun

1356Marks, ‘Human Rights and Root Causes’, The Modern Law Review 74:1 (2011), pp. 57–78, at 58–9, 63 (with further evidence).1357Kelsen, The Law of the United Nations, p. 51. The same (with Kelsen against Kelsen) seems to have become true of the contradiction between the self-determination of peoples (Art. 1 II) and the sovereign equality of states (Art. 2 I). In the course of history, it has turned out to be a productive and existing contradiction.1358Hegel, Logik II, p. 58. quote: http://www.marxists.org/reference/archive/hegel/works/hl/hl431.htm#HL2_431 (18 May 2013).


with Gratian’s Concordia Discordantium Canonum.1359 A further characteristic example of the contested, antagonistic and dialectical life of the Charter is the undetermined use of the phrase ‘fundamental freedoms’ (Art. 1 III, 13 I, 55 c., 62 II, 76 c.), also noted by Kelsen. The Charter leaves undetermined whether the meaning of freedom is ‘political freedom in the sense of democracy or economic freedom in the sense of liberalism’.1360 However, this indeterminacy is not (as Kelsen suggested) due to the weakness, but due to the strength of the Charter, because it even enables the struggle for the resolution of the existing contradiction between capitalism and democracy – whether or not there is a final resolution.

(F) Universal Declaration of Human Rights. One of the original sources for the use of dignity in the Universal Declaration was a newspaper column published on New Year’s Day 1936, written by Eleanor Roosevelt, who deeply influenced her husband’s 1941 speeches on the four freedoms as well as his 1944 Second Bill of Rights speech. Eleanor Roosevelt reaffirmed the aims of the New Deal and mentioned, alongside ‘justice for all’ and ‘security in certain living standards’, the ‘recognition of the dignity and the right of an individual human being without regard to his race, creed or color’.1361 Even though, at that time, affirmative action was white, it already contained the potential of being used by then still excluded races, creeds or colours.1362 The Second Bill of Rights in this respect took over the wording of Eleanor Roosevelt’s New Year’s column. Twelve years after her New Year’s column, she chaired the drafting committee of the Universal Declaration. The content of the Second Bill of Rights was completely represented by the Universal Declaration (Art. 22–26), and Eleanor Roosevelt’s emphasis on human dignity was strongly supported by the French Delegation and its adviser Jacques Maritain, a conservative Catholic Thomist and the already famous advocate of a European Third Way between Capitalism and Socialism.1363 The concept of dignity was used to express the inseparable

1359Berman, Law and Revolution II, pp. 5–6; see Fried, Die Entstehung des Juristenstands; Berman, Law and Revolution; Tierney, Religion, Law, and the Growth of Constitutional Thought; Cantor, Medieval History, p. 274.1360Kelsen, The Law of the United Nations, p. 25.1361Quoted from Doris Kearns Goodwin, No Ordinary Time: Franklin and Eleanor Roosevelt. New York: Simon & Schuster, 1994, p. 201.1362Katznelson, When Affirmative Action was White: An Untold History of Racial Inequality in Twentieth-Century America. New York-London: W. W. Norton, 2005. See, also, Tom McCarthy, Race, Empire, and the Idea of Human Development. New York: Cambridge University Press, 2009.1363On the other sources, see Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’. The European Journal of International Law 19 (2008), pp. 655–724; Jan Werner Müller, ‘Die eigentlich katholische Verschärfung. Jacques Maritain und die christdemokratischen Fluchtwege aus dem Zeitalter der Extreme’, Zeitschrift für Ideengeschichte, No. II/3 (Fall 2008), 40–54; see Vatter, ‘Politico-Theological Foundations of Universal Rights: The Case of Maritain’, Social Research 80:1 (Spring 2013), 233–60. Catholic Thomism was also supported by the Lebanese delegate Charles


unity of liberal, political and social rights of freedom as well as the inseparable unity of national and international law that is cosmopolitan law, and finally, the turn of international law to co-operation and friendly relations.

Something that has long been underestimated is the strong impact of Latin American states, not only on the Universal Declaration’s focus on social and economic rights, but also on the development of national and international social welfare rights in general. As early as February 1946, Cuba had submitted a draft of a set of social rights to the UN, ‘Panama followed in 1946 . . ., and Chile in January 1947’, and some Latin American constitutions had already been amended between 1940 and 1944 to include social rights.1364

The meaning of dignity in the Charter (UN) and in the Declaration (UDH) is closely related to the rough egalitarianism of mass democracy. ‘Inherent dignity’ is linked to and explained completely by ‘the equal and inalienable rights of all members of the human family’ (Preamble UDH) and determined by a comprehensive idea of democratic egalitarianism, brotherhood, progress and enlargement of freedom (Preamble, Art. 1 UHD; Preamble UN). The emphasis of the term ‘dignity’ clearly is on economic and social rights (Art. 22, Art. 22 III UHD). However, unlike the UN Charter, the Universal Declaration has only the legal ‘character of a recommendation’ to every individual and every organ of society (Preamble UHD) to support the human rights laid down in the Declaration.1365 Article 1 declares: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ Dignity and brotherhood refer to rights that shall enable social mass democracy. ‘Brotherhood’ is

Malik. While Malik was not successful with his extreme individualism and expanded definition of human life (‘moment of conception’), the mix of liberalism and socialism that guided the New Dealers Eleanor Roosevelt and her drafter John Humphrey proved a successful compromise. It satisfied, in particular, the East European socialist countries and was supported by the French and the British delegate (a trade unionist). The Chinese delegate Peng-Chun Chang argued strongly for a Confucian foundation, but was content that the Western sacred cows ‘God’ and ‘nature’ were not mentioned, and the atheists finally accepted the replacement of ‘created’ with ‘born’ human beings. (See James V. Spickard, ‘The Origins of the Universal Declaration of Human Rights’, 1999, pp. 1–22, at 15, http://newton.uor.edu/FacultyFolder/Spickard/OnlinePubs/OriginUDHR.pdf.1364Davy, ‘The Rise of the Global‚ Social’. Origins and Transformations of Social Rights under UN Human Rights Law, p. 8.1365Kelsen, The Law of the United Nations, p. 39. The Declaration is legally extremely undetermined. Kelsen adds sneeringly: ‘The governments of the Member states may or may not be considered to be “organs of society”’, because ‘the term “society” is sometimes used as including the concept of state, sometimes in opposition to the concept of state.’ Kelsen argues that, because the rights are specified without corresponding obligations, in particular, of the state, the Declaration has no legal importance. If the Preamble suggests that individuals and organs of society should take progressive measures, this contradicts the UN Charter because the Charter stipulates that neither ‘every individual’ nor ‘every organ of society’ can take such measures. Only governments of Member states are authorized to do this (p. 39).


explained in Article 2 as based on anti-discrimination law (‘all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. . . . no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty’). In Articles 19 and 20, ‘brotherhood’ is explained in terms of relational, intersubjective, communicative and associative freedoms, in Article 21, in terms of political and democratic rights to equal participation, and in Articles 22 to 28, national and international guarantees of a ‘right to social security’ and of ‘economic, social and cultural rights indispensible for [everyone’s] dignity and the free development of his personality’ (Art. 22 UDH) are recommended. In addition to this, the Declaration commends the ‘right to work’, to ‘free choice of employment, to just and favourable conditions of work and to protection against unemployment’ (Art. 23 I UDH), ‘the right to equal pay for equal work’ ‘without any discrimination’ (Art. 23 II UDH), the ‘right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity’ (Art. 23 III UDH), ‘the right to form and to join trade unions for the protection of his interests’ (Art. 23 IV UDH), ‘the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay’ (Art. 24 UDH), the ‘right to a standard of living adequate for the health and well-being of himself and his family’ (Art. 25 I UDH), and the ‘right to education’ (Art. 26 I UDH), hence, the whole list of the Second Bill of Rights. Unfortunately, the Universal Declaration has not the legal form of ‘an international bill of rights’ protecting any individual internationally ‘against his own state’, but only that of a ‘statement of ideals’. It declares in Article 8 that ‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating fundamental rights granted him by the constitution or by law.’ But it establishes no international court, and without a court, a right ‘is almost worthless’.1366

However, as we have seen throughout this book, even law in the books is not without legal meaning and legal force, because it can be taken up by those affected, and strike back against those who established it with insincere intentions. The influence of the Universal Declaration was enormous. However insufficient it may have been, and Kelsen in his commentary on the law of the United Nations has pointed out all its legal weaknesses, today most of its legal claims are implemented in a wide range of binding legal documents and instruments of enforcement and supervision, ranging from the Council of Europe of 1949 to the Inter-American Court of Human Rights

1366Kelsen, The Law of the United Nations, pp. 40–1.


of 1979, from the European Convention on Human Rights to the International Human Rights Covenants of 1966 and from international constitutional law to a huge amount of national constitutions, and – even more importantly – the radical reinterpretation of all old democratic constitutions in the light of the UN Charter and the Universal Declaration. ‘Over time, the descriptions of domestic social policies became more and more homogenous, and readings of the “global social” more and more similar.’1367 Even the US Supreme Court now is under pressure by the new ‘standards of civilized nations’ (Declaration of Independence) that were created after World War II.1368 This is not nothing – even if it is far from full progress in the consciousness of freedom.


The beginning of the global age (1850) was the beginning of global organization. Between 1860 and 1914, 30 international governmental organizations (IGOs and a quickly growing number of international non-governmental organizations (INGO) emerged.1369 Using the example of the international Danube Commission, Alfred Verdross has shown that the legal existence of that commission cannot be explained by the old international law of the nineteenth century, but must be understood as a body of the international community (Staatsgemeinschaftsorgan) that belongs to a new category of subjects in international law sitting alongside, and at eye level with the states.1370 These new international bodies joined older ones such as the belligerent parties to civil wars, and the Apostolic See which legally had been the universal church since 1122, and as such the universal state, and not one national state besides others.1371 But it was only the massive revolutionary change following 1917 that, from the beginning, again triggered a strong evolution of cosmopolitan statehood. National constitutionalization after 1917 was accompanied, enabled and mediated by peace treaties, international organizations/institutions and the first world organizations with the constitutional claims of higher law, such as the League of Nations and the ILO.1372 International welfarism preceded the

1367Davy, The Rise of the Global ‘Social’. Origins and Transformations of Social Rights under UN Human Rights Law, p. 19; Sunstein, The Second Bill of Rights, p. 100 et seq.1368See Transcript of Discussion Between Breyer and Scalia; and now also: Supreme Court 08–7412 (Nv. 9, 2009, available under: http://www.supremecourt.gov/opinions/09pdf/08-7412.pdf (18 May 2013); Nickel, Transnational Borrowing Among Judges.1369Osterhammel, Die Verwandlung der Welt, p. 733.1370Verdross, Die Verfassung der Völkerrechtsgemeinschaft, pp. 80–5, especially 83–4, see 96.1371Ibid., pp. 152–3.1372Fassbender, ‘Grund und Grenzen der konstitutionellen Idee im Völkerrecht’, in Depenheuer, O., Heintzen, M., Jestaedt, M. and Axer, P. (eds), Staat im Wort. Heidelberg: Müller, pp. 73–91, at 74.


formation of the national welfare state.1373 National and international welfarism developed in close interaction and with increasing interpenetration.

What seems different from all earlier stages in the co-evolution of modern state and modern cosmopolitanism is that the revolutionary transformations of the twentieth century have triggered democratic constitutionalization at both levels, the cosmopolitan and the national. Both processes of democratic constitutionalization supplement each other, and finally, more and more former state functions were not only supplemented by inter-, trans- and supranational organizations, but also replaced. This can be taken as a criterion of the statehood of an international organization.1374 Good examples are the binding jurisdiction over world peace and the legal use of force in international relations that today is in the hands of the UN Security Council, or the investiture of bishops and other sacral functions that were in the hand of the cosmopolitan body of the Papal Church. Both functions cannot be replaced by other organizations such as national states. States no longer can decide alone on war or peace and on the creation and application of international law – in the same way as secular kings never could decide alone on the investiture of bishops or the application of canon law. The latest co-evolution and egalitarian constitutionalization of cosmopolitan and national statehood followed two great wars in two great waves (A, B). I will discuss each first at the international (A-I, B-I), then at the national, level (A-II, B-II).

(A-I) The first wave of international constitutionalization and cosmopolitan state formation occurred at the end of World War I. It was preceded by the first push towards a world system of national states at the centre of the global political system. The originally European system of national states became global through the rise of non-European big powers such as the United States and Japan, and through the coercive inclusion of most of the non-European world by the imperial national states of Europe, the United States and Japan from the beginning of the age of globalization in the second half of the nineteenth century onwards.1375 The expansion of European empires ‘ensured that the entire globe was encompassed by one, European system of international law by the conclusion of the nineteenth century’.1376 Cosmopolitan constitutionalization was from the beginning deeply interwoven with imperialism. Imperialism was legally based on the distinctions between

1373Lutz Leisering, ‘Gibt es einen Weltwohlfahrtsstaat?’, in Albert and Stichweh (eds), Weltstaat und Weltstaatlichkeit, pp. 185–205, at 200.1374Albert (2005): ‘Politik der Weltgesellschaft und Politik der Globalisierung: Überlegungen zur Emergenz von Weltstaatlichkeit’, Zeitschrift für Soziologie. Sonderheft Weltgesellschaft, pp. 223–39, at 229.1375See Osterhammel, Die Verwandlung der Welt, p. 570.1376Anghie, Imperialism, Sovereignty and the Making of International Law, p. 115; on the technological punctuational break that occurred at this time, see Bright and Geyer, Benchmarks of Globalization: The Global Condition, 1850–2010.


civilized and non-civilized nations, the distinction between jurisdiction for us and authority for them, and on the system of unequal treaties. However, at the same time, the Egalitarian Revolution was anti-imperial: ‘The first efforts to begin this radical project of transforming colonial authorities into sovereign states commenced . . . immediately after the First World War.’1377 It was directly connected with ‘another monumental change . . . taking place in international law, the emergence of international institutions in the form of the League of Nations’. With the League of Nations, a ‘new actor’ emerged in the ‘international system, providing international law with a new range of ambitions and techniques for the management of international relations’.1378 The first world organization immediately expanded the categories of actors in international law to at least two: states and international organizations.1379 Moreover, it directly challenged the imperial doctrine of state sovereignty.1380 Kelsen’s scathing criticism of the imperialist egocentrism of the concept of the sovereign state that precedes the law rightly reflects the total revolutionary change of 1917 in international law, completing it with his and his students’ intellectual revolution in legal theory.1381 From the beginning, the decentring of the egocentrism of the imperial mindset in theory (Kelsen) and praxis (international institutions) was internally related to ‘novel questions of economic and social welfare’.1382 It is more than ever the transnational constitutional system that makes the national state of the twentieth century.1383

During the peace negotiations, President Wilson (despite the compromises he had to enter into with the big imperial powers and, not to forget, his own – or the United States’– imperial interests) was able to ensure that the colonial territories of the German and the Ottoman Empire should not fall into the hands of the British, the French and the other winners of the war as new colonies. Colonization belonged to the past; it was no longer to be legally possible. Instead, it was decided that the former colonial territories should be transformed into independent sovereign states. This transformation should take place within an international Mandate System, carried out and administered by the winning states, but under the lead and supervision of the new international institutions, in particular, the Council of the League, the Permanent Mandates Commission and the Permanent Court of International Justice. The inhabitants of the territories had no say, as

1377Ibid., p. 115.1378Ibid.1379Verdross, Die Verfassung der Völkerrechtsgemeinschaft, pp. 80–5, 96, 152–3.1380Anghie, Imperialism, Sovereignty and the Making of International Law, p. 125.1381On the imperialist implication, see Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts.1382Anghie, Imperialism, Sovereignty and the Making of International Law, p. 125.1383Thornhill, National Constitutions in the Transnational Constitutional System.


usual – but at least the right to petition was granted. From now on, (1) sovereign state formation was committed to the change from economic exploitation to the social and political protection of the well-being and development of the native peoples (Mandate System) and (2) the exclusion of non-Western and non-white people from the ‘civilized’ world was abolished.1384 Moreover, the Kantian idea of the League, that is, the idea of organizing states into a larger community, allowed the League ‘to claim to represent, if not to embody, the opinion and interest of the international community’, even if it ‘itself lacked the power to bind its member states’.1385 This finally (3) led to the universal democratic claim to represent the general will of all peoples as well as (4) ‘the social interests of the great society’.1386 The latter – a quote from a paper by a contemporary of the Shanghai dissenter E. Finley Johnson, the American international lawyer Edwin D. Dickenson, published in the same year of 1925 – was a novel invention, based on the socially egalitarian claims of the 1917 Revolution. The ‘new international law . . . had thus to devote itself to furthering social goals.’1387 The old international law of peaceful coexistence began to crumble and the purpose of the League’s higher law shifted to that of ‘ foster[ing] cooperation among states’.1388 From here to the final change in the UN Charter to a law of friendly relations and cooperation (Art 1 II, III UN), it was only one more step. Shortly after World War I, the first monograph using the title of a ‘constitution of the community of international law’ appeared, summarizing already the intensified debates on this issue during the war.1389

So much for the law of the books. Reality, admittedly, was different. Despite some important successes, the post-1917 system of international law ultimately failed in its main purposes of securing world peace and of organizing the decolonization of at least the mandated territories. Furthermore, I agree with Anghie (and have argued thus throughout this book) that the transformation of a world of equally sovereign states and unequal colonized peoples into a world of equally sovereign peoples and states failed not only in spite, but also because of the new international law and its eurocentric bias. But I disagree with the claim that this is due to the conceptual inevitability

1384Anghie, Imperialism, Sovereignty and the Making of International Law, pp. 116–23.1385Ibid., p. 128.1386Edwin D. Dickenson, ‘The Law of the Nations’, West Virginia Law Quarterly 32 (1925–26), pp. 4–32, at 32 (my emphasis), quoted from Anghie, Imperialism, Sovereignty and the Making of International Law, p. 127. Lyndon B Johnson later took up the idea of a “great society” in his social democratic presidential programme.1387Anghie, Imperialism, Sovereignty and the Making of International Law, p. 128.1388Ibid., p. 127.1389Verdross, Die Verfassung der Völkerrechtsgemeinschaft. For the German discussion, see Eberl, Demokratie und Frieden. For the French discussion, see Wüst, Das völkerrechtliche Werk von Georges Scelle im Frankreich der Zwischenkriegszeit.


of that bias. This bias did exist, but it could be overcome because it is not the whole story about the new international law (neither that of 1918 nor that of 1945). This is so because the new international law for the first time implemented normative constraints demanding the global exclusion of inequalities.1390 Anghie’s whole criticism of international law is itself based on the idea of a global exclusion of inequalities (in particular, between imperial Western and non-Western, but colonized concepts of law, independence, statehood, sovereignty, etc.). The idea of the global exclusion of inequalities that is already the objective spirit of the existing law at least enables both: once more the affirmative transformation of existing reality from imperialism to imperialism and from class rule to class rule – but also the critical emancipation from old and new forms of imperialism and class rule.

(A-II) The first wave of the egalitarian constitutionalization of the national state occurred at the end of World War I. State building and constitutional formation was as intense in the time between 1917 and 1990 as in the period that followed the Atlantic Revolution between 1789 and 1848.1391 During and right after World War I, national state formation and constitutionalization was no longer restricted to Europe, America and Japan, but extended to China, South Africa, Iran, Siam and the Latin American Republics.1392 It was characterized by a strong emphasis on social rights and an often far-reaching corporate state organization. During wartime, comprehensive and corporate state organization was very successful in the national mobilization and unification of peoples, and in the cooperative mobilization of all intellectual and material resources of the involved nations. The war seemed to provide bloody proof that capitalism could be controlled by the common interest, embodied in corporately extended administrative power. At the end of and after the war, this led to the illusion that the system of bureaucratic war socialism or militant state socialism could prevail in normal times.1393 The conclusion for constitutional law outside the Soviet Union was social welfare corporatism and the supplementation of egalitarian parliamentary representation with pluralist corporative representation. However, this weakened the (then still new) democratic parliamentarism and led to structural problems of

1390See Anghie, Imperialism, Sovereignty and the Making of International Law, pp. 117–18.1391See Thornhill, A Sociology of Constitutions, p. 275. If we take the time between 1917 and 1975 (or 1989), state building and constitutional formation was even more intensive and extensive than in the period of 1789–1848, see Thornhill, A Sociology of Constitutions, pp. 275–371.1392Osterhammel, Die Verwandlung der Welt, p. 733.1393Even Max Weber thought that the war economy was proof that socialism worked, and this intensified his polemic against freedom-swallowing (because bureaucratic) socialism (see Weber, ‘Politik als Beruf’, in Wissenschaft als Beruf. Politik als Beruf. Studienausgabe der Max-Weber-Gesamtausgabe 1/17. Tubingen: Mohr, 1994).


legitimization which resembled those of constitutional monarchy. This is so because corporative representation opens political power too far for private influence and different class interests, which frequently (and often directly against the intentions of the founding fathers) favoured the economically strongest classes. Roughly speaking, even if corporate constitutionalization is designed to strengthen the power of labour and unions, and endowed with long lists of social rights, the more assertive material interests of capital (or certain factions of capital) will prevail because the state is too permeable to the pressure of potent private and corporate class interests. State power is fragmented.1394 Executive bodies in close private-public partnership with the economic ruling classes are the winners, and parliaments, representing popular majorities, are the loser. Moreover, after 1917, constitutions contained long lists of social and economic rights, but their impact within a corporative system of democratic institutions went for nothing because of the lack of effective parliamentary legislation. Growing corporate fragmentation finally rendered the differentiation of power, law and economy insufficient, and the most powerful economic and political class interests could take over the state – a situation typical for nominal constitutional regimes.1395 The ‘integrative functions of the state’ were ‘widely re-privatized in favour of dominant economic interest groups’.1396 This explains why, under conditions of economic crisis, and that means at the latest from the end of the 1920s, corporative democracy decayed nearly everywhere, and quickly turned into authoritarian and fascist regimes. ‘In each case the end of democracy meant that the state deprived itself of its most potent instruments of public inclusion.’1397 Fascist regimes could mobilize tremendous productive and even more destructive power, but only with ‘erratic, privatistic and locally applied techniques for organizing support’. However, already in the medium term they could not ‘sustain their power’ with the same techniques to obtain the support that was needed to get and keep them in power, and thus, their state ‘eroded its basic abstractive structures of public statehood’.1398 Fascist regimes enabled short-term popular mobilization against all kinds of ‘oppositions’, ‘aliens’, and ‘enemies’ – with deadly effects. They could mobilize people and empower more or less autonomous (because only

1394See Thornhill, A Sociology of Constitutions, pp. 294, 296. Today, we are faced with the same experience the other way round. After the transformation of parliamentary democracy into a neo-liberal system of private-public partnerships, state-power is fragmented, see Judt, Ill Fares the Land; Streek, ‘Noch so ein Sieg, und wir sind verloren. Der Nationalstaat nach der Finanzkrise’, Leviathan 38 (2010), 159–73; Crouch, The Strange Non-Death of Neoliberalism. Oxford: Polity, 2011.1395Neves, Verfassung und positives Recht in der peripheren Moderne.1396Thornhill, A Sociology of Constitutions, p. 309.1397Ibid., pp. 309–10.1398Ibid., p. 309.


informally bound) associations and organizations directly for all kinds of war and persecution, but after a relatively short time of mobilization and organized action, they had to weaken state power further and further, because they had to create power that was informally more and more independent, yet legally uncoordinated. Therefore, fascist systems not only wanted to, but had to dissolve into a state-terrorist polyarchy that caused mass murder of a hitherto unknown kind and extent. Not the intentional committing of crimes, but its enormous extent can only be explained functionally.1399 As it seems, a form of political and social integration which, like fascism, is based on the total and even ideological abolishment of all normative constraints of the Egalitarian Revolution (global exclusion of inequalities) can no longer be stabilized under the condition that these normative constraints (at least as pre-legal ideas) are still valid in world society. Revolutionary socialism prevailed only in Russia in the first half of the twentieth century. But bureaucratic socialism developed in accordance with the authoritarian trajectory taken by the global revolutionary transformation shortly after World War I. The price was a de-differentiation of political power, which rapidly led to the factual re-privatization of state power by a structurally corrupt nomenklatura.1400 At the same time, democratic class struggle in Scandinavia, Great Britain and the United States opened the path to the change from capitalist democracy to democratic capitalism.

(B-I) The victory of the United States, the Soviet Union and the Chinese Revolution triggered the second wave of international constitutionalization and cosmopolitan state formation. Unlike World War I, World War II ended not with a revolutionary peace treaty, but with no peace treaty at all. Instead, it was concluded with a series of revolutionary acts: The unconditional surrender of Japan and Germany, and the dismantling of the authoritarian political regimes in Italy, Germany and Japan and their short-term empires were followed by revolutionary trials and executions, and the invention of the paradigmatic ICC in Nuremberg. At the same time, international constitution-making began, in exact correspondence with national constitution-making, with the foundation of the United Nations and a few global institutions, followed during the next half century by the formation of an ever denser network of inter-, trans- and supranational institutions and organizations, which no longer only supplement, but replace more and more state functions (i). International constitution-making, together with the destruction or exhaustion of all major imperial

1399I am grateful to Bernd Weißbrot for a discussion of that point. The current debate among historians on intentionality and functionalism had already been resolved in the 1930s and 40s; see Neumann, Behemoth (still the best sociological theory of and inquiry into German fascism); Fraenkel, Der Doppelstaat; but also internal observations from an administrative perspective Petwaidic, Die autoritäre Anarchie.1400Easter, Personal Networks and Postrevolutionary State Building: Soviet Russia Reexamined.


powers by the war and the intensified struggle for colonial emancipation, finally led to the complete decolonization of the world, and a multiplication of the number of autonomous states in three waves in the 1940s, 1960s and 1990s, resulting in an ‘epochal remodelling of the system of states’ (ii).1401 The individualization (iii) and constitutionalization of international law and internationally operating organizations, legally proclaimed but not carried out in 1918, was now performed by evolutionary incrementalism (iv). The general trend from 1815 through 1919 and 1945 to 1989, from the Vienna Congress via the League to the United Nations system and its amendment procedures, seems to indicate a ‘ratchet’ that allows movement only in the direction of an increasing de-centration of Eurocentrism, the development from output to input legitimization, from big-power absolutism to small-power participation, from exclusion (of all small powers of Europe, all non-European powers, all republican states and all individual citizens in the 1810s) to inclusion (of all states and nations, and even individual world citizens in the period between 1944 and 2013).1402

(i) United Nations and International Organizations. In 1945, the most important legal act, indeed, the constitutional moment of world society, was the foundation of the United Nations, surrounded by a whole network of new international institutions, and completed with the Universal Declaration of Human Rights through the newly instituted General Assembly. The UN Charter (1) replaced parties to a contract by membership in an international organization to which non-members can apply (Art. 4 II UN).1403 The Charter (2) replaced the equal sovereignty of European ‘sovereign princes and free cities’ (Wiener Schlußakte Preambel and Art. 1) of the Westphalia (1648) and the Vienna (1815) order of international law by the principle of sovereign equality of all members of the United Nations (Art. 2 I UN). In terms of legal principle, sovereignty does not exist prior to the Charter, but is created by the Charter (and this is very different from the Wiener Schlußakte, in which sovereign princes appear as the creators of the law, who can give it and take it away, like the Hobbesian mortal God). The sovereignty created by the Charter is legal power, and that means it is limited by the law that is created by the Charter and fleshed out within its (not yet sufficiently democratic) legal framework of checks and balances.1404 By the change from equal sovereignty to sovereign equality,

1401Maul, The ILO involvement in decolonisation and development.1402Anonymous, ‘The Politics of Inclusion: Changing Patterns in the Governance of International Security’, paper presented for blind review 2013.1403The official German translation replaces ‘members’ in Art. 2 I by ‘states’ – a case of linguistic Staatswillenspositivismus.1404Fassbender, The United Nations Charter as the Constitution of the International Community, pp. 94–101; Philip Allot, Eunomia: New Order for a New World. Oxford: Oxford University Press, 1990, pp. 173–4 and 178.


the term ‘sovereignty’ is relegated ‘to the position of an attributive adjective merely modifying the noun of “equality”. In this combination, sovereignty was meant to exclude the legal superiority of any one state over another, but not a greater role played by the international community vis-à-vis its members.’1405 The Charter (3) replaced the international legal principle of coexistence with the universal principles of cooperation and friendly relations (Art. 1 I and III). The legal subject of the universal law of cooperation no longer is the state, but the international community as a whole. In the light of the principle of cooperation, international law has taken a turn from droit relationelle to droit institutionelle (René Jean Dupuy).1406 The Charter (4) replaced the one-tier constituency of member state governments alone by a two-tier constituency of member state governments and ‘peoples for whom these governments act’.1407 As we have seen, Article 2 I is linked directly via the Preamble to popular sovereignty. Furthermore, the reference to the human rights of every single human being (Art. 1 III UN in combination with Art. 13 I, 75c, 76c plus the UDH, the Conventions of 1950 and 1966, the General Assembly’s Friendly Relations Declaration of 1970 and other legal instruments) even could be taken as a third level of constituency that refers to an emerging world citizenship. The Charter (5) expanded the ban on the ‘threat and use of force’ from those states that have ratified the Charter to any state, regardless of whether it has ratified it or not (Art. 2 IV UN). At least in this respect, the Charter constituted from the very beginning an order of universal law.1408

(ii) Decolonization. One of the crucial conditions for the emergence of global constitutionalism was the decolonization process and the proliferation of the form of the modern national state with a (at least symbolically) rights-based and democratic constitution, throughout the world (excepting the high seas). The process of decolonization was paradigmatic for the new interplay between international organizations and state formation. Here, the work of the ILO is a good example. One of the main sources and turning points in colonial politics was the ILO’s Declaration of Philadelphia (Annex to the ILO-Constitution)1409 in 1944, which, for the first time in history, began to develop the concept of the universal social rights of the individual (Annex II-III) in a legal document that declared these rights ‘fully applicable to all peoples everywhere’ (Annex V). States and international organizations were committed to the universal establishment of welfare states (Annex II a, b; IV). In particular, the principle

1405Fassbender, The United Nations Charter as the Constitution of the International Community, p. 111.1406Ibid., pp. 68 and 94, p. 112.1407Ibid., p. 101; Fassbender, Grund und Grenzen der konstitutionellen Idee im Völkerrecht, p. 77.1408Ibid., p. 29.1409Constitution of the International Labour Organization, http://www.ilo.org/ilolex/english/iloconst.htm (14 July 2012).


of freedom of associations (Preamble of the Constitution, Annex I b, III e) not only pre-dated the Freedom of Association and Protection of the Right to Organise Convention of 1948, but laid the basis for a total break with the former colonial system of global apartheid, forced and compulsory labour (Annex I a, b; III b, c) and discriminatory law (Annex II a) which had been constitutive for European colonialism and imperialism until 1945. This ‘revolutionary step’ of a de facto new foundation of the ILO on the basis of the Philadelphia Declaration provided ‘the post-war anti-colonial movements with an effective tool for uncovering the contradictions inherent in the colonial powers’ claim to rule and for formulating its own demands for participation and emancipation’.1410 The ILO Declaration is not only committed to the development of, but also to the ‘achievement’ of ‘self government’ (Annex V). For the final success of the anti-colonial revolutionary movements against the old colonial powers of Britain, France and Belgium in the 1960s, the victory over the two most aggressive imperial powers of the world, Japan and Germany was one of the most important cornerstones. Colonialism could no longer obtain any backing by international law after 1945. The post-World War II history of the ILO is paradigmatic. It was no longer the decaying colonial powers alone, but the whole industrialized world in its entirety that was, for the first time, confronted with the opposition of the rest of the world community. This opposition was led by the powerful voices from India, and inspired by the success of the Chinese Revolution and the fact, as surprising as it was impressive, that, after the terribly high blood toll of decades of revolutionary war, the Chinese Red Army was able to withstand the world’s biggest superpower in the Korean War right after the end of the revolutionary war in 1949. Afterwards, the industrialized states lost their majority stronghold with the emergence of the new post-colonial states, which now became member states of the ILO (and the same happened in the United Nation’s General Assembly). First, the new states took over the modernization theories of the Western (or the Eastern) industrialized world, then – in a dialectical inversion – these theories were attacked by them, and finally new hybrids emerged that enabled the foundation of independent nations. The return of the Soviet Union to the ILO in 1954 following the death of Stalin was proof of the integrative power of the new constitutional framework of the ILO. The conflict between the Soviet Union’s slim majority and the US leadership in the ILO did not destroy the ILO, but it did lead to several pragmatic compromises, and finally made it stronger. Furthermore, the ILO became, together with the General Assembly, a forum for the new fronts of international class struggles between the global centre and the global periphery. The workers’ unions of rich countries were suddenly confronted with the unions of poor countries, who strived, partly

1410Maul, The ILO Involvement in Decolonization and Development.


under the leadership of India, partly under that of the Soviet Union or China, for the global reinvention of the active state vis-à-vis the ideologists of free global markets. The result was an ‘unparalleled increase in the ratifications of . . . norms’ concerning ‘human rights standards’ relating to ‘discrimination, forced labor and freedom of association’, even though, at the same time, most of the decolonized countries were still reluctant with regard to the process of ‘unfiltered application’.1411Most of the more or less authoritarian regimes of the states which had formerly been colonies (who had fought against forced labour, but now used it themselves) did, at least, bind themselves to general rights and legal principles which later could be and indeed were used against their authoritarian repression.

The fight about the interpretation and the application of the ILO basic standards remained a fight that was fought ‘within the international order’, and, even when many authoritarian new regimes argued that they were in a temporary state of emergency, they now were forced to do so from within the constitutional framework of the ILO.1412 The flexibility of the new global constitutional order was not only a source of fragmentation, further de-formalization and the emergence of new informal domination, but also a framework for a long-term reconciliation of lasting contradictions, and this is not the worst achievement of the constitutionalization processes.

(iii) Individualization. The unconditional surrender of Germany and Japan was immediately followed by the invention of the International Military Tribunals at Nuremberg and Tokyo, which profoundly changed international criminal law, opened the gates for further developments of international criminal justice and shaped both later developments in the successive Tribunals on Rwanda and the former Yugoslavia, and the establishment of the ICC. The latter even now finds itself with (still restricted) jurisdiction in cases of Article 2 IV violations (‘threat or use of force against the territorial integrity or political independence of any state’). This, as well as the Kadi case in the European Court, is a good example of further steps in the ongoing process of the evolutionary constitutionalization of the international community.1413

1411Ibid.1412Ibid. These findings offer good support for Parsons’s analysis of the global constitutional order; see Parsons, Order and Community in the International Social System.; see Law and Versteeg, The Evolution and Ideology of Global Constitutionalism.1413On the Kadi cases, see Ley, ‘Legal Protection Against the UN-Security Council. Between European and International Law: A Kafkaesque Situation?’, German Law Journal 8 (2007), 279–93; Möllers, ‘Das EUG konstitutionalisiert die Vereinten Nationen’, in Möllers and J. P. Terhechte (eds), Europarecht 3. Baden-Baden: Nomos, 2006, pp. 426–31; Daniel Halberstam, ‘Local, Global, and Plural Constitutionalism’, in G. De Búrca and Joseph Weiler (eds), The Worlds of European Constitutionalism. Cambridge: Cambridge University Press, 2010, pp. 1–38, at 18. On the impressive evolution of the international system of courts, in particular, since 1989, see Bogdandy and Venzke, In wessen Namen? Die internationale Gerichtsbarkeit diskurstheoretisch betrachtet.


(iv) Constitutionalization. The evolutionary constitutionalization of world law and world politics that followed the revolutionary institutional changes inter alia consisted of the juridification of territories, populations or functional spheres on national, regional and global levels, and the organic growth of the law of the specific spheres, and between these spheres – including fragmentation, but also coordination and accommodation.1414 The incremental process of constitutionalization consists (1) in the legal construction of the implied powers of a legal document such as an international treaty or the UN Charter.1415 It consists (2) in the existence, development and construction of some hierarchy of norms.1416 The hierarchy is based on a kind of Grundnorm such as pacta sunt servanda (which had functioned as the Grundnorm of the Westphalia System of ius publicum Europaeum), or a higher norm of collision, or a higher norm of reciprocal accommodation and cooperation that is post- or unconventional.1417 (3) Successively, constitutional principles emerge, containing a growing set of obligations erga omnes.1418 (4) The common public order of the world (ordre public international) becomes increasingly denser and deeper.1419 (5) The general legislative procedure of the Security Council, in particular, in embargo decisions, is no longer addressed as a measure to the sanctioned state alone, but also as general law to all its potential economic partners.1420 (6) On the

1414On growth: Thomas Franck, ‘Book Review’, vol. 77, Harvard Law Review 1565 (1964), quoted from Fassbender, The United Nations Charter as the Constitution of the International Community, p. 5; on fragmentation (and de-constitutionalization): Koskenniemi, ‘Global Governance and Public International Law’, Kritische Justiz 37 (2004), 241–54; Koskenniemi and Päivi Leino, ‘Fragmentation of International Law. Postmodern Anxieties?’, Leiden Journal of International Law 15 (2002), 553–79; Jürgen Bast, ‘Das Demokratiedefizit fragmentierter Internationalisierung’, in Brunkhorst (ed.), Demokratie in der Weltgesellschaft. On the coeval process of constitutionalization by coordination and accommodation, see Halberstam, Local, Global, and Plural Constitutionalism.1415Krysztof Skubiszewski, Implied Powers of International Organizations, in Yoram Dinstein and Mala Tabory (eds), Essays in Honour of Shabtai Rosenne. Doodrecht: Nijhoff, pp. 855–68.1416Peters, Compensatory Constitutionalism.1417On collision, see Christan Joerges, Teubner and Inger-Johanne Sand, Transnational Governance and Constitutionalism. Hart: Oxford, 2004; Nickel, ‘The missing link in global law: Regime collisions, societal constitutionalism, and participation in global governance’, in Nicolás López Calera (ed.), Globalisation, Law and Economy, Proceedings of the 22nd IVR World Congress Granada 2005, Volume IV. Stuttgart: Franz Steiner Verlag, 2007, pp. 237–50; on reciprocal accommodation, see Halberstam, Local, Global, and Plural Constitutionalism; on post-conventional normativity, see Habermas, Zur Rekonstruktion des Historischen Materialismus (inventing a post-conventional stage of reasoning and conflict settlement for moral and legal conflicts that follows Piaget and Kohlberg); Habermas, Faktizität und Geltung (with a procedural paradigm of legal theory that is a further development from the postconventional discourses of Zur Rekonstruktion des Historischen Materialismus); on unconventional legislation, see Ackerman, We the People.1418Verdross, Die Quellen des universellen Völkerrechts: Eine Einführung. Breisgau: Rombach, 1971, pp. 20–1; Fassbender, The United Nations Charter as the Constitution of the International Community, pp. 43–4 and 123–8.1419See Fassbender, The United Nations Charter as the Constitution of the International Community, p. 27 et seq.; Fischer-Lescano, Globalverfassung.1420Ibid., pp. 95–6.


basis of Article 39 UN, the Security Council can ‘outlaw certain activities as being incompatible with fundamental interests of the international community’ concerning, for example, the regulation of weapons of mass destruction or the protection of the global environment.1421 In particular, (7) the resolutions against terrorism have acquired more and more the character of general and abstract obligations (and this has been affirmed, for example, by the Kadi judgements of the European court).1422

To conclude, the self-imposed obligation of states has been complemented by supranational law that is internal to the sphere of international public law.1423 For the first time in history, we can observe a truly universal law of international treaties and a formal constitutional law of nations. What the League was to have become according to its idea, namely the formal constitution of the comprehensive community of states, the United Nations’ Charter has become.1424 It now is the ‘constitution of the community of states in the formal legal sense’.1425 The constitution of the universal community of states derogates conflicting international common law as well as conflicting international treaty law. All international law now ‘must be interpreted’ in ‘the light’ of the Charter – even if that does not mean that the states do not still have reserved powers (in the light of the Charter), and, in particular, in cases of basic rights, as the second Kadi-case of the ECJ has clearly demonstrated.1426

(B-II) The second wave of egalitarian constitutionalization of the social welfare state and national mass democracy came with the end of World War II. In America, it began in the 1930s, but finally prevailed after the war. The programme of socialist democracy or, in fact, democratic capitalism (together with the still much less attractive alternative of bureaucratic socialism) was much more successful this time than after 1917. There are several reasons. Since the 1930s, union power had increased and become strong enough to balance the power of capital, at least in Europe, North America and Japan. Socialist parties were more successful than ever before. Within the global constitutional system, the quasi-democratic competition

1421Christian Tomuschat, ‘Obligations arising for States without or against their Will’, Recueil des Cours 241 (1993), 195–374, at 344; Fassbender, The United Nations Charter as the Constitution of the International Community, pp. 95–6.1422See Fassbender, The United Nations Charter as the Constitution of the International Community, p. 96. On the Kadi cases, see Ley, Legal Protection Against the UN-Security Council; 279–93; Möllers, Das EUG konstitutionalisiert die Vereinten Nationen.1423Ibid., p. 96, pp. 54, 103.1424Verdross, Die Verfassung der Völkerrechtsgemeinschaft, p. 112.1425Verdross, Die Verfassung der Völkerrechtsgemeinschaft, 2. edition, p. 74 (‘Verfassung [der] Staatengemeinschaft . . . im formellen Sinn’), quoted from Fassbender, Grund und Grenzen der konstitutionellen Idee im Völkerrecht, p. 77.1426Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und Praxis. Berlin: Dunker & Humblot, 1984, pp. VII-VIII (‘[Die] Verfassung der universellen Staatengemeinschaft . . .derogiert’).


between Eastern bureaucratic socialism and Western democratic capitalism made sure that anti-communism in the West was balanced by a strong trend towards social welfare and a rough equality of living conditions. Moreover, globally coordinated economic policies were implemented successfully, and with lasting effects. At the same time, international solidarity, which, in fact, was the imperial policy of the Soviet Union, was also successful, and both stabilized the global constitutional system.1427 Finally, a series of new constitutional regimes and newly founded states completed the functional differentiation and augmentation of state power on the basis of the constitutional design of egalitarian basic rights and strong democratic parliaments.1428

Right at the end of the war, or a short time later, the Soviet constitutional model was imposed in Eastern Europe under Russian imperial hegemony. The new socialist states legitimated themselves as democratic people’s republics – but already by their constitutional law contradicted their own claims. They implemented universal suffrage, but combined it with one-party regimes ‘committed to a high degree of economic control.’ More crucial was that the socialist constitutions explicitly ‘rejected the separation of powers’, ‘judicial independence’ and ‘strict judicial review’ as bourgeois. Instead, they ‘instituted a rights structure that . . . stipulated extensive declamatory portfolios of material rights’. Even if this subsequently opened the path for the radical but gradual change of the bureaucratic socialist system in the late 1980s and 1990s that preceded the final implosion of the Soviet Union, it could not compensate for the loss of ‘civil and political rights’ which were subordinated ‘to restrictive laws’.1429 The quantity and quality of the legal and constitutional reforms after Stalin’s death was impressive, as was the rapid expansion, reform and fully fledged professionalization of the Soviet Union’s legal order, which transformed it into a functionally autonomous legal system. However, nothing changed in the authoritarian constitutional basic structure, and this basic structure, as a matter of fact, has survived the so-called revolution of 1989.1430 This was different in the West: The new constitutional regimes (of, for instance, all the founding members of the European Union) expanded universal suffrage and for the first time institutionalized sufficient procedural mechanisms for competitive elections. Some of the new constitutions still featured long lists of social and economic rights (as in Italy). Others issued general provisions for social welfare or socialization/nationalization (as in West Germany). Everywhere, constitution makers abolished the corporative structure of post-World-War-I constitutions and replaced it with subjective basic

1427See Parsons, Order and Community in the International Social System.1428See Luhmann, Grundrechte als Institution; Jesch, Gesetz und Verwaltung; Thornhill, A Sociology of Constitutions, p. 327 et seq.1429Thornhill, A Sociology of Constitutions, pp. 327–8.1430See Berman, Justice in the U.S.S.R.


rights (e. g. in matters of labour conflict, with Germany as an exception). The new constitutions were centred in comprehensive parliamentary legislation and comprehensive parliamentary control and had transformed subjective into basic rights and implemented constitutional courts and legal review. They opened themselves to international law and committed themselves to cosmopolitan projects and the formation of the United States of Europe.1431 The finally successful co-evolution of the global system of national states and strong cosmopolitan institutions was due, in particular, to the opening of national states to international law, which enabled the more (EU, IMF) or less (UN, WTO, WHO, World Bank, ILO) reciprocal interpenetration of national and international law (reinforced by judicial review by national and international courts), as well as transnational constitutional borrowing between open states.1432 For the systemic stabilization of the new forms of global social integration, the facilitation of the ‘abstract inclusive and generalized application of power’ by a ‘broad presumption in favour of rights that accompanied the post-1945 transitions’ in national state constitutions was the crucial step – ‘as in earlier rights revolutions in the eighteenth century’.1433 In the decades that followed World War II, in the Chinese Revolution and its reform in the 1980s, the colonial emancipation in the 1960s, and the implosion of the Soviet empire in 1989, an evolutionary path was opened that enabled the development of (at least nominal) state constitutions in a spectrum between bureaucratic market socialism (China), socialist democracy/democratic socialism (which failed in Czechoslovakia and elsewhere, but remains a vague evolutionary possibility), democratic capitalism (EU, Japan, United States, Canada) and capitalist democracy (neo-liberalism). All these regimes were legitimated within the normative constraints of the global exclusion of inequalities. Democratic legitimacy and the constitutional programme of social welfare mass democracy prevailed worldwide and trumped nearly all alternatives in constitutional textbooks and constitutional law, at least nominally or symbolically.

In Germany, the 1953 debate between Wolfgang Abendroth and Ernst Forsthoff was paradigmatic for the spread of alternative version of Western national statehood after World War II in Europe. Forsthoff argued (as Carl Schmitt had already done in the controversy about the Weimar constitution)

1431Fossum and Menéndez, The Constitution’s Gift. Elements of a Constitutional Theory for a Democratic European Union; Thornhill, A Sociology of Constitutions, pp. 330–71, especially at 341.1432Besson, The Right to have Rights: From Human to Citizens’ Rights and Back; Tanja Hitzel-Cassagnes and Nadja Meisterhans, ‘Konstitutionalisierungsperspektiven eines fragmentierten Weltrechts’, in Brunkhorst (ed.), Demokratie in der Weltgesellschaft, pp. 159–84; Hitzel-Cassagnes, Entgrenzung des Verfassungsbegriffs. Habilitationsschrift, University of Hannover, 2010; Nickel, Transnational Borrowing Among Judges; see Di Fabio, Das Recht offener Staaten; Wahl, Rainer, Verfassungsstaat, Europäisierung, Internationalisierung. Frankfurt: Suhrkamp, 2003.1433Thornhill, A Sociology of Constitutions, p. 341.


that the Grundentscheidung (basic decision) of the German Basic Law for private property and the Rechtsstaat did not allow the democratic legislator to nationalize the industrial complex, or to introduce any other forms of societal or industrial democracy.1434 The Constitutional Court as the custodian of the constitution, therefore, had to defend the Rechtsstaat and the hard core of liberal rights to freedom against democratic social welfare legislation, socialization of the economy and democratization of society. This argument, in fact, tried to restrict the societal order of the Grundgesetz to ordo-liberalism. In contrast, Abendroth argued that there is no essentialist Grundentscheidung, but a constitutional mandate of positive law for the legislator to create a social welfare state that also could become a socialist democracy. The basis for this was the strong position of the democratic legislative (Art. 20 II GG), the equality before the law (Art. 3 I) and the definition of Germany as a social federal state (Art. 20 I GG) and a social state of law (Art. 28 I).1435 Abendroth argued that there is no limit in principle that would prevent the democratic legislator from introducing democratic socialism or socialist democracy through ordinary parliamentary legislation: The ‘basic structure of society and economy is subject to democratic will formation’.1436 For Abendroth, the constitution was not only a systemically restricted political constitution, but also the constitution of society.1437 German Basic Law requires that the societal order is not predetermined by any higher law or historical substance that is beyond positive law or forms its foundation. The only thing democracy requires is that all societal alternatives are open to democratic will formation (ordnungspolitische Offenheit des Grundgesetzes).1438 In 1953, Abendroth’s Marxist reconstruction of the basic principles of the German Basic Law was the counter-hegemonic opinion of a small minority of constitutional law scholars, but it later became and still is the hegemonic opinion – like (more or less) everywhere in the Western world.1439

1434Forsthoff, ‘Begriff und Wesen des sozialen Rechtsstaats’, in Forsthoff (ed.), Rechtsstaatlichkeit und Sozialstaatlichkeit. Darmstadt: Wiss. Buchgesellschaft, 1968, p. 165 et seq. For the Weimar debate, see Schmitt, Legalität und Legitimität vs. Kirchheimer, Legalität und Legitimität.1435For the interpretation of equality before the law (the American due process clause) as an equal right to social participation and sharing, see Dworkin, Taking Rights Seriously.1436Wolfgang Abendroth, ‘Zum Begriff des demokratischen und sozialen Rechtsstaats im Grundgesetz der Bundesrepublik Deutschland’, in Forsthoff (ed.), Rechtsstaatlichkeit und Sozialstaatlichkeit, p. 114 et seq.1437Abendroth, Zum Begriff des demokratischen und sozialen Rechtsstaats im Grundgesetz der Bundesrepublik Deutschland, pp. 138–9.1438Wolfgang Abendroth, Zum Begriff des demokratischen und sozialen Rechtsstaats im Grundgesetz der Bundesrepublik Deutschland, p. 140.1439Möllers, Staat als Argument, p. 141 (note 12); on Italy, see Bellomo, The Common Legal Past of Europe 1000–1800, pp. 25–31.


A crucial case for the limits of the normative constraints of democratic egalitarianism is neo-liberalism. Neo-liberalism has become the prevailing ideology of globalization since the 1980s.1440 Neo-liberalism still justifies itself as the best democratic way to social justice, using the classical liberal argument that, in the long run, market radicalism will have the better and more egalitarian outcomes for everybody than any alternative basic structure. But this is an empty promise relying on a lot of mathematic modelling on a highly selective basis of data. John Maynard Keynes’s famous answer that in the long run we are all dead seems even more valid in the case of global neo-liberalism, in particular, after the big economic crash of 15 September 2008. Even if they still argue in favour of mass democracy, neo-liberals reduce it to free markets, and consumers’ democracy. Market justice replaces democratic justice.1441 In fact, this is nothing other than a categorical mistake that conceals the disastrous colonization of democratic public life by markets, money and capital. And the now fundamentalist Christian and neo-liberal (nearly fascist) Republican Party in America even aspires to abolish social welfare completely, with the direct effect of abolishing democracy. This firmly intended counter-revolutionary project so far has led to great devolutionary modifications of the social and egalitarian advances of the New Deal and democratic capitalism elsewhere.1442 The normative constraints of the Egalitarian Revolution are still working, even if they are once more under severe pressure of evolutionary adaptation to the now strongest material and ideal class interests of a ‘global oligarchy of investors’.1443


In the second half of the twentieth century, the last square metre of the globe became state territory and failed states turned into a major problem of the international community.1444 Even the moon and space are now objects of international law. Except for the divine parts of the universal body of Christ and the post-mortal existence of human beings (and animals), the whole Christian legal cosmos of the twelfth century has become the realm

1440See Crouch, The Strange Non-Death of Neoliberalism.1441Streek, ‘Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit’ (unpublished e-man. of a Lecture Verona 20 September 2012).1442Strongly supported by the fundamentalist majority of the American Supreme Court, see Citizens United v. Federal Election Commission, 558 U.S. 50 (2010); National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al., 567 U.S. (28 June 2012), 132 S. Ct. 2566.1443Streek, The Crisis of Democratic Capitalism.1444Oeter, ‘Prekäre Staatlichkeit und die Grenzen internationaler Verrechtlichung’, in Kreide and Niederberger (eds), Transnationale Verrechtlichung, pp. 90–114.


of secular law. In conjunction with the globalization of the national state, all functional subsystems became global systems. The rational and secular regional culture, which originally was the specific occidental rationality (Weber) of Europe and North America, was mixed with all the other regional cultures, and thus transformed into the rational and secular culture of the world. World culture (i.e. neither Western nor Eastern, neither Northern nor Southern culture) constitutes the basic orientations of all main actors of the global society, that is, of states, organizations and human individuals.1445 The consequence of this, which has not yet been sufficiently understood, is that now Western rationalism, functional differentiation, legal formalism and moral universalism are no longer something specifically Western, whether or not they ever have been. By now, eurocentrism has been completely decentred. Moreover, colonialism and imperialism have been illegalized and replaced by an increasingly de-territorialized and flexible formation of hegemony and counter-hegemony.1446 The struggle for hegemony now has to be fought out within the constitutional regimes of world society. Not only states, but peoples and world citizens are legally equalized. There is no longer any space for any action outside the law, or outside the legal system. Every political or economic action is either legal or illegal. Law as a social system exists only in the singular – as Kelsen, Verdross, Scelle and Dickenson had rightly claimed after the beginning of the great revolutionary transformations of the twentieth century.1447 In the same way that the many societies have become a single world society, the many legal orders and systems have become one single world law – with increasing internal differences, fragmentations, inconsistencies, contradictions and (latent and actual) collisions.

The existence of world law already logically implies the end of Western law, but not an end of class justice, hegemonic law and the intertwinement of legal discourse with discursive power. However, even if the informal order still relies on post-colonial distinctions between ‘metropolitan’ and ‘territorial’ spheres of law and knowledge which operate with different informal codes (regulation/emancipation vs. appropriateness/violence); even if post-colonial discrimination is what stands behind the selective dissociation of (bad)

1445On global culture, see Meyer, World Society and the Nation-State, American Journal of Sociology 103 (2005), 144–81; Meyer, Weltkultur.1446See Hardt, Michael and Negri, Antonio, Empire. Cambridge, MA, 2000. For a systematic development of this point, see Fischer-Lescano and Teubner, Regime-Kollisionen. Zur Fragmentierung des globalen Rechts. Frankfurt aM: Suhrkamp Verlag, 2006; Buckel, Subjektivierung und Kohäsion.1447See Kelsen, Das Problem der Souveränität; Verdross, Die Verfassung der Völkerrechtsgemeinschaft; Dickenson, The Law of the Nations.


‘violence’ from (good) ‘emancipation’; even if the informal separation of ‘appropriate’ measures from legal ‘regulations’ echoes the basic distinction of imperialism at its height at the 1884/85 Berlin Conference, namely the distinction between ‘authority’ for them and ‘jurisdiction’ for us,1448 these communicative codes and distinctions are no longer acceptable within legal discourse and as legal codes. International legal discourse has burst the boundaries of an expert-dominated discourse at the latest in 2003. The Iraq war of 2003 has shown that the basic distinctions of imperial law are no longer acceptable within existing international law and its public. They still have cultural impact, but their legal formalization is blocked by the normative constraints of world law, and this time the guardians of the global constitution are the peoples themselves. Their global protest has made the public character of international law manifest.1449 Ultimately, the global public protest against the Iraq war was proof enough that the new international law exists as the real movement (Marx) of the social classes, peoples and individual human beings that make the United Nations and their law, and no longer just as the usual business of international lawyers and diplomats, let alone John Yoo and the partisan lawyers of the American State Department. The latter were deprived of all legal legitimization, and were forced to show the Gorgon’s head of power naked to the global public. The many lawyers who argued that international law now had been changed by state practice were refuted by the peoples’ No. – Why? Because at the latest in 2003, We the peoples of the world have taken the ‘emancipatory promise’ of international law seriously and ‘condemned’ the American war of aggression with one voice as a ‘universal violation’ of international law. The constituent voice of the peoples has silenced the constituted voices of political leaders, ‘diplomats and academics’. The peoples’ voice has abolished the reduction of international law to bourgeois political emancipation in the social name of human emancipation (Marx). This is – and here Koskenniemi is right – what international lawyers and other academics still can and should learn from Karl Marx and his famous criticism

1448Boaventura de Sousa Santos, Beyond Abyssal Thinking. From Global Lines to Ecologies of Knowledge, Journal of Law and Society 14:3 (1987), 279–302; see Sousa Santos, Law a map of misreading. Toward a Postmodern Conception of Law, Journal of Law and Society 14:Nr.3 (Autumn 1987), 279–302; Sousa Santos, On Modes of Production of Law and Social Power, International Journal of the Sociology of Law 13 (1985), 299–336; James Tully, On Law, Democracy and Imperialism, Edinburgh 2005; Tully, A Dilemma of Democratic Citizenship, University of Victoria 2010. I have to thank Thore Prien for a further discussion of this point.1449On this public character and the role of public contestation in principle, see Bogdandy, Grundprinzipien von Staat, supranationalen und internationalen Organisationen (e-manuscript 2012, forthcoming in: Handbuch des Deutschen Staatsrechts).


of the politically restrictive interpretation of human rights by the Jacobin lawyers of 1793.1450 Moreover, the global peoples’ No indicated a learning process that was twofold: one (with Marx) from politically specialized to socially related human emancipation and one (beyond Marx) from national to transnational constitutional law (and constituent power).

At the beginning of the twenty-first century, human rights violations, social exclusion of global and local regions, and tremendous inequalities, hegemony and imperialism in fact have not disappeared. On the contrary, a new dialectic of inclusion and exclusion is beginning to subvert the advances of functional differentiation.1451 If broad sections of the population remain excluded from accessing the most important functional systems, then, along with their social integration, the functional integration of systems, their ‘operative closure’, fails.1452 The ‘insufficient integration of a large part of the population into the communication of the functional systems’, or rather, an overly ‘acute difference between inclusion and exclusion’, which is ‘produced by functional differentiation’, is ‘incompatible with it in its outcome’ and ‘undermines’ it, and with it ‘the normal functioning of functional systems’.1453 While human beings ‘count as persons within the sphere of inclusion, it appears’, according to Luhmann, ‘that within the sphere of exclusion their bodies are

1450Koskenniemi, What Should International Lawyers Learn from Karl Marx?, p. 245. See Marx, ‘On the Jewish Question’, in Robert C. Tucker (ed.), The Marx-Engels Reader. New York: W. W. Norton & Co., 1978. There are, according to Robert Fine, two readings of Marx’s notion of human emancipation. The first one is that of an emancipation from every kind of particularity, hence the domineering subsumption of the individual subject under the predicate that Adorno has criticized so powerful as domination by identifying thinking and the real abstractions of money and power. However, there is another, and much more plausible reading, that human emancipation means emancipation from identifying thinking and real-abstraction. Legally speaking, this human emancipation and sublation of functionally and nationally specialized political emancipation begins with the ‘recognition of the right of all human beings to have rights’ (Fine, ‘Was Marx antisemitic? Reconstruction of the “Jewish Question”’, in Marcel Stoetzler (ed.), Antisemitism and the Constitution of Sociology. Lincoln: University of Nebraska Press, 2014 (forthcoming).1451Neves, Verfassung und Positivität des Rechts in der peripheren Moderne, pp. 65, 72, 110 et seq.; Luhmann, Die Gesellschaft der Gesellschaft, pp. 583, 585, 630–4; Achim Schrader, ‘Brasilien: Soziale Fragen, soziale Strukturen’, in Wolf Paul (ed.), Verfassungsreform in Brasilien und Deutschland. Frankfurt: Lang, 1995, pp. 30–1; Opitz, Sven, An der Grenze des Rechts: Inklusion/Exklusion im Zeichen der Sicherheit. Weilerswist: Velbrück, 2012; Stichweh, ‘Inklusion/Exklusion, funktionale Differenzierung und die Theorie der Weltgesellschaft’, Soziale Systeme 1 (1997), 123–36; Demokratie in der Defensive. Funktionelle Abnutzung – soziale Exklusion – Globalisierung. Elemente einer Verfassungstheorie VII. Berlin: Duncker & Humblot, 2001, pp. 34, 39, 49 et seq.; Markus Göbel and Johannes F. K. Schmidt, ‘Inklusion/Exklusion’, Soziale Systeme 1 (1998), 113–14; Birgit Mahnkopf, ‘Probleme der Demokratie unter Bedingungen ökonomischer Globalisierung und ökologischer Restriktionen’, in Michael Th. Greven (ed.), Demokratie – eine Kultur des Westens? 20. Kongreß der deutschen Gesellschaft für Politikwissenschaften. (Opladen: Leske Buderich, 1998), quoted from Hessen im Dialog. 25. Römerberggespräche. Reader zur Vorbereitung des Kongresses. Wiesbaden: Hess. Staatskanzlei, 1998, pp. 16–17.1452Neves, Symbolische Konstitutionalisierung, p. 70.1453Luhmann, Das Recht der Gesellschaft, pp. 582, 584.


almost all that matters’.1454 Together with the global co-evolution of functional differentiation and communicative exclusion (which causes devolution of functional differentiation), the decoupling of the educational system from the system of employment has been completed.1455 The perverse effect is that the decoupled educational system produces everywhere ever more and ever better educated and qualified people, who find themselves in a situation of precariousness the day they receive their last academic grade. The factual improvement and temporal and social expansion of education and the decoupling of education and employment happen not only in Berkeley and Berlin, in Paris and New York, in Tokyo and London, but also in Cairo and Nairobi, in Teheran and Bogotá, in the city and in the country, in ‘metropolitan’ and ‘territorial’ areas.1456 In the different world regions, the global educational system expands and improves at very different levels, with different economic equipment, and therefore with different speed, and against different cultural backgrounds. But everywhere it is the same system that expands and improves.1457 This has an important effect, already observed in the times of the global students’ revolt: With the expansion and improvement of education, adolescence is being prolonged everywhere, a process that will probably continue until adolescence is as long as a human lifetime.1458 Therefore, a future seems foreseeable when the academic precariat makes up the majority of the global population. Nobody knows if this will lead to a new basic class conflict between the 1 per cent of investors and their families and the 99 per cent of the precariat and the excluded populations. What once began as a protest movement of a small academic elite in Berkeley in the Sixties grew in the following decades from protest movement to protest movement and attained the vigour of a revolutionary subject during the last series of revolutions in the Arabic countries in 2011. I will come back to this point at the end of this part.

In any case, the basic legal principles of global inclusion of the other and of exclusion of inequalities are undermined by the global and transnational formation of a shrinking ruling class of global players, investors and experts, and an expanding subjugated class of precarious people who are ever better educated. As we now see in Europe, the transnational ruling classes break loose from the constitutional bonds of the national state, and they bypass

1454Ibid., pp. 532–3; see Göbel and Schmidt, Inklusion/Exklusion, pp. 113–14.1455See Offe’s early observations from the 1970s: Offe, Berufsbildungsreform. Today Offe’s old thesis is simply obvious, see Paul Krugman, ‘Sympathy for the Luddites’, The New York Times, 13 June 2013.1456Bourdieu, Acts of Resistance.1457Meyer, Francisco O. Ramirez and Yasemin N. Soysal, ‘World Expansion of Mass Education, 1870–1970’, Sociology of Education 65 (1992), 128–49.1458See Döbert and Nunner-Winkler, Adoleszenskrise und Identitätsbildung; see Habermas, Protestbewegung und Hochschulreform. Frankfurt: Suhrkamp, 1968.


public law by informal rule. Their democratic legitimization shrinks rapidly, and the new social difference of over-integrated and under-integrated populations undermines both the normative equality of law and its functional requirements. This finally might cause a serious crisis of legitimization, in particular, when the still growing problems of legitimization coincide with the economic crisis of the century, like that of 15 September 2008.1459 Today, it seems that Europe is a paradigm case for the emergence of such a legitimization crisis. It is, as we will see, directly linked to the incremental constitutional evolution of the European Union, and the abysmal dialectic of the Kantian and the managerial mindset. Moreover, Europe is the region of the world where the constitutionalization of world society is most advanced and (unlike the situation in the United States) a direct result of the Egalitarian World Revolution. Therefore, I will present a brief case study of the incremental and gradual evolution of transnational constitutionalization in Europe. It can be read as a genetic evolutionary explanation of the (probably) coming crisis of legitimization. The constitutional evolution of the European Union after 1945 followed the same basic schema as the constitutional evolution of France and America after the Atlantic Revolution, leading again to an inchoate and one-sided implementation of the revolutionary advances of the Kantian mindset. First, there is economic constitutionalization (I), then this overlaps with, and is re-constitutionalized by, juridical (II), political (III) and finally, social security constitutionalization (IV).

Constitutionalization was preceded by the great revolutionary transfor-mation discussed in this chapter. As we have seen, it resulted in the establishment of a new system of normative constraints (egalitarian and universal democracy) and a new formation of functional differentiation (in particular, of the global educational system). This is conspicuously often forgotten today, but the beginning of the European Union (and the Council of Europe) was part and parcel of the revolutionary transformations of the century. The European Union was founded on the battlefields of World War II. It was founded by the Kantian constitutional mindset of peoples and social classes who emancipated themselves from fascist rule over Europe. The battles and struggles were fought in the name of comprehensive democratic and social self-determination. Liberating violence was transformed into the constituent power of a new foundation

1459See Brunkhorst, Legitimationskrisen. Verfassungsprobleme der Weltgesellschaft. On the formation of a transnational ruling class, see William I. Robinson and Jerry Harris, ‘Towards a Global Ruling Class? Globalization and the Transnational Capitalist Class’, Science & Society 64:1 (2000), 1111–5411. On the mediation of the formation of a transnational ruling class and the neo-liberal episteme through international law, in particular, in former Third World countries, see B. S. Chimni, ‘Prolegomena to a Class Approach to International Law’, The European Journal of International Law 21:1 (2010), 57–82, at 65–76.


and the unification of Europe.1460 It was the new foundation that replaced the classical Peace Treaty that was no longer possible after the European and Asian atrocities of the former Axis Powers. European unification did not begin with the Treaties of Paris and Rome in 1951 and 1957, and it did not begin with the Méthode Monnet,1461 but with the new constitutions that all the founding members (France, Belgium, Italy, Luxemburg, the Netherlands and the Federal Republic of Germany) had given themselves between 1944 and 1948.1462 The German Grundgesetz even constituted a completely new state, something that factually became unavoidable after the unconditional surrender and the Declaration of Berlin.1463 All founding member states had changed their political class, at least in the leadership ranks, and had replaced substantial parts of the old ruling classes that had been contaminated by fascism with former resistance fighters or emigrants who had defected.1464 All constitutions of the founding members expressed a strong emphasis on human rights and had opened themselves (explicitly or implicitly) to international law.

However, there was one significant exception, and that was the constitution of Belgium. It was significant because Belgium may have been afraid that such an openness could not be compatible with its still huge colonial empire. After all, the vast majority of initial signatories of the UN-Charter were non-Western and Latin-American states. Europe’s colonial past and present was repressed from the beginning, indicating that the imperial side of the managerial mindset was co-original with the Kantian constititional mindset of Europe’s new foundation.1465

Nevertheless, at the centre of a colonial world, on the European continent all founding members were committed to the egalitarian project of mass democracy and social welfare. Even the programmes of conservative parties

1460See Alexander Somek, ‘Europe: From emancipation to empowerment’, unpublished e-man., University of Iowa 2012. Even the present president of the European Commission, the Portuguese Barroso, owes his job to a late effect of the emancipation of Europe from fascism.1461Jacques Delors, ‘Entwicklungsperspektiven der europäischen Gemeinschaft’, Aus Politik und Zeitgeschichte B1 (1993), 3–9, quoted from Möller, ‘Die Europäische Sozialunion’, Lexikonartikel, e-Ms., Berlin 2013, forthcoming.1462Thornhill, A Sociology of Constitutions, pp. 327–71; Fossum and Menéndez, The Constitution’s Gift.1463See Kelsen, The legal status of Germany according to the Declaration of Berlin; on the problem in terms of constitutional theory, see Möllers, Staat als Argument, pp. 166–9.1464Osterhammel and Petersson, Geschichte der Globalisierung, p. 85; Hobsbawm, The Age of Extremes, pp. 144–8. This does not mean that there did not remain strong continuities in all countries. In particular, in Germany, the Nazi continuities of the elites were still strong, but silenced and displaced (strikingly described by Hermann Lübbe as ‘kommunikatives Beschweigen brauner Biographieanteile’, see Hermann Lübbe, ‘Der Nationalsozialismus im politischen Bewußtsein der Gegenwart’, in Broszat u. a. (Hrsg), Deutschlands Weg in die Diktatur. Berlin: Siedler).1465See Gurminder K. Bhambra, ‘Postcolonial Europe: Or, Understanding Europe in Times of the Postcolonial’, in Chris Rumford (ed.), Handbook of European Studies. London: Sage, 2009.


advocated ideas of democratic socialism. Already in 1941, in the Manifesto of Ventone,1466 Spinelli, Rossi and Colorn (all three communists or socialist resistance fighters) had outlined the project of a European federal social welfare state that preceded the later foundation of the national welfare states.1467 During and after the war, there was strong political and intellectual support for an anti-fascist European unification, reaching from Churchill to Arendt, from Maritain to Schumann, from Trotsky to Keynes, from Pilsudsky to Kojève, from Camus to Spinelli, from Sartre to Adenauer. Arendt’s statement of 1945 was one of many: ‘A good peace is not conceivable unless the States surrender parts of their economic and political sovereignty to a higher European authority: we leave open the question whether a European Council, or Federation, a United States of Europe or whatever type of unit will be formed.’1468

Finally, and most crucially for the foundation of the European Union, all founding members of the European Communities bound themselves by the constituent powers of their peoples to the project of European unification. Only Luxemburg had no explicit commitment to Europe in its constitution, but its constitutional court decided that this was implicit.1469 Fossum and Menendez aptly speak of a synthetic constitutional moment of Europe.1470 In consequence, it can be concluded that, from the very outset, the European Union was not founded as an international association of states. On the contrary, it was – speaking in legal terms – founded as a community of peoples who legitimated the project of European unification directly and democratically through their combined, but still national, constituent powers. At the same time and with

1466Ernesto Rossi and Altieri Spinelli, Manifest von Ventotene, August 1941, quoted from http://www.europarl.europa.eu/brussels/website/media/Basis/Geschichte/bis1950/Pdf/Manifest_Ventotene.pdf (27 August 2013); The manifesto ‘expresses the core elements of a diagnosis of the current state of the world that was shared by most of the political forces of the antifascist resistance of the time’ (Möller, Die Europäische Sozialunion, my translation; vgl. a. Menéndez, Hg.: Altiero Spinelli: From Ventotene to the European Constitution, Arena Report 1/2007).1467See Möller, Die Europäische Sozialunion.1468Arendt, ‘Approaches to the German Problem’, in Jerome Kohn (ed.), Essays in Understanding 1930–1954. New York: Harcourt, 1994, pp. 106–20; on Arendt, see Lars Rensmann, ‘Europeanism and Americanism in the Age of Globalization – Hannah Arendt’s Reflections on Europe and America for a Post-National Identity of the EU-Polity’, European Journal of Political Theory 5 (2006), 139–70, quoted from: http://www.sagepub.com/mcdonaldizationstudy5/articles/Globalization_Articles%20PDFs/Rensmann.pdf (3 November 2013); more general Adam Chalmers, ‘Refiguring the European Union’s Historical Dimension’, European Journal of Political Theory 5:4 (2006), 451; Peter J. Verovšek, ‘Generations and the Future of European Memory’, http://www.maxwell.syr.edu/uploadedFiles/moynihan/merc/Verovsek_EurozoneCrisis_Generations%20of%20European%20Memory_Syracuse2012.pdf (3 November 2013).1469When reviewing the constitutionality of the Treaty establishing the Coal and Steel Community, the Conseil affirmed that Luxembourg, not only could, but also should, renounce certain sovereign powers if the public good so required. See the Report on the 1952 judgement of the Conseil d’Êtat.1470Fossum and Menéndez, The Constitution’s Gift, p. 80 et seq., p. 175.


the same founding act, these peoples, acting in the plural, constituted a single European citizenship. Therefore, from the very beginning, the Treaties were not just intergovernmental, but legal documents with a constitutional quality. However, the memory of the fact that it was the constituent legislative power of the peoples and fighting social classes of Europe that made the European Union between 1944 and 1957 has been repressed, and what followed was the long Katzenjammer of gradual incrementalism and the Méthode Monnet. The managerial mindset took over soon after the first big changes. Nevertheless, it has not only replaced and repressed the Kantian mindset of revolutionary foundation but – in a paradoxical way – also step by step stabilized and realized it legally.1471 In European law today, the Kantian mindset is expressed in the reference of the preambles of the European Treaties to ‘solidarity’, ‘democracy’, ‘social progress’ ‘human rights’ and the ‘rule of law’. Solidarity is mentioned again and again, although the Treaty stipulates that such solidarity should not cost anything (as in David Cameron’s first response when the Greek crisis, which turned out to be the European crisis, erupted in 2011: ‘No British cash to bailout Greece’).1472 But nonetheless, the Kantian mindset of comprehensive democracy is implemented in many individual Articles and legal norms of primary and secondary European law, such as the famous Article 6 of the Treaty of Maastricht and Articles 9–12 of the Lisbon Treaty.1473 Finally, the Kantian mindset found its way into numerous juristic commentaries and treatises. As Neil McCormick rightly observed, during the last half century, a European common law has emerged.1474 At the end

1471An illuminating case study is Madsen, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist jurisprudence’, Ms 2012 (forthcoming), pp. 43–60, at 55–9. On the general need of the ‘Kantian’ mindset of normative social integration for systemic and ‘managerial’ stabilization, see Habermas, Theorie des kommunikativen Handelns II, p. 228.1472The Telegraph 23 Jun 2011, http://tgr.ph/mC6lu1 (28 October 2013).1473A good explication of the Kantian democratic and even cosmopolitan mindset of the Lisbon Treaty is Bogdandy, ‘The European Lesson for International Democracy: The Significance of Articles 9–12 EU Treaty for International Organizations’, The European Journal of International Law 23:2 (2012), 315–34; see already (with respect to the Maastricht-Amsterdam Treaty and, in particular, the Constitutional Treaty; which failed in 2005, but is to a large extent identical with the Lisbon Treaty): Christian Callies, ‘Das Demokratieprinzip im Europäischen Staaten- und Verfassungsverbund’, in Jürgen Bröhmer, Roland Bieber, Callies, Christine Langenfeld, Stefan Weber and Joachim Wolf (eds), Internationale Gemeinschaft und Menschenrechte, Heymanns 2005, pp. 399–421, at 402–4.1474What German lawyers describe as the emergence of an autonomous legal doctrine is reflected by a Scottish observer as the emergence of a European common law that transcends the pacta sunt servanda validity of international law. European ‘institutions and organs’, Neil MacCormick argues, ‘have had a continuous existence over several decades and through many changes of personnel. They have become central institutional facts in the thinking of Europeans. Citizens and officials throughout Europe have interpreted the norms of and under the treaties as having direct effect on private persons and corporations as well as on states. Over more than four decades this has proceeded with impressive continuity’ (Neil MacCormick, Questioning Sovereignty. Law, State and Nation in the European Commonwealth. Oxford: Oxford University Press, 1999, p. 139).


of the day, and after the symbolic re-establishment of state sovereignty by the constitutional court of the European hegemon in Karlsruhe, the counter-hegemonic Czech constitutional court correctly stated in its judgement on the Lisbon Treaty that the European Union today forms a complete and gapless system of democratic legitimization.1475 This does not mean that there is no democratic deficit any longer. The opposite is true, as we will see in a moment. But this (these days rapidly growing) deficit of democratic legitimization is nothing that is specific to the European Union, but exists at the same time within the national states. They are economically, politically and legally so closely integrated today that nationals and European citizens together will lose or maintain and improve democracy. United they stand or fall, whether they want this or not. But again, we must keep in mind that the ever denser economic, social, political, legal and cultural integration of Europe was, and still is, at the price of a total repression of its colonial past and present. To this day, no official document of the EU or its member states mentions the fact that a couple of islands in the Pacific region belong to the Euro-zone, and not one official map of the EU brings into view the fact that the EU has land borders with Morocco, namely the African enclaves of Ceuta and Mellila, which are enlightening Europe’s African borders with floodlight and thermal cameras every night. However, despite the land borders and close cultural and linguistic association with Morocco, the EU has rejected the Moroccon application for membership in 1986 because Morocco is non-European. Moreover, until 1962, 80 per cent of French state territory, which belonged to the European Economic Community, was African, but no map or official document of the peace-, law- and democracy-bringing EU mentions this, and no document mentions the fact that the French government from 1954 to 1962 fought a bloody war leading to one million deaths against the Algerian parts of its own population, who legally had been European citizens since 1957.1476

Following Tuori, the evolutionary narrative is structured by a sequence of evolutionary stages.1477

(I) Economic constitution: The first evolutionary step was taken in 1957 with the establishment of a functional economic constitution that consisted in the

1475Ley, Isabelle, Brünn betreibt die Parlamentarisierung des Primärrechts. Anmerkungen zum zweiten Urteil des tschechischen Verfassungsgerichtshofs zum Vertrag von Lissabon vom 3.11.2009, Juristen-Zeitung 65:4 (2010), 170.1476Bhambra, Postcolonial Europe. The official history of the EU mentions instead the students’ revolt of 1968 and the Hungarian insurgence of 1956. The latter occurred outside the EU and ended with horrible bureaucratic oppression, but compared with Algeria led only to a very small number of deaths.1477Tuori, The Many Constitutions of Europe.


structural coupling of the legal and the economic system. The establishment of the economic constitution was due to German ordo-liberalism. The ordo-liberals were a German-Austrian group of economists and jurists at the end of the Weimar Republic, all of them neo-conservatives and more or less on the far right, but most of them were anti-Nazis. They called their movement a ‘conservative revolution’, because the notion of revolution was at that time so predominant and hegemonic that hardly anyone could resist making revolutionary claims, ideas and plans for him- or herself.1478 The centre of the school was the University of Freiburg in south-western Germany. Among the members of the School were Franz Böhm, Walter Eucken, Alexander Rüstow, Wilhelm Röpke, Alfred Müller-Armack and Friedrich August von Hayek.1479 Originally, the idea of an economic constitution was an invention of the German socialist left at the end of World War I, in particular, of Hugo Sinzheimer and his student Franz Neumann. Sinzheimer and Neumann strictly followed the Kantian presupposition that the political constitution and the parliamentary legislator should retain supremacy over the economic constitution. The economic constitution should have a merely subservient function: It was to improve the ability of the democratic legislator to place the markets (and, in particular, the private sphere of domination within the capitalist firm) under democratic control.1480 At the end of the Weimar Republic, ordo-liberals ‘hijack[ed]’ the idea of an economic constitution from Sinzheimer and

1478See Klapheck, Margarete Susman und ihr jüdischer Beitrag zur politischen Philosophie.1479Most of the school were conservative opponents of Nazi fascism. Böhm was a declared anti-Nazi, especially an early defender of the Jews, and a member of the resistance with close relations to Bonhoefer and Gördeler. Eucken was a conservative anti-Nazi who strongly opposed Heidegger as the first Nazi-rektor of the University of Freiburg (above the main entrance of which even in 2011, the 1936 dedication is still clearly visible). He was loosely associated with the conservative resistance. Rüstow was a member of the far-right shadow cabinet led by General Kurt von Schleicher. He engaged in a half-hearted attempt at an anti-Hitler coup d’état, and he had to emigrate in 1933. Röpke was attached to the conservative ‘revolution’ (Tat-Kreis) from the early 1920s. However, he strongly opposed German fascism as early as the late 1920s, and he emigrated (as did Eucken) to Turkey in 1933. Alfred Müller-Armack was a Nazi of the first hour. Hayek took a chair at the London School of Economics (LSE), and he had left the continent by 1931. He was the most radical liberal opponent of Keynes, who at that time already had a chair at the LSE. Still the best criticism of Hayek is found in Kelsen, Demokratie und Sozialismus. As a legal theorist, Hayek was very close to Carl Schmitt. This point is made in Scheuerman, William E., ‘The Unholy Alliance of Carl Schmitt and Friedrich A. Hayek’, Constellations 4 (2004), 172–88; see Vatter, ‘Foucault and Hayek: Republican Law and Liberal Civil Society’. There always has been a counter-hegemonic Catholic criticism of ordo-liberalism. Intellectually strong, it nevertheless at that time remained marginal in Germany, see Hermann-Josef Große Kracht, Katholische Soziallehre und soziale Demokratie. Oder: Was könnte die katholische Sozialtradition zur Debatte um die ‘postdemokratischen Konstellationen’ beitragen? Thesenpapier zur Konferenz: Soziale Krise und Demokratie. Diagnosen zur postdemokratischen Konstellation, TU Darmstadt 5./6.07.2013.1480Vgl. Neumann, Wirtschaft, Staat und Demokratie. Frankfurt: Suhrkamp, 1978, pp. 70–4; 79–99, in particular at 70, 72, 74, 87–90, 95–6.


Neumann, watered it down and, in important respects, reversed it.1481 During the 1950s, they turned the idea upside down, transnationalized the economic constitution, decoupled it from the national political constitution and subsumed the latter under the former. Now all of society was to be ‘subsumed’ under the ‘principle of market-compliance’, as the (by then pious) former Nazi Alfred Müller-Armack wrote in 1960.1482 In the 1957 treaty negotiations, the German ordo-liberals under the leadership of Müller-Armack, and strongly supported by the American government, finally won the battle against the recalcitrant French government, which, at the time, defended a constitutional project that was much closer to the original ideas of Sinzheimer and Neumann.1483 With the establishment of the economic constitution in 1957, a Schmittian constitutional Grundentscheidung (basic decision) was made. It consisted in the radical ‘negation of a political constitution of Europe’.1484 Instead of subsuming the economic under the political constitution, the political constitution was subsumed under the economic constitution, and therefore, Wettbewerbsrecht, competition law, became the ‘axis of the economic order’.1485 In cases of doubt, the ‘concrete order’ of law and economics trumped the formal constitution of law and democracy.1486 While formal constitutional law still adhered to the Kantian priority of democratic legislation, the concrete order of law and economics became Europe’s informal prerogative constitution – Europe’s ‘hidden curriculum’.1487 The legal link between visible constitutional law and the invisible prerogative constitution was Article 2 TEEC.1488 The most crucial

1481See Tuori, The Many Constitutions of Europe, p. 16. The hi-jacking was organized by: Franz Böhm, Wettbewerb und Monopolrecht. Baden-Baden: Nomos, 2010 (1933).1482Alfred Müller-Armack, Studien zur Sozialen Marktwirtschaft. Cologne: Institut für Wirtschaftspolitik, 1960, pp. 11–12, 15 (my translation). For a brief and powerful criticism of the imperial tendencies of ordo-liberalism, see Teubner, Constitutional Fragments, pp. 30–4.1483Wegmann, European competition law.1484Tuori, The Many Constitutions of Europe, p. 15.1485Wegmann, Milène: ‘European competition law: catalyst of integration and Convergence’, in Tuori and Sankari (eds), The Many Constitutions of Europe, pp. 91–107, at 93.1486Claudio Franzius and Preuß, Europäische Demokratie, Ms 2011, 70.1487On the ‘hidden curriculum’, see Offe, ‘The European Model of “Social” Capitalism: Can it Survive European Integration?’, The Journal of Political Philosophy 11:4 (2003), 437–69, at 463. On the distinction between the two constitutional orders, see Fraenkel, Der Doppelstaat, pp. 33–266 (published in 1974, originally completed in 1938); see Joerges, ‘Europas Wirtschaftsverfassung in der Krise’, Der Staat 3 (2012), 357–86, at 360–1, 366–7, 377–81.1488Wegmann, European competition law, p. 94. Art. 2 ECC: ‘It shall be the aim of the Community, by establishing a Common Market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increased stability, an accelerated raising of the standard of living and closer relations between its Member States.’ Today it is replaced by Art. 3 EC: ‘The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between


effect was the long-lasting blockade of any transnationalization of the political constitution. The hegemony of the hidden curriculum stimulated and reinforced the Europeanization of big enterprises and employers’ federations, but at the same time strictly limited union activities and employee organizations to the sphere of the national state.1489

Ordo-liberals today are proud of the fine differences that distinguish them from neo-liberalism. But it was, in fact, ordo-liberalism that for Europe opened the historical path to the latest great transformation of globalization, which has lasted since the 1980s. If we reiterate the three basic ideas of ordo-liberalism, it becomes evident that only one idea is different. Therefore, the relation between ordo- and neo-liberalism is more like a cooperative historical division of business than a fierce opposition: The first basic idea of ordo-liberalism is to rid markets of state control. The spectre of ‘socialism’ and ‘communism’ must be banned as long as it is haunting Europe in the guise of macroeconomic state interventionism. Here, ordo- and neo-liberalism coincide from the beginning. Today’s representatives of the power elite, like the President of the German Bundesbank Jens Weidmann, or the former judge of the Verfassungsgericht Udo DiFabio, are accusing even the President of the ECB Mario Dragi of ‘creeping socialization’ (schleichende Sozialisierung) and ‘planned economy centralisation’ (planwirtschaftliche Zentralität) – Dragi as the crypto-communist who learnt his trade at the communist cadre training centre of Goldman Sachs.1490 However, ordo-liberalism distrusts not only the (bureaucratic) state, the Marxists and the Keyneseans – but also big-size (that is bureaucratic) capitalism and its tendency towards the concentration and centralization of capital, which has

men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.’ On the term ‘invisible constitution’, but with a somewhat different meaning, see Wiener, The Invisible Constitution of Politics. The changes in the text are massive. The wording of Art. 3 EC already entails everything that is needed for a democratically controlled capitalism (or even for a democratic socialization of the means of production), and the wording is already partially concretized in secondary European and national law (see Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa). However, it lacks the power of a fully fledged implementation of the change of the hegemonic axis of Europe’s economic order from the neo-liberal project of improving competitive capacity to the egalitarian democratic programme of European solidarity in the new Art. 2 (see Habermas, ‘Der technokratische Sog – Eine zerrissene Union verharrt an der Schwelle zur Solidarität’, Ms 2013; and Franzius and Preuss, Europäische Demokratie, p. 70).1489See Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa, p. 20.1490See Jens Weidmann, ‘Die Stabilitätsunion sichern’, Frankfurter Allgemeine Sonntagszeitung 27:8 (Juli 2012), 33; Weidmann, ‘Der Euro verlangt eine Stabilitätsunion’, SZ 146 (27. Juni 2012), 28 (quoting the following article by Di Fabio); Udo Di Fabio, ‘Das europäische Schuldendilemma als Mentalitätskrise’, FAZ 143 (22. Juni 2012), 9.


led to monopoly capitalism since the beginning of the twentieth century.1491 Therefore, the second basic idea of ordo-liberalism is to get rid of monopoly capitalism. Competition law shall keep the economic chances of all market participants equal all the time. This idea is called market justice, but it is a very poor idea of justice.1492 From the beginning, it was ideological. In fact (as Hans Kelsen demonstrated in his scathing criticism of Hayek as early as 1955), it worked in favour of the haves who owned the means of production, and at best regulated their competition.1493 However, in this respect ordo-liberalism is clearly different from neo-liberalism. Neo-liberalism has bluntly abolished competition law and reduced so-called market justice to shareholder value, which has then been identified with the common good by Milton Friedman and others.1494 That is why we can no longer avoid the bright lights of the latest stock market news wherever we go. The third (and in terms of constitutional law most crucial) basic idea of ordo-liberalism is to get rid of democratic legislative control. Here again, ordo- and neo-liberals coincide in applying the categorical imperatives: Give the judges what you have taken from the democratic legislator and the parliamentarily controlled government! In the words of Ernst Joachim Mestmäcker, the present head of the school: ‘The most important decisions have to be taken not by the legislator or the government, but by the judges.’1495 The beheading of the legislator is the true end of the French Revolution and the Kantian political era.1496 Never again shall a legislator be able to effect a revolution. That was Margaret Thatcher’s very message.1497

1491See already Marx, Das Kapital I, pp. 650–7.1492See Milton Friedman, Capitalism and Freedom. Chicago: Chicago University Press, 1982 (1962), pp. 15–26, especially at 20–1.1493See Kelsen, Demokratie und Sozialismus; Tugendhat, Liberalism, Liberty and the Issue of Economic Human Rights; Streeck, Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit.1494See Crouch, The Strange Non-Death of Neoliberalism.1495Ernst-Joachim Mestmäcker, ‘Einführung’, in Böhm (ed.), Wettbewerb und Monopolrecht, pp. 5–14, at 9 (my transl.); the same argument seems to fit the present crisis, see Mestmäcker, ‘Ordnungspolitische Grundlagen einer politischen Union’, FAZ 262 (9 November 2012), 12. In the same way, Milton Friedman and the Chicago School argue that the main threat to political and economic freedom ‘arises out of democratic politics’ and must be ‘defeated by political action’ (Gabriel A. Amond, ‘Capitalism and Democracy’, Political Science and Politics 24:3 (September 1991), 467–74, at 231).1496For the thesis that transnational law already has undergone a mutation into a law that is no longer related to the legislative power, see Marc Amstutz and Vaios Karavas, ‘Rechtsmutationen’, Rechtsgeschichte 8 (2006), 14–30, at 20; sceptical: Karl-Heinz Ladeur, ‘Die Evolution des Rechts und die Möglichkeit eines “globalen Rechts” jenseits des Staates – zugleich eine Kritik der “Selbstkonstitutionalisierungsthese”’, in Ancilla Juris 2012, pp. 220–54; Albert and Stichweh, Weltstaat und Weltstaatlichkeit.1497In 2002, Alec Stone Sweet could only state that in ‘today’s multi-tiered European polity, the sovereignty of the legislator, and the primacy of national executives, are dead. In concert or in rivalry, European legislators govern with judges.’ (Stone Sweet, Alec, Governing with Judges: Constitutional Politics in Europe. Oxford: Oxford University Press, 2002, p. 193, quoted from Buckel,


For these reasons, the implementation of the Euro without a European federal political government was not just a mistake, or the worst possible compromise – which it was, at least from the perspective of the negotiating parties.1498 Actually, from an observer’s point of view, the implementation of the Euro was nothing other than, as Wolfgang Streeck says, the ‘frivolous experiment’ of realizing a ‘market economy emancipated’ from all political bonds and to establish ‘a political economy without parliament and government’.1499 That is why big money, the banks, hedge funds and multinational enterprises were so strongly in favour of the Euro. The implementation of the Euro just immunized ‘the markets against democratic corrections’.1500 This immediately resulted in an increase of the social differences between the rich North and the poor South. When the crisis finally came, European Ordnungsrecht derogated national as well as transnational constitutional law.1501 As a result, the social gap that separates the North from the South grew dramatically in favour of the northern hegemon, that is, Germany.1502 Hence, by beheading the legislator, ordo-liberalism has opened the evolutionary path for the neo-liberal globalization of capital beyond state control. Retrospectively, the programme of economic constitutionalization appears as an immunization of free market

‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa, p. 26).) One has to add that in combination, transnational and national constitutional case law have reinforced each other, and in a way, the European Verfassungsgerichtsverbund (Udo DiFabio) has reserved for itself the most basic functions of all three classical state powers – at least in normal times of incremental and managerial evolutionary constitutionalization; see Andreas Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts. Der Europäische Verfassungsgerichtsverbund’, European Constitutional Law Review 6 (2010), 175–98, see also: http://journals.cambridge.org (20 November 2012).1498See Henrik Enderlein, ‘Grenzen der europäischen Integration? Herausforderungen an Recht und Politik’, DFG-Rundgespräch in Zusammenarbeit mit der Friedrich-Ebert-Stiftung Berlin, Ms. 25 November 2011.1499Streeck, Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit, p. 6 (my translation), p. 8.1500Ibid. (my translation); on the unity of ordo- and neo-liberalism, see also: Scharpf, ‘Integration versus Legitimation: Der Euro. Thesen’, e-man., presented at DFG-Rundgespräch ‘Grenzen der europäischen Integration?’, Berlin, 25 November 2011.1501See Florian Rödl, ‘EU im Notstandsmodus’, Blätter f. deutsche u. int. Pol. 5 (2012), 5–8; Joerges, Europas Wirtschaftsverfassung in der Krise; Böckenförde, ‘Kennt Europas Not kein Gebot?’, in Böckenförde (ed.), Wissenschaft, Politik, Verfassungsgericht. Frankfurt: Suhrkamp, 2011, pp. 299–303; Gerd Grözinger, ‘Alternative Solutions to the Euro-Crisis’, MS 2012. Grözinger strikingly calls ‘financial markets’ ‘a second constituency’. On the general context, see Somek, Individualism. An Essay on the Authority of the European Union. Oxford: Oxford University Press, 2008. On recent developments, see Buckel and Oberndorfer, Die lange Inkubationszeit des Wettbewerbs der Rechtsordnungen.1502Paul Krugman rightly states: ‘Fifteen years ago Greece was no paradise, but it wasn’t in crisis either. Unemployment was high but not catastrophic, and the nation more or less paid its way on world markets, earning enough from exports, tourism, shipping and other sources to more or less pay for its imports.’ (Krugman, ‘Greece as Victim’, in New York Times, 17 June 2012, http://www.nytimes.com/2012/06/18/opinion/krugman-greece-as-victim.html (3 November 2012).


capitalism against democratic control in two great steps: First, ordo-liberals took Europe, then neo-liberals took the rest of the world. First, the transnational constitution of Europe, then the transnational constitution of the WTO was to be detached from national political constitutions. The basic constitutional idea that ultimately unites ordo- and neo-liberalism is the idea of changing law from something that functions as the immune system of society into something that functions as the immune system of transnational capitalism, triggering an autoimmune disease by declaring civil war against the rest of the societal body and its legislative organs.1503 Ordo-liberalism has done its work, ordo-liberalism can go. Once neo-liberalism had taken over in the 1980s, the great transformation of the last 30 years could be accomplished: the transformation of state-embedded and state-controlled markets into market-embedded and market-controlled states.1504

(II) Juridical constitution: For all that, economic constitutionalization is not the only evolutionary formation of European constitutional law, and even if it remains the hegemonic constitution to date, it was and is not the last stage of Europe’s constitutional evolution. Gradual constitutional evolution is, as we have seen, conducted by the managerial mindset of law and economics. However, and this again is my very point: Once the Kantian mindset has been constitutionalized and integrated into the public authority of European law, it counteracts the managerial mindset of blind evolutionary adaptation as a normative constraint. Once the Kantian constitutional mindset becomes an evolutionary normative constraint, it changes from an empty ought to an existing concept. Its emancipatory idea can be halted or inhibited. But it cannot be eliminated.1505 In European constitutional history, the Kantian mindset of autonomy returned already in the early 1960s, together with the rapidly increasing volume of European regulations. It came back in the reduced and, for professional lawyers, manageable form of individual lawsuits over issues of private autonomy. In two landmark decisions of the European Court of 1963 (van Gent & Loos) and 1964 (Costa), the emancipatory side of the legal form flared up. Just to establish private autonomy, the judges had to create an autonomous European citizenship and European citizens’ rights as the rights of an autonomous legal community. To implement European subjective rights for mere economic purposes of private autonomy, it

1503Thanks to Willis Guerra Filho for this hint (in a discussion on a conference ‚Problemas Juridicos e Constitucionais da Sociedale Mundial‘, Brasilia, 18 September 2013); for comparative points of view (investment law, Latin-America), see David Schneidermann, ‘Compensating for Democracy’s “Defects”: The Case of International Investment Law’, paper given at the Workshop Conflict-Law Constitutionalism v. Authoritarian Managerialism, Loccum 7 October 2013.1504Streeck, ‘Sectoral Specialization: Politics and the Nation State in a Global Economy’, paper presented at the 37th World Congress of the International Institute of Sociology, Stockholm, 2005.1505Somek, Europe: From emancipation to empowerment, p. 8.


needed – at least counterfactually and in anticipation – the construction of fully fledged European citizenship. In a famous essay on the Eros and civilization of European citizenship, Joseph Weiler once argued that ‘you could create rights and afford judicial remedies to slaves’ because ‘the ability to go to court to enjoy a right bestowed on you by the pleasure of others does not emancipate you, does not make you a citizen’.1506 I think Weiler is wrong, even if there are many empirical cases of rights bearers who are denied full citizenship. He is wrong because once I go to a public court I must – whether I want to or not – participate in the judicial ‘concretization’ (Kelsen) of the respective legal norms, and that means that I must participate in a procedure of creating and changing law. For this purpose, I must make myself an active citizen. This is why the legislative power of the people does not end once a statutory law is ratified by parliament, and why at every level of concretization there is the need of direct democratic legitimization and further public contestation. Christoph Möllers rightly speaks of individual legitimization through legal actions which are part and parcel of the whole procedure of democratic legitimization. Thus, the existing notion of European rights contradicts (as an ‘existing contradiction’) the status of slavery once the slave makes use of them (if he or she has any right, however fragile and partial it is, such as the right of Dred Scott to go to court in Missouri in 1847, a case that became one of the triggers of the Civil War, as we have seen above). Thus, the European Court in Van Gent en Loos rightly interpreted the Treaties as ‘agreement between the peoples of Europe that binds their governments and not simply as agreement between the governments that binds the peoples’.1507 The construction of European citizenship by the Court, thus, must be derived from the synthetic constituent power of the peoples of Europe. This brings the Kantian mindset back in, for a simple reason. Once European rights and citizenship are created, a single people can no longer renounce membership alone, out of its sovereign will. Not only all other peoples, but also the European citizens as a whole must have a say in such a case. If Denmark quits the Union, I (as a German and European citizen) lose my European rights in Denmark, now even including active citizenship rights such as voting for the Danish contingent in the EU Parliament (if I live in Denmark). Therefore, the Treaty of Lisbon today allows withdrawal of a nation only in compliance with European procedural rules.1508

1506Weiler, ‘To be a European citizen – Eros and civilisation’, Journal of European Public Policy 4 (1997), 495–519, at 503.1507Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law. Cambridge: Cambridge University Press, 2010, Kindle-edition: Pos. 5677; See Franzius, Recht und Politik in der transnationalen Konstellation, Buch-Ms. Berlin, 2012, 87ff; Franzius, Review of ‘Habermas, Die Verfassung Europas’, Der Staat 2 (2013), 317–21, at 318; Franzius and Preuß, Europäische Demokratie, e.-Ms. Berlin: Böll Foundation 2011, p. 16 et seq.1508The example is from Brunkhorst, Solidarity – From Civic Friendship to a Global Legal Community. Cambridge, MA: MIT Press, p. 168.


Habermas rightly has called this a civilization of state power by overcoming state sovereignty and individualizing popular sovereignty.1509 Thus, it is not only the existing justice of the national state that is at stake once it comes to a transfer of sovereign rights from the national state to the European Union. What is at stake is also the already existing justice of the European Union once it comes to a return of powers from the Union to the national state. There is not only a requirement of solidarity between national states and their different demoi, but also a requirement of solidarity between the individual European citizens as bearers of European rights.1510 This could be called the European cosmopolitan moment, and the two decisions of 1963 and 1964 were afterwards emphatically (and somewhat hyperbolically) described by European lawyers as ‘the declaration of independence of Community law’.1511 Even if nobody at that time (and especially none of the judges) thought of this, the ascription of autonomous European citizen’s rights to all citizens of the European Union also included, retrospectively, the European citizenship of all French subjects of the French state territory of Algeria (and the casualties of the Algerian civil war) between 1957 and 1962. Only now the cosmopolitan moment that was implicit in the partial legal implementation of the Kantian mindset strikes back, at the very least in the form of postcolonial criticism.1512

However, the Kantian moment of the two landmark decisions would have disappeared immediately from the trajectory of constitutional evolution if the two decisions had not been followed by thousands of cases appealing to European Law in the national courts of all member states (and the backing of the national courts by the ECJ preliminary reference procedure under Art. 267 TFEU).1513 In this case, the old evolutionary insight became true that not the elites, but the masses make the evolution, and here I mean the masses of negative legal communications that filled the variety pool of the legal evolution, and finally engendered a new constitutional formation. The second stage in the evolution of European constitutional law was

1509Habermas, Zur Verfassung Europas – Ein Essay. Frankfurt: Suhrkamp, 2011, p. 57.1510See Sabine Frerichs, ‘Gold or Guilt? Reconstructing the Moral Economy of Debt’, paper given at the Workshop Conflict-Law Constituionalism v. Authoritarian Managerialism, Loccum 7 October 2013.1511See Tuori, The Many Constitutions of Europe, p. 17 (with reference to the sources).1512See, for example, Bhambra, Postcolonial Europe.1513See Alter, Karen J., ‘The European Court’s Political Power’, West European Politics 19:3 (1996), 458–87; Alter, ‘Who are the‚ “Masters of the Treaty?”’, International Organization 52 (1998), pp. 121–47.; Hitzel-Cassagnes, Entgrenzung des Verfassungsbegriffs. Eine institutionentheoretische Rekonstruktion, Baden-Baden: Nomos, 2012. (TFEU is the Lisbon Treaty on the Functioning of the European Union).


reached: the European Rechtsstaatsverfassung, or the juridical constitution of Europe. The European Rechtsstaatsverfassung consists in the (reflexive) structural coupling of law and law – or, maybe more precisely, it consists in the structural coupling of law and subjective rights.1514 However, as long as there was no fully fledged political constitution of Europe, active citizenship remained virtual and arbitrary. Individual, or better, private legitimization without public legitimization remains structurally incomplete at the level of the rule-of-law constitution. In European Court cases such as Walrave, Bosman, Viking and Laval, the basic freedoms prevailed over basic rights. In an anti-democratic way, basic rights are now constrained by the four basic freedoms, and, in particular, by the freedoms of big money, capital etc. and not – as it should be, at least in an egalitarian democratic society – the other way round.1515 Therefore, at stage II, the hegemony of the economic constitution prevails.

(III) Political constitution: Nonetheless, from the middle of the 1970s, the long latent conflict between the ever more closely united executive powers of Europe and the parliamentary legislative bodies became more and more manifest.1516 The pressure to reduce the chasm of the growing democratic deficit that yawned between private and public autonomy finally compelled the political and professional power elites to take into account the Kantian mindset’s commitment to public autonomy. Since the first direct elections to the European Parliament in 1979, the power of Parliament increased consistently. The managerial mindset and stubborn incrementalism of every-day parliamentary work over a quarter-century made the weak and restricted European Parliament a controlling and law-shaping parliament that now is one of the strongest institutions of the EU, even if its direct democratic legitimation (measured roughly in the divergence from the ‘one man, one vote’ principle) is not yet much worse than that of centralized federal systems like Germany, but much worse than that of decentralized

1514Tuori, The Many Constitutions of Europe, p. 18. The European Rechtsstaat finally has transformed Europe into one single, internally differentiated legal order, negatively described as fragmented, positively as pluralized. On the ambivalence of the fragmentation diagnosis (which is true also of all larger national states), see Möllers, Fragmentierung als Demokratieproblem, in Franzius, Meyer, Franz C., Neyer, Jürgen (Hg.), Strukturfragen der Europäischen Union. Baden-Baden: Nomos, 2010, pp. 150–70.1515Buckel and Oberndorfer, Die lange Inkubationszeit des Wettbewerbs der Rechtsordnungen, p. 285.1516At the same time, the European Court of Human Rights turned into an active court. Now backed by the ECJ’s doctrines of European law supremacy and uniform application, it radicalized its human rights jurisdiction; see Madsen, The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist jurisprudence, p. 55.


federal systems like Switzerland or the United States.1517 The final step was taken with the introduction of the parliamentary legislative procedure by the Lisbon Treaty. The political constitution having been by and large completed, the third stage of the structural coupling of law and politics was achieved.1518

However, even on this occasion, the managerial mindset prevailed, together with the hegemony of the economic constitution. The abysmal dialectic of Europe’s technocratic constitutionalization did not disappear. The polling stations and the market places remained empty. As the shaping power of the parliament increased, the public legitimacy of the European and the national parliaments decreased dramatically from election to election.1519 The most crucial act of the Kantian mindset, the political implementation of representative government based on fierce public debate (Kant’s Freiheit der Feder), had the paradoxical effect of generating democratic public legislation without democratic public life. The increase in the constitutionalization of public legislation again came at the price of a de-constitutionalization of public discourse. This is a direct effect of 30 years of successful European and global liberalization politics. It was at best partly politically intended, but mostly caused by the shameless use of the blackmailing potential of the economic system, in particular, through investment strikes of big banks and big enterprises.1520 The empirically verified effect of 30 years of global neo-liberalism is a dramatic increase of social differences, with the democratically disastrous result of a complementary decrease of voter turnout among the lower classes (down to 30–40% in Germany compared with over 90% in the upper classes). Because most of the electorate of the lower classes vote for leftist and socialist programmes, and nearly every member of the upper classes votes for the neo-liberal agenda, left parties go right, and the array

1517See Phillip Dann, ‘Looking Through the Federal Lens: The Semi-Parliamentary Democracy of the EU’ (2002) 5 Jean-Monnet working paper; Fossum and Menéndez, The Constitution’s Gift, p. 123. Critical with respect to the electoral side of democratic legitimization: Florian Rödl, ‘Zu Begriff und Perspektiven demokratischer und sozialer Union’, in Europarecht, Beiheft 1. Baden-Baden: Nomos, 2013.1518Bast, ‘Europäische Gesetzgebung – Fünf Stationen in der Verfassungsentwicklung der EU’, in Franzius, Meyer and Neyer, Strukturfragen der Europäischen Union, 2010, pp. 173–80.1519See ‘An ever-deeper democratic deficit’, in The Economist http://www.economist.com/node/21555927 (18 October 2012). But this is not only true of the European parliament, see Armin Schäfer, ‘Liberalization, Inequality, and Democracy’s Discontent’, in Armin Schäfer and Wolfgang Streek (eds), Politics in the Age of Austerity. Oxford: Polity, 2013, pp. 169–95.1520See Streeck, Gekaufte Zeit. Frankfurt: Suhrkamp, 2013. In Walter Benjamin’s classification of strikes, the investment strike of capital is the latest example of a strike of the same kind as that by doctors, which is – contrary to the general strike that ‘diminish[es] the actual violence in revolutions’ – ‘an outstanding example of violent omission’ that is the ‘most repellent’ form of ‘an unscrupulous use of violence’ for the private interest of the ruling classes (Benjamin, Critique of Violence, p. 244).


of political alternatives shrinks dramatically, making true the neoconservative lie that there is no alternative to austerity, liberalization, de-socialization of production and so on.1521

More than executive coercive and administrative power, and much more than the individualized and professionally concealed power of the judges, the legislative power of democratic parliaments is in need of strong backing by the communicative power of the people, as Marx already pointed out in a famous passage of his 18th Brumaire. There is no (existing concept of a) parliamentary regime without communicative power in the streets, around the shopping malls and in the market places, because the ‘parliamentary regime’ is the ‘regime of unrest . . . that, according to the expression of one of its spokesmen, lives in struggle and by struggle’. It ‘lives by discussion’, and therefore, it must transform ‘every interest, every social institution . . . into general ideas’. To be transformed by Parliament, these interests and institutions must become the subject of public expression, debate and struggle. Otherwise, they exist only in themselves (‘An-sich-Sein’). If ideal and material interests in important institutional modifications are not articulated publicly, if they are not supported by strong unions, protest marches and strikes, if they are not organized and shaped by mass parties providing real alternatives to the people (instead of deciding them among themselves late at night, complying with the schedule, not of the citizens, but of the business hours of Tokyo’s stock market) – then the political, social and cultural interests of all those affected cannot enter parliamentary debate, cannot become existing ‘general ideas’ through parliamentary legislation (which is what Marx meant by ‘general ideas’ in the above quoted sentence). In this case, the interests of all those affected (Rousseau/Kant) can exist only in themselves (‘An-sich-Sein’), they do not exist for Parliament itself (‘Für-sich-Sein’), hence cannot reach the itself and for itself status of parliamentary legislation that is the ‘general idea’. The feedback circle of communicative power can be closed and the power of parliament can augment if and only if ‘the struggle of the orators on the platform evokes the struggle of the scribblers of the press’, if ‘the debating club in parliament is necessarily supplemented by debating clubs in the salons and the bistros’, if ‘the representatives, who constantly appeal to public opinion, give public opinion the right to speak its real mind in petitions’.1522 Once the enlarged reproduction of communicative power through the feedback circle running from ‘the debating club in parliament’ via the ‘scribblers of the press’ to the ‘debating club in the salons and the bistros’ and back from ‘public opinion’ to parliamentary legislation is broken, closed-off and blocked, Parliament

1521Schäfer, Liberalization, Inequality, and Democracy’s Discontent.1522Marx, 18th Brumaire, http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch04.htm (24 May 2013).


runs out of power, and either the silent Bonapartism of informal technocratic decision-making or the clamorous Bonapartism of populist leadership takes over, and decouples the executive power of administration and coercion from the rule of law. This is what has happened in Europe (and not only in Europe) today, both to the European Parliament and to national parliaments. At the same time, the informal power of the European Council of Prime Ministers and Presidents increased rapidly once the democratic parliamentarization of Europe had begun. The informal power of the Council (initially in the guise of ‘fire-side chats’ organized by Giscard d’Estaing and Helmut Schmidt)1523 simply occupied the empty space of the European public that became Alfred Hitchcock’s The Lady Vanishes. The lady vanishes and Angela Merkel enters wearing her clothes. She became the informal leader of the European Council, which, together with the newly invented informal Troika of the European Commission, IMF and ECB deliberatively launched the end of democracy as we know it, to start with in Greece, Portugal, Italy, Ireland and Spain.1524 The news is that it is no longer revolutionary upheavals that are a real and deadly threat to the transnational ruling classes, the financial districts and the whole system of commodified politics – but simply elections, the ‘ordinary play of universal suffrage’.1525 Elections to national and (if the anti-European parties win through) European elections have now become a deadly threat to the existing system of power, economy and embedded journalism. Against violent upheavals they have tanks, special police and surveillance cameras, probably enough. But against elections they have no other means than the final abolishment of democracy. On the one hand, the Italian parliamentary elections of 23–24 February 2013 were a triumph of democracy against neo-Bonapartist technocracy. It is far from clear whether this is good or bad news, because with the growth and bid for power of rejectionist and anti-political parties, the direct dependency and determination of politics through the global markets does not end. On the contrary, the ‘moment such a party, together with other rejectionist forces, comes to be part of a governing coalition, the Euro would be a matter of the past due to immediate responses of ECB, IMF, and the financial markets.’1526

(IV) Social security constitution: These days, what has been repressed returns. The economic crisis, and, in particular, the banking crisis can no longer be displaced by the budget crisis. As a consequence, the long latent crisis of political legitimization suddenly becomes manifest. The Kantian mindset gangs up in the streets, in Athens as well as in Madrid and elsewhere. The disregarded

1523Dann, Looking Through the Federal Lens: The Semi-Parliamentary Democracy of the EU.1524Streek, The Crisis of Democratic Capitalism.1525Marx, Zu den Ereignissen in Nordamerika, p. 187 (my transl.).1526Offe, ‘Europe Entrapped – Does the EU have the political capacity to overcome its current crisis?’ Ms. 2013, p. 2.


constitutional textbooks are striking back. ‘Stop law and economics! Support law and democracy!’ they say, defending the dignity of democracy.1527 Again, election day is pay day: ‘The parliamentary regime leaves everything to the decision of majorities; how shall the great majorities outside parliament not want to decide? When you play the fiddle at the top of the state, what else is to be expected but that those down below dance?’1528

The people themselves now have begun the quarrel about the social security constitution of Europe that is the fourth stage of European constitutionalization, consisting in the structural coupling of law with the systems of social welfare, and social and political security (police).1529 As it seems, the structural coupling of law with the systems of social welfare and security can no longer be performed silently behind closed doors and at low cost. Crisis makes evident that there is no modern mass democracy without a rough equality of stakeholders.1530 As we have experienced in earlier stages of the constitutional evolution of Europe, the evolution of the social security constitution has bypassed public opinion successfully, but achieved considerable social and human rights advances in the shadow of public debate. European legislation, an active court,

1527Habermas, ‘Rettet die Würde der Demokratie’, Frankfurter Allgemeine Zeitung 258 (5 November 2011), p. 31.1528Marx, 18th Brumaire, http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch04.htm (24 May 2013).1529Tuori, The Many Constitutions of Europe, pp. 24–7. Tuori distinguishes rightly the (weak) social constitution from the (strong) security constitution. However, the security constitution is so closely related to the social constitution that one should take them both together as one process of constitutionalization. Social rights, redistribution of wealth, health care, anti-discrimination norms and permanent educational improvements are constitutive for civil security, and vice versa: police forces and an immense increase of police power is necessary for the institutionalization of social welfare regimes, for the protection of the lifeworld against colonization by capital, for the socialization of the means of production, for the control of banks and commercial enterprises, the regulation of the financial sector and of trade, the break-up of economic corporations that are too big to fail, the organization and enforcement of redistribution policies and social justice legislation, the enforcement of employment law, for tax investigation, the fight against corruption, the prevention of white-collar and economic crime, the suppression and control of international drug commerce, the fight against mafias, the arms trade, rifle associations and so on, for rehabilitation and social work, epidemic disease prevention, environmental control, homeland security, prerogative law and the state of siege (for the brighter side of social security constitutionalization, see Sunstein, The Second Bill of Rights; and for the darker side of social security constitutionalization, see Foucault, Discipline and Punish). On the emergence of the social welfare constitution, together with the security constitution of Europe, see Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa.1530Crouch, Post-Democracy; see also the quintessence of the last books of the economists Paul Krugman and Joseph Stiglitz: Jacob S. Hacker and Paul Pierson, ‘What Krugman & Stiglitz Can Tell Us’, New York Review of Books LIX:14 (September 2012), 55–8; with instructive statistics and observations: Judt, Ill Fares the Land. On rough equality of stakeholders, see Thomas Christiano, ‘Democratic Legitimacy and International Institutions’, in Samantha Besson and John Tasaioulas (eds), The Philosophy of International Law. Oxford: Oxford University Press, 2010, pp. 119–37, at 130–2.


individual citizens and small, peripheral protest movements and their lawyers have challenged the hegemony of national welfare sovereignty as well as the hegemonic security and surveillance dispositif of the European border regime, which originally relied strictly on the nineteenth-century dualism of national and international law and the state-centred interpretation of the law of the United Nations as the law of peaceful coexistence. The security and surveillance dispositif has blossomed everywhere since the 1990s and after 11 September 2001, and not only within the borders of national states.1531 As Sonja Buckel has shown, the European security constitution is simply the outside to the inside of Europe’s social constitution.1532 Both belong together like two sides of a coin.

(i) Security Constitution: Migration and border control are at the centre of the European security constitution. The security constitution is exemplary for the linkage between European state formation, external claims to European state sovereignty (as in the Kadi II judgement at first instance, which copies the German Constitutional Court’s Solange I decision) and the emergence of a bio-political border and migration regime, bypassing human rights and the Geneva Convention. The hegemonic interpretation of the Schengen Agreement from the beginning tried to re-establish the old colonial path of nineteenth-century international law, which was based on the two dualistic and discriminatory distinctions between (a) ‘national (or, today, European) vs. international law’ and (b) ‘internal jurisdiction vs. external authority’ in matters of migration policy. However, this time the new scramble for Africa has not worked as smoothly as in the late nineteenth century due to the normative constraints established by the egalitarian revolutionary transformations of the twentieth century. The new prerogative state on Europe’s borders was established by the so-called Barcelona Process, but immediately challenged by the counter-hegemonic interpretation of the same European and global constitutional law that was meant to justify the hegemonic interpretation.1533 Again, the newly emerging constitutional system of world society and its regional regimes present themselves as the existing contradiction between hegemonic and counter-hegemonic interpretations of the same constitutional law. Even if the counter-hegemonic interpretation is far from prevailing, it has contended successfully for some considerable progress in constitutionalizing police-based security, and in overcoming the dualism of national and international law in favour of transnational constitutionalization. This now was due, in particular, to the jurisdiction of the European Court of Human Rights.1534 In several landmark decisions on matters of migration, the Court has

1531See Lepsius, Freiheit, Sicherheit und Terror: Die Rechtslage in Deutschland.1532Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa.1533Ibid., pp. 166–347.1534Ibid., pp. 249, 341–2.


(1) constitutionalized the law of the sea, (2) de-territorialized factual sovereignty, (3) abolished the territorial limitations on the non-refoulement principle, (4) subsumed the European border regimes under universal human and refugee rights, (5) banned collective returns, and ordered case-by-case review and (6) prohibited the outsourcing of human rights responsibilities.1535 It remains to be seen what further decisions are taken by national supreme courts and the European Court of Justice. These are only first steps to end the bypassing of international human rights and to transform the Euro-national into a transnational border regime. Much more important, however, is the fact that Buckel’s findings indicate that successful transnational constitutionalization does not just overcome the border and migration regimes of national sovereignty and European state sovereignty, but also does enable the lasting struggle for rights to take place within the law. Successful constitutionalization establishes the constitutional existence of the (dialogical) contradiction between hegemonic (in this case, Euro-national) and counter-hegemonic interpretations of the same law. Moreover, Buckel’s findings also show that the constitutionalization of security is not simply a further advance in the juridical constitutionalization of the European Rechtsstaat, but the beginning of an ironic constitutionalization, in fact, an ‘anti-constitution’ insofar as ‘the police state was the Other of the Rechtsstaat-constitution’.1536 However, the real point is that the transnational inclusion of the other (Habermas) is constitutive for the social constitution of egalitarian mass democracy, which is universal and legally committed to the global exclusion of inequalities. In a world of universal democracy, an emerging concept of world citizenship has become constitutive for national and regional citizenships like that of the EU.1537 One could even argue with Levinas that the inclusion of every other non-national (or non-EU-citizen) is prior to inherent, and hence particular, citizenship – similar to the way in which Alter’s ‘no’ is epistemologically prior to Ego’s affirmative statement, and the validity of the ‘no’ does not change depending on who utters it, and hence is inherently universal.1538

1535Ibid., pp. 268–71, 276 (ad 1); 295, 326–7 (ad 2); 319, 322–7 (ad 3); 321 (ad 4); 327–31 (ad 5); 336 (ad 6).1536Tuori, The Many Constitutions of Europe, p. 26.1537See Vatter, ‘Biopolitical Cosmopolitanism: The Right to Have Rights in Arendt and Agamben’, in The Republic of the Living, ch.7, pp. 221–61, at 398–406.1538In this respect, public speech acts always already differ radically from the classical bourgeois notion of private property that we find in Kant’s (‘private’ natural law) and Hegel’s (‘abstract law’) internal relation of property rights to Ego’s space on earth, or things ready to hand. Property cannot be possessed at the same time by myself and the other, and in Hobbes’s and Schmitt’s idea of a public nomos, this idea of property is extended to state territory. I understand ‘places’ here not as physical places, but as abstract speaker-listener positions. Vatter argues with Kant, Rancière and Arendt that democratic legislation needs the inclusion of the other in a way which


(ii) Social Constitution: The creeping constitutionalization of border/migration policy and security on the outside (which ultimately demands a globalization of the social constitution) was preceded by the gradual evolution of the social constitution inside Europe. At least partially, national welfare sovereignty has been supplemented by the idea of a European social union on the basis of transnational solidarity.1539 The European Court of Justice, for example, has expanded the concept of the ‘employee’ (and with it the extension of full social benefits to European citizens in all member states) successively from people with permanent and full-time employment to people with partial employment, apprentices, prostitutes, soccer players, finally students and even homeless people.1540 Migrant children were encompassed by enforcing European-wide equal access to public education also for non-EU citizens, including industrial training.1541 Social rights were

means that the internal exclusion of the ‘plebs’ from the ‘people’ and the external exclusion of the ‘foreigner’ from the ‘native’ and the ‘refugee’ from the ‘citizens’ cannot be overcome by extending citizenship and peoples and by assimilating refugees, foreigners and plebs to citizens, natives and people, but only through a negative constitution or re-constitution of citizenship ‘from the outside in’, Vatter, ‘The Right to Have Rights as a Biopolitical Right’, pp. 404–5. In the same way as Alter constitutes Ego through communicative negation, and never the other way round, the foreigner must constitute the native, the refugee the citizen, the plebs the people, in order to right imperial wrongs. Kelsen already debunked both as forms of commodity fetishism (even if he did not use that word), because both thing- and space-related rights to property or territory are due to reciprocal normative constructions (actual or possible legislation), and this should not be reified. Habermas (in accordance with Kant, Dewey and Arendt) has shown that public opinion and rights to public expression (unlike the exclusiveness and particularity of private property, however founded) are inherently inclusive and universal, and prior to private property rights. The former rely on the evolutionary linguistic fact that possession of things (having this and not that) or space (standing here and not there) does not matter for taking ‘No’-positions, which always refer to the same propositional content from both sides of a speaker-listener relation, where anybody can take the same ‘no’-position. Negation is nobody’s property. Negative speech acts that constitute public opinion are inherently communist and republican. Therefore, in the case of opinion, ‘the space becomes “political” not when my occupation of it excludes another (as in private property) but, rather, when it is constituted by an exchanging of places with any other’. (Vatter, p. 403). For this reason, any democratically constituted public sphere is always already inherently and untameably ‘anarchic’ (Habermas) in relation to any fixed institutional state. It transgresses all national borders as well as all possessive or territorial limits. At the latest at the point when egalitarian democracy is universalized as a principle of public international law (see Bogdandy, Grundprinzipien von Staat, supranationalen und internationalen Organisationen), the anarchic public sphere constitutes an emerging global democratic public, which demands rough equality between all nations and classes (Vatter shows that the republican anarchy of the ‘communicative’ and ‘communist’ public sphere is already constitutive for Arendt’s idea of a right to have rights. Arendt – like Habermas would do later – ‘connects power (and thus opinion) to peoples, but she disconnects both from populations and nations’, Vatter, The Right to Have Rights as a Biopolitical Right, p. 403). The public sphere is the enemy within the bourgeois state, but it is constitutive of this state. Therefore, it is its ‘existing contradiction’ (Hegel).1539Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa, pp. 121, 163 et seq.1540Ibid., pp. 87–8, 118–21.1541Hartmann, Auf dem Weg zu einem globalen Hochschulraum, pp. 90–1, 97.


de-territorialized step by step throughout Europe, the social-political domaine réservé was abolished, transnational financial solidarity and reciprocal social citizenship were imposed, nationality was replaced by residence, and the basic freedoms were de-commodified and liberated from the systemic colonialism of capital. The European bourgeois finally became a European citizen with comprehensive (three-dimensional) rights.1542 The managerial ‘market citizen’ approached the Kantian ‘state citizen’ by incremental juridical management:1543 A further managerial step from political (i.e. socially atomized and ‘managerial’) emancipation to human (i.e. socially related and embedded, hence ‘Kantian-pragmatist’) emancipation.1544 True as this may be, it is not the whole story. In fact, the implementation of a far-reaching anti-discrimination law did nothing to change inferior class position, did not force back the growing social divide, did not turn bottom-up redistribution of wealth back into top-down redistribution. During the last 30 years, the more social class mattered, the more the effect of education on social change tended to zero, and this trend has been strongly reinforced in Europe since the Euro was launched.1545 Social class differences and inferior status have been individualized and repressed.1546 The national member state was deprived of all its instruments of macroeconomic steering, increasing taxes, de-valuating currency, maintaining union power or organizing effective labour conflicts.1547

Immediately after the outbreak of the global financial and economic crisis on 15 September 2008, the national state looked like the big winner, and many political theorists and analysts triumphed, like Erich Honecker (the last prime

1542Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa, pp. 98–9, 105, 120, 130–41.1543On the distinction, see Streeck, Gekaufte Zeit. Frankfurt: Suhrkamp, 2013.1544The idea of an intersubjective and socially enhanced Kantian pragmatism goes back to Habermas, for a reconstruction, see Gaus, ‘Rationale Rekonstruktion als Methode politischer Theorie zwischen Gesellschaftskritik und empirischer Politikwissenschaft’, Politische Vierteljahrsschrift 54:2 (2013), 231–55, at 242.1545On the global trend since the 1980s, see Wilkinson and Pickett, The Spirit Level. Why Greater Equality Makes Societies Stronger; Judt, Ill Fares the Land; for Germany, see Michael Hartmann, Soziale Ungleichheit – Kein Thema für die Eliten? Frankfurt: Campus, 2013; Hartmann, ‘Eliten in Deutschland’, Aus Politik und Zeitgeschichte, Beilage zum ‘Parlament’, B 10 (2004), 17–24.1546John T. Jost and Joanneke van den Toorn, ‘System Justification Theory’, in Paul A. M. Van Lange, Arie W. Kruglanski, E. Torry Higgins, Hg.: Handbook of Theories of Social Psychology, Bd. 2, Los Angeles: Sage, 2012, p. 335; John T. Jost, Mahzarin R. Banaji and Brian A. Nosek, ‘A Decade of System Justification Theory: Accumulated Evidence of Conscious and Unconscious Bolstering of the Status Quo’, Political Psychology 25:6 (2004), 881–919, quoted from Alison McQueen, ‘Political Realism and Moral Corruption’, Paper, held at the PPW (Political Philosophy Workshop), Providence: Brown University 8 March 2013, p. 6.1547Scharpf, ‘Rettet Europa vor dem Euro!’, in Berliner Republik, quoted from: http://www.b-republik.de/aktuelle-ausgabe/rettet-europa-vor-dem-euro (8 May 2012); Offe, Europe Entrapped – Does the EU have the political capacity to overcome its current crisis?


minister of the GDR) had once done 3 days before his fall: ‘The condemned live longer’. But, in fact, the state was already weak, and therefore turned into one of the greatest losers of the crisis. Two years later, Wolfgang Streeck rightly entitled an essay: Noch so ein Sieg und wir sind verloren (‘One more such victory and we are lost’).1548 The crisis of 2008 has proven that the national state had already been deprived of its most basic alternatives in economic and social policy.1549 The national state’s capacity to act and shape the future always relied on the existence of two major instruments to get modern capitalism under control, and to enforce the legislative will of democratic majorities: either the stick of the law or the carrot of money.1550 However, it seems that from the beginning of the present crisis, the national states no longer were able to perform macroeconomic steering through an effective mix of stick and carrot, legislation and investment. The political actors had already lost most of the legislative power that is needed to regulate and control the capitalist economy, in particular, the power to impose taxes on the rich. Up to now, they have not regained it at the European, not to mention the global, level. On the contrary, during the last 30 years of neo-liberal global hegemony, the fragile balance of power between democracy and capitalism has shifted dramatically in favour of capitalism.

As long as a modern, functionally differentiated economy (with capitalist markets) is embedded within democratically controlled state power, the parties of the have-nots, either the exploited social classes or the nations who are the losers of the global economic competition between states and regions, have two means of enforcing rough compensatory justice.1551 They can perform macroeconomic steering in times of crisis. They can do this (a) nationally by legal regulation and investment. In particular, they can increase taxes for high incomes and assets (wealth), print money and regulate the demands of all markets (without destroying their informative capacity). Alternatively, or in addition, they can do this (b) internationally by devaluating their national currency.1552 But the second instrument only works together with the first one, otherwise, the superiority of capital remains without counterweight.1553 To use

1548The quote is from Plutarch, ascribed to the Greek king Pyrrhus, https://de.wikipedia.org/wiki/Pyrrhussieg (28 October 2013).1549Streeck, ‘Noch so ein Sieg, und wir sind verloren. Der Nationalstaat nach der Finanzkrise’, Leviathan 38 (2010), 159–73; Streeck, The Crisis of Democratic Capitalism.1550See Mayntz, Renate, ‘Die Handlungsfähigkeit des Nationalstaats in der Regulierung der Finanzmärkte’, Leviathan 38 (2010), 175–87.1551On states as global economic actors, see Tobias ten Brink, Geopolitik: Geschichte und Gegenwart kapitalistischer Staatenkonkurrenz. Münster: Westfälisches Dampfboot, 2008.1552Offe, Interview, p. 3; Streeck, Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit.1553See Christoph Deutschmann, ‘Warum tranken die Pferde nicht?’, Frankfurter Allgemeine Zeitung 223 (25 September 2013), N4.


these instruments, the state needs strong unions and strong parliaments (backing each other reciprocally) who can sustain the democratic class struggle against the well-equipped power of the transnational power elite. The American New Deal was successful because it was backed by a fighting working class with young and strong unions who organized huge strikes and stay-in strikes, and became stronger from labour conflict to labour conflict.1554 Thus supported by the workers’ movement, the New Dealers followed Marx’s observation: ‘Strong government and heavy taxes are identical’,1555 and finally regulated and controlled Wall Street, increased taxes for the rich, cut back banks and industrial corporations, created jobs administratively and printed money. In this way, social democrats and socialists in advanced Western societies were able to square the circle and to socialize the means of production within the capitalist mode of production. However, this seems no longer possible. Thirty years of global neo-liberal hegemony, together with the ever stronger hegemony of the economic constitution of Europe, have transformed nationally restricted democratic class struggle into the ‘peaceful competitive struggle’1556 between nations for location advantages such as low taxes, low wages and flexible jobs.1557 Deprived of its legislative power to regulate the economy, the state no longer had any alternative than to spend the rest of its money.1558 Therefore, the state has become susceptible to blackmail.1559 Former democratic governments are now in the hands of bankers and their staff of technocrats – directly or indirectly. The national states now execute the neo-liberal programme with microeconomic means and ‘devalue labor and the public sector’, ‘put pressure on wages, pensions, labor market regulations, public services’1560 – and then sell the whole thing as ‘reform’, ‘modernization’, ‘new public management’ and ‘individual empowerment’, best served with Third Way labour parties, reformed social democrats and red-green coalitions: Clinton,

1554Walter Korpi, The Democratic Class Struggle. London: Routledge, 1983.1555Marx, 18th Brumaire, p. 183 (German: ‘Starke Regierung und starke Steuer sind identisch’.), English quoted from: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch07.htm (28 May 2013).1556Marx, Der 18. Brumaire, p. 97, English quoted from: http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch01.htm (19 March 2012).1557Claus Offe, ‘Europe Entrapped – Does the EU have the political capacity to overcome its current crisis?’ Ms. 2013.1558See Mayntz, Die Handlungsfähigkeit des Nationalstaats in der Regulierung der Finanzmärkte; Streeck, Noch so ein Sieg, und wir sind verloren; see also the long term case study Streeck and Daniel Mertens, Fiscal Austerity and Public Investment. Is the Possible the Enemy of the Necessary? MPIfG Discussion Paper 11/12, http://www.mpifg.de/pu/mpifg_dp/dp11-12.pdf (19 November 2012).1559See Beckert and Streeck 2011. ‘Die Fiskalkrise und die Einheit Europas’, Aus Politik und Zeitgeschichte 4 (2012), 7–17.1560Offe, Interview, p. 3; see Scharpf, Rettet Europa vor dem Euro!


Blair and Schröder.1561 Over the last 30 years, the most powerful agencies of world history, namely the modern democratic state, turned – half willingly, half under duress – ‘into debt-collecting agencies on behalf of a global oligarchy of investors, compared to which C. Wright Mills’s “power elite” appears a shining example of liberal pluralism’.1562 Instead of the banks, the unions were broken up.1563 The market citizen swallowed the state citizen. Human emancipation was reduced first to the political emancipation of the transnational ruling class and then to the emancipation of global financial capitalism from any legislative and governmental control.

Globalization has transformed all tax-collecting states into debt-dependent states, and hence reversed the direction of control between state and capital. The taxing state ‘diminishes the disposable income of the well-to-do through (progressive) taxation’. Instead of diminishing the income of the well-to-do, the borrowing state ‘increases that income by paying interest on what the well-to-do can well afford to lend the state’. Credit agreements replace parliamentary legislation. Democracy comes under capitalist control. Tax competition between member states is imposed due to the constitutional priority of European competition law. Therefore, ‘states must be cautious with imposing taxes on corporations and the earners of high income; if they cannot rely, instead, on imposing them upon ordinary workers and consumers, and to the extent they cannot cut their expenditures, there remains no alternative other than relying on loans from private creditors.’1564 But this has the disastrous effect of a shift

1561See Somek, Europe: From emancipation to empowerment. See Brunkhorst, ‘Raus aus der Neuen Mitte! Umrisse einer künftigen Linken’, DIE ZEIT 13 (25 March 1999), 28; Brunkhorst, ‘Schluss mit der Kritik! Die Generation Berlin und der Affekt gegen den Egalitarismus’, DIE ZEIT 45 (4 November 1999), 54; Brunkhorst, ‘Bürgerlichkeit als Philosophie der Postdemokratie. Ein Beitrag zur Debatte um Jens Hackes Philosophie der Bürgerlichkeit’, Deutsche Zeitschrift für Philosophie 5 (2007), 22–5.1562Streeck, Crisis of Democratic Capitalism. As a consequence, popular sovereignty has been fragmented and marginalized, beyond and within the national state, see Prien, Fragmentierte Volkssouveränität.1563The point that is crucial for the neo-liberal triumph and was clearly recognized by Reagan and Thatcher and their economic advisers is that the unions first lose their formerly strong political influence, and then their organizational power, either by direct oppression, as in the United Kingdom, the United States and in the low-intensity democracies of the formerly so-called Third World, or by internal reform, which sometimes makes them into a powerful, quasi-council-democratic participant in globally operating industrial enterprises such as Volkswagen, but at the price of the general interest of the working class. On the latter, see the case study: Gary Herrigel, ‘Roles and Rules: Ambiguity, Experimentation and New Forms of Stakeholderism in Germany’, Industrielle Beziehungen 15. Jg:Heft 2 (2008), 111–33.1564Offe, Europe Entrapped – Does the EU have the political capacity to overcome its current crisis, pp. 10–12; Offe, Unpublished Interview, e-man. 2012, p. 6. On the genealogy, see Streeck, Crisis of Democratic Capitalism.


from financing the real economy to financing the state: increasing public debt instead of public wealth (taxes). When the state runs out of investable assets because of this, it must deregulate financial markets to allow private credit financing of public investment to be replaced by private credit financing of private consumption.1565 The circle seems closed. Next comes the bubble and the crisis, and then? – Looming stagnation with the threat of a final decline. Moreover, after the unique implementation of the Euro that is a common currency without legislator and government, reinforced by the (again unique) European Central Bank’s priority of price stability over employment, all means of resistance have been taken away, as poor countries have to compensate for the structurally unequal and unjust competition with rich countries.1566 However, without a successful resumption of democratic class struggle within national borders, the devaluation of (re-nationalized) currency is a blunt weapon that does not bother globalized capitalism. It is the high measure of European functional integration of economy, law, politics, education, traffic, police and culture that is blocking any road back to the regime of mere peacefully (if so) coexisting national states. To leave the Euro is possible only at the price of ‘a tsunami of economic as well as political regression’.1567

The neo-liberal deconstruction of unions and parliaments has reduced the binding power of solidarity to a level that is best expressed by an ironic line from one of Madonna’s last songs: ‘Hold me like your money!’ The race to the bottom became unavoidable, and the cold war between the Northern and the Southern States of the Union began. The austerity regime with constitutionalized debt breaks became the prerogative constitution of Europe.1568 The European constitutional situation now resembles that in a sketch by Monty Python: ‘If you have guests, you can have games. All guests are divided into two teams, A and B. And A are the winners. . . . Well you can make it more complicated if you want to.’ The problem is how to make the democratic game more complicated again. This is why a renewal and transnationalization of democratic class struggle is needed, but still highly unlikely. However, there will be no democracy any longer without a turn from international economic differences to transnational social differences, from

1565Crouch, The Strange Non-Death of Neoliberalism.1566Streeck, Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit; see Kerry Rittich, ‘Fragmented Work: Informality, Uneven Austerity and an Expanded “Law of Work”’, paper given at the Workshop Conflict-Law Constitutionalism v. Authoritarian Managerialism, Loccum 7 October 2013.1567Offe, Europe Entrapped – Does the EU have the political capacity to overcome its current crisis?, p. 3, see p. 5.1568See Streek and Mertens, Politik im Defizit.


national identity politics to transnational redistributive politics. At least a first step has been taken, because the cold war between North and South has made the emergence of a European mass public unavoidable.1569 It already exists, and that will bring democratic alternatives back in, such as the alternative between keeping the Euro with government and legislator vs. returning to national currencies. One need not be a prophet to predict that, lest there be a comprehensive and deep crisis of legitimization, such a decision can no longer be made behind closed doors, bypassing the European public sphere. In such a case, the national peoples and the European citizens must have a say, and that means voice and vote.1570

The chances for the now necessary switch from the state-oriented code of nation vs. nation to the capital-oriented code of class vs. class (or at least losers vs. winners) on the European level are small. However, at least two empirical constellations might coincide. The one is that, if they want to break through the vicious circle, the loser classes of the South and their unions are now forced for the first time in history to unite transnationally and to organize the transnational class struggle, transnational labour conflicts and strikes – simply because they have no alternative since the beheading of their legislators by the introduction of the Euro and the imposition of the European austerity regime. Then, maybe, they will find European parties who campaign for the European Parliament, and unions in the North who take the solidarity of all workers, employed and unemployed, seriously. The second is the growing overlap of capital-oriented conflicts with knowledge-oriented conflicts, which is due to the simultaneous globalization and decoupling of a highly dynamic, self-referentially expanding system of education, which worldwide produces a fast growing and ever better and ever more academically qualified precariat with worsening prospects of finding life-long full-time employment. From Berkeley in the Sixties to Occupy Wall Street and the Arab Spring, the chain of protest movements originating in the educated precariat (and in their prolonged adolescence crisis) has become quite long and extended from event to event. In the constitutional crisis of Europe, the academically educated precariat, which is almost in the majority, could easily become the initiator of a mental revolution of reframing the European Kantian mindset. However, this is a practical question of ‘democratic experimentalism’ (Dewey) that cannot be decided at a desk.

1569See already Brunkhorst, Zwischen internationaler Klassenherrschaft und egalitarer Konstitu-tionalisierung. Europas zweite Chance, in Peter Niesen and Benjamin Herborth (eds), Anarchie der kommunikativen Freiheit. Frankfurt: Suhrkamp, 2007, pp. 321–50, at 321–25.1570See Paul Statham and Hans-Jorg Trenz, ‘Understanding the Mechanisms of EU Politicization: Lessons from the Euro-zone crisis’, electronic paper, Copenhagen 2013.



As I have been referring to the dialectic of enlightenment throughout this section, I can restrict myself here to one short remark on Horkheimer and Adorno’s Dialectic of Enlightenment. Their book contains the diagnosis of the dialectic of enlightenment that has afflicted the revolutionary hopes of the twentieth century. Today, after the global establishment of the neo-liberal episteme and the final implosion of the hopelessly rotten Soviet Empire, even the memory of the Marxist heritage and the revolutionary intention of the Dialectic of Enlightenment have been repressed. But Horkheimer and Adorno’s book is a book on revolution. It is a book on the tragic failure of the social revolution of the twentieth century, which Horkheimer and Adorno still identified with the great tragedy of the Russian Revolution and the concurrent failure of the revolution at the centre of the industrial world, namely its regression to fascism.1571 Thus, Peter Weiss’s Ästhetik des Widerstands is the exact aesthetical counterpart to the Dialectic of Enlightenment. In particular, modern anti-Semitism, the most atrocious ideology of many atrocious ideologies of the twentieth century, is not just an ideology of so-called underdeveloped and reactionary populations, or ‘the Mob’ (Arendt), but part and parcel of the ‘dialectical link between enlightenment and domination, and the dual relationship of progress to cruelty and liberation which the Jews sensed in the great philosophers of the Enlightenment and the democratic, national movements’.1572 As we have seen (Ch. III, Sec. I 10), the historical roots of modern anti-semitism are as deep as the roots of modern law, and in a way co-original with the universality of the latter. Therefore, the ‘two faces of universality are not simply opposed, as if there were two distinct universalisms, “good” and “bad,” but rather, they constitute two sides of the same coin’.1573

Horkheimer’s and Adorno’s diagnosis was not wrong, but certainly suffered from a Eurocentric perspective. It did not show any interest in revolutionary and emancipatory developments in the colonial and semi-colonial world, and it neglected completely the revolutionary power of Western, in particular, American, radical social reformism, which included violent change of the world during the global civil war of 1917 to 1949, mostly on the side of powers that were perceived as revolutionary.1574 In contrast to Adorno and Horkheimer, one has to take into account that the European, American, Russian, Chinese

1571See Gunnar Hindrichs, ‘Das Erbe des Marxismus’, Deutsche Zeitschrift für Philosophie 5 (2006), 709–29, at 713f.1572Horkheimer and Adorno, Dialectic of Enlightenment. New York: Continuum, 1996, p. 169.1573Fine, ‘Cosmopolitanism and antisemitism: two faces of universality’, in Anastasia Marinopoulou (ed.), On Cosmopolitan Modernity. New York, London: Continuum Publishers, 2014 (forthcoming).1574This is the right point in Rorty’s harsh criticism: Rorty, ‘The Overphilosophication of Politics’, Constellations 1 (2000), 128–32.


and Indian perspectives on the first half of the twentieth century are very different and often exclude one another. Horkheimer and Adorno did not realize that the global civil war was not only the probably most disastrous war of extinction and genocide that was ever fought, but also a successful revolutionary war that changed the global legal system and global society not only for the worse, but also for the better, at least in its better possibilities. For Adorno, this century was the catastrophe that blackened the historical horizon (and only aesthetic blackness was left to overcome historical blackness in the rare moments of authentic aesthetic experience). For Dewey, however, the same century witnessed the greatest progress mankind ever made. These two and many other very different perspectives together make the twentieth century the age of extremes (Hobsbawm). In a way this is taken into account by Adorno’s negative dialectic, but only indirectly. It is not easy to make it explicit, and I can only attempt a very rough reformulation of a (de-transcendentalized) dialectic of enlightenment for the limited purposes of a first blueprint of an evolutionary theory of legal revolutions. My thesis (which I have tried to develop throughout this book) is that since the highly unlikely conceptual integration of the advanced legal artisanship of Roman law (which was merely a law for co-ordinating the internal interests of the imperial ruling class) and one of the many (in principle) monotheist religions of the Axial Age during and after the Papal Revolution, a functionally differentiated legal system has emerged that had to cope with the emancipatory normative constraints of what, following Martti Koskenniemi, I have called the Kantian constitutional mindset of individual and collective autonomy (which, of course, is much older than Kant). To cope with the (no longer eliminable) Kantian mindset of modern law was the highly ambivalent job of the managerial classes of professional jurists and other professionalized spheres of value, including politics. The managerial mindset has transformed the Kantian mindset into an existing concept that at best is the existing contradiction of a law. However, it is the same law that carries its emancipatory potential, but at the same time augments the administrative and coercive power of centralized executive bodies, stabilizing not its own revolutionary advances, but the brute facticity of class justice.

Conclusion

I have argued that the great and successful legal revolutions are caused by class struggle and other structural conflicts between social groups. They finally lead to a series of normative learning processes (and/or processes of unlearning). Great revolutions are punctuational bursts which create a new


formation of society. They do not improve adaptation through social selection but, on the contrary, establish normative constraints on certain kinds of evolutionary adaptation. This is the historical work of what I have called (following a revised idea by Martti Koskenniemi) the Kantian constitutional mindset. These constraints are institutionalized through constitutional and ordinary law. The latter is the work of the managerial mindset and the evolutionary improvement of adaptive capacities. These are needed to stabilize the revolutionary advances of the Kantian mindset, albeit at the price of new formations of social class rule and domination. All revolutions articulated and legally implemented a new idea of freedom (Ch. III, Sec. I–IV each 6), and all revolutions had the unintended consequence of triggering functional differentiation and corresponding new formations of class rule and structural conflict. The more complex, individualized and universal each new idea of freedom was, the more functional differentiation was needed to stabilize the ever more post-conventional and immanent form of social integration and legitimization. The specific constellation of freedom and functional differentiation caused, as it seems, ever new structural problems of social integration, and a new formation of the dialectic of enlightenment at every level of revolutionary advances (Ch. III, Sec. I–IV each 9 and 10).1575

Within the emerging cosmopolitan framework of canon law, the Papal Revolution followed (1) the slogan freedom of the church, and unleashed, in particular, the communicative power of the freedom of association (Ch. III, Sec. I 6). The new freedom of the church and of Christian associations could be stabilized only by (2) the structural coupling of legislative (Church) and executive (King) powers and (3) the unintended functional differentiation of the legal system (which made the new constitutional regime work). The rapid increase of the negativity of corporative freedom finally went beyond the control of the legal state of the Church, with the result that (4) heretic groups opposed the subsumption of individual consciousness under the authority of the official theological doctrine of faith and the power of the clerics.

Within the emerging framework of the law of nations, the Protestant Revolution (1) followed the slogan of the freedom from the church, emancipated individual conscience from all societal bonds, and enabled its re-socialization in confessional associations. The revolutionary advances of the Protestant Revolution (2) led to a new constitutional regime which allowed for a more stringent shaping of subjective rights (and the beginning structural coupling of rights and law in the confessional Rechtsstaat). This (again unintentionally) was stabilized by (3) the formation and augmentation of executive state power

1575For a reconstruction of the following four levels, I am grateful to Cristina Lafont; see Lafont, ‘The Cunning of Law: Remarks on Hauke Brunkhorst’s Critical Theory of Legal Revolutions’, Flensburg Workshop June 2013 (forthcoming in Law and Society).


(which tended to repress subjective rights). The functional differentiation of the political system led (4) to a new formation of class struggle between the wielders of coercive state power and their subjected populations.

Within the co-evolutionarily emerging framework of international law, the Atlantic Revolution then resulted in the global formation of constitutional regimes which (1) claimed popular sovereignty and were stabilized by (3) the structural coupling of law and politics and of law and economy that led (3) to the emergence of a functionally differentiated economic system that did no longer care about the commonwealth and about constitutionally guaranteed equal freedom. Therefore, the new formation of constitutional regimes triggered (4) a new structural class conflict that was capital-centred (in particular, capital vs. labour).

Within the co-evolutionarily emerging framework of universal law, the Egalitarian World Revolution (1) expanded political into human emancipation, and established the legal principle of the global exclusion of inequalities. (2) Social and egalitarian mass democracy survived as the last remaining constitutional formation that is considered legitimate on the national as well as on the inter- and transnational level, in the realm of politics as well as in the realm of other societal systems. The legal, political and economic stabilization of egalitarian mass democracy is completed by (3) the functional differentiation of a socially inclusive educational system. The growth of this system now seems to engender (4) a new structural class conflict between the transnational establishment and the precarians. Whether this will lead to new catastrophes, to regressions from the revolutionary and evolutionary advances of constitutionalization, or to a political constitution of world society is an open question.1576

1576See Holmes, Verfassungsrevolution in der Weltgesellschaft.

Epilogue

In the first and second chapter, I have reconsidered Marxism as a negative dialectical theory of society and tried to reconstruct its basic theoretical

ideas with the advanced instruments of functionalist sociology, systems theory, evolutionary theory and the theory of communicative action.

In the third chapter, I have focused on legal evolution and the relation of two different kinds of evolutionary change: change through gradual adaptation and social selection, and change through rapid punctuation, that is, through social and legal revolutions. The second kind of change finally, after a series of great legal revolutions, established the modern constitutional system of normative constraints on blind adaptive processes of ever better adaptation, no matter at what price. These constraints finally allow for transcending modern society radically from within, with a return of transcendence back into modern society.

Insofar as the normative constraints are constitutionalized and implemented in the legal system, they enable the articulation of the sense of injustice and the struggle of classes and social groups for emancipation. As we have seen again and again, the very medium of emancipation is the negativity that emancipates us from the illusion of an unchangeable world. In the course of the revolutions, huge progressive advances and unconceivable catastrophes of the twentieth century, the Kantian constitutional mindset of egalitarian democratic self-determination and self-legislation has been globalized. If it becomes ineffective in our institutional praxis of democratic self-determination, if it is forgotten, repressed and deleted, then the praxis of egalitarian democratic self-determination, of autonomy and representative government will collapse and disintegrate. However, this must then (if my overarching thesis is right) lead to a manifest crisis of legitimization, which is open for anything between traumatic apathy (which usually is due to mere coercive power) and successful revolutionary change (which can still make use of legal formalism from within and against the existing law). As long as the Kantian constitutional mindset and its legal form is not completely deleted, it has the emancipatory potential to destroy the illusion of an unchangeable world. It can strike back.

adaptation 1–3, 9–10, 16n. 27, 33–8, 41, 57, 60, 71, 86, 90, 96, 124n. 177, 139, 142, 240, 260, 287, 294, 318, 341, 358, 382, 446, 464–5, 467

functional adaptation 9, 42–3, 88systemic adaptation 3, 50

Alter Ego 16–17, 19anomalies 35, 39, 368n. 1195

catalytic change 33, 35, 37, 59, 79, 294

class struggle 3, 7, 9, 12, 16, 33, 35–7, 41–2, 50, 71, 75, 79, 89, 110–11n. 115, 167, 174–5, 250–2, 308–11, 357, 361, 364, 369, 371, 376–7, 379, 390, 392, 421, 424, 459, 461–2, 464

class antagonism 24, 75, 81, 359class conflict 12–13, 26, 51, 56,

75–9, 88–9, 253, 368, 408, 435, 466

co-evolution 7, 40, 59, 71, 74, 81, 89–90, 92, 130, 133–4, 140, 210, 215, 279, 309, 392, 415–16, 429, 435, 466

communication 7, 15–16, 21, 24–5, 28–9, 30–4, 56, 93, 113, 148, 173, 190, 199, 217, 249, 273, 323, 325–6, 329, 333–7, 340–1, 354, 357, 360, 367, 393, 395, 433–5, 448

communicative freedom 330, 336, 338–9, 356, 370, 414

communicative intention 17communicative power 50, 79,

138, 160, 223–4, 255, 289, 310, 451, 465

communicative rationality (reason) 4–5, 36, 223, 277, 385

communicative system 4, 13–14, 41–2

communicative variation 12, 14, 16, 22, 31, 248, 295, 358

normative communication 5–6constituent power 49, 122, 153,

243, 267–9, 276n. 819, 296, 347, 433–4, 438–9, 447

constitutional evolution 43n. 142, 294–5, 300, 436, 446, 448, 453

constitutional law 2, 4, 40, 45–6, 86, 131n. 209, 135, 140, 147, 151, 157, 207, 228, 241, 264–5, 267, 271–2, 288, 298, 300, 304, 309–10, 324, 346–8, 366, 391, 411, 415, 419, 427–30, 434, 442, 444–6, 448, 454

nominal constitutional law 357, 386, 400, 403, 420, 429

normative constitutional law 10, 42, 66, 117, 132, 229, 295, 375, 392

symbolic constitutional law 269, 367, 383, 389, 392, 402n. 1328

contradiction 15–16, 18, 55–6, 76, 106, 127–8, 135, 141, 176, 178, 185, 203, 253, 306, 310, 312, 325, 333, 338, 375, 402, 424–5, 432, 455

cosmopolitan (constitutional) mindset 3, 38, 46–7, 49–50, 57, 71, 118, 132, 187, 226, 237, 260, 269, 271, 274, 277, 281, 283, 287, 293–4, 304, 309–10, 316, 334, 385, 387, 436, 439n. 1473, 446, 464–5, 467

crisis 3, 10, 32, 35, 53–3, 56, 59, 61, 75–8, 86, 146, 233–8, 298, 306, 313, 347–8, 368n. 1195,

Index

INdEx470

378n. 1229, 390, 431, 438–9, 444–5, 453, 458–62, 467

economic crisis 54, 79, 325, 370, 377, 395, 420, 436, 452, 457

legitimization crisis 3, 56, 59, 75, 77, 79, 146, 233, 238, 306, 313, 378, 436

motivation crisis 78, 238

deviance 6, 15–16, 21–2, 33, 68, 187, 257

dialectic 1–2, 6, 25, 38, 48, 55, 75, 86, 90, 98, 106, 112, 128–9, 132–5, 138–9, 141–2, 163–4, 185, 188, 209, 224, 230, 250, 306, 308–9, 316, 328, 336, 338–9, 349n. 1127, 356–7, 395, 404, 410–12, 424, 434, 436, 450, 463–5, 467

direction (evol.) 2, 37, 41, 96, 102, 157, 240, 260, 295, 310

emancipation, emancipatory 13, 25, 28, 31, 38, 42–3, 46–7, 80, 83, 113, 132–4, 142, 159, 163, 178, 182, 204, 220, 223, 249–50, 253, 278, 287–8, 333, 335, 345, 358, 363, 367, 374, 378–82, 388, 398, 419, 422, 424, 429, 432–4, 437, 446, 457, 460, 463–4

evolutionary change 2, 12, 16, 33–5, 49, 56–7, 75, 88, 196, 467

evolutionary universal 4, 10–11, 37, 43–5, 57, 61–2, 71, 81, 186, 202, 260, 263, 274, 334–5, 391

exile 175, 357–9, 374existing concept (notion) 3, 36,

38, 50, 133, 295, 334, 446–7, 451, 464

existing contradiction 309, 324, 328, 335, 339, 353, 376, 411–12, 447, 454, 456n. 1538, 464

gradual change 24, 35, 39, 49, 57, 59, 196, 428, 467

growth 11–13, 16, 30, 33–5, 55–6, 59, 89, 92, 103–4, 133, 140–1, 177, 197, 233, 247, 270, 287–9, 308, 314, 316–17, 319, 355, 359, 361–2, 380, 384, 391–2, 400, 426, 452, 466

imperial (constitutional) mindset 297–8, 385–8, 417

incremental evolution 1–3, 33, 35, 41–2, 48–50, 57, 59, 198, 287, 293, 295, 302, 305, 314, 318, 382, 422, 426, 436, 439, 445n. 1497, 449, 457

isolation (of species, groups) 21, 24, 34, 110, 189, 195, 199, 251, 256–7, 263, 358, 368, 393

Kantian (constitutional) mindset 3–4, 10, 38, 46–50, 67, 118, 132–3, 142, 187, 213, 219, 226, 229, 236–7, 253, 260, 262–3, 274, 277, 281, 283, 287, 289, 293–5, 304, 310, 316, 324, 334–5, 382, 385, 387, 410, 436–7, 439, 446–50, 452, 462, 464–5, 467

legal revolution 2, 4, 7, 9, 28, 34, 38–9, 43, 56–7, 71, 81, 83, 86–8, 95, 102, 121, 128, 147, 165, 204, 207, 223, 239, 263, 294, 305, 323, 369, 382, 401, 464, 467

managerial (constitutional) mindset 3, 38, 47–50, 57, 92, 118, 133, 142, 146, 187, 232, 237, 253, 262, 283, 294, 297–8, 302, 304, 309–10, 316, 324, 336, 382, 410, 436–7, 439, 446, 449–50, 464–5

moral resentment 15, 17–18, 368

natural selection 14, 24, 33, 43negation 6, 14, 16–19, 49, 56, 71,

80–1, 163, 244–5, 323, 328–9, 331, 335–6, 367, 442, 456n. 1538

negation of negation 20n. 43, 328, 337, 367

INdEx 471

negativity 6–7, 10–11, 13–25, 28–31, 55–6, 64, 80–1, 158, 161, 163, 180, 203–4, 231, 257, 328, 330–3, 335–9, 345–6, 356–7, 367–8, 370, 372–3, 464–5, 467

normative constraints 1–3, 10, 33–4, 36–9, 41, 43–4, 56–7, 60, 86–90, 95–6, 102, 139–40, 145, 187, 198, 229, 239, 260, 287, 289, 293–5, 298, 305, 318, 334, 362–3, 378n. 1229, 382, 391, 398, 419, 421, 429, 431, 433, 436, 454, 464–7

Paradox 1, 54–6, 75, 103, 132–5, 142, 303, 381, 439, 450

path (evol.) 2, 27, 34, 41, 57, 68, 86, 132, 135, 156, 198, 216, 287, 293, 297–8, 317, 327, 402, 429, 445

positivization (of law) 117, 129, 157, 165, 186, 283, 321

power of revenge 277, 279, 368power of the negative 6, 10, 18,

126n. 187, 331, 335, 367–8private property 39–40, 116,

120n. 157, 183n. 422, 187, 194, 202, 218, 273, 291–3, 296, 298–9, 317–19, 320, 350, 352n. 1140, 366, 430, 455–6

property 23, 113, 115–16, 120, 143, 176–7, 183–9, 194, 196–200, 209, 211, 218, 249, 253, 255, 258, 273, 276, 279, 288, 296–8, 300, 302, 305, 308, 317, 320, 322, 352, 364, 366, 384, 407, 414

punctuation 7, 24–5, 33–5, 37–9, 42, 71, 86, 148, 195, 215, 292–3,

313, 316, 319, 323, 325, 363, 464, 467

rapid change 1, 35, 86, 96, 110, 320, 323, 358, 467

revolutionary chance 1, 3, 33–5, 39, 49, 56–7, 59, 75, 85, 87, 89, 96, 124, 310, 417, 426, 467

selection 13, 16, 22, 38, 74, 330n. 1047, 374

social selection 14, 31, 33, 39, 43, 59, 293, 295, 382, 465, 467

sense of injustice 7, 18, 22, 25–6, 32, 36, 80, 133, 154, 175, 238, 277, 301, 303, 368, 467

social integration 21, 35, 86, 88, 94, 144, 198, 229, 244, 287, 294, 323, 335, 421, 429, 434, 439–40, 465

speciation 34, 110, 189, 195stabilization 2, 13, 22, 35, 42–4, 64,

74, 86, 106, 118–19, 126, 132–3, 149, 162, 201, 203, 229, 249, 289, 298, 308, 313, 317, 319, 330n. 1047, 351, 365, 395, 421, 464–6

systemic stabilization 14n. 17, 22–3, 31, 33, 49n. 161, 89–90, 140–1, 197, 287, 293–5, 300–4, 327, 429, 439n. 1471

structural selection 31, 33, 382

take-off 7, 9–10, 12–15, 17, 21, 56, 323, 335

variation 12–16, 22, 31, 33, 38, 49, 186, 248, 295, 302, 330n. 1047, 358