Philip Allott*
THIS IS NOT the first period in human history when the spirit of the time is characterised by an equilibrium of evils, when mankind veers between savagery and lethargy, superstition and immoralism.[1] This is not the first period in human history when the governing classes parade themselves as shameless corrupters and corruptees, collusive manipulators of the masses who manipulate them.[2] But this is surely the first period in human history when humanity feels powerless in the face of the products of human power. And among the most intractable of those products are the products of the power of the human mind.
At the heart of the drama of human history is law - author and director and chorus and actor and cold-eyed spectator. Law is the mysterious drama of the human will magnified and collectivised. Each of us is master and slave of our will. Each of us is master and slave of the law.[3] Law is artificial[4] necessity,[5] the salutary yoke.[6]
An anthropology of law is at least as useful
as any other possible form of intellectual inquiry which seeks to make sense of
the overwhelming complexity and obscurity and mutability of human society. A
given society’s idea
of
law at any given time is a
valuable diagnostic clue as to that society’s state of mental health at that
time. An anthropology of law at the outer limit of human self-socialising, at
the so-called ‘international’ level[7] -the universal legal
system- should provide us with particularly precious clues as to the present
state of the mental health of all-humanity.
The present state of the idea of
international law is a sad reflection of human social history, a symptom of the
sad state of humanity’s mental health. The European mind bears an exceptional
responsibility for the present state of humanity’s mental health. For
twenty-seven centuries, for better and for worse, socially constitutive ideas
have flowed from the European mind. Only humanity can cure humanity’s sickness.
But the European mind bears an exceptional clinical responsibility. The
re-opening of the European mind is a necessary condition of the opening of the
human mind.
THE LIFE-STORY OF LAW
has certainly been dramatic. Law has been a Mother Courage with a wagon full of
motley goods inherited from a murky past, assailed by every kind of
lawlessness, always ready to exploit new opportunities, following an unsteady
course through overwhelming events, including wars and revolutions and
fundamental social transformations of every kind.[8] The courage of the law,
like the courage of Brecht’s heroine, has been ambiguous. It has certainly
included a socialised form of what the French have called civil courage and the Germans have
called Zivilcourage – giving a socially effective
form to values that the individual human being, or at least the individual
citizen, would regard as values that should be enforced socially. Such
collectivised high values have included abstracted values grouped under
suspiciously grandiose titles - the Rule of Law (État de droit, Rechtsstaat), human rights and fundamental
freedoms, constitutionalism, republicanism, democracy.
The more poetic the
title of a given social phenomenon the more likely is it to contain a large
part of fiction. We would tend to be less suspicious of a public building
called ‘the law courts’ then of a building called ‘the palace of justice’. The
courage of the law has also included a substantial proportion of what can only
be called abusive
courage, the form of political wisdom (virtù) which is characterised by the
clever manipulation of that other ambiguous heroine, Machiavelli’s disorderly fortuna.[9] The law is the best
means that humanity has found for taming social entropy in ways that suit the
desires and interests of those who make the law, and the law’s best source of
strength has been found in the human imagination. The law enacts what the
imagination invents; promise, property, tort, crime, government, nations and
state, all of these, and countless others, are works of the human imagination
trans-substantiated into everyday social reality, fiction made fact.[10] Change the story you tell the people and you
change the reality which you and they inhabit.
A SOCIETY needs a shared
mythology.[11] A shared mythology does not necessarily make
a society. We have inherited a shared international mythology which is not the
shared mythology of a society.
The naïve animism
of Vattel – personifying ‘nations or states’ as if they were the lumbering Übermenschen of a Norse saga or a Wagner
music-drama (1758).[12] Herder’s psychologising
of the ‘nation’ – each with its own Ficthean ego full of the violence of repressed desire (1774).[13] Clausewitz and the
rationalising of Napoleonic total war – nation against nation as gladiators in
a permanent existential struggle, political, economic and military (1832).[14] The fertile fictions of
‘law’ could obviously be used and abused to serve the purposes of the masters
of this new world of the imagination, this new symbolic universe.[15] They could not be expected to cause it to
civilise itself, let alone to socialise itself.
Romantic nationalism was the most deadly form
of collusion between government and people. Enthusing the people with a
fraudulent image of their ideal identity enabled governments to take absolute
power over the people, body and mind. The industrialising of national
economies, integrating the labour of the masses into superhuman wealth-creating
machines, transformed governments from the disreputable successors of medieval
royal courts into general managers of apparently unlimited concentrations of
public power. The making and enforcement of the law became the power over all
social power. The expansion of socio-economic might, through international
trade and colonisation, extended the gladitorial arena of the nations to cover
most of the human world. People discovered that total government and total war
require total sacrifice and such was a legacy of the symbolic universe of
Mysteriously, however,
the agonistic co-existence of the new state-molochs within the
nineteenth-century symbolic universe not only survived what should have been
its twentieth-century Götterdämmerung. It managed to retain the trappings of a much more ancient
symbolic universe – the world of diplomacy. Relations between states are
conducted in forms that derive from medieval Europe, most characteristically
from the bizarre process of mutual self-constituting of the two emerging
nation-states of
War and diplomacy were
natural pastimes of the nobility, especially the feudal barons whose social
power was based on land-holding. The acquisition of land, and disputes over
title to land, could be submitted to the arbitration of violence, if they could
not be submitted to a court. War had the advantage over jousting that it could
be conducted by proxy and would risk the lives of expendable retainers and the
otherwise worthless rabble. The manipulation of relations with rival
land-holders through negotiation and marriage could be a profitable art for
those who mastered it. For the king, lord of all lords, war and diplomacy had
the aditional attraction of being conducted on a larger stage, with larger,
more thrilling challenges and rewards.
That this medieval
paradigm of the co-existence of rival feudal land-holders should have survived
into the new symbolic universe made by Vattel, Herder, and Clausewitz is a
tragic and terrible irony of history. The vast impersonal power-machines of the
nation-states were apparently still supposed to have not only interpersonal relations, but even
personal feelings about each other.[17] Even in the twentieth
century, their formal relations were seen, by otherwise intelligent and
knowlegeable observers, in the same glamorous and theatrical light as they had
always been, as they had been in the days of Henry V or François I or Henry
VIII, Wolsey or Richelieu or Mazarin.[18]
EUROPEAN INTEGRATION
cannot escape its genetic inheritance. The European Union contains the whole of
European history. A re-opening of the European mind begins with the effort to
understand the true nature of European integration, an effort that is directly
related to the challenge of understanding the true nature of a globalising
world.
The masters of European
integration want the people to believe that the EU is something essentially
new, a new chapter in a new volume of European history. But the inarticulate
historical sense of the people tells them that, on the contrary, the EU seems
very much like yet another episode in the three-thousand-year history of the
relationship between the governed and the governors, the many and the few. And
the people certainly see that, in the vast legal structure of the ‘new Europe’,
they are witnessing yet again the ambiguous wonder-working of law, the projection of the
master-servant relationship onto a third thing (a tertium quid) which rules them both.
The masters of European
integration want also to convince themselves, and the European people, that the
EU is a form of mental re-engineering, a re-forming of the ego-psychologies of
the European peoples. The problem is that the ego-psychology of the European
peoples is not merely a psychology of their identity. In the course of European
history, the peoples of
The remarkable
clairvoyance of Alexis de Tocqueville was able to explain the new
Chapter three of part three
of de Tocqueville’s The Old Regime and the French Revolution should be read by anyone
generally benevolent towards the idea of European integration but anxious about
the particular form that it has taken. He presents ‘the Economists’ as the
masters of rationalist political absolutism or absolutist political
rationalism. Royal power would be adopted and adapted to become the instrument
of revolutionary social transformation.[23] He describes how the
French people had come to regard “the ideal social system as one whose
aristocracy consisted exclusively of government officials and in which an
all-powerful bureaucracy not only took charge of affairs of state but
controlled men’s private lives”. But, to reconcile this with their
ancient love of freedom, they decided to combine “a strong central administration
with a paramount legislative assembly: [combining] the bureaucratic system with
government by the electorate. The nation as a whole had sovereign rights, while
the individual citizen was kept in the strictest tutelage; the former [the
nation] was expected to display the sagacity and virutes of a free race, the
latter [the citizen] to behave like an obedient servant”.[24]
Whoever the true
spiritual progenitors of European integration may be thought to be, its birth
was attended by two ghosts from
IN 1945, exhausted and
ashamed, the European mind closed. European integration took place in a
philosophical void. The colonial empires disintegrated and evaporated in a
philosophical void. Profound social transformation at the national level took
place under the aegis of nineteenth-century ideas of bureaucratic rationalism
and socialist meliorism, with imperious economic forces as the driving force
and legislation as the engine of social change, as in the nineteenth century.
Philosophy had made its own philosophical void. Philosophy had convinced itself philosophically of its own
impossibility.
All this in a century
when the blood of uncounted millions had been shed and the lives of countless
more millions had been ruined, all over the world, in the name of ideas which
had originated in
The anthropology of law,
at the global level, reveals a human world that is anything but lawless. The
universal legal system is in three layers – national legal systems,
transnational law (national legal systems applied to persons and events outside
national jurisdiction), and international law (law applicable to the human
world as a whole, to persons and events everywhere). At the global level, the
fossil of international law remains as a lusus naturae, a sport of human nature, a
mental taxon surviving from the mythological period of modern history, from the
mind-world of Vattel, Herder and Clausewitz, tragically inappropriate for the
post-1945 world, hopelessly inappropriate for the the globalising world of the
twenty-first century.
The state of law at the
two subordinate levels is radically diverse in effectiveness and sophistication
from legal system to legal system. But everywhere it contains a troubling
characteristic, even in the most sophisticated of national societies. It is a
characteristic that has posed a crucial challenge for the redeeming of the EU
and that now presents a crucial challenge for the making of a new kind of
international society.
Bentham’s analysis of
public corruption[28] centred on what he
called the ‘sinister sacrifice’ – when the holder of public power substitutes
personal interest for the public interest. Within a characteristic British
intellectual tradition (Hobbes, Milton, Locke, Hume, Paine, Godwin, Mill),
Bentham regarded government as nothing better than a necessary evil.[29] Governmental corruption is as natural to
government as evil is to the fallen human being. Bentham saw only two possible means for
redeeming government from its original sin – public opinion and the law. To
make government safe as an instrument for the well-being of the people rather
than merely a source of privilege and profit for ‘the ruling few’, Bentham
proposed a vast and detailed constitutional system in which public opinion and
law could be made to act as what he called ‘counterforces’, to resist the
permament and ineradicable threat of public corruption. A Tribunal of Public
Opinion, resting on the two pillars of ‘transparency’ in the business of
government and a ‘free press’, would permanently observe and judge the words
and deeds of the holders of public power. The law, master and servant of the
constitutional order, would permanently correct and punish the abuse of public
power, not in the name of so-called ‘natural’ rights but as a matter of
everyday prudential practice.[30]
Bentham might have
foreseen the way in which the economic dimension of society would join law and
government in a collusive hegemony with politics to form a ruling triumvirate
of ultimate social power. The economy – the struggle to make the wealth of the
nation and to distribute it unequally in the form of the legal fiction of
property.[31] Politics –the struggle
to take power over law and government in the name of ideas. Law and government–
master and servant of the economy and of politics. He might not have foreseen
how law and government would come to see the facilitating of the economy as
their primary task, with another ancient legal fiction –the corporation– as the
leading actor in the drama of political economy, an imaginary entity demanding
from law and government an unceasing flow of new legal fictions to make
possible the wonder-working mysteries of the imaginary social arena known as
‘the market’.
Bentham might also not
have foreseen that, in the most highly developed societies, endemic collusive
corruption would take on a much more complex and productive form – a
public-private conspiracy which would leave the private minds and private lives
of the citizens as barely residual human phenomena in a form of society in
which private ambition and public policy would coalesce. Our social existence
was redefined. Society exists for the benefit of us the citizens because we the
citizens exist for the benefit of society. It is the task of law and government
to mediate this new existential human relationship with ruthless precision.[32]
Now, in the first years
of the twenty-first century, we are able to observe a remarkable phenomenon.
Globalisation is the globalising of social phenomena, including the best and
worst aspects of society. The very old and the very new challenges of human
society are manifesting themselves now at the global level, the level of the
society of all-humanity. The great question of the relation of law and
government, the great problem of governmental corruption, the troubling
phenomenon of the reciprocal manipulation of the governors and the governed,
and the perennial absolutist tendency of law and government, exacerbated now by
the new form of public-private collusion – all these great challenges are now
present at the level of international society. Globalisation is the globalising
of both social good and social evil.
WHAT WILL BE the
presence and the role of law and government at the level of the new
international society, the society of all societies, the society of
all-humanity? One safe prediction is that the triumvirate of law and
government, the economy, and politics will also be the driving forces of the
new international society. Together they fashioned the old symbolic universe
which suited the desires and needs of the masters of the old international
system. Together they will dominate the making of the symbolic universe of the
new international society.
The old idea of
international law was made on the basis of an ingenious manipulation of two
powerful ideas taken from general social philosophy – custom and consent. Those
ideas have served again and again as the constitutive elements of powerful
social philosophies. Customary law and its deep structure of consent is a
social form as old as human societies.[33] In the making of
international law, they were used cynically to prevent the emergence of law as
a third thing, a tertium
quid
capable of ruling the rulers, capable of mastering the makers of the law
themselves.[34]
We may already be able
to detect the first signs of a new human springtime. We may see a new kind of
international law and government emerging from from the roots of the old
international system, like green shoots after a drought or a flood. The new
organic international law and government will be as complex and dynamic and
specific as the social situations it is designed to regulate. Eventually, the
new ascending organic international law and government will meet the decaying
remnants of the autumn of the old order, the order of diplomacy and war.[35] It will not be a
natural self-socialising of properly constituted state-systems, which was a
more modest aspect of the great Kantian dream.[36] It will be a form of
law and government in the making of which other social phenomena –commercial
and industrial corporations, non-governmental interests, global political and
economic forces of all kinds, old and new threats to world public order– will
play an increasing role. It will be a form of law that may at last be able to
act as a powerful counterforce to resist the unlimited opportunities for the
abuse of public power and public-private power present in a globalising world.
To re-imagine
The European mind
already contains within itself a rich store of creative ideas which will
inspire its contribution to the opening of the human mind, to the re-imagining
of international society and international law – ideas about a possible
universal social ideal[38] or about a possible
universal social model.[39] We should enjoy the
task of finding a new bella menzogna[40] – a new story for human
beings to tell themselves about the social life of the whole human species. We
must never cease to take responsibility for constantly correcting the
equilibrium of evils which is the natural default condition of human social
order, the continuous reconciling of man the god and man the beast.[41] Above all, we must
never cease to believe in our power over the products of the power of the human
mind. We must believe in the permanent possibility of human self-perfecting.[42]
* Professor of Public International Law at the
[1] “Man portrays himself in his actions. And what a figure he cuts in the drama of the present time! On the one hand, a return of the savage state; on the other, a complete lethargy: in other words, to the two extremes of depravity, and both united in a single epoch….Thus do we see the spirit of the age [Geist der Zeit] wavering between perversity and brutality, between unnaturalness and mere nature, between superstition and moral unbelief; and it is only through an equilibrium of evils [Gleichgewicht des Schlimmens] that it is still sometimes kept within bounds.” F. SCHILLER, On the Aesthetic Education of Man, in a Series of Letters (1794), Fifth Letter, E.M. WILKINSON & L.A. WILLOUGHBY, eds. & trs.; Oxford, Clarendon Press; 1967 at p. 25, 29.
[2] “In every political state the whole body of public functionaries
constituting the supreme operative require to be considered in the character of
corruptors and corruptees: at the best, they are at all times exposed to the
temptation of being so, and in a greater or less degree are sure to be made to
yield to that temptation.” J. BENTHAM,
The Constitutional Code, ch. 10 inJ. BOWRING, ed., Edinburgh,
William Tait; 1843 vol. ix, 69.
Bentham’s extensive writing on political corruption, inspired by the
systematic corruption of British public life in the 18th century, is
permanently topical. James Frazer
suggested that the reciprocal and collusive nature of government is to be found
in its very origins. “The idea that early kingdoms are despotisms in which the
people exist only for the sovereign, is wholly inapplicable to the monarchies
we are considering. On the contrary, the sovereign in them exists only for his
subjects; his life is only valuable so long as he discharges the duties of his
position by ordering the course of nature for his people’s benefit.” J.G. FRAZER, The Golden Bough: A
Study in Magic and Religion (1890) London, Macmillan and Co.; 2nd ed.,
1900, vol. I, 237-8. There can even be
detected an ambiguous collusive reciprocity in the origins of the idea of
‘representative government’. In the early English parliaments, the consent of
the representatives of the people is sought and given but they thereby legally
bind the community they are deemed to represent. See J.G. EDWARDS, “The Plena
Potestas of English Parliamentary Representatives”, in E.B. FRYDE
& E. MILLER, eds., Historical Studies of the English
Parliament Vol. I,
[3] “How can it be that all should obey, yet nobody take upon him to
command, and that all should serve, and yet have no masters, but be the more
free, as, in apparent subjection, each loses no part of his liberty but what
might be hurtful to another. These
wonders are the work of law.” J-J.
ROUSSEAU, A Discourse on Political Economy (1755), in J-J.
ROUSSEAU, The Social Contract and Discourses, G..D.H. COLE,
tr.;
[4] The philosophically sceptical David Hume’s ingenious explanation of the idea of ‘justice’ is that it is both natural and artificial. It is the way in which the human mind chooses to present to itself the most necessary condition of human social co-existence. “The word, natural, is commonly taken in so many senses, and is of so loose a signification, that it seems vain to dispute, whether justice be natural or not. … Men's inclination, their necessities lead them to combine; their understanding and experience tell them, that this combination is impossible, where each governs himself by no rule, and pays no regard to the possessions of others: And from these passions and reflections conjoined, as soon as we observe like passions and reflections in others, the sentiment of justice, throughout all ages, has infallibly and certainly had place, to some degree or other, in every individual of the human species. In so sagacious an animal, what necessarily arises from the exertion of his intellectual faculties, may justly be esteemed natural.” D. HUME, An Enquiry concerning the Principles of Morals (1751), Appendix 3, T.L. BEAUCHAMP, ed.; Oxford, Oxford University Press; 1998, at p. 173.
[5] ‘Necessity’ is here used in the traditional philosophical sense, as
the negation of that ‘freedom’ which the human mind seems to find within
itself, a freedom that includes a free choice among possible courses of action
(‘freedom of the will’) subject to the ‘necessity’ imposed, above all, by the
‘causation’ characteristic of the natural world. The problem of the
relationship between necessity and freedom is a central focus of
the philosophical tradition stemming from ancient
[6] “I should have wished to live and die free: that is, so far subject to the laws that neither I, nor nobody else, should be able to cast off their honourable yoke: the easy and salutary yoke which the haughtiest necks bear with the greatest docility, as they are made to bear no other.” J-J. ROUSSEAU, A Discourse on the Origin of Inequality (1754), in The Social Contract and Discourses (supra, fn. 3), 27-114, at 29.
[7] Bentham’s introduction of the term ‘international law’,
subsequently taken up in other languages, was “calculated to express, in a more
significant way, the branch of law which goes under the name of the law of
nations: an appellation so uncharacteristic that, were it not for the force
of custom, it would seem rather to refer to internal jurisprudence”. J.
BENTHAM, An Introduction to the Principles of Morals and Legislation
(1789/1823), XVIII, §25, fn, J.H. BURNS & H.L.A. HART, eds.;
[8] Of his own ambiguous heroine, Bertolt Brecht comments: “Courage’s
unflagging readiness to work is important. She is hardly ever seen not
working. It is her energy and competence
that make her lack of success so shattering.”
B. BRECHT, Mother Courage and Her Children (1940) (J.
WILLETT, tr.; London, Eyre Methuen; 1980), 116. This edition
reproduces, in translation, comments (Anmerkungen) which Brecht appended
to an edition of the play published in 1956 (
[9] “It is not unknown to me how many men have had, and still have, the opinion
that the affairs of the world are in such wise governed by fortune and by God
that men with their wisdom cannot direct them and that no one can even help
them; and because of this they would have us believe that it is not necessary
to labour much in affairs, but to let chance govern them. This opinion has been
more credited in our times because of the great changes in affairs which have
been seen, and may still be seen, every day, beyond all human conjecture.
Sometimes pondering over this, I am in some degree inclined to their opinion.
Nevertheless, not to extinguish our free will, I hold it to be true that
Fortune is the arbiter of one-half of our actions, but that she still leaves us
to direct the other half, or perhaps a little less.” N. MACHIAVELLI, The Prince
(1513/32) ch. XXV; W.K. MARRIOTT tr. & ed.;
[10] “A fictitious entity is an entity to which, though by the
grammatical form of the discourse employed in speaking of it, existence be ascribed,
yet in truth and reality existence is not meant to be ascribed.” J. BENTHAM,
The Constitutional Code, J. BOWRING, ed., supra
fn. 2, vol. ix at p.77. “By fiction, in the sense in which it is used by
lawyers, understand a false assertion which, though acknowledged to be false,
is at the same time argued from, and acted upon, as if true.” “Constitutional
Code Rationale”, in J. BENTHAM, First Principles Preparatory to
Constitutional Code (1822), P. SCHOFIELD, ed.; Oxford,
Clarendon Press; 1989, at p.267. Bentham saw fictions as a central feature of
the law, and a prime source of the abuse of social power – “instruments of
delusion employed for reconciling the people to the dominion of the one and the
few”. The Constitutional Code (above), 76. There is a convenient
compilation of Bentham’s scattered writings on fictions in C.K. OGDEN, Bentham’s
Theory of Fictions, London, Kegan Paul; 1932, Georges Sorel (1847-1922)
said that in ‘poetic fictions’ we have “the ability to substitute an imaginary
world for scientific truths which we populate with plastic creations and that
we perceive with much greater clarity than the material world. It is these
idols which penetrate our will and are the sisters of our soul.” Quoted in J. STANLEY, The Sociology
of Virtue: The Political and Social Theories of George Sorel,
[11] In La mentalité primitive, Paris, Librairie Félix Alcan; 1922, LUCIEN LEVY-BRUHL, one of the old masters of anthropology, recognised that thinking in terms of a hidden world of supernatural explanations of natural phenomena is not an inferior form of thinking as compared with European rational thinking, merely a different form dictated by different conditions of life. More modern anthropologists (Marcel Mauss, Claude Lévi-Strauss) see such thinking as reflecting a general human need felt by human societies to have a story of the origin and nature of their unique identity and character, a story which may be constantly re-interpreted but can never be abandoned. The same has been said of ‘religion’, in a more general sense: “…society has been built and cemented to a great extent on a foundation of religion, and it is impossible to loosen the cement and shake the foundation without endangering the superstructure.” J. FRAZER, The Belief in Immortality and the Worship of the Dead, London, Macmillan and Co; 1913, vols. I and 4.
[12] “Such a society has its own affairs and interests; it deliberates
and takes resolutions in common, and is thus become a moral person having
understanding, and a will peculiar to itself, and susceptible at once of
obligations and of rights.” E. de
VATTEL, The Law of Nations, or the Principles of Natural Law applied to
the Conduct and to the Affairs of Nations and Sovereigns; C.G. FENWICK,
tr.; Washington DC, Carnegie Institution; 1916, at p.3. “But as its
duties towards itself clearly prevail over its duties towards others, a Nation
owes to itself, as a prior consideration, whatever it can do for its own
happiness and advancement.” (ibid., 7). Writing about animism, David
Hume said: “There is an universal tendency amongst mankind to conceive all
beings like themselves, and to transfer to every object those qualities, with
which they are familiarly acquainted, and of which they are intimately
conscious.” D. HUME, The Natural History of Religion, A.W.
COLVER, ed.;
[13] Herder speaks of der gemeinschaftliche Geist (the mind or spirit of a community), der Gefühl einer Nation (the feeling of a nation), and of the Seele, Herz, Tiefe (soul, heart, depth) of a people or nation. J.G. HERDER, Auch eine Philosophie der Geschichte zur Bildung der Menschheit (“Yet Another Philosophy for the Education of Mankind”, München/Wien, C. Hanser Verlag; 1984, at p.612. Herder insists that, in traditional societies, the shamans are powerful because they themselves believe the stories they tell the people. J.G. Fichte (1762-1814) had proposed an idealist philosophy centred on a self (ego) which creates a world-for-itself which the self regards as containing also the self-consciousness of other ‘selfs’.
[14] “War therefore is an act of violence intended to compel our opponent to fulfil our will…Self-imposed restrictions, almost imperceptible and hardly worth mentioning, termed usages of International Law, accompany it without essentially impairing its power.” C. von CLAUSEWITZ, On War (J.J. GRAHAM, tr..; A. RAPOPORT, ed.; London, Penguin Books; 1968), 101.
[15] For the idea of ‘symbolic universes’, see P.L. BERGER & T. LUCKMANN, The Social Construction of Reality, London, Allen Lane; 1967, 113 ff.
[16] “We know, certainly, that War is only called forth through the political intercourse of Governments and Nations; but in general it is supposed that such intercourse is broken off by War, and that a totally different state of things ensues, subject to no laws but its own. We maintain, on the contrary, that War is nothing but a continuation of political intercourse, with a mixture of other means.” C. von CLAUSEWITZ, On War (supra, fn 14, at p.402.
[17] “Practically every nation in
[18] “The world on the verge of its catastrophe was very brilliant. Nations and Empires crowned with princes and potentates rose majestically on every side, lapped in the accumulated treasures of the long peace. All were fitted and fastened – it seemed securely – into an immense cantilever. The two mighty European systems faced each other glittering and clanking in their panoply, but with a tranquil gaze. A polite, discreet, pacific, and on the whole sincere diplomacy spread its web of connections over both.” W.S. CHURCHILL, The World Crisis 1911-1918 (1923), London, Odhams Press Limited; no date of publication at p.151. At the outbreak of the war, Churchill had been First Lord of the Admiralty (the British Cabinet Minister responsible for the Royal Navy).
[19] For fuller discussion of the constitutional psychologies of three
member states of the EU, see “The Crisis of European constitutionalism:
reflections on a half-revolution”, in P. ALLOTT, The Health of
Nations: Society and Law beyond the State,
[20] A.C. de TOCQUEVILLE, De la démocratie en Amérique (1835-40). In other writings, he was even able to explain the true nature of the British constitution as the constitution of a monarchical republic.
[21] Another clear-eyed and prophetic observer of the French Revolution
had seen the Revolution differently, as a sort of religious revolution invoking
such distorted ideas, and threatening a sinister campaign to extend its
‘dogmas’, by force if necessary, across the whole of Europe. E. BURKE, Reflections
on the Revolution in
[22] The French Physiocrats laid the foundations of the modern discipline of economics. But they did so at a time when the ‘economic’ aspect of society was discussed as an integral part of a discussion of social organisation in general. Their discipline was therefore correctly called ‘political economy’. It was in the 19th century that the study of more narrowly ‘economic’ phenomena became a separate discipline under the name of ‘economics’.
[23] “Thus there could be no question of destroying this absolute power;
far better, turn it to account. ‘The State should govern in accordance with the
rules basic to the maintenance of a well-organized society,’ was the opinion of
Mercier de
[24] Ibid., 167.
[25] For the idea that the EU is a union of
constitutional orders rather than a union of states, see P. ALLOTT, “Integration von Verfassungen, nicht von Staaten”,
Frankfurter Allgemeine Zeitung,
[26] The rebellious Americans of 1776 had two
great advantages in inventing their national myth. (1) They could,
and
did, claim to be the true and better heirs of a thousand-year constitutional
tradition, a tradition itself seasoned
with
myth, fantasy and poetry. Thomas
Jefferson himself agreed with the ‘Anglo-Saxonist’ view, that the
essence
of the British constitution stemmed from the period before the Norman invasion
of 1066. See “The
Theory of the
British Constitution”, in P. ALLOTT, Towards the International Rule
of Law: Essays in
Integrated
Constitutional Theory,
had a double
creation-myth, itself as much fiction as fact, to the effect that the original
settlers in 1620 were
escaping from the
clutches of oppression and that they themselves were throwing off the yoke of
tyranny. They
then created a
federal constitution (1787), an elegant distillation of an idealised British
constitution, which they
made into a
sacred totem.
[27] In Das Rheingold, the first part of Richard Wagner’s
four-part music-drama Der Ring des Niebelungen, Fasolt and Fafner are
two giants who are responsible for building
[28] Supra, fn. 2. Bentham has a further discussion of corruption in “Constitutional Code Rationale” in First Principles, supra, fn. 10, ch. 3.
[29] “All government is in the very essence of it an evil…To exercise the powers of government is accordingly to do evil.” J. BENTHAM, “Economy as applied to office”, in First Principles (supra, fn. 10), 4. “Society is produced by our wants and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices.’ T. PAINE, Common Sense (1776), in Common Sense and Other Political Writings, N.F. ADKINS, ed.; New York, Bobbs Merrill Co, American Heritage Series; 1953 at p.4. William Godwin (1756-1836), mistakenly supposed to be an apostle of anarchism, suggested that as human beings and human societies perfected themselves, government would wither away and human beings would become self-governing.
[30] Bentham,
for once in agreement with Edmund Burke, classed the fiction of ‘natural
rights’ as a fraudulent and nonsensical delusion. “The tyrant Henry the Eighth
of England…did not know what an effectual instrument of despotism was to be
found in that grand magazine of offensive wepaons, the rights of men…Had fate
reserved him to our times, four technical terms would have done his business…-
‘Philosophy,
Light, Liberality, the Rights of Men’.” E. BURKE,
Reflections
on the Revolution in France (1790), London, J.M. Dent & Sons,
Everyman’s Library; 1910, 112-3. We may
also recall de Tocqueville’s opinion of the Tudor monarchs (1485-1603), not the
least of whom was King Henry VIII: Nulle part en
[31] “Laws and government may be considered…as a combination of the rich
to oppress the poor, and preserve to themselves the inequality of goods which
would otherwise soon be destroyed by the attacks of the poor, who if not
hindered by the government would soon reduce the others to an equality with
themselves by open violence. The government and the laws…tell them they must
either continue poor or acquire wealth in the same manner as they have done.” A.
SMITH, Lectures on Jurisprudence (lecture of 22 February 1763), R.L.
MEEK et al., eds.; Oxford, Clarendon Press; 1978,
208-9. “Civil government, so far as it
is instituted for the security of property, is in reality instituted for the
defence of the rich against the poor, or of those who have some property
against those who have none at all.” A.
SMITH, An Inquiry into the Nature and Causes of the Wealth of Nations
(1776), R. CAMPBELL & A. SKINNER, eds.;
[32] Suspicion of such over-government is a
leading theme of much of John Stuart Mill’s writing. He says that
experience proves “that the depositaries of power who are mere delegates of the
people, that is of a majority, are quite as ready (when they think they can
count on popular support) as any organs of oligarchy, to assume arbitrary
power, and encroach unduly on the liberty of private life. The public
collectively is abundantly ready to impose, not only its generally narrow views
of its interests, but its abstract opinions, and even its tastes, as laws
binding upon individuals. And the present civilization tends so strongly to
make the power of persons acting in masses the only substantial power in
society, that there never was more necessity for surrounding individual
independence of thought, speech, and conduct, with the most powerful defences,
in order to maintain that originality of mind and individuality of character,
which are the only source of any real progress, and of most of the qualities
which make the human race much superior to any herd of animals.” J.S. MILL, Principles
of Political Economy with some of their Applications to Social Philosophy
(1848), bk. V, ch. XI, J.M. ROBSON, ed.; London, University of
Toronto Press; Routledge & Kegan Paul; 1965, 939-40.
[33] International law is seen as customary law
made by the ‘consent’ of ‘states’. “Nothing is more reprehensible than to derive
the laws prescribing what ought to be done from what is done, or
to impose upon them the limits by which the latter is circumscribed.” I.
KANT, Critique of Pure Reason (1781) N. KEMP SMITH, tr.;
[34] Old international law was particularly well suited to a government
which was capable of acting in the role of a ‘sensible knave’. “And though it is allowed, that,
without a regard to property, no society could subsist; yet, according to the
imperfect way in which human affairs are conducted, a sensible knave, in
particular incidents, may think, that an act of iniquity or infidelity will
make a considerable addition to his fortune, without causing any considerable
breach in the social union and confederacy.” D. HUME, An Enquiry
concerning the Principles of Morals, supra fn. 4, IX.2 at p.155.
[35] For discussion of ‘descending’ theories of government (sovereignty flowing from the king downwards) and ‘ascending’ theories (sovereignty flowing from the people upwards), see W. Ullmann, Medieval Political Thought, Harmondsworth, Penguin Books; 1975, 12.
[36] I. KANT, “Idea for a Universal
History with a Cosmopolitan Purpose” and “Perpetual Peace: A Philosophical
Sketch”, in Kant’s Political Writings, H. REISS, ed.,
& H.B NISBET, tr.; Cambridge, CUP; 1970, 41-53, 93-130.
[37] For the idea that the European mind has experienced a succession of enlightenments at three-century intervals since the end of the Roman Empire in the West, and hence is now due for another enlightenment, see P. ALLOTT, The Health of Nations, supra, fn. 19, §3.18, fn.15.
[38] “Hence it is evident that the same life is best for each
individual, and for states, and for mankind collectively.” Aristotle, Politics, VII.3.10 , B.
JOWETT, tr.;
[39] The humana universitas (Dante), the ‘universal society’ (Suárez), the ‘great and natural community’ of mankind (Locke), the civitas maxima (Wolff), the ‘great city of the human race’ (Vico), the ‘general society of the human race’ (Rousseau), a ‘perfect civil union of mankind’ (Kant), an ‘international society of all human beings, the society of all societies’ (Allott).
[40] Una veritade ascosa sotto bella
menzogna (“a truth hidden beneath a beautiful lie”). Dante’s
definiton of allegory (Convivio, II.1.3) may be used as an
elegant variation of Plato’s idea of the necessary social poetry as the ‘noble
lie’ or ‘opportune falsehood’: Plato, Republic, 414b.
[41] “But he who is unable to live in society, or who has no need because he is sufficient for himself, must either be a beast or a god.” Aristotle, Politics, I.2.14 (supra, fn. 38), 29. Kant said that the problem of attaining a civil society which can administer justice universally is “both the most difficult and the last to be solved by the human race”. I. KANT, “Idea for a Universal History”, in Kant’s Political Writings (supra, fn. 36), 41-53, at 45-6.
[42] “The scales of
understanding are not quite impartial, and one arm of them, which bears the
inscription: Hope of the future, has a mechanical advantage...This is the sole
error which I cannot set aside, and which in fact I never want to.” I. KANT,
Dreams of a Spirit-Seer, pt. I, ch.