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Critical Theory of

Legal Revolutions
ABOUT THE SERIES
Critical Theory and Contemporary Society explores the relationship between
contemporary society as a complex and highly differentiated phenomenon, on the one
hand, and Critical Theory as a correspondingly sophisticated methodology for studying
and understanding social and political relations today, on the other.

Each volume highlights in distinctive ways why (1) Critical Theory offers the most
appropriate concepts for understanding political movements, socioeconomic conflicts and
state institutions in an increasingly global world and (2) why Critical Theory nonetheless
needs updating in order to keep pace with the realities of the twenty-first century.

The books in the series look at global warming, financial crisis, post–nation state
legitimacy, international relations, cinema, terrorism and other issues, applying an
interdisciplinary approach, in order to help students and citizens understand the specific
city and uniqueness of the current situation.

Series Editor
Darrow Schecter, Reader in the School of History,
Art History and Humanities, University of Sussex, UK

BOOKS IN THE SERIES

Critical Theory and Film


Fabio Vighi
Critical Theory and Contemporary Europe
William Outhwaite
Critical Theory in the Twenty-First Century
Darrow Schecter
Critical Theory and the Digital
David Berry
Critical Theory and the Crisis of Contemporary Capitalism
Heiko Feldner
Critical Theory and Libertarian Socialism
Charles Masquelier
Critical Theory and the Critique of Political Economy
Werner Bonefeld
Critical Theory of
Legal Revolutions
Evolutionary perspectives

HAUKE BRUNKHORST

N E W YOR K • LON DON • N E W DE L H I • SY DN EY


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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).
2
Herbert 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).
vi
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

F irst 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

S ince 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

1
See the critical adoption of the legal theory of Benjamin, Cohen and Rosenzweig by Daniel Loick,
Kritik der Souveränität. Frankfurt: Campus, 2012, pp. 238, 242.
2
Robert 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).
3
Thanks to Regina Kreide and Rene Gabriels for their critique and discussions on the problematic
relation of evolution and revolution that concerns the whole project.
2 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

4
Steven 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.
5
For 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)

6
This 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).
7
See Markus Patberg, ‘Suprastaatliche Verfassungspolitik und die Methode der rationalen
Rekonstruktion’, Ms. 2013, p. 13 (forthcoming in: Zeitschrift für Politische Theorie 1/2013).
4 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

8
Jürgen 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.
9
See Hendrik Wortmann, Zum Desiderat einer Evolutionstheorie des Sozialen. Darwinistische
Konzepte in den Sozialwissenschaften. Konstanz: UVK, 2010, p. 108.
10
I have to thank Chris Thornhill for a long discussion of this point.
General introduction 5

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

I am very grateful for a discussion on this point which I had with Cristina Lafont, Regina Kreide
11

and Axel Mueller on a long car trip through northern Germany.


6 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

12
I have to thank Charles Larmore for a discussion of this point.
General introduction 7

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.

13
Wilkinson, 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.
8
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

1
Habermas, ‘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.
10 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

2
Habermas, Zur Rekonstruktion des historischen Materialismus. Frankfurt: Suhrkamp, 1978.
3
For 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

4
Marx 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.
5
Marx and Engels, Deutsche Ideologie, p. 18 (http://www.marxists.org/archive/marx/works/1845/
german-ideology/ch01a.htm).
6
Engels, ‘“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.
7
Talcott 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.
8
See Dieter Henrich, ‘Karl Marx als Schüler Hegels’, in Henrich (ed.), Hegel im Kontext. Frankfurt:
Suhrkamp, 1971, pp. 187–208.
12 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

9
Marx and Engels, Deutsche Ideologie, p. 21 (http://www.marxists.org/archive/marx/works/1845/
german-ideology/ch01a.htm).
10
Ibid., pp. 29–30 (http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.
htm#a3).
11
Ibid., p. 29 (http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm#a3).
12
Marx 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.
13
See Robert B. Westbrook, John Dewey and American Democracy. Ithaca: Cornell University
Press, 1991, pp. 80–1.
14
See 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.
The evolutionary significance of revolution 13

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 (ab) 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

15
Michael 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.
14 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

16
Habermas, 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.
17
German 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).
The evolutionary significance of revolution 15

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

18
Georg 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).
19
Lutz Wingert, ‘Die elementaren Strukturen menschlicher Sozialität’, Deutsche Zeitschrift für
Philosophie 1 (2011), 158–63, at 162.
20
See 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.
21
For 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.
22
Johann 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).
23
On 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.
16 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

24
Luhmann, 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.
25
Marx and Engels, Deutsche Ideologie, p. 29 (http://www.marxists.org/archive/marx/works/1845/
german-ideology/ch01a.htm#a3).
26
Marx, 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.
27
The 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.
The evolutionary significance of revolution 17

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

28
The 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.
29
Luhmann, 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.
30
Eike von Savigny, Der Mensch als Mitmensch. Wittgensteins Philosophische Untersuchungen.
Munich: dtv, 1996, p. 125.
31
Tugendhat, 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.
32
Marx, Das Kapital I, p. 249, quoted from: Marx, Capital, Vol. I, http://www.econlib.org/library/
YPDBooks/Marx/mrxCpA10.html (10 April 2012).
18 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

33
Eder, 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).
34
Strawson, Freedom and Resentment, p. 10.
35
Barrington 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.
36
Jean 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).
The evolutionary significance of revolution 19

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

37
See 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).
38
See Tugendhat, Philosophische Aufsätze. Frankfurt: Suhrkamp, 1992, pp. 33–4.
39
Therefore, 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.
40
Thomas Kesselring, Entwicklung und Widerspruch. Frankfurt: Suhrkamp, 1981, pp. 25, 206; see
Strawson, Freedom and Resentment, pp. 10–11.
41
These 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.
42
See Tugendhat, Einführung in die sprachanalytische Philosophie, p. 518.
20 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

43
Ibid., 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).
44
On 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.
45
Tomasello, Origins, p. 213, see also 187; Tomasello, Why We Cooperate, 21ff.
46
On 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.
The evolutionary significance of revolution 21

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

47
Rohs, Die Zeit des Handelns.
48
Allen 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.
49
See Bellah, Religion in Human Evolution, p. 570.
50
See 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.
51
Tomasello, 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.
22 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

52
See Koskenniemi, Constitutionalism as Mindset, p. 35.
53
Kant, 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).
54
On the need for a systemic stabilization of socially integrated groups, see Habermas, Theorie des
kommunikativen Handelns, Bd. II, p. 228.
55
Luhmann, Die Gesellschaft der Gesellschaft, Bd. 1. Frankfurt: Suhrkamp, 1997, pp. 498–505.
56
See Hans Hattenhauer, Europäische Rechtsgeschichte. Heidelberg: C. F. Müller, 1992, p. 43.
57
Woodburn, Egalitarian Societies, p. 442; see Fry, Beyond War, pp. 25–8, 54–6, 70–2.
The evolutionary significance of revolution 23

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

58
Ibid., pp. 434, 440.
59
Ibid., p. 441.
60
Ibid., pp. 436–7.
61
Ibid., pp. 441–3.
62
Ibid., p. 443.
63
Fehr, Bernhard and Rockenbach, Egalitarianism in young children, p. 1081.
24 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

64
Eder, 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.
65
On 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.
66
For examples, see Woodburn, Egalitarian Societies, pp. 441–3.
67
Claude Lévi-Strauss, Tristes Tropiques. New York: Criterion, 1961, pp. 290–1.
68
Lévi-Strauss, Tristes Tropiques, pp. 288–9.
69
Ibid., pp. 295–6.
The evolutionary significance of revolution 25

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

70
Richard D. Schwartz and James C. Miller, ‘Legal Evolution and Societal Complexity’, American
Journal of Sociology 2 (1964), 159–69, at 160.
71
Max Horkheimer and Theodor W. Adorno, Dialektik der Aufklärung. Frankfurt a. M: Fischer, 1997.
72
Lévi-Strauss, Tristes Tropiques, p. 292.
73
Martin 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.
74
Karl 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.
26 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

75
Max 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.
76
Weber, Religionssoziologie I, p. 243.
77
Shmuel N. Eisenstadt, ‘Allgemeine Einleitung’, in Eisenstadt, Hg. Kulturen der Achsenzeit, Bd. 1.
Frankfurt: Suhrkamp, 1987, p. 21.
The evolutionary significance of revolution 27

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

78
Marx, ‘Introduction to a Critique of Hegel’s Philosophy of Right’, English translation quoted from:
http://www.cddc.vt.edu/bps/CF/marx-hegel.htm.
79
Illuminating: Charles Taylor, A Secular Age. Cambridge, MA: Harvard, 2007, pp. 221–5.
80
Eisenstadt, Allgemeine Einleitung, p. 21.
81
For 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.
82
For the brilliant idea of a total recrediting of power, see Jan Assmann, Politische Theologie
zwischen Ägypten und Israel. Munich: Siemens-Stiftung, o. J.
83
Bellah, Religion in Human Evolution, pp. 303–4 (my emphasis), see pp. 312, 316.
28 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

84
Ibid., 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.
85
Graham 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.
86
Jaspers, Vom Ursprung und Ziel der Geschichte, p. 22 (my transl.).
87
Jaspers, Ursprung und Ziel, p. 23 (my transl.).
88
See, 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
The evolutionary significance of revolution 29

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.
89
Miguel 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).
90
Vatter, Biopolitics and Geist, p. 51.
91
Hegel, Phänomenologie des Geistes, p. 148, quoted from the engl. transl.: http://www.marxists.
org/reference/archive/hegel/works/ph/phba.htm (05 April 2012).
92
Ibid., p. 149, quoted from the engl. transl.: http://www.marxists.org/reference/archive/hegel/
works/ph/phba.htm (05 April 2012).
30 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

93
Vatter, Biopolitics and Geist, p. 51.
94
Arendt, The Life of the Mind, p. 68.
95
Ibid.
96
Tugendhat, Einführung in die sprachanalytische Philosophie, p. 244.
97
Robert N. Bellah, ‘Religiöse Evolution’, in C. Seyfarth (ed.), Religion und gesellschaftliche
Entwicklung. Frankfurt: Suhrkamp, 1973, 281f.
98
See Maddox, ‘Hebrew Prophecy and the Foundations of Political Opposition’, Australian Religion
Studies Review (ARSR) 1 (2008), vol. 21, 70–92, at 73.
The evolutionary significance of revolution 31

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

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


99
32 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

100
Aurelius Augustinus, De Ordine II, pp. 5, 16, quoted in Kurt Flasch, Augustinus. Einführung in
sein Denken. Stuttgart: Reclam, 1994, p. 79.
101
Augustine, The Confessions, trans. J. G. Pilkington. New York: Boni & Liveright, 1927, Bk. 7,
Ch. 12, p. 128.
102
Breuer, Kulturen der Achsenzeit, p. 5.
The evolutionary significance of revolution 33

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

103
Eder, Collective Learning Processes and Social Evolution, p. 23.
104
See 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.
105
Parsons, Societies. Evolutionary and Comparative Perspectives. Englewood Cliffs: Prentice Hall,
1966, p. 110.
106
Luhmann, Legitimation durch Verfahren. Frankfurt: Suhrkamp, 1983 (1969), pp. 144–5 (with
reference to Parsons).
107
Gould, The Structure of Evolutionary Theory.
34 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

108
Gould, ‘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).
109
Gould 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).
110
Speciation 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 evolutionary significance of revolution 35

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

111
Brief overview: Gersick, Revolutionary Change Theories.
112
Thomas S. Kuhn, The Structure of Scientific Revolutions. Chicago: Chicago University Press,
1970.
113
Imre Lakatos, The Methodology of Scientific Research Programmes, Philosophical Papers, V.I,
London, 1974.
114
Apel, Paradigmen der Ersten Philosophie; Lakatos, The Methodology of Scientific Research
Programmes.
36 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

115
Kant, 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).
116
Moore, 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.
117
On the latter, see Bellah, Religion in Social Evolution, p. 479.
118
Kant, 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).
119
See Koskenniemi, ‘What Should International Lawyers Learn from Karl Marx?’, Leiden Journal of
International Law 17 (2004), 229–46, at 244–5.
The evolutionary significance of revolution 37

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

120
Kant, Zum ewigen Frieden, p. 241.
121
Susan 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.
122
Luhmann 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).
123
Weber, 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).
124
Max Weber, Gesammelte Aufsätze zur Religionssoziologie I, p. 252.
125
Gould, ‘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.
126
As in Alexander Kluge’s film: Lernprozesse mit tödlichem Ausgang.
38 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

127
Gersick, Revolutionary Change Theories, p. 12.
128
On the concept of Rechtsarbeit cp. Müller and Ralph Christensen, Juristische Methodik, Bd. I:
Grundlagen, Öffentliches Recht. Berlin: Duncker & Humblot, 2002.
129
See 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.
The evolutionary significance of revolution 39

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 Solidarność 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

130
See Kant, Zum ewigen Frieden, p. 224; Hegel, Grundlinien der Philosophie des Rechts § 4,
Werke 7. Frankfurt: Suhrkamp, 1970, § 141, pp. 286–91.
131
Kuhn, The Structure of Scientific Revolutions, Ch. VI and VII.
40 CRITICAL THEORY OF LEGAL REVOLUTIONS

[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

132
Marx, 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).
133
See 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).
The evolutionary significance of revolution 41

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

134
Habermas, Rekonstruktion des historischen Materialismus.
135
Marx, 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).
136
Marx, Der achtzehnte Brumaire, p. 101 (English transl.: http://www.marxists.org/archive/marx/
works/1852/18th-brumaire/ch01.htm, 04 April 2012).
42 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

137
See 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.
138
Kant, Streit der Fakultäten, p. 361 (my transl. of the German ‘vergessen sich nicht’).
139
On the latter, see Ronald Dworkin, Taking Rights Seriously. London: Duckworth&Co, 1977.
140
Müller, Wer ist das Volk?, p. 56.
The evolutionary significance of revolution 43

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

See Wesel, Uwe, Geschichte des Rechts. Munich: Beck, 1997, p. 156.
141

Parsons, Evolutionary Universals in Society, p. 339; see Luhmann, Die Gesellschaft der
142

Gesellschaft, pp. 505–16. For the application of this concept to constitutional evolution, see
Luhmann, Verfassung als evolutionäre Errungenschaft.
44 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

143
Koskenniemi, Constitutionalism as Mindset, p. 36.
144
Luhmann, Verfassung als evolutionäre Errungenschaft.
145
In 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 evolutionary significance of revolution 45

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.
146
See Parsons, Evolutionary Universals in Society; Luhmann, Die Gesellschaft der Gesellschaft,
p. 505.
147
Kaarlo 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.
46 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

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


148
The evolutionary significance of revolution 47

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

149
Koskenniemi, 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.
150
Koskenniemi, Constitutionalism as Mindset, p. 25.
151
Therefore, 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.
152
Kant, Zum ewigen Frieden, p. 210, quoted from Kant, Political Writings, ed. by H. S. Reiss.
Cambridge: Cambridge University Press, 1991, p. 103.
48 CRITICAL THEORY OF LEGAL REVOLUTIONS

‘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

153
Koskenniemi, 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.
154
Luhmann, Das Recht der Gesellschaft. Frankfurt: Suhrkamp, 1993, pp. 78–95, p. 555.
155
Koskenniemi, 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.
156
Dr 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.
The evolutionary significance of revolution 49

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

157
I am grateful to Cristina Lafont for a discussion of this point.
158
For 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.
159
Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960.
Cambridge: Cambridge University Press, 2001, p. 177.
160
Koskenniemi, What Should International Lawyers Learn from Karl Marx?, p. 245.
161
An 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.
50 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

162
I am grateful for a discussion of this point with Jiri Priban and Poul Kjaer.
163
Kant, Streit der Fakultäten, p. 361 (my transl.).
164
Luhmann,Verfassung als evolutionäre Errungenschaft, p. 176 (my transl. of ‘Machbarkeitsillusionen’,
‘Gesänge’, ‘feierliche Erklärungen’).
165
Kant, 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.
166
Alexander Somek, ‘Europe: From emancipation to empowerment’, unpublished e-man., Utah:
University of Iowa, 2012, p. 8.
167
See, for example, Helmut Dubiel, Niemand ist frei von der Geschichte. Die nationalsozialistische
Herrschaft in den Debatten des Deutschen Bundestages. München: Hanser, 1999.
168
See Klaus Eder, Geschichte als Lernprozeß? Zur Pathogenese politischer Modernität in
Deutschland. Frankfurt: Suhrkamp, 1985.
The evolutionary significance of revolution 51

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

169
I am grateful for a controversial discussion with Rudolf Stichweh on that point, at a conference
that Marcelo Neves organized in Brasilia in September 2013.
170
See Menke, Die Gegenwart der Tragödie, Frankfurt: Suhrkamp, 2005, pp. 8, 21.
171
See Çıdam, Geschichtserzählung im Kapital.
52 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

172
On preadaptive advances, see Luhmann, Gesellschaft der Gesellschaft, pp. 512–13.
173
On 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.
174
Marx, Capital, Ch. 4, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April
2012).
175
On 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 evolutionary significance of revolution 53

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

176
Marx, Capital, Ch. 4, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April
2012).
177
See Brunkhorst, Romanticism and Cultural Criticism, Praxis International 4 (1985), 397–416.
178
Luhmann, 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).
179
Luhmann, Globalization or World Society, p. 70.
180
On 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.
54 CRITICAL THEORY OF LEGAL REVOLUTIONS

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,

181
For 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.
182
Marx, 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.
The evolutionary significance of revolution 55

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

183
Henry 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).
184
Marx and Engels, Communist Manifesto, http://www.marxists.org/archive/marx/works/1848/
communist-manifesto/ch01.htm#007 (10 April 2012).
185
See Berman, Justice in the U.S.S.R., Revised edition, enlarged. New York: Random House, 1963
(1950).
56 CRITICAL THEORY OF LEGAL REVOLUTIONS

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
The evolutionary significance of revolution 57

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).
58
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.
60 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1
For 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.
2
Karl 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.
3
Hegel, Grundlinien der Philosophie des Rechts, quoted from: http://www.marxists.org/reference/
archive/hegel/works/pr/preface.htm#xxvii (20 October 2013).
4
Kant, 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

5
See, 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.
6
Osterhammel and Petersson, Geschichte der Globalisierung, 64ff; Bright and Geyer,
Globalgeschichte, 43f.
7
Brunkhorst, ‘There Will Be Blood. Konstitutionalisierung ohne Demokratie?’, in Brunkhorst (ed.),
Demokratie in der Weltgesellschaft, Sonderheft Soziale Welt, 2009.
8
Bright and Geyer, Benchmarks of Globalization: the Global Condition, 1850–2010, pp. 7, 17.
62 CRITICAL THEORY OF LEGAL REVOLUTIONS

‘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

9
Ibid., p. 18.
10
Christopher 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.
11
Parsons, Evolutionary Universals in Society; Luhmann, Die Gesellschaft der Gesellschaft, p. 505
et seq.
12
Charles 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.
Class conflict and co-evolution 63

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

13
Tilly, States, State Transformation, and War.
14
Yet, Heidegger’s striking notion of onto-theology neglects the important differences between
ontological and theological world views.
15
Eisenstadt, Allgemeine Einleitung, p. 21.
16
On 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.
17
Berman, Faith and Law in a Multicultural World, p. 79. In this case, one could speak of a preadaptive
advance of a subjective right.
18
See 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.
64 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

19
Berman, Faith and Law in a Multicultural World, p. 79.
20
On the latter, see Weber, Gesammelte Aufsätze zur Religionssoziologie I, pp. 243–6.
21
See Maddox, Religion and the Rise of Democracy. London: Routledge, 1996.
22
Tilly, Coercion, Capital, and European States, AD 990–1990. Malden, MA: Basil Blackwell, 1990,
p. 70.
23
I am grateful to Hubert Cancik for a discussion of that point.
Class conflict and co-evolution 65

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

24
Women 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.
25
English translation quoted from: https://archive.org/stream/institutesofjust00abdyuoft/institutes
ofjust00abdyuoft_djvu.txt (20 October 2013).
26
English 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).
27
For 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.
28
See 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.
66 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

29
If 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.
30
See 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.
31
Augustinus, De Ordine II, pp. 5, 16.
32
Kant, ‘Die Religion innerhalb der Grenzen der bloßen Vernunft’, in Werke VIII, Frankfurt: Suhrkamp,
1977, p. 873.
Class conflict and co-evolution 67

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

33
Tommaso Campanella, The City of the Sun, trans. by D. J. Donno. Berkley: University of California
Press, 1981 [1627], p. 121.
34
Nussbaum, Kant and Cosmopolitanism.
35
See Jn 10:16 (I am grateful to Diana Göbel for this hint.).
36
Michael 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
68 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.
37
Foucault, Michel, The Use of Pleasure, vol. 2 of The History of Sexuality. New York: Random
House, 1985; see Veyne, The Roman Empire.
38
Hermann Cohen, ‘Das soziale Ideal bei Platon und den Propheten’, in Cohen (ed.), Jüdische
Schriften, Bd. 1, Breslau, 1923, p. 321.
Class conflict and co-evolution 69

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

39
Maddox, ‘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.
40
Maddox, 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.
41
Augustinus, 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).
70 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

42
In 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.
Class conflict and co-evolution 71

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

Robert Fine, Cosmopolitanism. London: Routledge, 2007, p. 110.


43

See Tilly, States, State Transformation, and War.


44
72 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

45
Tilly, 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.
46
Marx, Der 18. Brumaire, quoted from: http://www.marxists.org/archive/marx/works/1852/18th
brumaire/ch02.htm.
Class conflict and co-evolution 73

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

47
I 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.
48
Tilly, European Revolutions 1492–1992. Oxford: Blackwell, 1995, p. 26.
49
Tilly, European Revolutions, p. 26.
50
Jean Meyer, Le poids de l’État. Paris: Presses Universitaires de France, 1983, pp. 43–69.
51
Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts, 1920, (Reprint:
Aalen, 1981).
74 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

52
Thomas 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.
53
On 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.
54
On 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.
Class conflict and co-evolution 75

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

55
Rudolf 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.
56
Generalized by Habermas, Theorie des kommunikativen Handelns I und II.
57
Marx, Capital, Vol. I, Chapter 6, http://www.marxists.org/archive/marx/works/1867-c1/ch01.
htm#S1 (10 April 2012).
58
See Tilly, European Revolutions, pp. 38, 49.
76 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

59
See 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.
60
Tilly, 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.
61
Arendt, Macht und Gewalt. Munich: Beck, 1970, p. 42.
62
See 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.
63
See 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.
64
Calhoun, Craig, Cosmopolitism and Belonging, Vortrag 37. Stockholm: World Congress
International Institute of Sociology, 2005.
Class conflict and co-evolution 77

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,

65
Parsons and Platt, Gerald M., The American University. Cambridge: Harvard University Press,
1973.
66
See 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.
67
See Meyer, John W. and Ramirez, Francisco O., Die globale Institutionalisierung der Bildung, in
Meyer (ed.), Weltkultur. Frankfurt: Suhrkamp, 2005.
78 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

68
Marx, Capital I, quoted from: https://www.marxists.org/archive/marx/works/1867-c1/ch01.htm#S1
(31 March 2013).
69
Marx, Grundrisse.
70
For a still useful typology of crises in late capitalism, see Habermas, Legitimationsprobleme im
Spätkapitalismus. Frankfurt: Suhrkamp, 1973.
71
Since 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).
72
See Luhmann, ‘Zum Begriff der sozialen Klasse’, in Luhmann (ed.), Soziale Differenzierung. Zur
Geschichte eine Idee. Opladen: Westdeutscher Verlag, 1985, pp. 119–62.
Class conflict and co-evolution 79

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

Marx, Brief an Friedrich Bolte v. 23. Nov. 1871, MEW 33, Berlin: Dietz, 1973, p. 332. See Stuart
73

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.
80 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

74
On 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.
75
Hegel, 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.
Class conflict and co-evolution 81

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%).

76
Marx, ‘Kritik der Hegelschen Rechtsphilosophie. Einleitung’, in Fetscher (ed.), Marx-Engels I
Studienausgabe: Philosophie. Frankfurt: Fischer, 1966, pp. 1–35.
77
See 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.
82
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

1
Bertolt 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).
2
Taylor, A Secular Age, p. 243.
3
Georg 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).
4
Gerd 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.
84 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

5
Gordon Griffiths, ‘The Revolutionary Character of the Revolt of the Netherlands’, Comparative
Studies in Society and History 2:4 (1960), 452–72, at: 459.
6
Marx, ‘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)
7
Taylor, A Secular Age, pp. 173, 175.
8
Ibid., 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.
9
Taylor, A Secular Age, p. 194.
Legal revolutions 85

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

10
On 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.
86 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

11
Parsons, The System of Modern Societies. Englewood Cliffs, NY: Prentice Hall, 1971.
Legal revolutions 87

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

Parsons and Platt, The American University.


12

See Parsons, Order and Community in the International Social System.


13
88 CRITICAL THEORY OF LEGAL REVOLUTIONS

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 G

Papal Revolution (West-European) Protestant Revolution (Western)


Legal system: Twelfth/thirteenth Political system: Sixteenth/
century seventeenth century

L A

Social World Revolution Atlantic Revolution


Educational system: Twentieth/ Economic system: Eighteenth-
twenty-first century twentieth century
Legal revolutions 89

Table 2  Dimensions of revolutionary change


I G

Normative constraints Selective mechanism


(6) new idea of freedom (7) (4) Class struggle (5) struggle for human
founding documents rights

L A

Epistemic revolution Systemic stabilization


(1) ratchet effect (2) immanence of (8) co-evolution of cosmopolitan & national
transcendence (3) modernism statehood (9) constitutionalization

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
(LLatency). 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 (GGoal 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 (IIntegration), consisting in a new

See Gaus, ‘Rationale Rekonstruktion als Methode politischer Theorie zwischen Gesellschaftskritik
14

und empirischer Politikwissenschaft’, Politische Vierteljahresschrift (PVS) 2 (2013), 231–55; Patberg,


Suprastaatliche Verfassungspolitik und die Methode der rationalen Rekonstruktion.
90 CRITICAL THEORY OF LEGAL REVOLUTIONS

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
(AAdaptation) 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

15
Berman, Law and Revolution, pp. 165, 558.
16
Jacques 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.
17
Jürgen 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.
Legal revolutions 91

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

18
Arnold 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.
19
Robert 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.
20
Peter Brown, The Rise of Western Christianity. Cambridge, MA and Oxford, Blackwell, 2003
(2. Edition), pp. 368–72.
21
Brown, ‘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.
22
Brown, The Rise of Western Christianity, pp. 355–80.
23
James 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.
92 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

24
Johann 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’).
25
Berman, 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.
26
Ibid., 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.
27
Walter Rüegg (ed.), Geschichte der Universität in Europa, Bd. 1: Das Mittelalter. Munich: Beck,
1993.
Legal revolutions 93

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

28
See 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.
29
Berman, Law and Revolution, p. 86; see Weitzel, Versuch über Normstrukturen und
Rechtsbewußtsein im Mittelalterlichen Okzident, p. 393.
30
Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, 29, 92f.
31
Berman, Law and Revolution, p. 50.
32
Ibid., p. 200.
94 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

33
Ibid., p. 50.
34
See Brown, Society and the Supernatural, p. 142.
35
Ibid., p. 135.
36
Ibid., p. 138.
37
Berman, Law and Revolution, p. 150.
Legal revolutions 95

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

38
Ibid., p. 50. My emphasis.
39
Ibid., 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.
40
Brian 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).
96 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

41
Piaget’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.
42
Quoted from: Tierney, Religion, Law, and the Growth of Constitutional Thought, Preface, p. IX.
43
Tierney, Religion, Llaw, and the Growth of Constitutional Thought, Preface, p. IX.
Legal revolutions 97

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

44
The 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.
45
MGH, 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.
46
Southern, Making of the Middle Ages, pp. 93–4; see Berman, Law and Revolution,
p. 276 et seq.
47
Walter 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.
48
Manegold 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.
98 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

49
Berman, Law and Revolution, pp. 276–88.
50
Kantorowicz, The King’s Two Bodies., p. 93.
51
Kantorowicz, The King’s Two Bodies, see Chapters III and IV.
52
John of Salisbury, Policraticus. New York: Russell & Russell, 1927.
53
In 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.
54
Berman, Law and Revolution, p. 288.
Legal revolutions 99

(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

55
Dictatus 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.
56
Berman, Law and Revolution, p. 178 (German trans. p. 296).
100 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

57
Tellenbach, Libertas, p. 194, English translation quoted from: Tellenbach, Church, State and
Christian Society, p. 163.
58
Ibid., 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.
59
Laurent Mayali, Recht sprechen, p. 299, Journal for History of Law (Rechtshistorisches Journal),
issue 14(1995), pp. 284–308.
60
Berman, Law and Revolution, pp. 116–18.
61
Mayali, Recht sprechen, pp. 298–9.
62
Berman, Law and Revolution, pp. 144–5.
Legal revolutions 101

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

63
Ibid., pp. 142–4.
64
Ibid., pp. 109–10, 112, 117–20.
65
Ibid., pp. 158, 400–2, 521.
66
Anselm of Canterbury, Cur Deus Homo – Warum Gott Mensch wurde. Darmstadt: Wissenschaftliche
Buchgesellschaft, 1993.
67
See 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).
68
Berman, Law and Revolution, p. 158.
69
Ibid., p. 176.
102 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

70
Ibid., pp. 176–9.
71
Ibid., p. 290 (note 22), in the German translation it is p. 595 (note 22).
72
Brown, Society and the Supernatural, p. 134.
Legal revolutions 103

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.

73
Cantor, Medieval History, pp. 263, 272.
74
Rosenstock-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.
75
Lynn 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.
76
White, Technology and Invention in the Middle Ages, p. 156, my emphasis.
77
Ibid.
104 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

78
Berman, Law and Revolution, pp. 15, 2381, 102–3, 227, 320, 334, 359, 363.
79
William 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.
80
Moore, First European Revolution, pp. 37–9.
81
Ibid.
82
Tellenbach, Libertas, p. 195. ‘Anti-traditional energy’ is from Adorno, Aesthetic Theory. London:
Continuum, 2004, p. 29.
Legal revolutions 105

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

83
Cantor, Medieval History, p. 336; see Lethaby, Medieval Architecture, p. 69.
84
Hans Liebeschütz, Medieval Humanism in the Life and Writings of John of Salisbury. London:
Warburg Institute, 1950, p. 34.
85
Walter 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.
86
Le Goff, Medieval Civilization, pp. 173–4; Freund, Modernus, p. 106.
87
Cantor, Medieval History, p. 352.
88
Berman, Law and Revolution, p. 152 (German translation: 248).
89
Ibid., pp. 155–7; see Schilling, Die neue Zeit, pp. 352–3.
106 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

90
Helmut 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.).
91
Rüegg, Themen, Probleme, Erkenntnisse, p. 32.
92
Berman, 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.
93
Honnefelder, Ursprünge der Moderne, p. 43. The German original is: ‘Wissen-wollen um des
Glaubens willen’ and ‘Wissen-wollen um des Wissens willen’.
94
Parsons, Societies.
Legal revolutions 107

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

95
Cantor, Medieval History, p. 337.
96
Flasch, Das Philosophische Denken im Mittelalter. Stuttgart: Reclam, 2000, p. 234.
97
See 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.
98
Vgl. Rosenstock-Huessy, Die europäischen Revolutionen, p. 131.
108 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

99
Leyser, 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.
100
Leyser, Polemics of the Papal Revolution, p. 59.
101
Moore, First European Revolution, p. 197.
102
On 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).
103
Bayly, ‘“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
Legal revolutions 109

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’

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).
104
See Fried, Mittelalter, p. 137; Southern, Making of the Middle Ages, p. 142.
105
Moore, First European Revolution, pp. 145–6 et seq., pp. 151, 152–3, 157–9.
106
John 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.
107
Moore, First European Revolution, pp. 137–9.
108
The 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.
110 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

109
Moore, First European Revolution, pp. 137–9.
110
Ibid., pp. 139–41; see Kortüm, Menschen und Mentalitäten, p. 167.
111
Berman, Law and Revolution, pp. 87–8, 99 et seq.
112
Ibid., 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.
113
Joachim 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.
114
On 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.
Legal revolutions 111

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

115
For 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.
116
Bois, 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.
117
Brown, 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.
112 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

118
On 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.
119
Moore, 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.).
120
Lopez, The Commercial Revolution of the Middle Ages, p. 59.
121
Moore, First European Revolution, pp. 101–2.
122
For 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).
Legal revolutions 113

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

123
Bois, 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.
124
Berman, 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.
125
Ullmann, Law and Politics in the Middle Ages, p. 133 et seq.
126
On 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.
114 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

127
Berman, 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.
128
Ernst 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).
129
Hegel, 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)
130
Augustinus, Vom Gottesstaat (De Civitate Dei), Vol 2, Book V, Chapter 17, p. 257. 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 (2 February 2013)
Legal revolutions 115

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

131
For the thesis of the first emergence of human rights in the Papal Revolution, see Witte, Law,
Religion, and Human Rights, pp. 16–17.
132
Witte, Law, Religion, and Human Rights, pp. 17–18.
116 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

133
Maddox, Religion and the Rise of Democracy, pp. 11, 47, 58–9, 63.
134
Kathryn L. Reyerson, ‘Flight from Prosecution: The Search for religious asylum in Medieval
Montpellier’, French Historical Studies 17:3 (spring 1992), 603–26, at 604.
135
Charles 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/
abstract1015403, 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.
136
Joachim Ehlers, ‘Die hohen Schulen’, in Peter Weimar (ed.), Die Renaissance der Wissenschaften
im 12. Jahrhundert. Zurich: Artemis, pp. 57–85, at 60, 69.
137
Berman, Law and Revolution II, p. 91.
Legal revolutions 117

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

138
Brundage, Medieval Canon Law, p. 80; see, already, M. Weber, Religionssoziologie I. Tübingen:
Mohr, 1978 (1920), p. 56 et seq.; see Lopez, Commercial Revolution.
139
Le Bras, Canon Law, pp. 353–4.
140
Lopez, Commercial Revolution, p. 72, see pp. 76–7 (joint-stock companies), 77–8 (banks).
141
Robert Génestal, Rôle des monastères comme établissements de crédit, étudié en Normandie
du XIe à la fin du XIIIe siècle, Paris, A. Rousseau, 1901.
142
Lopez, Commercial Revolution, pp. 72, 79.
143
Christine de Pizan, The City of Ladies. London: Penguin, 1999, p. 95.
144
Ludger Honnefelder, ‘Die ethische Rationalität des mittelalterlichen Naturrechts’, in Wolfgang
Schluchter (ed.), Max Webers Sicht des okzidentalen Christentums. Frankfurt aM: Suhrkamp
Verlag, 1988, p. 267.
118 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

145
Bellomo, The Common Legal Past of Europe 1000–1800, pp. 84–5; see Luhmann, Legitimation
durch Verfahren, pp. 147–8.
146
Honnefelder, 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.
147
Huff, The Rise of Early Modern Science, p. 138; see Dreier, Kanonistik und Konfessionalisierung,
pp. 141–7.
Legal revolutions 119

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

148
Bellomo, The Common Legal Past of Europe 1000–1800, p. 58; Klaus Schatz, Der päpstliche
Primat. Würzburg: Echter, 1990, pp. 103, 106–7.
149
Diarmaid MacCulloch, Reformation – Europe’s House Divided 1490–1700. London: Penguin,
2004, p. 149.
150
The 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.
151
Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 19.
152
Weber, 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.
120 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

153
Huff, The Rise of Early Modern Science, pp. 136.
154
Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 32.
155
On 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.
156
Landau, 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.
157
Berman, 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.
158
Berman, Law and Revolution; Moore, First European Revolution.
Legal revolutions 121

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

159
Huff, The Rise of Early Modern Science, pp. 136–8.
160
Fried, Die Entstehung des Juristenstands im 12. Jahrhundert. Cologne: Böhlau, 1974,
pp. 156, 139.
161
Fried, 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.
162
See Hasso Hofmann, Repräsentation. Studien zur Wort- und Begriffsgeschichte von der Antike
bis ins 19. Jahrhundert. Berlin: Dunker & Humblot, 1990 (1974), pp. 126–7.
163
Tierney, Religion, Law, and the Growth of Constitutional Thought, pp. 19–20, 23.
164
Hofmann, Repräsentation, p. 130.
122 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

165
Ibid., p. 128; Berman, Law and Revolution, p. 158.
166
Tierney, Religion, Law, and the Growth of Constitutional Thought, pp. 1, 18.
167
List with minor modifications from: Huff, The Rise of Early Modern Science, p. 120. See Berman,
Law and Revolution, p. 215 et seq.
168
The 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.
169
Pierre 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.
170
Berman, Law and Revolution, pp. 218–19.
171
Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 14.
Legal revolutions 123

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

172
Ibid., 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.
173
Ibid., 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).
174
Berman, 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.
175
Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 21.
176
Berman, 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.
124 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

177
Hofmann, 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.
178
Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 23.
179
Huff, The Rise of Early Modern Science, p. 134; see Brundage, Medieval Canon Law, pp. 107–8.
180
Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 28.
181
Ibid., p. 17; see in general: Brundage, Medieval Canon Law, p. 101 et seq.
Legal revolutions 125

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.

182
Berman, 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.
183
Huff, The Rise of Early Modern Science, p. 137; Berman, Law and Revolution, pp. 217–18.
184
Ibid., p. 138.
185
Cantor, 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.
186
Mt. 10, 34 (English Standard Version of Bible, see http://biblehub.com/matthew/10-34.htm).
126 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

187
When 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.
188
The 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.
189
Berman, 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).
Legal revolutions 127

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

190
Maddox, Religion and the Rise of Democracy, pp. 11, 47, 58–9, 63.
191
There 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).
192
Schulte, Geschichte der Quellen und Literatur des Canonischen Rechts, p. 169, note 40; Berman,
Law and Revolution, p. 158.
193
Berman, Law and Revolution, pp. 289–91; Huff, The Rise of Early Modern Science, p. 122;
Brundage, Medieval Canon Law, p. 105.
194
Today, this reads: ‘Legitimacy through Legality’ (Habermas, Faktizität und Geltung. Frankfurt:
Suhrkamp, 1992, pp. 541–71).
128 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

195
Berman, Law and Revolution, p. 207; Schulte, Geschichte der Quellen und Literatur des
Canonischen Rechts, p. 94 et seq., p. 102 note 18.
196
Ibid., pp. 291–2.
197
Kantorowicz, The King’s Two Bodies, p. 95.
198
Berman, 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.
199
In contrast and for the mainstream, see Pierre Rosanvallon, Democratic Legitimacy: Impartiality,
Reflexivity, Proximity. Princeton: Princeton University Press, 2011.
Legal revolutions 129

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

200
Tierney, 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.
201
Berman, Law and Revolution, p. 136 et seq.; see Habermas, Faktizität und Geltung. Frankfurt:
Suhrkamp, 1992.
202
see 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.
203
Justinian’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.
204
See 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.
130 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

205
Ullmann, Law and Politics in the Middle Ages, pp. 137, 145–6, 150.
206
Weber, 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.
Legal revolutions 131

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

208
Hehl, 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.
209
Brundage, 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.
210
On 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.
211
Berman, Law and Revolution, p. 76.
212
Luhmann, Das Recht der Gesellschaft, p. 25 (my translation).
213
Rüegg, Geschichte der Universität in Europa, Bd. 1.
214
Martin van Creveld, Aufstieg und Untergang des Staates. Munich: Gerling, 1999, p. 156.
215
Berman, Law and Revolution, p. 161, see: p. 124 et seq.
132 CRITICAL THEORY OF LEGAL REVOLUTIONS

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,

216
Fried, ‘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.
217
Jaques 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.
218
Moore, 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.
219
See Brunkhorst, Solidarity, p. 23 et seq.
220
Berman, Law and Revolution, pp. 26–7, 158, 160–1, 174, 400, 521.
221
Luhmann, ‘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
Legal revolutions 133

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

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.
222
Koskenniemi, Gentle Civilizer of Nations, p. 177.
223
Moore, First European Revolution, p. 39 et seq, and p. 50 et seq.
224
Fried, Das Mittelalter; Landau, Bedeutung des kanonischen Rechts für die Entwicklung
einheitlicher Rechtsprinzipien; Landau, Anfänge der Unterscheidung von Ius Publicum und Ius
Privatum.
225
Émile 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.
226
If 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.
134 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

227
C. 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.
228
Strayer, On the Medieval Origins of the Modern State, p. 22; Schilling, Die neue Zeit, p. 387.
229
See Schatz, Der päpstliche Primat, p. 109.
Legal revolutions 135

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:

230
Berman, Law and Revolution, pp. 111–12.
231
See 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).
232
This 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.
233
John of Salisbury, Policraticus, IV. c. 2 (engl. The Statesman’s Book) p. 7.
234
John of Salisbury, Policraticus, IV., c. 2, pp. 6–7; Kantorowicz, The King’s Two Bodies, p. 94
et seq.
235
John of Salisbury, Policraticus, IV. c. 3, p. 9; IV. c. 2, p. 7.
136 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

236
Ibid., p. 9, my emphasis.
237
John of Salisbury, Policraticus, IV. c. 2, p. 8.
238
Quoted from: Berman, Law and Revolution II, p. 465, note 35.
239
See 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.
240
Strayer, ‘Philip the Fair – A “Constitutional” King’, AHR 62 (October 1956), pp. 18–32.
Legal revolutions 137

‘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.

241
Strayer, A ‘Constitutional’ King, pp. 21–2, 30–1.
242
Ibid., pp. 31–2.
243
Berman, ‘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.
244
Pollock and Maitland, History of English Law, p. 182.
138 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

245
G. 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).
246
See Paolo Grossi, A History of European Law. Wiley Blackwell, Chichester & Oxford, 2010.
247
Laurent Mayali, ‘Recht sprechen. Die Normdurchsetzung und das Selbstverständnis der
Kanonisten’, Rechthistorisches Journal 14 (1995), 284–308, at: 288, 303, p. 295 et seq.
Legal revolutions 139

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

248
Ullmann, Law and Politics in the Middle Ages, pp. 147–8; Bellomo, The Common Legal Past of
Europe 1000–1800, pp. 75–8.
249
Brundage, Medieval Canon Law, p. 94; see Gratian C. 15, q. 8, c. 5: ‘non statim qui accusatur
reus est, sed qui conuincitur criminosus’.
250
Hermann 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.
251
Fried, Entstehung des Juristenstands, p. 61 (my translation of: ‘Juridifizierung der Politik’), see
p. 140.
140 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

252
See 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.
253
Hierarchical 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).
254
Robert 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.
Legal revolutions 141

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

See Kortüm, Menschen und Mentalitäten, pp. 126–7, 133.


255

Marx still used it in his 18th Brumaire to denounce the pre-Bonapartist mix of presidential and
256

parliamentary democracy in the late French republic of 1848.


142 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

257
Moore, Erste europäische Revolution, pp. 174–5.
258
Ibid., pp. 175–8.
259
See 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.
260
Wesel, 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’.).
261
Tierney, Religion, Law, and the Growth of Constitutional Thought, p. 13.
Legal revolutions 143

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

262
Moore, Erste europäische Revolution, p. 38.
263
Ibid., pp. 71–3, see pp. 66–8, 74–5; on marriage: Fried, Universalismus der Freiheit, p. 167;
Hattenhauer, Europäische Rechtsgeschichte, p. 157.
264
Moore, Erste europäische Revolution, p. 92 et seq.
265
Rosenstock-Huessy, Die europäischen Revolutionen, p. 151 et seq.; Moore, Erste europäische
Revolution, p. 38 Le Goff, Medieval Civilization, p. 67.
266
Marx, 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).
144 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

267
Moore, Erste europäische Revolution, pp. 66–7 et seq., 92 et seq.
268
Lopez, 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.
269
Hugo Preuß, ‘Staat und Stadt’, in Vorträge der Gehe-Stiftung zu Dresden, Bd. 1 Leipzig und
Dresden 1909, pp. 37–74.
270
Moore, First European Revolution; Le Goff, Medieval Civilization, pp. 82–6 et seq.
271
Berman, Law and Revolution, p. 108. I have to thank Justyna Konwisarz for an indication of this
quote in a seminar paper 2011.
Legal revolutions 145

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

272
On this difference, which marks the difference of modernity and antiquity, see Strayer, Medieval
Origins.
273
Moore, Erste europäische Revolution, pp. 193–5.
274
Witte, Law and Protestantism, p. 290.
275
Ibid.
146 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

276
Weber, ‘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’).
277
Moore, First European Revolution, p. 102, see pp. 101, 104, 106.
278
Mollat, The Poor in the Middle Ages, pp. 41–2; cp. also Le Goff, Medieval Civilization, p. 255 et
seq., especially: pp. 258–61.
Legal revolutions 147

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

279
Wesel, 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’.
280
Witte, Law and Protestantism, pp. 24–5, 27; Berman, Law and Revolution II, p. 23.
281
See Witte, Law and Protestantism, 2002; Berman, Law and Revolution II, 2003.
282
Carter 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.
148 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

283
Witte, ‘An Evangelical Commonwealth’, pp. 73–4; see Witte, Law and Protestantism, 2002;
Berman, Law and Revolution II, 2003.
284
Berman, 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.
285
Peter Blickle, Die Revolution von 1525. Munich: Oldenbourg, 2004, p. 238; MacCulloch,
Reformation, pp. 298, 308.
286
Heinz 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.
287
The 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.’
Legal revolutions 149

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;

288
Talcott 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).
289
See 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.
150 CRITICAL THEORY OF LEGAL REVOLUTIONS

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
Legal revolutions 151

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
152 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

290
The 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.
291
Berman, Law and Revolution II, pp. 61, 97–8, 125, 182.
292
Ibid., 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).
293
Berman, Law and Revolution II, pp. 60–1.
294
MacCulloch, Reformation, pp. 83–4, 122–3, 416.
Legal revolutions 153

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

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).
296
Even 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.
297
See 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.
298
Kelsen, Das Problem der Souveränität; Justenhoven, Francisco de Vitoria zu Krieg und Frieden,
pp. 73, 175, 178f.
154 CRITICAL THEORY OF LEGAL REVOLUTIONS

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,

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


299
Legal revolutions 155

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

300
On 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.
301
Vitoria, 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.
302
See 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.
156 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

(2)  The immanence of transcendence


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

303
Berman, Law and Revolution II, p. 281.
304
Ibid., p. 281, see 340.
305
Berman, Law and Revolution, p. 178 (German transl. p. 296).
306
Gorski, Disciplinary Revolution, p. 21.
Legal revolutions 157

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.

307
Weber, Gesammelte Aufsätze zur Religionssoziologie I, p. 114, Engl. translation: http://www.
marxists.org/reference/archive/weber/protestant-ethic/ch04.htm (23 February 2012).
308
Ibid., pp. 110–1. Engl. translation: http://www.marxists.org/reference/archive/weber/protestant-
ethic/ch04.htm (23 February 2012).
309
Merton, The Puritan Spur to Science, p. 252.
310
Ibid., p. 252.
158 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

311
Blickle, 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).
312
Blickle, The Revolution of 1525, p. 156.
313
Short on this point: Joachim Ritter, ‘Hegel und die Reformation’, in Ritter (ed.), Metaphysik und
Politik. Frankfurt: Suhrkamp, 1977, pp. 310–17.
Legal revolutions 159

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’

314
Hegel, 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).
315
Hegel, 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).
316
Johann Wolfgang Goethe, Faust. Stuttgart: Kröner, 1949, pp. 51–2. English quotes from: http://
www.gutenberg.org/cache/epub/14460/pg14460.html (1 February 2002).
317
Goethe, 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.
160 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

318
Petri 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.
319
Noah Biggs, Mataeotechnica Medicine Praxeos. London, 1951, quoted from: Merton, The Puritan
Spur to Science, p. 239.
320
Thomas 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.
321
Quentin 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.
322
From 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
Legal revolutions 161

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

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.
323
Hegel, Geschichte der Philosophie, p. 49, my trans., in German ‘der unendlichen Entzweiung
und der greulichen Zucht’.
324
Hegel, Philosophy of History, p. 362.
325
Hegel, 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.
326
Hegel, Geschichte der Philosophie, p. 51, English translation quoted from: http://www.marxists.
org/reference/archive/hegel/works/hp/hprevival.htm.
327
Hegel, 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.
162 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

328
Hegel, Geschichte der Philosophie, p. 49, English translation quoted from: http://www.marxists.
org/reference/archive/hegel/works/hp/hprevival.htm.
329
Ibid., p. 55, English translation quoted from: http://www.marxists.org/reference/archive/hegel/
works/hp/hprevival.htm.
330
Luhmann, Die Gesellschaft der Gesellschaft, p. 292 (my transl).
331
Hegel, Geschichte der Philosophie, p. 49.
Legal revolutions 163

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

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

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

334
On 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.
335
Brunkhorst, Kommentar zum 18. Brumaire des Louis Bonaparte.
336
World 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.
337
For a very plausible distinction between four surges in globalization, see Osterhammel and
Petersson, Geschichte der Globalisierung.
Legal revolutions 165

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

338
Hegel 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).
339
Schilling, 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.
340
Thornhill, A Sociology of Constitutions, p. 89.
341
Berman, Justice in the U.S.S.R., p. 178.
342
Berman, Law and Revolution II, p. 100, pp. 102–11, p. 113.
166 CRITICAL THEORY OF LEGAL REVOLUTIONS

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’

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.
344
The Trial of Christopher Love, p. 251.
Legal revolutions 167

‘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,

345
Edward 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.
346
Berman, Law and Revolution II, p. 245.
347
Barbara 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.
348
On ‘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.
349
Gray, Reason, Authority, and Imagination, p. 46.
350
Berman, Law and Revolution II, p. 264.
351
Gray, Reason, Authority, and Imagination, p. 37.
168 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

352
Quoted from: Merton, The Puritan Spur to Science, p. 241.
353
Eisenstein, The Printing Press as an Agent of Change. Cambridge: Cambridge University Press,
1979, p. 143.
354
Merton, The Puritan Spur to Science, p. 231.
Legal revolutions 169

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

355
Ibid., 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.
356
Shapiro, Probability and Certainty in Seventeenth-Century England, p. 167.
357
Ibid., p. 168.
358
Ibid., pp. 168–9.
359
Berman, Law and Revolution II, p. 267.
360
Shapiro, Probability and Certainty in Seventeenth-Century England, p. 168.
361
On 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.
170 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

362
Merton, The Puritan Spur to Science, pp. 232, 236, 240–1 note 42, p. 251.
363
Ibid., p. 242.
364
Ibid., pp. 236, 232, pp. 234–5.
365
Ibid., p. 234.
366
Weber, Religionssoziologie I, p. 535; Merton, The Puritan Spur to Science, p. 235.
367
Berman, 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.
Legal revolutions 171

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

368
Hegel, Grundlinien, p. 27. Quoted from Hegel, Philosophy of Right, trans. by S. W. Dyde.
New York: Cosimo, 2008, p. XX (Preface).
369
Merton, The Puritan Spur to Science, p. 243.
370
Ibid., pp. 251–2.
371
Ibid., pp. 243–4.
372
See Gray, Reason, Authority, and Imagination, p. 45.
172 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

373
Berman, Law and Revolution II, p. 251.
374
Ibid., 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.
375
Berman, Law and Revolution II, pp. 239–40.
376
Ibid., p. 240.
Legal revolutions 173

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

377
Ibid., 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.
378
Thomas 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.
379
Berman, Law and Revolution II, p. 268.
174 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

380
Ibid., p. 269.
381
It 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).
382
Berman, 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).
Legal revolutions 175

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

383
Berman, Law and Revolution II, p. 218.
384
Banu 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.
385
Tilly, European Revolutions, p. 61.
386
Blickle, Von der Leibeigenschaft zu den Menschenrechten, pp. 70–1, p. 152.
387
Moore, Erste Europäische Revolution, p. 107.
388
Berman, Law and Revolution II, pp. 48–62.
389
Gorski, Disciplinary Revolution, p. 4.
390
Tilly, European Revolutions, p. 55.
176 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

391
Griffiths, The Revolutionary Character of the Revolt of the Netherlands, pp. 458–9.
392
Ibid., p. 459.
393
Tilly, European Revolutions, p. 61.
394
Griffiths, The Revolutionary Character of the Revolt of the Netherlands, pp. 468–9.
395
Tilly, European Revolutions, p. 65.
Legal revolutions 177

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,

396
Berman, Law and Revolution II, pp. 203, 205; Tilly, European Revolutions, pp. 128, 135.
397
Blickle, 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.
398
Witte, Law and Protestantism, p. 295.
399
Berman, Justice in the U.S.S.R., pp. 177–8 (the chapter on ‘The Western Legal Tradition’).
178 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

400
Berman, Justice in the U.S.S.R., p. 177.
401
Ibid.
402
On 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.
403
On the growing oppression and exploitation since 1400, see Blickle, Die Revolution von 1525,
pp. 41–89.
Legal revolutions 179

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

404
MacCulloch, 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.
405
Blickle, 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.
406
On Luther’s anti-semitism, see Micha Brumlik, Martin Luther und die Juden – eine politologische
Betrachtung (forthcoming).
180 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

407
Blickle, 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.
408
Blickle, 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).
409
Blickle, Der Bauernkrieg, pp. 45–6, see: 42–3.
410
For this method, which is also a method of critical theory, see Marcuse, One-Dimensional Man.
Boston: Beacon Press, 1964, Chapter 5.
Legal revolutions 181

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

411
Blickle, Der Bauernkrieg, p. 63; see Justenhoven, Francisco de Vitoria zu Krieg und Frieden,
p. 47.
412
See 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).
413
Blickle, Die Revolution von 1525, p. 28; Blickle, Von der Leibeigenschaft zu den Menschenrechten,
p. 75.
414
Blickle, Von der Leibeigenschaft zu den Menschenrechten, p. 91.
415
A 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.
182 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

416
Peter Linebaugh and Marcus Rediker, Die vielköpfige Hydra. Die verborgene Geschichte des
revolutionären Atlantiks. Berlin: Assoziation A 2008 (2000), p. 114.
417
MacCulloch, Reformation, p. 127.
418
Blickle, Der Bauernkrieg, pp. 64–6.
419
For 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).
Legal revolutions 183

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

420
The emancipatory effect of the exodus went far beyond the Protestant revolutions: see Michael
Walzer, Exodus und Revolution. Berlin: Rotbuch, 1988.
421
See Witte, Law and Protestantism, p. 76.
422
This 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.
184 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

423
Engels, Bauernkrieg, p. 345, quoted from the English translation: http://www.marxists.org/
archive/marx/works/1850/peasant-war-germany/ch02.htm.
424
Preuß, Martin Luther, Von weltlicher Obrigkeit, pp. 141, 145. The quote in brackets is from:
Luther, Von weltlicher Obrigkeit, p. 253 (Preuß, ibid., p. 141).
425
On the latter: Hofmann, Repräsentation, pp. 321–8.
426
Blickle, Der Bauernkrieg, p. 56.
Legal revolutions 185

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

427
Blickle, Von der Leibeigenschaft zu den Menschenrechten, p. 262; see Oxford Dictionary of
Proverbs, 5th edition.
428
Ibid., 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.
429
MacCulloch, Reformation, p. 152. Bible, New International Version, http://www.centreville-umc.
com/Holy%20Bible%20-%20Today%27s%20New%20International%20Version.pdf (7 November
2013).
186 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

430
Luhmann, Die Gesellschaft der Gesellschaft, p. 296 (my trans.)
431
See Eisenstein, Clio und Chronos, p. 37.
432
Cromwell’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.
Legal revolutions 187

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

433
Mt. 25, 40. Bible, New International Version, http://www.centreville-umc.com/Holy%20Bible%20
-%20Today%27s%20New%20International%20Version.pdf (7 October 2013).
434
Wesel, 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.
435
See Engels, Bauernkrieg, pp. 410–11.
436
Berman, Law and Revolution II, p. 298.
437
See Witte, Law and Protestantism, pp. 301–2.
438
Ibid., p. 71, pp. 132–3, pp. 188, 292; Berman, Law and Revolution II, p. 51.
188 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

(6)  A new idea of freedom


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

439
Blickle, Die Revolution von 1525, pp. 246–53; Berman, Law and Revolution II, p. 57; Blickle, Von
der Leibeigenschaft zu den Menschenrechten, pp. 76–87.
440
Witte, Law and Protestantism, pp. 302–3.
Legal revolutions 189

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.

441
The 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).
442
Witte, Law and Protestantism, p. 295.
443
Machiavelli, Il Principe, X, p. 85.
190 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

444
Hoffmann, Repräsentation, p. 331.
445
Giesecke, ‘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).
446
Sebastian Franck, Chronica, Strasbourg 1531, quoted from Giesecke, Printing in the Early Modern
Era.
447
Berman 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.
Legal revolutions 191

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

448
Berman, Law and Revolution II, p. 115.
449
This 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.
450
Otto Wilhelm Krause, Naturrechtler des 16. Jahrhunderts. Frankfurt: Lang, 1982, pp. 117–18,
p. 120.
451
Chris Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-
Sociological Perspective. Cambridge: Cambridge University Press, 2011, p. 90, note 20.
452
Berman, Law and Revolution II, p. 91.
453
Ibid., p. 96.
454
Ibid., 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.
192 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

455
Ibid., p. 300.
456
Ibid., pp. 300, 481 note 66.
457
Ibid., 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.
Legal revolutions 193

(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

458
Ibid., 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.
459
MacCulloch, Reformation, pp. 147–50, 200–1, 379–80.
460
Witte, Law and Protestantism, p. 254.
461
This 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.
462
Berman, Law and Revolution II, pp. 138–9, 143, 145, 149, 150–1, 153, 183–4.
194 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

463
Ibid., pp. 278–80; see MacPherson, Political Theory of Possessive Individualism.
464
Ibid., p. 306.
465
Ibid., p. 270, p. 277, pp. 284–5, pp. 312–13.
Legal revolutions 195

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

466
Ibid., pp. 317–19.
467
John Hales, The Grand Jury Man’s Oath and Office Explained. London, 1680, p. 13, quoted from
Berman, Law and Revolution II, p. 287.
468
Berman, Law and Revolution II, pp. 286–7, 290–4.
469
James 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).
470
Stephen, History of the Criminal Law, p. 358.
471
Berman, Law and Revolution II, pp. 288–9.
472
Stephen, History of the Criminal Law, p. 358.
473
On 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.
196 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

474
See MacPherson, Political Theory of Possessive Individualism.
475
Ibid.
476
Berman, Law and Revolution II, pp. 330–41, quote from p. 331.
477
Thomas 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.
478
Henry Sumner Maine, Ancient Law. Bristol: Thoemmes, 1996, Reprint of the 1861 edition.
479
MacPherson, Political Theory of Possessive Individualism, pp. 53–60.
480
See Thomas Hobbes, Leviathan. London: Penguin, 1985, book II, chapter 21.
Legal revolutions 197

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

481
Berman, Law and Revolution II, pp. 315–16.
482
Ibid., 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).
483
This 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
198 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

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).
484
Thornhill, A Sociology of Constitutions, pp. 143–4.
485
Luhmann, Legitimation durch Verfahren, p. 250; see already: Luhmann, Funktion und Folgen
formaler Organisation. Berlin: Duncker & Humblot, 1964 (1999), p. 25.
486
Luhmann, 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).
Legal revolutions 199

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

487
Berman, Law and Revolution II, pp. 27–8, 342–3, 348.
488
For the communitarian element, see MacCulloch, Die Reformation 1490–1700, pp. 523–4
(critique of Weber).
489
Gorski, Disciplinary Revolution, p. 76.
490
For 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.
200 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

491
See Buck-Morss, Hegel, Haiti, and Universal History (with further literature).
492
Davis, 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).
Legal revolutions 201

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

493
Bermann, Law and Revolution II, pp. 342–3, see: p. 322.
494
Ibid., 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).
202 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

(7)  Founding documents


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.

Berman, Law and Revolution II, pp. 360, 367.


496

The political theology of national electness equipped the English ruling class with an appropriate
497

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.
Legal revolutions 203

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

498
Engels, Bauernkrieg, pp. 347, 349, my translation.
499
Most of the theses were concerned with indulgence and expiation.
500
Witte, Law and Protestantism, p. 53. The quote is from: Luther’s Works, 55 vol. Philadelphia, PA,
1955–68, vol. 48, p. 192.
501
See 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.
204 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

502
MacCulloch, Reformation, p. 130.
503
Witte, Law and Protestantism, pp. 55–7. The quote is from Luther’s Works, vol. 36, p. 96.
504
Berman, Law and Revolution II, p. 47. Like Luther, Robespierre once wanted to abolish not the
law, but the jurists.
505
Thornhill, A Sociology of Constitutions, pp. 89–90.
506
Berman, Law and Revolution II, pp. 76, 81, 94, 96, 375.
Legal revolutions 205

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

507
Ibid., pp. 74–5, 184–95.
508
Besides 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.
509
Witte, 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.
510
Witte, Law and Protestantism, p. 58.
206 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

511
There 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.
512
Blickle, Der Bauernkrieg, p. 24.
513
Blickle, Die Revolution von 1525, pp. 240, 243; Blickle, Von der Leibeigenschaft zu den
Menschenrechten, p. 87.
514
Berman, Law and Revolution II, p. 184.
Legal revolutions 207

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

515
Blickle, Die Revolution von 1525, pp. 212–36.
516
Blickle, Der Bauernkrieg, p. 89 (my transl.).
517
Because 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.
518
Action of the city of Blaubeuren, 19 March 1498 (quoted from: Blickle, Der Bauernkrieg, p. 89,
see: 94).
519
Blickle, Der Bauernkrieg, p. 70.
520
Ibid., 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.)
521
See Hofmann, Repräsentation, pp. 324–8.
522
Blickle, 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.
208 CRITICAL THEORY OF LEGAL REVOLUTIONS

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).

523
Blickle, Der Bauernkrieg, pp. 98–101.
524
Blickle, 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.
525
For a recent reopening of the debate, see Loick, Kritik der Souveränität, pp. 269–312.
Legal revolutions 209

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,

526
Arthur S. P. Woodhouse, The True Levellers’ Standard Advanced (1649), quoted from: The online
Library of Liberty (http://oll.libertyfund.org/?optioncom_staticxt&staticfileshow.php%3Ftitle2
183&chapter201124&layouthtml&Itemid27).
527
This 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).
528
Here, 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.
529
Blickle, Die Revolution von 1525, p. 29.
210 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

(8)  Co-evolution of cosmopolitan


and national statehood
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

530
The quotes are from the Declaration from the Poor Oppressed People of England of 1649, see
http://www.bilderberg.org/land/poor.htm
531
Blickle, Die Revolution von 1525, pp. 228–35.
532
Ibid., p. 235.
Legal revolutions 211

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

533
MacCulloch, Die Reformation 1490–1700, p. 174.
534
Bernd 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.
535
Thornhill, A Sociology of Constitutions, p. 94.
536
See Asbach, Europa, pp. 126–9.
212 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

537
Witte, 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.
538
See 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).
Legal revolutions 213

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

539
Asbach, 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.
540
Peter 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.
541
Even 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.
542
Oestmann, Reichskammergericht und Hexenprozesse, pp. 10–14.
214 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

543
For more illuminating cases, see Diestelkamp, Reichskammergericht und Rechtsstaatsgedanke.
Die Kameraljudikatur gegen die Kabinettsjustiz. Heidelberg: Müller, 1994.
544
Witte, Law and Protestantism, pp. 133–4.
545
Ibid., p. 133.
546
Berman, Law and Revolution II, p. 124.
547
Ibid., p. 97.
Legal revolutions 215

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

548
Witte, Law and Protestantism, p. 132.
549
See Schmitt, Nomos der Erde.
550
Bright and Geyer, Benchmarks of Globalization: the Global Condition, 1850–2010, pp. 6–12.
551
Stichweh, Die Weltgesellschaft. Frankfurt aM: Suhrkamp Verlag, 2000, p. 8; see Stichweh, Der
frühmoderne Staat, pp. 113–22.
552
Rüegg, Themen, Probleme, Erkenntnisse, pp. 40–1.
553
Ibid., pp. 31–2.
216 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

554
López de Gómara quoted and translation from: Rüegg, Themen, Probleme, Erkenntnisse, p. 28.
555
Rüegg, Themen, Probleme, Erkenntnisse, p. 31.
556
Ibid.
557
Osterhammel, 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.
558
On the ‘age of globalization’, see Bright and Geyer, Benchmarks of Globalization, pp. 6–7.
559
Bayly, ‘Archaische’ und ‘moderne’ Globalisierung; Bright and Geyer, Benchmarks of
Globalization.
560
See Bayly, ‘Archaische’ und ‘moderne’ Globalisierung.
561
But 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.
Legal revolutions 217

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:

Table 3  Emerging world society (from western perspective)


I G

Law: Global ius gentium (imperial Politics: World wars (emerging


prerogative law) semantics of European world rule)

L A

Culture: World language (English) Economy: World trade (Atlantic slave


plantations/ global slave trade)

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,

562
Tommaso 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).
218 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

563
Only 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).
564
Osterhammel, Kolonialismus, pp. 64–6.
565
Anghie, 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.
Legal revolutions 219

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

566
Ibid., pp. 26–31.
567
See, 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-%20
Edinburgh%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.
568
See 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.
569
Osterhammel, Kolonialismus, pp. 101–2, 106–7.
220 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

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

570
Ibid., pp. 103–5.
571
On the latter see Olivier Roy, L’Islam mondialisé, Le Seuil 2001.
572
Osterhammel, Kolonialismus, pp. 110–11.
573
See Bayly, Birth of the Modern World.
574
Osterhammel, 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.
575
Given 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.
Legal revolutions 221

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

576
Stolleis, Geschichte des öffentlichen Rechts in Deutschland I, pp. 66–7, 69, 71, 74.
577
Thornhill, A Sociology of Constitutions, pp. 93, 101, 107–9.
578
MacCulloch, Die Reformation 1490–1700, pp. 58–60.
579
Thornhill, A Sociology of Constitutions, p. 103.
580
Ibid.; see Blickle, Von der Leibeigenschaft zu den Menschenrechten, pp. 191, 194.
581
Thornhill, A Sociology of Constitutions, p. 104.
582
See, 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).
222 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

583
See Thornhill, A Sociology of Constitutions, pp. 88, 95, 109–10.
584
Ibid., p. 158.
585
Helmut Willke, Ironie des Staates. Frankfurt: Suhrkamp, 1992, pp. 72–3.
586
Thornhill, A Sociology of Constitutions, p. 160.
587
Ibid., pp. 141–3.
588
Ibid., pp. 109, 160–1.
Legal revolutions 223

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

589
Stolleis, Geschichte des öffentlichen Rechts in Deutschland I, pp. 142, 145–6, 153, 212–22.
590
Ibid., 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.
591
Luhmann, Grundrechte als Institution. Berlin: Duncker&Humblot, 1986 (1965), pp. 8, 202–3, 294.
In German: Vernunft des Vergleichs.
592
Zaret, Petitions and the “Invention” of Public Opinion in the English Revolution, p. 1530.
593
Habermas, The Structural Transformation of the Public Sphere, trans. Thomas Burger. Cambridge:
MIT Press, 1989.
594
Zaret, Petitions and the “Invention” of Public Opinion in the English Revolution, pp. 1526–30,
pp. 1538–53.
595
Berman, Law and Revolution II, p. 352.
224 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

Stolleis, Geschichte des öffentlichen Rechts in Deutschland I, pp. 131–2 (my translation).
596

Horkheimer and Adorno, Dialectic of Enlightenment. New York: Herder and Herder, 1972, p. 37.
597
Legal revolutions 225

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

598
See Merton, The Puritan Spur to Science, p. 252.
599
Augustine, De Ordine II, pp. 5, 16.
600
Asch and Durchhardt, Der Absolutismus – Ein Mythos?; see Thornhill, A Sociology of Constitutions,
pp. 92–102.
601
Thornhill, 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.
226 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

602
See 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.
603
Berman, Law and Revolution II, p. 65.
604
Ibid., 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.
605
See Taylor, A Secular Age; Berman, Law and Revolution II, p. 203. On the affinities with
democracy, see Tilly, European Revolutions, p. 61.
606
Sir 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.
Legal revolutions 227

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

607
Thornhill, A Sociology of Constitutions, p. 145.
608
Samuel 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.
609
Thornhill, 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).
610
See Hoffmann, Repräsentation, pp. 324–8, 338–45.
611
Mansfield, ‘Modern and Medieval Representation’, in J. Roland Pennock and John W. Chapman
(eds), Representation. New York: Atheron Press, 1968, p. 79.
612
Mansfield, Modern and Medieval Representation, p. 72.
228 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

613
Thornhill, A Sociology of Constitutions, p. 140.
614
This 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).
615
Thornhill, A Sociology of Constitutions, p. 141.
616
Mansfield, Modern and Medieval Representation, p. 80.
Legal revolutions 229

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

617
Berman, Law and Revolution II, p. 261.
618
See Martin Seliger, ‘John Locke’, in Iring Fetscher and Herfried Münkler (eds), Pipers Handbuch
der politischen Ideen. Munich: Piper, 1985, pp. 388–9.
619
Thornhill, 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. . . .’
620
Thornhill, A Sociology of Constitutions, p. 143.
230 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

(10)  Dialectic of enlightenment


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

621
Ibid., pp. 143–4.
622
Ibid., 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).
623
Süßmann, Die Wurzeln des Wohlfahrtsstaats, p. 38; Berman, Law and Revolution II, 192,
pp. 364–5.
Legal revolutions 231

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’.

624
Weber, Gesammelte Aufsätze zur Religionssoziologie I, p. 119.
625
Süßmann, Die Wurzeln des Wohlfahrtsstaats, p. 38, note 46.
626
See Nathaniel Hawthorne, The Scarlet Letter. New York: Bantam, 2003; The White Ribbon,
Austria, 2009, director: Michael Haneke.
627
Gorski, Disciplinary Revolution, p. 20.
628
Weber, Gesammelte Aufsätze zur Religionssoziologie I, p. 96. Engl. translation: http://www.
marxists.org/reference/archive/weber/protestant-ethic/ch04.htm (23 February 2012).
232 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

629
Gorski, Disciplinary Revolution, p. 21.
630
Ibid., p. 67; see Berman, Law and Revolution II, pp. 356–7.
631
Ibid., p. 53, see: 51–4.
632
Ibid., p. 36.
633
See Berman, Law and Revolution II, pp. 357–61.
634
Sidney and Beatrice Webb, quoted from: Berman, Law and Revolution II, p. 362.
635
Lutheran 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).
636
Gorski, Disciplinary Revolution, pp. 57–8.
Legal revolutions 233

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

637
Emancipated 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).
638
Kant, Perpetual Peace. A Philosophical Sketch (First Definitive Article), quoted from https://www.
mtholyoke.edu/acad/intrel/kant/kant1.htm (13 May 2013).
639
Marx, Kritik des Hegelschen Staatsrechts, p. 260, English quoted from: Marx, Critique of Hegel’s
Philosophy of Right, p. 57.
640
Osterhammel, Die Verwandlung der Welt, p. 740.
641
Bayly, Birth of the Modern World, p. 104.
234 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

Ibid., pp. 101–6; Thornhill, A Sociology of Constitutions, p. 182 et seq.


642

See, with revisions of older Marxist assumptions: Buck-Morss, Hegel, Haiti, and Universal
643

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.
Legal revolutions 235

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

644
Johann Gottlieb Fichte, Grundriss des Völker- und Weltbürgerrechts, in Fichtes Werke III. Berlin:
de Gruyter, 1971, § 22, p. 384 (my translation).
645
Linebaugh and Rediker, Die vielköpfige Hydra; Osterhammel, Die Verwandlung der Welt, pp. 105,
747–77; see Buck-Morss, Hegel, Haiti, and Universal History.
646
Haiti 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.
236 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

647
Osterhammel, 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).
648
Ibid., 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.
Legal revolutions 237

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

649
Bayly, 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.
650
Marx, 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).
651
Tom Lehrer, ‘Send the Marines’, in Lehrer, ‘That was the year that was’, CD available at
Amazon.com.
652
Eric 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.
653
Bayly, 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.
238 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

654
Bayly, Birth of the Modern World, pp. 88–99.
655
Ibid., p. 88 et seq.
656
Michel Vovelle, Die Französische Revolution. Frankfurt: Fischer, 1987, p. 130.
Legal revolutions 239

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

657
Walzer, 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).
658
Jean-Jacques Rousseau, The Government of Poland, trans. Willmoore Kendall. New York: Bobbs-
Merrill, 1972, p. 6.
659
See Rawls, John, A Theory of Justice, 1971. Cambridge, MA.: The Belknap Press of Harvard
University Press, 1975; Rawls, Political Liberalism. New York: Columbia, 1993.
240 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

660
Osterhammel, Die Verwandlung der Welt, p. 817.
661
Because 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).
662
Emmanuel 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.
Legal revolutions 241

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

663
Sieyès, Third Estate, p. 156.
664
Gentz, 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.
665
Nearly 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).
242 CRITICAL THEORY OF LEGAL REVOLUTIONS

(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

666
See Müller, Wer ist das Volk.
667
Gentz an Metternich, 15.2.1814, p. 250.
668
Hegel, 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.
669
Sellin, Die geraubte Revolution, p. 124.
670
Ibid., pp. 133–4, 148.
Legal revolutions 243

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

(2)  The immanence of transcendence


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.

671
Ibid., pp. 136, 139, 144.
672
Ibid., 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.
673
Hegel, Philosophy of Right: http://socserv.mcmaster.ca/econ/ugcm/3ll3/hegel/right.pdf (20 March
2012), § 274, p. 222; § 258, p. 195.
244 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

674
Kant 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).
675
Yirimiyahu Yovel, Spinoza. Das Abenteuer der Immanenz. Göttingen: Steidl, 1996.
676
Taylor, A Secular Age. Harvard University Press, 2007, p. 3.
677
Reinhard, 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.
678
Reinhard, Geschichte der Staatsgewalt, p. 93.
679
See Brandom, Making It Explicit.
Legal revolutions 245

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),

680
Kesselring, Die Produktivität der Antinomie; on the central role of negation in Hegel’s Logic, see
Marcuse, Reason and Revolution; Theunissen, Sein und Schein.
681
See Luhmann, Die Gesellschaft der Gesellschaft.
682
The 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.
683
Habermas, The Philosophical Discourse of Modernity. Twelve Lectures. Cambridge, MA: MIT-
Press, p. 7. German original: Habermas, Der philosophische Diskurs der Moderne, p. 16.
684
Wolfgang Schmale, Entchristlichung, Revolution und Verfassung. Zur Mentalitätsgeschichte der
Verfassung in Frankreich, 1715–94. Berlin: Duncker & Humblot 1988.
685
Quoted in Schmale, Entchristlichung, Revolution und Verfassung, p. 13 (my translation).
246 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

686
Quoted in Schmale, Entchristlichung, Revolution und Verfassung (my translation).
687
Ibid., p. 14 (my translation)
688
On 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.
689
See Michel Foucault, Discipline and Punish. The Birth of the Prison. New York: Vintage, 1995.
690
Wood, The American Revolution, p. 124.
Legal revolutions 247

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

691
Ibid.; see Ulrike Brunotte, Puritanismus und Pioniergeist. Berlin: de Gruyter, 2000, p. 76 et seq.
692
Berman, The Impact of the Enlightenment, pp. 314, 324, 329.
693
Wood, The American Revolution, p. 128.
694
Hegel, Systemprogramm, English: http://control-society.livejournal.com/10718.html (30 April
2012).
695
Wood, The American Revolution, pp. 128–30.
696
Ibid., p. 131.
697
Berman, The Impact of the Enlightenment, pp. 316, 327.
698
Hegel, Systemprogramm, English: http://control-society.livejournal.com/10718.html (30 April
2012) (see below p. 256).
248 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

699
See 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.
700
Wood, The American Revolution, p. 127.
701
See Richard Rorty, ‘Heidegger wider die Pragmatisten’, neue hefte für philosophie 23 (1984),
pp. 1–22.
702
Wood, The American Revolution, p. 121.
703
Ibid., p. 129.
Legal revolutions 249

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

704
Buck-Morss, Hegel, Haiti, and Universal History, p. 148.
705
See the film: Made in Dagenham, Nigel Cole, GB 2010.
706
Wood, The American Revolution, p. 118.
707
Eder, Geschichte als Lernprozeß, p. 129 (my transl.)
708
Wood, The American Revolution, p. 121.
709
Hegel, Grundlinien der Philosophie des Rechts, §§ 158–81, pp. 309–39.
710
Ibid., § 159, p. 308.
711
Ibid., §§ 1, 4, 29. pp. 29–30, 46, 80.
250 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

712
Hegel, Logik II, p. 252.
713
Hegel, 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.
714
See Habermas, Der philosophische Diskurs der Moderne. Frankfurt: Suhrkamp, 1985,
pp. 13–27.
715
Hegel, Philosophy of Right. New York: Cosimo, 2008, p. xx.
716
Marx, ‘The Leading Article in No. 179 of the Kölnische Zeitung’, in Raines, John (ed.), Marx on
Religion. Philadelphia: Temple University Press, 2002, p. 50.
Legal revolutions 251

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

717
Osterhammel, Die Verwandlung der Welt, pp. 772–3 (my translation).
718
Ibid., p. 773 (my translation).
719
Gordon 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.
720
Osterhammel, Die Verwandlung der Welt, p. 773.
721
Ibid., p. 194.
722
See Reinhard Koselleck, Kritik und Krise. Frankfurt: Suhrkamp, 1973, pp. 51–2; see Bayly, Birth
of the Modern World.
723
See Thornhill, A Sociology of Constitutions, p. 206.
252 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

724
Sellin, ‘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.
725
Sellin, Die geraubte Revolution.
726
Diehl, 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.
727
Tilly, European Revolutions, p. 167 et seq; see Koselleck, Kritik und Krise, pp. 50–2.
728
Ibid., pp. 167–8.
Legal revolutions 253

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

729
Brief outline: Bayly, Birth of the Modern World, pp. 71–6.
730
See Habermas, The Structural Transformation of the Public Sphere (new Introduction with further
literature).
731
Jack 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.
254 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

732
Eisenstein, 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.
733
Farge, Lauffeuer durch Paris, p. 45.
734
Ibid., pp. 40–1, 47, 50–5.
735
Friedrich 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.
736
Kant, Zum ewigen Frieden, p. 206, English quoted from: http://www.mtholyoke.edu/acad/intrel/
kant/kant1.htm (5 May 2012).
Legal revolutions 255

(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:

737
Kant, 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).
738
Hegel, ‘[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.
256 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

739
Hegel, Systemprogramm, p. 236, English: Philosophy of German Idealism (http://control-society.
livejournal.com/10718.html, 30 April 2012).
740
The 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.
741
Rolf 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.
742
François Furet and Denis Richet, French Revolution, trans. Stephen Hardman. New York:
Macmillan, 1970, pp. 40–1, 58.
Legal revolutions 257

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

743
Koselleck, Kritik und Krise, p. 70.
744
Kant, Metaphysik der Sitten, Rechtslehre II. Teil, § 53, p. 466.
745
Eder, Geschichte als Lernprozeß? Zur Pathogenese politischer Modernität in Deutschland.
Frankfurt: Suhrkamp, 1985, pp. 155–60.
746
Kosellek, 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.
258 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

(5)  Struggle for human rights


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

747
Koselleck, Kritik und Krise, pp. 57–63.
748
Eder, Geschichte als Lernprozeß, pp. 156, 159.
749
The Constitutions of Freemasons 1723, re-printed 1734 (see University of Nebraska – Digital
Commons, http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article1028&contextlibraryscien
ce 26 October 2013), quoted from Koselleck, Kritik und Krise, pp. 57, 183 (note 49), see pp. 65, 78.
750
Rasmussen, American Uprising, p. 39.
751
Marx, Das Kapital I, p. 787.
752
Bayly, 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.
Legal revolutions 259

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

753
Rasmussen, 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.
754
Bayly, The Birth of the Modern World, 1780–1914, p. 234.
755
Buck-Morss, Hegel, Haiti, and Universal History.
756
Marx, Das Kapital I, pp. 787–8, English translation: http://www.marxists.org/archive/marx/
works/1867-c1/ch31.htm (23 April 2012)
260 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

757
Rasmussen, American Uprising, pp. 42–3; see Buck-Morss, Hegel, Haiti, and Universal History.
758
Buck-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).
759
Buck-Morss, Hegel, Haiti, and Universal History.
760
Kant, Toward Perpetual Peace.
Legal revolutions 261

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

761
Rasmussen, American Uprising, p. 48.
762
http://www.marxists.org/history/haiti/1801/constitution.htm (24 April 2012).
763
Rasmussen, American Uprising, p. 45.
764
Ibid.; see Buck-Morss, Hegel, Haiti, and Universal History.
765
http://en.wikisource.org/wiki/Constitution_of_Hayti_%281805%29#Preliminary_Declaration
(24 April 2012).
766
Rasmussen, American Uprising, p. 46.
262 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

767
http://en.wikipedia.org/wiki/Slavery_Abolition_Act_1833 (24 April 2012).
768
Rasmussen, American Uprising, pp. 90, 102.
769
Ibid., p. 215.
770
Ibid., p. 216.
Legal revolutions 263

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

(6)  A new idea of freedom


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

771
Rawls, John, Political Liberalism, New York: Columbia, 1993, p. XXIX.
772
Arendt, Origins of Totalitarianism, p. 291.
773
See Thornhill, Fascism and European State Building.
774
See Berman, ‘The Impact of the Enlightenment on American Constitutional Law’, Yale Journal of
Law & the Humanities 4:2 (Spring 1992), S. 311–34.
775
Thornhill, A Sociology of Constitutions, pp. 185–7, 191.
264 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

776
Rights 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.
777
Kant, Metaphysik der Sitten, Rechtslehre, Einteilung B., p. 345, English translation: http://www.
marxists.org/reference/subject/ethics/kant/morals/ch04.htm. (23 April 2012).
778
Kant, Metaphysik der Sitten, Rechtslehre, Rechtslehre § 46, p. 432, English translation: http://
www.marxists.org/reference/subject/ethics/kant/morals/ch04.htm. (23 April 2012).
Legal revolutions 265

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

779
Heller, Hermann (1928), ‘Souveränität’, in Heller (ed.), Gesammelte Schriften 2. Leiden: Sijthoff,
1971, pp. 39–40 (quote translated by Poul Kjaer).
780
Kelsen, 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).
781
Jesch, Gesetz und Verwaltung, p. 140, note 184.
782
Rousseau, Gesellschaftsvertrag. Stuttgart: Reclam, II, 3; IV, 8, note 5.
783
Lutz Wingert, ‘Unpathetisches Ideal’, in Brunkhorst (ed.), Demokratischer Experimentalismus.
Politik in der komplexen Gesellschaft. Frankfurt: Suhrkamp, 1998, pp. 35–6.
784
Müller, 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’.
266 CRITICAL THEORY OF LEGAL REVOLUTIONS

(7)  Founding documents


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

785
Eugen 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).
786
Vgl. Hasso Hofmann, ‘Zur Herkunft der Menschenrechtserklärungen’, Juristisches Studium
11 (1988), 840–48, esp. 846ff.
787
The Declaration of Independence and The Constitution of the United States. New York: Bantam,
1998, p. 53.
Legal revolutions 267

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
268 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

788
http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/constitution/declaration-of-
human-and-civic-rights-of-26-august-1789.105305.html, (accessed 16 September 2013).
789
See Habermas, Faktizität und Geltung, p. 151 et seq.
Legal revolutions 269

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

790
On the normatively necessary presupposition of the identity of ruled and rulers for an appropriate
understanding of democratic legitimation, see Brunkhorst, Solidarity, pp. 71–7.
791
See Böckenförde, Die verfassungsgebende Gewalt des Volkes – Ein Grenzbegriff des
Verfassungsrechts. Frankfurt: Metner, 1986.
792
Kant, Opus postumum, quoted from: Maus, Zur Aufklärung der Demokratietheorie, p. 81 (my
translation).
793
Maus, Aufklärung der Demokratietheorie.
794
Habermas, 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.
795
The Declaration of Independence and The Constitution, p. 53.
270 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

796
A good example for Verfassungswandlung in contrast to Verfassungsänderung. See Georg
Jellinek, Verfassungsänderung und Verfassungswandlung. Eine staatsrechtlich-politische
Abhandlung, Berlin: O. Haring, 1906.
797
Parker, ‘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.
Legal revolutions 271

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

798
John C. Calhoun, Oregon Bill Speech (1848), quoted from: http://teachingamericanhistory.org/
library/index.asp?documentprint944 (27 April 2012).
799
Abraham Lincoln, Speech on the Dred Scott Decision (26 June 1957), quoted from: http://www.
freemaninstitute.com/lincoln.htm (27 April 2012).
800
Abraham Lincoln, Speeches and Writings, Library of America 1989, Vol. 1, 398, quoted from
Wills, Lincoln at Gettysburg, p. 105, at 103.
801
This 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.
802
Wills, Lincoln at Gettysburg, pp. 132, 145–6.
272 CRITICAL THEORY OF LEGAL REVOLUTIONS

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’

803
Ibid., p. 108 et seq. On ‘unconventional’ constitutional change, see Bruce Ackerman, We the
People, Vol. 2: Transformations. Cambridge, MA: Harvard University Press, 1998.
804
Wills, Lincoln at Gettysburg, p. 146f.
Legal revolutions 273

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

805
See Hofmann, Zur Herkunft der Menschenrechtserklärungen.
806
English 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.
807
Marx, Die Bourgeoisie und die Kontrerevolution, MEW 6, p. 109 (my translation).
274 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

808
Anghie, Imperialism, Sovereignty and the Making of International Law, p. 32.
809
Fried, Die Entstehung des Juristenstands, pp. 139, 156.
810
Carl 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.
811
Isabelle 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.
812
Parsons, Evolutionary Universals in Society.
Legal revolutions 275

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

813
http://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.
814
Pennsylvania 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?id2066); 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.
815
Federalist Papers, quoted from: http://avalon.law.yale.edu/subject_menus/fed.asp (28 April
2012)
816
Declaration of Independence and The Constitution, p. 53.
276 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

817
See David Armitage (ed.), The Declaration of Independence. Cambridge, MA: Harvard University
Press, 2007.
818
Vattel, 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).
819
Vattel, 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).
820
Vattel, Le Droit des Gens, Introduction, §§ 16, 18, L. I, Kapitel I, § 4; see Armitage, Declaration
of Independence, p. 38 et seq.
821
Vattel, Le Droit des Gens, Preliminaries, § 5.
822
Vattel, Le Droit des Gens, Introduction, §§ 10, 13, 14, L. I, §§ 15, 21–3.
Legal revolutions 277

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

823
Armitage, Declaration of Independence, p. 187.
824
Ibid., pp. 193–8.
825
Ibid.
826
Ibid.
278 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.”

Vattel, Le Droit des Gens, Book I § 37.


827

See Jörg Fisch, Das Selbstbestimmungsrecht der Völker. Munich: Beck, 2010.
828
Legal revolutions 279

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

829
Armitage, Declaration of Independence, pp. 231, 235.
830
Vitoria, 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).
831
Kant, Toward Perpetual Peace, p. 328. English quoted from: http://www.mtholyoke.edu/acad/
intrel/kant/kant1.htm (5 May 2012), translation modified slightly.
832
Mark W. Janis, ‘Jeremy Bentham and the Fashioning of “International Law”’, The American
Journal of International Law 78 (1984), 405–18, at 407.
833
Kant, Zum ewigen Frieden, pp. 214–15, English quoted from: http://www.mtholyoke.edu/acad/
intrel/kant/kant1.htm (5 May 2012).
280 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

834
Ibid., p. 214, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm (5 May
2012).
835
Ibid., 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.
836
See Vitoria, Vorlesungen II, pp. 390–1, 402–3, 460–7; Fichte, Grundriss des Völker- und
Weltbürgerrechts, § 22, p. 384.
837
See 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.
838
Rousseau, ‘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.
Legal revolutions 281

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

839
Rousseau, 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.
840
Hegel, Ältestes Systemprogramm: http://control-society.livejournal.com/10718.html (30 April
2012).
841
Büchner, Danton’s Death. Oxford: Oxford University Press, 1998, p. 7 (translation modified).
842
Thornhill, A Sociology of Constitutions.
282 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

843
Marx, Outline of the Critique of Political Economy (Grundrisse) http://www.marxists.org/archive/
marx/works/1857/grundrisse/ch01.htm (06 May 2013).
844
Kant, Zum ewigen Frieden, pp. 212–13, English quoted from: http://www.mtholyoke.edu/acad/
intrel/kant/kant1.htm (05 May 2012).
845
With reference to the national state: Stichweh, Die Weltgesellschaft, p. 52.
846
Ibid., pp. 206–8, 225, English quoted from: http://www.mtholyoke.edu/acad/intrel/kant/kant1.
htm (5 May 2012).
847
Ibid., pp. 203, 212–13.
848
Ibid., 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.
Legal revolutions 283

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

849
Ibid., 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.
850
Hofmann, ‘Die Grundrechte 1789-1949-1989’, in Verfassungsrechtliche Perspektiven. Tübingen:
Mohr, 1945, p. 35.W
851
Lehrer, Send the Marines.
852
Jeremy 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 ‘nationstate-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.
853
Berman, ‘World Law’, Fordham International Law Journal 18 (1995), pp. 1617–22.
284 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

854
See Janis, Jeremy Bentham and the Fashioning of ‘International Law’, pp. 406–7.
855
This 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).
856
Bentham, 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).
857
Ibid. 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).
858
Heinrich Triepel, Völkerrecht und Landesrecht. Leipzig: Hirschfeld, 1899, p. 111.
859
Anghie, Imperialism, Sovereignty and the Making of International Law, pp. 38–52.
860
Janis, Jeremy Bentham and the Fashioning of ‘International Law’, p. 415.
Legal revolutions 285

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

861
On 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.
862
Declaration of Independence and The Constitution, pp. 54, 56–7 (my emphasis).
863
Henry 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.
864
Anghie, Imperialism, Sovereignty and the Making of International Law, p. 54.
865
Ibid., pp. 57–60.
286 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

866
Arendt 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.
867
Arendt, The Origins of Totalitarianism. San Diego, New York, London: Harcourt Brace and
Company, 1979, p. 192.
868
Dred 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.
869
On 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?
870
Fraenkel, Der Doppelstaat.
Legal revolutions 287

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

871
Arendt, The Life of the Mind (Two/Willing). Boston: Mariner Books, 1981, pp. 195–216.
288 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

872
Marx, 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).
873
See Claus Offe, Berufsbildungsreform. Eine Fallstudie über Reformpolitik, Frankfurt: Suhrkamp,
1975, p. 13 (‘Interesse des Staates an sich selbst’).
874
Thornhill, A Sociology of Constitutions, pp. 181–242.
875
Ibid., pp. 186, 189, 195–6, 199–200, 210.
876
Ibid., p. 181.
877
Ibid., p. 207.
878
Ibid., p. 240.
879
See Bayly, Birth of the Modern World.
880
Thornhill, A Sociology of Constitutions, p. 208.
881
Ibid., p. 209.
Legal revolutions 289

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,

882
Luhmann, Grundrechte als Institution; see Luhmann, Verfassung als evolutionäre
Errungenschaft.
883
Marcuse, ‘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.
884
Ernst Forsthoff, Der Staat der Industriegesellschaft – dargestellt am Beispiel der Bundesrepublik
Deutschland. Munich: Beck, 1971, pp. 46–7, 105 (my transl.).
885
Bayly, 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.
886
Osterhammel and Petersson, Geschichte der Globalisierung, p. 61.
290 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

887
Osterhammel, Die Verwandlung der Welt, p. 583.
888
Ibid., pp. 570, 818–22.
889
Osterhammel and Petersson, Geschichte der Globalisierung, p. 69.
890
Ibid., p. 109 (my transl.).
891
Kant, Streit der Fakultäten, pp. 284–300.
892
Bayly, Birth of the Modern World, pp. 74–6 et seq.
893
Eisenstadt, ‘Multiple Modernities’, Daedalus 129 (2000), pp. 1–29.
Legal revolutions 291

Table 4  World society in the middle of the nineteenth century


I G

International law World politics

L A

World culture World economy

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

894
Randeira, 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.
895
Osterhammel, Kolonialismus, pp. 100–11.
896
Ibid., pp. 19–20, 112–18.
897
Bright and Geyer, Benchmarks of Globalization: the Global Condition, 1850–2010.
898
See Bayly, Birth of the Modern World, pp. 80–93.
899
Jan 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.
292 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

900
Marx and Engels, Communist Manifesto, http://www.marxists.org/archive/marx/works/1848/
communist-manifesto/ch01.htm#007 (10 April 2012).
901
Ibid.; see Hobsbawm, The Age of Revolution.
902
In 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.
903
Marx, 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.
904
On 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.
Legal revolutions 293

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.

905
Priscilla 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.
906
See 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.
907
See briefly: Bayly, Birth of the Modern World; and above Chapter III Section II parts 4, 6, 8;
Section III parts 3, 6).
294 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

(9)  Constitutionalization
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

908
On (1)–(4) see above Ch. III, Sec. III 1.
909
Rancière, 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).
910
See Ackerman, We the People.
911
Habermas, Theorie des kommunikativen Handelns II, p. 228; Nassehi, Der soziologische Diskurs
der Moderne, pp. 126–7.
Legal revolutions 295

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.

912
See Luhmann, Grundrechte als Institution; see Luhmann, Verfassung als evolutionäre
Errungenschaft.
913
Tuori, 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.
296 CRITICAL THEORY OF LEGAL REVOLUTIONS

(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

914
Udo 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.
915
Thornhill, A Sociology of Constitutions, p. 221; Bellomo, The Common Legal Past of Europe
1000–1800, pp. 7–11.
916
Ibid., pp. 226–7.
917
Marx, 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).
Legal revolutions 297

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

918
Sellin, Die geraubte Revolution, p, 275 et seq.; see Jesch, Gesetz und Verwaltung, pp. 79–80.
919
Sellin, ‘Heute ist die Revolution monarchisch’, p. 349.
920
Honoré 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).
921
See 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).
298 CRITICAL THEORY OF LEGAL REVOLUTIONS

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,

922
Maus, ‘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.
923
Marx, Die Heilige Familie, in Frühschriften. Stuttgart: Kröner, 1953, p. 322, quoted from:
Hoffmann, Repräsentation, pp. 442f, 457 (my translation).
924
Streek, ‘The Crisis of Democratic Capitalism’, New Left Review 71 (September–October 2011),
quoted from: http://www.newleftreview.org/?view2914 (13 May 2012), pp. 1–14, p. 3.
925
Thornhill, A Sociology of Constitutions, p. 271.
Legal revolutions 299

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

926
Fletcher 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.
927
Fletcher v. Peck: Marshall, Opinion.
928
Heller, 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).
300 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

929
Ackerman, Failure of the Founding Fathers. Cambridge, MA: Harvard University Press, 2005,
p. 299; see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
930
On comprehensive decision (‘Gesamtentscheidung’), see Schmitt, Verfassungslehre. Berlin:
Duncker & Humblot, 1989, pp. 20–36.
931
Ackerman, Failure of the Founding Fathers, p. 299.
932
See Tuori, The Many Constitutions of Europe, pp. 9–10, 17–21.
933
China 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).
Legal revolutions 301

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,

934
For 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.
935
My 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).
936
Balzac, Oberst Chabert, pp. 58–9, English translation quoted from: http://www.gutenberg.org/
files/1954/1954-h/1954-h.htm (16 May 2012).
937
Throughout 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.
302 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

938
Ibid., pp. 54, 108–9, English translation quoted from: http://www.gutenberg.org/files/1954/1954-
h/1954-h.htm (16 May 2012).
939
Only 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).
940
Thornhill, A Sociology of Constitutions, p. 233.
Legal revolutions 303

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

941
Marx, Bourgeoisie und Konterrevolution, pp. 107–8. English translation cited from: http://www.
marxists.org/archive/marx/works/1848/12/15.htm (16 September 2013).
942
Hegel, Philosophy of Right, §§ 243, 245, http://socserv.mcmaster.ca/econ/ugcm/3ll3/hegel/right.
pdf (20 March 2012).
943
Hegel, Philosophy of Right, § 248, http://socserv.mcmaster.ca/econ/ugcm/3ll3/hegel/right.pdf
(20 March 2012).
304 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

944
See 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.
945
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
946
Federalist 78, my emphasis, quoted from: Federalist Papers, http://avalon.law.yale.edu/subject_
menus/fed.asp (28 April 2012).
947
Ackerman, Failure of the Founding Fathers, p. 12.
Legal revolutions 305

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

948
Ibid., 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.
949
Luhmann, Verfassung als evolutionäre Errungenschaft; Tuori, The Many Constitutions of Europe,
pp. 9–10, 21–4.
950
Tuori, The Many Constitutions of Europe, p. 21.
951
For 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.
306 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

952
See Osterhammel, Die Verwandlung der Welt, pp. 63–76, 726, 820–1, in particular, see: 848–65;
see Bayly, Birth of the Modern World.
953
Marx, 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.
954
See Marx, 18. Brumaire, p. 110.
955
Möllers, Gewaltengliederung, Habilitationsschrift, Heidelberg., 2003, p. 64 (first paraphrase in
italics); Marx, 18. Brumaire, p. 110 (second paraphase in italics).
956
Schönberger, Das Parlament im Anstaltsstaat. Frankfurt: Klostermann, 1997; see Jesch, Gesetz
und Verwaltung, pp. 111–12, 123; Eder, Geschichte als Lernprozeß.
957
Bayly, Birth of the Modern World (see also previous part 7).
Legal revolutions 307

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

958
Marx, 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.
959
Thornhill, 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).
960
See Jesch, Gesetz und Verwaltung, pp. 93–9, 101.
961
Ibid., p. 100.
962
Thornhill, A Sociology of Constitutions, p. 238.
308 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

963
Ibid., p. 239.
964
Ibid., p. 258.
965
Ibid., p. 238.
966
Hegel, ‘Über die englische Reformbill’, in Hegel (ed.), Werke 11. Frankfurt: Suhrkamp, 1970,
pp. 83–128.
967
Thornhill, A Sociology of Constitutions, p. 273.
968
Heinrich 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.
Legal revolutions 309

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

969
In 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).
970
A 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).
971
Ackerman, Failure of the Founding Fathers, pp. 11–13.
972
For other examples, in particular, beyond the state, see Wiener, The Invisible Constitution of
Politics, pp. 197–212.
973
Hegel, 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.
310 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

974
Hegel, 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.
975
Ackerman, Failure of the Founding Fathers, p. 113.
Legal revolutions 311

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.

976
Conrad, 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.
977
See 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.
978
Ibid., p. 24.
979
Therefore, 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.
980
See 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.
312 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

981
Defense of Gracchus Babeuf before the High Court of Vendôme, trans. and ed. by J. A. Scott
with an essay by H. Marcuse, 1967.
982
Marx, 18. Brumaire, p. 105, engl.: The Eighteenth Brumaire of Louis Bonaparte. New York:
Mondial, 2005, p. 7.
983
Tocqueville, Recollections; Hugo, Memoirs.
984
Marx, 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.
Legal revolutions 313

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

985
On 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.
986
Neves, 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.
987
See Thomas H. Marshall, Citizenship and Social Class, and other Essays. Cambridge: Cambridge
University Press, 1950.
988
Marx, Capital, Vol. I, 1867 Preface, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA0.
html (26 October 2013).
314 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

989
Marx, 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.
990
Thornhill, A Sociology of Constitutions, p. 239.
991
Ibid., p. 273.
Legal revolutions 315

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

992
Marx, ‘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.
993
Marx, Der 18. Brumaire des Louis Bonaparte, p. 101.
316 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

(10)  Dialectic of enlightenment


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

994
Marx, Zu den Ereignissen in Nordamerika, p. 187, English translation quoted from: Marx,
Comments on the North American Events, p. 249.
995
Ibid.
996
Quoted from: Bayly, Birth of the Modern World, p. 108.
Legal revolutions 317

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

997
Tocqueville, 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.
998
Weber, Wirtschaft und Gesellschaft, p. 1060.
999
For an apologetic view, see Forsthoff, Der Staat der Industriegesellschaft, pp. 46–7, 105.
1000
See Thornhill, A Sociology of Constitutions, pp. 191–2, 195.
1001
Marcuse, Der Kampf gegen den Liberalismus in der totalitären Staatsauffassung, p. 16.
318 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1002
You and Me, Fritz Lang, USA 1938.
1003
Locke (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.
1004
Iring Fetscher, Rousseaus politische Philosophie. Frankfurt: Suhrkamp, 1975.
1005
Marx, 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).
Legal revolutions 319

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

1006
Ibid., p. 98, English quoted from: http://www.marxists.org/archive/marx/works/1852/18th-
brumaire/ch02.htm (19 March 2012).
1007
See Bright and Geyer, Benchmarks of Globalization: the Global Condition, 1850–2010.
1008
Osterhammel, 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).
1009
See 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.
1010
Quoted 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.
1011
Berman, Justice in the U.S.S.R., p. 176.
320 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1012
Kelsen, 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.
1013
Thornhill, A Sociology of Constitutions, p. 304.
Legal revolutions 321

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,

1014
Bayly, Birth of the Modern World, p. 267.
1015
Ibid., p. 262.
322 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1016
Marx and Engels, Communist Manifesto, http://www.marxists.org/archive/marx/works/1848/
communist-manifesto/ch01.htm#007 (10 April 2012).
Legal revolutions 323

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

1017
See Osterhammel, Die Verwandlung der Welt, p. 858.
1018
Bright 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.
1019
On 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.
1020
Osterhammel and Petersson, Geschichte der Globalisierung, p. 64 et seq.
324 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1021
Ibid., p. 63.
1022
Hegel, Logik II, p. 252.
1023
Schmitt, Verfassungslehre, p. 231 (‘substanzlose Menschengleichheit’), see 116, 169. See
Böckenförde, ‘Demokratie alsVerfassungsprinzip’, 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.
Legal revolutions 325

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.

1024
See the interesting case study Elisa Klapheck, Margarete Susman und ihr jüdischer Beitrag zur
politischen Philosophie, Diss. Phil., Flensburg: University of Flensburg, 2012.
1025
See Hobsbawm, The Age of Extremes. New York: Vintage, 1996 (1994).
1026
See only the brilliant essay Conrad, Globalization effects: mobility and nation in Imperial
Germany, 1880–1914.
326 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1027
See Luhmann, ‘Die Weltgesellschaft’, in Soziologische Aufklärung II. Opladen: Westdeutscher
Verlag, 1975, pp. 51–71; Osterhammel and Petersson,Geschichte der Globalisierung.
1028
Cited 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.
Legal revolutions 327

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

1029
Reinhard, Geschichte der Staatsgewalt, p. 93.
1030
Ernst Cassirer, Substanz und Funktion. Leipzig: Bruno Cassirer Verlag, 1910; see Apel,
Transformation der Philosophie II, pp. 188–9.
1031
Claude 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.
1032
Marx, Zu den Ereignissen in Nordamerika, p. 187 (my transl.).
1033
See Manfred Riedel, Studien zu Hegels Rechtsphilosophie. Frankfurt: Suhrkamp, 1969,
pp. 135–66.
328 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1034
Hegel, 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.
1035
Theunissen, 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.
1036
Theunissen, 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.
1037
Ibid., p. 448, note 23.
1038
Kesselring, Produktivität der Antinomie, pp. 140, 263–4, 381 (note 25).
1039
This is the thesis of Marcuse, Reason and Revolution.
Legal revolutions 329

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

1040
Marx, 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.
1041
Luhmann, Selbst-Thematisierung des Gesellschaftssystems, p. 31 (engl. trans. of quote by Poul
Kjaer).
1042
Marx, ‘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.
1043
See Brunkhorst, ‘Contemporary German social theory’, in Gerard Delanty (ed.), Handbook of
Contemporary European Social Theory. London, New York: Routledge, pp. 51–68.
330 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

(2)  The immanence of transcendence


Theodor W. Adorno refuted Heidegger with one single sentence: ‘No Being
without to be’ (‘Kein Sein ohne Seiendes’). With that one sentence, Adorno

1044
See Apel, Transformation der Philosophie Vol. I and II; Apel, Paradigmen der Ersten
Philosophie.
1045
Theunissen, Sein und Schein, pp. 433–73, 486.
1046
Habermas, 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.
1047
Hegel, 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.
Legal revolutions 331

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

1048
Hegel, 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.
1049
Adorno, Ästhetische Theorie. Frankfurt: Suhrkamp, 1973, pp. 45–6; see Habermas, Der
philosophische Diskurs der Moderne.
1050
Horkheimer 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).
332 CRITICAL THEORY OF LEGAL REVOLUTIONS

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,

1051
Williard 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.
1052
Tugendhat, Philosophische Aufsätze, pp. 21–144.
1053
Marcuse, Reason and Revolution; Theunissen, Sein und Schein.
1054
See Adorno, ‘Vom Altern der Neuen Musik’, in Adorno (ed.), Dissonanzen. Musik in der
verwalteten Welt. Göttingen: Vandenhoeck & Ruprecht, 1956, pp. 102–25.
1055
Marx and Engels, Communist Manifesto, http://www.marxists.org/archive/marx/works/1848/
communist-manifesto/ch01.htm#007 (10 April 2012).
Legal revolutions 333

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

1056
Rorty, The Overphilosophication of Politics, p. 131.
334 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

On the notion of becoming, see Hegel, Logik I, p. 83 (Suhrkamp edition).


1057

Gaus, Rationale Rekonstruktion als Methode politischer Theorie zwischen Gesellschaftskritik


1058

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.
Legal revolutions 335

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

1059
Brunkhorst, ‘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.
1060
Luc Boltanski, key-note adress at Frankfurt Soziologentag, 2010.
1061
See 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.
336 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1062
See 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.
1063
Habermas, ‘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.
1064
Benjamin, ‘Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit’, Kommentar von
Detlev Schöttker. Frankfurt: Suhrkamp, 2007, pp. 7–50, at 35.
Legal revolutions 337

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

1065
Theunissen, Sein und Schein, p. 471.
1066
Hegel’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.
1067
Theunissen, Sein und Schein, p. 40 (my transl.).
1068
Ibid., p. 415.
1069
Ibid., 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).
1070
Theunissen, Sein und Schein, p. 415. I have to thank Tilo Wesche for a discussion of this point.
338 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1071
The 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).
1072
Theunissen, Sein und Schein, p. 46f.
Legal revolutions 339

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).

1073
See 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.
1074
Recently: Waldhoff, Staat und Zwang. München: Schöningh, 2008, pp. 53–4.
1075
On the legal doctrinal problems, see Möllers, Staat als Argument, pp. 285–99; from a more
speculative point of view, see Benjamin, Kritik der Gewalt.
1076
See Theunissen, Sein und Schein, pp. 458–9.
340 CRITICAL THEORY OF LEGAL REVOLUTIONS

(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.

1077
See Rorty, Philosophy and the Mirror of Nature. Princeton: Princeton University Press, 1980.
1078
See 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.
1079
Brandom, Making It Explicit, pp. 614–16.
1080
A 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.
1081
Brandom, Making It Explicit, p. 619.
Legal revolutions 341

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

1082
See so far in accordance: Habermas, Wahrheit und Rechtfertigung, pp. 7–64; Rorty, ‘Universality
and Truth’, paper presented at Frankfurt University on 14 June 1993.
1083
Luhmann, Soziale Systeme, p. 16.
1084
See Foucault, Discipline and Punish.
1085
See Adorno, Negative Dialektik; Theunissen, Sein und Schein, p. 59.
1086
Theunissen, Sein und Schein, pp. 33–4.
1087
Hegel, 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.
1088
See Marcuse, Eros and Civilization.
342 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1089
Horkheimer, ‘Zum Rationalismusstreit in der gegenwärtigen Philosophie’, Zeitschrift für
Sozialforschung (ZfS) 3 (1934), 48.
1090
Horkheimer, Zum Rationalismusstreit in der gegenwärtigen Philosophie, p. 46.
1091
John Dewey, The Quest for Certainty. New York: Capricorn Books, 1960, p. 243.
1092
Dewey, The Public and its Problems: The Later Works 1925–53. Carbondale: Southern Illinois
University Press, 1984 (1927), p. 371.
1093
Rorty, Contingency, Irony and Solidarity. Cambridge: Cambridge University Press, 1989, p. 45.
1094
Rorty, Objectivity, Relativism and Truth. Cambridge, MA: Cambridge University Press, 1991,
p. 13.
Legal revolutions 343

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

1095
Horkheimer, Zum Rationalismusstreit in der gegenwärtigen Philosophie, p. 46.
1096
Habermas, ‘Pädagogischer Optimismus vor dem Gericht einer pessimistischen Anthropologie’,
in Habermas (ed.), Arbeit; Interaktion; Fortschritt. Amsterdam: Raubdruck, 1970, pp. 181–218.
1097
Dewey, 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).
1098
Horkheimer, Zum Rationalismusstreit in der gegenwärtigen Philosophie, pp. 1, 50; Horkheimer,
‘Traditionelle und kritische Theorie’, ZfS 6 (1937), pp. 253, 282 (my translation).
1099
Horkheimer, Materialismus und Metaphysik, ZFS 2 (1933), p. 26.
344 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1100
Horkheimer, ‘Zum Problem der Wahrheit’, ZfS 4 (1934), p. 343.
1101
Quine, 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.
1102
Jeremiah 10: 3–9, Bible, New International Version, http://www.centreville-umc.com/Holy%20
Bible%20-%20Today%27s%20New%20International%20Version.pdf (7 November 2013).
1103
Rorty, ‘Putnam and the Relativist Menace’, The Journal of Philosophy 9 (1993), 453.
Legal revolutions 345

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

1104
Lukács, Geschichte und Klassenbewusstsein, p. 94, English quoted from: http://www.marxists.
org/archive/lukacs/works/history/index.htm (22 April 2012).
1105
Marcuse, Reason and Revolution; Theunissen, Sein und Schein, pp. 23–4.
1106
Theunissen, Sein und Schein, pp. 39, 59, 68.
1107
Ibid., p. 59 (my translation).
1108
Ibid., pp. 438–9; Marcuse, One-Dimensional Man.
1109
Hegel, Philosophie des Rechts, Henrich. ed. Frankfurt: Suhrkamp, 1983, pp. 203–4.
1110
See Marcuse, One-Dimensional Man.
346 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1111
Theunissen, Sein und Schein, p. 459.
1112
Ibid., pp. 474–5.
1113
See 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.
1114
Kelsen, Hauptproblemen der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze,
Werke Bd. 2. Tübingen: Mohr Siebeck, 2008 (1911).
Legal revolutions 347

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

1115
Schmitt, ‘Die deutsche Rechtswissenschaft im Kampf gegen den jüdischen Geist’, in Deutsche
Juristen-Zeitung 20 (1936), 1193–99, at 1195.
1116
Luhmann, Die Politik der Gesellschaft. Frankfurt: Suhrkamp, 2000, p. 333.
348 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1117
The 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.
1118
Forsthoff, Der Staat der Industriegesellschaft, pp. 46–7, 105 (‘“der Staat” und nichts weiter’).
1119
For 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.
1120
Möllers, Staat als Argument, p. 263.
1121
See 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.
1122
Schmitt, Politische Theologie.
1123
Herbert L. A. Hart, ‘The Ascription of Responsibility and Rights’, Proceedings of the Aristotelian
Society, New Series 49 (1948), 171–94, at 183.
Legal revolutions 349

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

1124
Kelsen, Diskussionsbemerkung, in Veröffentlichungen der Vereinigung deutscher
Staatsrechtslehrer, Berlin, 3/1927, p. 54 et seq., at 57.
1125
Schmitt, Der Hüter der Verfassung.
1126
Kelsen, Wer soll der Hüter der Verfassung sein?
1127
See 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).
350 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1128
On 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.
1129
Möllers, 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).
1130
Critically Möllers, Staat als Argument, pp. 303, 431.
Legal revolutions 351

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

1131
Schmitt, 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.
1132
See 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.
1133
See Kelsen, Allgemeine Staatslehre, p. 235.
1134
Kelsen, Vom Wesen und Wert der Demokratie, 2. Aufl. 1929. Aalen: Scientia, 1981.
1135
Kelsen, 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).
1136
Heller, ‘Der Begriff des Gesetzes in der Reichsverfassung’, 1927, in Gesammelte Schriften.
Leiden: Sijthoff, 1971, p. 262.
1137
Kelsen, Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffassung, p. 73 et seq.,
110 et seq., 118 et seq., 126 et seq.
352 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1138
Ibid., 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.
1139
Kelsen, Allgemeine Rechtslehre im Lichte materialistischer Geschichtsauffassung, p. 126.
1140
Kelsen, Sozialismus und Staat. Eine Untersuchung der politischenTheorie 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.
Legal revolutions 353

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

1141
See Fine, Democracy and the Rule of Law, pp. 158–9.
1142
For 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.
1143
Again, 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).
1144
See 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.
1145
Brunkhorst, ‘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.
354 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1147
See 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.
1148
Kelsen, Das Problem der Souveränität; Verdross, Die Verfassung der Völkerrechtsgemeinschaft,
pp. 37–8.
1149
Kelsen, General Theory of Law and State, trans. by Anders Wedberg, Clark, NJ: Lawbook, 2007,
pp. 305ff, 306, 318.
1150
Verdross, Die Verfassung der Völkerrechtsgemeinschaft, pp. 41, 48–9.
1151
Kelsen, 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.
Legal revolutions 355

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

1152
Kelsen, 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).
1153
Luhmann, Die Politik der Gesellschaft, p. 333.
356 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

Bernstorff, ‘Kelsen und das Völkerrecht’, in Brunkhorst and Voigt (eds), Rechts-Staat, p. 181.
1154

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.
Legal revolutions 357

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

1155
Marx, Kritik des Hegelschen Staatsrechts; see Theunissen, Sein und Schein, p. 479; illuminating
on vulgus vs. populus in Hegel: Ruda, Hegels Pöbel, pp. 219–39.
1156
Möllers, ‘Expressive vs. repräsentative Demokratie’, in Kreide and Niederberger (eds),
Transnationale Verrechtlichung (my translation).
1157
Habermas, Faktizität und Geltung. Frankfurt: Suhrkamp, 1992, pp. 170, 492.
358 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1158
Alexander 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.
1159
Gidkov, Exil als Lebenswelt, pp. 49–50.
1160
Ibid., p. 58.
Legal revolutions 359

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

1161
Ibid., p. 48.
1162
See 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.
1163
Gidkov, Exil als Lebenswelt, p. 55.
1164
Eugène Pottier, ‘The International’, Paris: June 1871, quoted from http://www.marxists.org/
history/ussr/sounds/lyrics/international.htm (12 May 2013).
360 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1165
Marx and Engels, Later Political Writings, ed. and trans. T. Carver. Cambridge and New York:
Cambridge University Press, 1996, p. 9 (translation slightly corrected).
1166
Marx, Capital I, http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html (10 April 2012).
1167
See, 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.
Legal revolutions 361

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

1168
Osterhammel, Die Verwandlung der Welt, pp. 729–31.
362 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1169
Ibid., pp. 726–8.
1170
William 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).
1171
Hobsbawm, The Age of Extremes, p. 54 et seq.; Osterhammel, Die Verwandlung der Welt,
pp. 565ff; 674ff; 798ff; 1055ff, 1105ff.
Legal revolutions 363

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

We are the people – that was the slogan of the revolutionary upheaval 1989 in East Berlin and
1172

Leipzig.
364 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1173
See Horkheimer and Adorno, Dialectic of Enlightenment.
1174
Guyer, Marcuse and Classical Aesthetics, p. 362.
1175
See Tilly, European Revolutions, p. 216.
1176
See Osterhammel, Shanghai, 30 Mai 1925.
Legal revolutions 365

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

1177
Benjamin, 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).
1178
Benjamin, Critique of Violence, p. 241; see Loick, Kritik der Souveränität, pp. 171–87.
1179
See Koskenniemi, The Gentle Civilizer of Nations.
1180
Benjamin, Critique of Violence, p. 244. The German phrase is Unterredung.
1181
Ibid., p. 247.
366 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

1182
Marx, 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.
1183
Benjamin, 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.
1184
Otto von Gierke, Die soziale Aufgabe des Privatrechts, 1889, p. 28 (my translation).
1185
See Anatole France, Le Lys Rouge (1894), ch. 7, see https://archive.org/details/lelysrouge00
franuoft (27 October 2013).
1186
Wesel, Geschichte des Rechts.
1187
Berman, Justice in the U.S.S.R., Revised edition, enlarged New York: Random House, 1963
(1950), p. 218.
Legal revolutions 367

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

1188
Benjamin, Critique of Violence, p. 246.
1189
Ibid., pp. 245, 247.
1190
Benjamin, ‘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).
368 CRITICAL THEORY OF LEGAL 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

1191
Ibid., 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?’
1192
Tilly, European Revolutions, p. 243.
1193
Ibid., p. 219.
1194
Ibid., p. 220.
1195
Similar 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.
Legal revolutions 369

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

1196
Bayly, Birth of Modern World, p. 310.
1197
Marx, 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.
1198
Bayly, Birth of Modern World, pp. 311–12.
370 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1199
Maier, Leviathan 2.0 – Die Erfindung moderner Staatlichkeit, p. 232, see 207, 218.
1200
A 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.
1201
On the world historical meaning of the Chinese Revolution, see Osterhammel, ‘Die chinesische
Revolution’, in Wende (ed.), Große Revolutionen der Geschichte, pp. 244–58.
1202
Osterhammel, Die Verwandlung der Welt, p. 813, see 803–6, 810.
Legal revolutions 371

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

1203
Ibid., p. 817.
1204
Hobsbawm, The Age of Extremes, p. 143 et seq.
1205
For Germany, see Marcus Llanque, Demokratisches Denken im Krieg. Eine deutsche Debatte
im Ersten Weltkrieg. Berlin: Akademie, 2000.
372 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1206
Gerhard 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).
1207
Anja Wüst, Das völkerrechtliche Werk von Georges Scelle im Frankreich der Zwischenkriegszeit.
Baden-Baden: Nomos, 2007.
1208
Dewey 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.
Legal revolutions 373

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

1210
Westbrook, John Dewey and American Democracy. Ithaca: Cornell University Press, 1991,
pp. 196, 203.
1211
Ibid., p. 197.
1212
Dewey, German Philosophy and Politics (1916), Middle Works 8, p. 203, quoted from Westbrook,
John Dewey and American Democracy, p. 198.
1213
Dewey, ‘In a Time of National Hesitation’ (1917), Middle Works 10, p. 258, quoted from
Westbrook, John Dewey and American Democracy, p. 203.
1214
Dewey, Interview with a New York World reporter July 1917, quoted from Westbrook, John
Dewey and American Democracy, p. 204.
374 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1215
Dewey, ‘What are we fighting for?’ (1918), Middle Works 11, p. 98, quoted from Westbrook,
John Dewey and American Democracy, p. 224.
1216
Dewey quoted in ‘Professor Dewey of Columbia’, quoted from Westbrook, John Dewey and
American Democracy, p. 227.
1217
See Arendt, Origins of Totalitarianism, p. 89 et seq., 123 et seq.
1218
Osterhammel and Petersson, Geschichte der Globalisierung, p. 85
Legal revolutions 375

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

1219
Hobsbawm, 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.
1220
Ibid., 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.
1221
Maier, Leviathan 2.0 – Die Erfindung moderner Staatlichkeit, p. 266.
376 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1222
Parsons, 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.
1223
Evgeny Pashukanis, Law and Marxism. Pluto Press, 1983, p. 134, quoted from Fine, Democracy
and the Rule of Law, p. 168.
1224
Choudhry, The Lochner era and comparative constitutionalism, p. 3.
1225
Reynolds, One World Divisible, p. 20.
Legal revolutions 377

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

1226
See Walter Korpi, The Democratic Class Struggle, Routledge, London, 1983.
1227
Hobsbawm, The Age of Extremes; Thornhill, A Sociology of Constitutions, pp. 276, 278–80,
282–4.
1228
Ibid.
378 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1229
Revolutions 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.
1230
See 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).
Legal revolutions 379

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

1231
See 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.
1232
Osterhammel, Shanghai, 30. Mai 1925, pp. 12–22.
1233
Osterhammel, Die chinesische Revolution, p. 252.
380 CRITICAL THEORY OF LEGAL REVOLUTIONS

had changed in a way that reflected an ‘epochal remodelling of the system of


states’.1234

(5)  Struggle for human rights


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

1234
Daniel 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).
1235
On the latter, see Thornhill, ‘National Constitutions in the Transnational Constitutional System:
A Sociological Approach’, Ms. 2013.
1236
Wingert, Unpathetisches Ideal.
1237
Dworkin, Taking Rights Seriously; Neves, Zwischen Subintegration und Überintegration:
Bürgerrechte nicht ernstgenommen.
1238
Samantha 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.
1239
Brunkhorst, Solidarity, p. 74.
1240
Kant, Metaphysik der Sitten, Rechtslehre § 46, p. 432.
Legal revolutions 381

‘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

1241
Müller, 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’).
1242
Besson, The Right to have Rights: From Human to Citizens’ Rights and Back, p. 353. On
productive antinomies, see Kesselring, Die Produktivität der Antinomie.
1243
Besson, The Right to have Rights: From Human to Citizens’ Rights and Back, p. 343.
1244
Ibid., p. 342.
382 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1245
See 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).
1246
John Stuart Mill, Considerations on Representative Government. London: Savill and Edwards,
1861.
1247
Dewey, The Public and its Problems; Walter Lippmann, The Phantom Public. New Brunswick:
Transaction, 2009 (1927).
1248
The German is: ‘Die Internationale erkämpft das Menschenrecht’.
1249
Kant, Zum ewigen Frieden, English: http://www.mtholyoke.edu/acad/intrel/kant/kant1.htm
(5 May 2012).
Legal revolutions 383

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

1250
See Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt
Europa.
1251
See 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.
1252
Thornhill, National Constitutions in the Transnational Constitutional System.
1253
See Fischer-Lescano, Globalverfassung.
1254
See Emmerich-Fritsche, Angelika, Vom Völkerrecht zum Weltrecht. Berlin: Duncker & Humblot,
2007; Thornhill, National Constitutions in the Transnational Constitutional System.
384 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1255
Besson, The Right to have Rights: From Human to Citizens’ Rights and Back, p. 348.
1256
Ibid., pp. 343, 348, 354–5.
1257
Oeter, ‘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.
1258
Besson, The Right to have Rights: From Human to Citizens’ Rights and Back, p. 343.
1259
Ibid., p. 348.
1260
Ibid., p. 343.
1261
Ibid., p. 348.
1262
See Böckenförde, ‘Die Verfolgung der deutschen Juden als Bürgerverrat’, http://schrimpf.com/
ph/boeckenfoerde/buergerverrat.html (8 July 2012).
Legal revolutions 385

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.

1263
Art. 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).
1264
Fritz Lang, USA 1943.
1265
On the normative impact, see Kreide, Globale Politik und Menschenrechte; on the functional
impact: Thornhill, National Constitutions in the Transnational Constitutional System.
1266
Marx, Capital, I, English: http://www.econlib.org/library/YPDBooks/Marx/mrxCpA10.html
(10 April 2012).
386 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1267
See 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.
1268
Chamberlain quoted from Rigby, The May 30 Movement, p. 92.
1269
Rigby, The May 30 Movement, p. 94f.
1270
This is a typical characteristic of nominal constitutional regimes: Neves, Zwischen Subintegration
und Überintegration: Bürgerrechte nicht ernstgenommen.
Legal revolutions 387

‘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.

Rigby, The May 30 Movement, pp. 94–5.


1271

See Rainer Nickel, ‘Transnational Borrowing Among Judges: Towards a Common Core of
1272

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.
388 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1273
Osterhammel, Shanghai, 30 Mai 1925, p. 21.
1274
Ibid.
1275
Usually misrepresented in historiography, critically David Cohen, ‘Historiography, War, and War
Crimes: The Representation of World War II’, Rechtshistorisches Journal 19 (2000), 1–19.
Legal revolutions 389

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

Guyer, Marcuse and Classical Aesthetics, pp. 364–5.


1276

Bao Tong, ‘Rights for All. Through Peaceful Means’, Chin’s News 6. Dezember 1010, http://
1277

chinhdangvu.blogspot.com/2010/12/rights-for-all-through-peaceful-means.html.
390 CRITICAL THEORY OF LEGAL REVOLUTIONS

(6)  A new idea of freedom


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

1278
See Thornhill, A Sociology of Constitutions; Thornhill, National Constitutions in the Transnational
Constitutional System.
1279
Jacques 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.
1280
Maier, Leviathan 2.0 – Die Erfindung moderner Staatlichkeit, pp. 209–16.
1281
On the concept of ‘democratic capitalism’, see Streek, Crisis of Democratic Capitalism.
Legal revolutions 391

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,

1282
Colin Crouch, Post-Democracy, Cambridge: Polity, 2004, pp. 16–17; see Judt, Ill Fares the
Land.
1283
Gaus, ‘Qualität statt Partizipation und Gleichheit? Eine Bemerkung zum epistemischen Sinn von
Demokratie’, Leviathan 2 (2013), 1–27, at 8–11.
1284
Möllers, Staat als Argument, p. 180 (with reference to Habermas’s legal theory); see Möllers,
Gewaltengliederung. Tübingen: Mohr, 2005, pp. 62, 274.
1285
See 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.
1286
The remaining constitutional monarchies (with a few and unimportant exceptions) lost nearly all
contact with real power and were subsumed under parliamentary rule.
392 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1287
Sven 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.
1288
On 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.
Legal revolutions 393

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

1289
Dewey, ION, pp. 97–8, quoted from Westbrook, John Dewey and American Democracy,
p. 440.
1290
Dewey, ‘Imperative Need: A New Radical Party’, Later Works 9 (1934), 76–7, quoted from
Westbrook, John Dewey and American Democracy, p. 442.
394 CRITICAL THEORY OF LEGAL REVOLUTIONS

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,

1291
Charles 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.
1292
Franklin D. Roosevelt, Speech for the Democratic National Convention, 27 June 1936, in Public
Papers, 5: p. 230, my italics.
1293
Roosevelt, ‘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.
1294
Samuel 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).
1295
Westbrook, John Dewey and American Democracy, p. 430 et seq.
Legal revolutions 395

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

1296
Ibid., p. 441, see 439–40 (my emphasis).
1297
Roosevelt, Speech for the Democratic National Convention, p. 230.
1298
Sunstein, The Second Bill of Rights, p. 73 et seq.
1299
See 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.
1300
Thornhill, A Sociology of Constitutions, pp. 337, 341.
1301
Ibid., pp. 360–61; Nickel, Transnational Borrowing Among Judges.
396 CRITICAL THEORY OF LEGAL REVOLUTIONS

(7)  Founding documents


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

1302
Kelsen, ‘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.
1303
See Kelsen, The Law of the United Nations, p. 47.
Legal revolutions 397

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’

1304
Kelsen, 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.
1305
Eberl, 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.
1306
Eberl, Demokratie und Frieden; Bernstorff, Der Glaube an das universale Recht; see Wüst, Das
völkerrechtliche Werk von Georges Scelle im Frankreich der Zwischenkriegszeit.
1307
Beestermöller, 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.
398 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

1309
Leisering, Gibt es einen Weltwohlfahrtsstaat, p. 200.
1310
In 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.
1311
As 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.
1312
See Maier, Leviathan 2.0 – Die Erfindung moderner Staatlichkeit, p. 241.
1313
Quoted from: http://www.marxists.org/history/ussr/government/constitution/1918/article1.htm.
Legal revolutions 399

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

1314
Thornhill, A Sociology of Constitutions, p. 287.
1315
Reflected 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.
1316
In 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).
400 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1317
Thornhill, 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.
1318
Thornhill, A Sociology of Constitutions, pp. 282–3.
Legal revolutions 401

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

1319
Berman, Justice in the U.S.S.R., p. 26, see 30–1.
1320
Fine, Democracy and the Rule of Law, p. 168.
1321
I am grateful to Miguel Vatter for a discussion of this point.
1322
Weber, Wirtschaft und Gesellschaft. Cologne: Kiepenheuer und Witsch 1956, 1027 (my transl.).
1323
Leading Principles of Criminal Law, quote from Berman, Justice in the U.S.S.R., p. 32.
1324
Hegel, Phänomenologie des Geistes, p. 419, quoted from: http://www.marxists.org/reference/
archive/hegel/works/ph/phc2b3.htm (18 May 2013).
402 CRITICAL THEORY OF LEGAL REVOLUTIONS

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,

1325
Marx, 18. Brumaire, p. 112, quote: http://www.marxists.org/archive/marx/works/1852/18th-
brumaire/ch02.htm. (19 March 2012).
1326
Berman, Justice in the U.S.S.R., p. 35, see 34–7.
1327
Ibid., p. 36.
1328
Thornhill, 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).
Legal revolutions 403

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

1329
The 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.
1330
Atlantic 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’.
1331
Roosevelt, ‘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.
404 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1332
Merriam, The Content of an International Bill of Rights, p. 12.
1333
UN 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].
1334
Merriam, 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).
1335
Merriam, The Content of an International Bill of Rights, p. 15.
1336
Ibid.
1337
Piaget, The Moral Judgment of the Child, p. 274.
1338
Habermas, ‘Das Konzept der Menschenwürde und die realistische Utopie der Menschenrechte’,
unpublished paper 2009, p. 6 et seq.
Legal revolutions 405

(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

1339
Roosevelt, 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.
406 CRITICAL THEORY OF LEGAL REVOLUTIONS

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;

1340
Roosevelt, Message to the Congress 11 January 1944, p. 243.
Legal revolutions 407

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

1341
Second 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.
1342
On 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.
408 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1343
Jeffersonian 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.
1344
Ackerman, We the People.
1345
Ulrich 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.
1346
Dworkin, Taking Rights Seriously.
Legal revolutions 409

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

1347
On 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. . .’
1349
Art. 1 II is binding the peoples to the ‘principle of equal rights and self-determination of
peoples’.
1350
As 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’).
1351
See Anne Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental
International Norms and Structures’, Leiden Journal of International Law 19 (2006), 579–610.
410 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1352
Kelsen, The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. New
York: Praeger, 1950, pp. 2, 4.
1353
Parsons, 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.
1354
Oral communication of Martti Koskenniemi at a conference at Bloomington in 2009.
1355
Kelsen, The Law of the United Nations, p. 19.
Legal revolutions 411

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

1356
Marks, ‘Human Rights and Root Causes’, The Modern Law Review 74:1 (2011), pp. 57–78, at
58–9, 63 (with further evidence).
1357
Kelsen, 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.
1358
Hegel, Logik II, p. 58. quote: http://www.marxists.org/reference/archive/hegel/works/hl/hl431.
htm#HL2_431 (18 May 2013).
412 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1359
Berman, 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.
1360
Kelsen, The Law of the United Nations, p. 25.
1361
Quoted from Doris Kearns Goodwin, No Ordinary Time: Franklin and Eleanor Roosevelt. New
York: Simon & Schuster, 1994, p. 201.
1362
Katznelson, 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.
1363
On 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
Legal revolutions 413

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.
1364
Davy, ‘The Rise of the Global‚ Social’. Origins and Transformations of Social Rights under UN
Human Rights Law, p. 8.
1365
Kelsen, 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).
414 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

Kelsen, The Law of the United Nations, pp. 40–1.


1366
Legal revolutions 415

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.

(7)  Co-evolution of cosmopolitan


and national statehood
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

1367
Davy, 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.
1368
See 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.
1369
Osterhammel, Die Verwandlung der Welt, p. 733.
1370
Verdross, Die Verfassung der Völkerrechtsgemeinschaft, pp. 80–5, especially 83–4, see 96.
1371
Ibid., pp. 152–3.
1372
Fassbender, ‘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.
416 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1373
Lutz Leisering, ‘Gibt es einen Weltwohlfahrtsstaat?’, in Albert and Stichweh (eds), Weltstaat und
Weltstaatlichkeit, pp. 185–205, at 200.
1374
Albert (2005): ‘Politik der Weltgesellschaft und Politik der Globalisierung: Überlegungen zur
Emergenz von Weltstaatlichkeit’, Zeitschrift für Soziologie. Sonderheft Weltgesellschaft, pp. 223–
39, at 229.
1375
See Osterhammel, Die Verwandlung der Welt, p. 570.
1376
Anghie, 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.
Legal revolutions 417

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

1377
Ibid., p. 115.
1378
Ibid.
1379
Verdross, Die Verfassung der Völkerrechtsgemeinschaft, pp. 80–5, 96, 152–3.
1380
Anghie, Imperialism, Sovereignty and the Making of International Law, p. 125.
1381
On the imperialist implication, see Kelsen, Das Problem der Souveränität und die Theorie des
Völkerrechts.
1382
Anghie, Imperialism, Sovereignty and the Making of International Law, p. 125.
1383
Thornhill, National Constitutions in the Transnational Constitutional System.
418 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1384
Anghie, Imperialism, Sovereignty and the Making of International Law, pp. 116–23.
1385
Ibid., p. 128.
1386
Edwin 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.
1387
Anghie, Imperialism, Sovereignty and the Making of International Law, p. 128.
1388
Ibid., p. 127.
1389
Verdross, 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.
Legal revolutions 419

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

1390
See Anghie, Imperialism, Sovereignty and the Making of International Law, pp. 117–18.
1391
See 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.
1392
Osterhammel, Die Verwandlung der Welt, p. 733.
1393
Even 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).
420 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1394
See 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.
1395
Neves, Verfassung und positives Recht in der peripheren Moderne.
1396
Thornhill, A Sociology of Constitutions, p. 309.
1397
Ibid., pp. 309–10.
1398
Ibid., p. 309.
Legal revolutions 421

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

1399
I 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.
1400
Easter, Personal Networks and Postrevolutionary State Building: Soviet Russia Reexamined.
422 CRITICAL THEORY OF LEGAL REVOLUTIONS

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,

1401
Maul, The ILO involvement in decolonisation and development.
1402
Anonymous, ‘The Politics of Inclusion: Changing Patterns in the Governance of International
Security’, paper presented for blind review 2013.
1403
The official German translation replaces ‘members’ in Art. 2 I by ‘states’ – a case of linguistic
Staatswillenspositivismus.
1404
Fassbender, 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.
Legal revolutions 423

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

1405
Fassbender, The United Nations Charter as the Constitution of the International Community,
p. 111.
1406
Ibid., pp. 68 and 94, p. 112.
1407
Ibid., p. 101; Fassbender, Grund und Grenzen der konstitutionellen Idee im Völkerrecht, p. 77.
1408
Ibid., p. 29.
1409
Constitution of the International Labour Organization, http://www.ilo.org/ilolex/english/iloconst.
htm (14 July 2012).
424 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1410
Maul, The ILO Involvement in Decolonization and Development.
Legal revolutions 425

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

1411
Ibid.
1412
Ibid. 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.
1413
On 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.
426 CRITICAL THEORY OF LEGAL REVOLUTIONS

(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

1414
On 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.
1415
Krysztof Skubiszewski, Implied Powers of International Organizations, in Yoram Dinstein and
Mala Tabory (eds), Essays in Honour of Shabtai Rosenne. Doodrecht: Nijhoff, pp. 855–68.
1416
Peters, Compensatory Constitutionalism.
1417
On 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.
1418
Verdross, 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.
1419
See Fassbender, The United Nations Charter as the Constitution of the International Community,
p. 27 et seq.; Fischer-Lescano, Globalverfassung.
1420
Ibid., pp. 95–6.
Legal revolutions 427

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

1421
Christian 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.
1422
See 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.
1423
Ibid., p. 96, pp. 54, 103.
1424
Verdross, Die Verfassung der Völkerrechtsgemeinschaft, p. 112.
1425
Verdross, 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.
1426
Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und Praxis. Berlin: Dunker &
Humblot, 1984, pp. VII-VIII (‘[Die] Verfassung der universellen Staatengemeinschaft . . .derogiert’).
428 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1427
See Parsons, Order and Community in the International Social System.
1428
See Luhmann, Grundrechte als Institution; Jesch, Gesetz und Verwaltung; Thornhill, A Sociology
of Constitutions, p. 327 et seq.
1429
Thornhill, A Sociology of Constitutions, pp. 327–8.
1430
See Berman, Justice in the U.S.S.R.
Legal revolutions 429

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)

1431
Fossum 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.
1432
Besson, 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.
1433
Thornhill, A Sociology of Constitutions, p. 341.
430 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1434
Forsthoff, ‘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.
1435
For 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.
1436
Wolfgang Abendroth, ‘Zum Begriff des demokratischen und sozialen Rechtsstaats im Grundgesetz
der Bundesrepublik Deutschland’, in Forsthoff (ed.), Rechtsstaatlichkeit und Sozialstaatlichkeit,
p. 114 et seq.
1437
Abendroth, Zum Begriff des demokratischen und sozialen Rechtsstaats im Grundgesetz der
Bundesrepublik Deutschland, pp. 138–9.
1438
Wolfgang Abendroth, Zum Begriff des demokratischen und sozialen Rechtsstaats im
Grundgesetz der Bundesrepublik Deutschland, p. 140.
1439
Möllers, Staat als Argument, p. 141 (note 12); on Italy, see Bellomo, The Common Legal Past of
Europe 1000–1800, pp. 25–31.
Legal revolutions 431

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

(9)  Constitutionalization
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

1440
See Crouch, The Strange Non-Death of Neoliberalism.
1441
Streek, ‘Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit’ (unpublished e-man.
of a Lecture Verona 20 September 2012).
1442
Strongly 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.
1443
Streek, The Crisis of Democratic Capitalism.
1444
Oeter, ‘Prekäre Staatlichkeit und die Grenzen internationaler Verrechtlichung’, in Kreide and
Niederberger (eds), Transnationale Verrechtlichung, pp. 90–114.
432 CRITICAL THEORY OF LEGAL REVOLUTIONS

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)

1445
On global culture, see Meyer, World Society and the Nation-State, American Journal of Sociology
103 (2005), 144–81; Meyer, Weltkultur.
1446
See 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.
1447
See Kelsen, Das Problem der Souveränität;Verdross, DieVerfassung derVölkerrechtsgemeinschaft;
Dickenson, The Law of the Nations.
Legal revolutions 433

‘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

1448
Boaventura 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.
1449
On 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).
434 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1450
Koskenniemi, 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).
1451
Neves, 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.
1452
Neves, Symbolische Konstitutionalisierung, p. 70.
1453
Luhmann, Das Recht der Gesellschaft, pp. 582, 584.
Legal revolutions 435

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

1454
Ibid., pp. 532–3; see Göbel and Schmidt, Inklusion/Exklusion, pp. 113–14.
1455
See 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.
1456
Bourdieu, Acts of Resistance.
1457
Meyer, Francisco O. Ramirez and Yasemin N. Soysal, ‘World Expansion of Mass Education,
1870–1970’, Sociology of Education 65 (1992), 128–49.
1458
See Döbert and Nunner-Winkler, Adoleszenskrise und Identitätsbildung; see Habermas,
Protestbewegung und Hochschulreform. Frankfurt: Suhrkamp, 1968.
436 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

See Brunkhorst, Legitimationskrisen. Verfassungsprobleme der Weltgesellschaft. On the


1459

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.
Legal revolutions 437

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

1460
See 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.
1461
Jacques 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.
1462
Thornhill, A Sociology of Constitutions, pp. 327–71; Fossum and Menéndez, The Constitution’s Gift.
1463
See 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.
1464
Osterhammel 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).
1465
See Gurminder K. Bhambra, ‘Postcolonial Europe: Or, Understanding Europe in Times of the
Postcolonial’, in Chris Rumford (ed.), Handbook of European Studies. London: Sage, 2009.
438 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1466
Ernesto 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).
1467
See Möller, Die Europäische Sozialunion.
1468
Arendt, ‘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%20
Memory_Syracuse2012.pdf (3 November 2013).
1469
When 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.
1470
Fossum and Menéndez, The Constitution’s Gift, p. 80 et seq., p. 175.
Legal revolutions 439

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

1471
An 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.
1472
The Telegraph 23 Jun 2011, http://tgr.ph/mC6lu1 (28 October 2013).
1473
A 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.
1474
What 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).
440 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1475
Ley, 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.
1476
Bhambra, 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.
1477
Tuori, The Many Constitutions of Europe.
Legal revolutions 441

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

1478
See Klapheck, Margarete Susman und ihr jüdischer Beitrag zur politischen Philosophie.
1479
Most 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.
1480
Vgl. Neumann, Wirtschaft, Staat und Demokratie. Frankfurt: Suhrkamp, 1978, pp. 70–4; 79–99,
in particular at 70, 72, 74, 87–90, 95–6.
442 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1481
See Tuori, The Many Constitutions of Europe, p. 16. The hi-jacking was organized by: Franz
Böhm, Wettbewerb und Monopolrecht. Baden-Baden: Nomos, 2010 (1933).
1482
Alfred Müller-Armack, Studien zur Sozialen Marktwirtschaft. Cologne: Institut fürWirtschaftspolitik,
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.
1483
Wegmann, European competition law.
1484
Tuori, The Many Constitutions of Europe, p. 15.
1485
Wegmann, Milène: ‘European competition law: catalyst of integration and Convergence’, in Tuori
and Sankari (eds), The Many Constitutions of Europe, pp. 91–107, at 93.
1486
Claudio Franzius and Preuß, Europäische Demokratie, Ms 2011, 70.
1487
On 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.
1488
Wegmann, 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
Legal revolutions 443

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).
1489
See Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt
Europa, p. 20.
1490
See 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.
444 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1491
See already Marx, Das Kapital I, pp. 650–7.
1492
See Milton Friedman, Capitalism and Freedom. Chicago: Chicago University Press, 1982 (1962),
pp. 15–26, especially at 20–1.
1493
See Kelsen, Demokratie und Sozialismus;Tugendhat, Liberalism, Liberty and the Issue of Economic
Human Rights; Streeck, Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit.
1494
See Crouch, The Strange Non-Death of Neoliberalism.
1495
Ernst-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).
1496
For 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.
1497
In  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,
Legal revolutions 445

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).
1498
See 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.
1499
Streeck, Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit, p. 6 (my translation),
p. 8.
1500
Ibid. (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.
1501
See 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.
1502
Paul 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).
446 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1503
Thanks 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.
1504
Streeck, ‘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.
1505
Somek, Europe: From emancipation to empowerment, p. 8.
Legal revolutions 447

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

1506
Weiler, ‘To be a European citizen – Eros and civilisation’, Journal of European Public Policy 4
(1997), 495–519, at 503.
1507
Damian 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.
1508
The example is from Brunkhorst, Solidarity – From Civic Friendship to a Global Legal Community.
Cambridge, MA: MIT Press, p. 168.
448 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1509
Habermas, Zur Verfassung Europas – Ein Essay. Frankfurt: Suhrkamp, 2011, p. 57.
1510
See 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.
1511
See Tuori, The Many Constitutions of Europe, p. 17 (with reference to the sources).
1512
See, for example, Bhambra, Postcolonial Europe.
1513
See 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).
Legal revolutions 449

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

1514
Tuori, 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.
1515
Buckel and Oberndorfer, Die lange Inkubationszeit des Wettbewerbs der Rechtsordnungen, p.
285.
1516
At 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.
450 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1517
See 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.
1518
Bast, ‘Europäische Gesetzgebung – Fünf Stationen in der Verfassungsentwicklung der EU’, in
Franzius, Meyer and Neyer, Strukturfragen der Europäischen Union, 2010, pp. 173–80.
1519
See ‘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.
1520
See 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).
Legal revolutions 451

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

Schäfer, Liberalization, Inequality, and Democracy’s Discontent.


1521

Marx, 18th Brumaire, http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch04.


1522

htm (24 May 2013).


452 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1523
Dann, Looking Through the Federal Lens: The Semi-Parliamentary Democracy of the EU.
1524
Streek, The Crisis of Democratic Capitalism.
1525
Marx, Zu den Ereignissen in Nordamerika, p. 187 (my transl.).
1526
Offe, ‘Europe Entrapped – Does the EU have the political capacity to overcome its current
crisis?’ Ms. 2013, p. 2.
Legal revolutions 453

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,

1527
Habermas, ‘Rettet die Würde der Demokratie’, Frankfurter Allgemeine Zeitung 258 (5 November
2011), p. 31.
1528
Marx, 18th Brumaire, http://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch04.
htm (24 May 2013).
1529
Tuori, 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.
1530
Crouch, 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.
454 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1531
See Lepsius, Freiheit, Sicherheit und Terror: Die Rechtslage in Deutschland.
1532
Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa.
1533
Ibid., pp. 166–347.
1534
Ibid., pp. 249, 341–2.
Legal revolutions 455

(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

1535
Ibid., 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).
1536
Tuori, The Many Constitutions of Europe, p. 26.
1537
See 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.
1538
In 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
456 CRITICAL THEORY OF LEGAL REVOLUTIONS

(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).
1539
Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa,
pp. 121, 163 et seq.
1540
Ibid., pp. 87–8, 118–21.
1541
Hartmann, Auf dem Weg zu einem globalen Hochschulraum, pp. 90–1, 97.
Legal revolutions 457

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

1542
Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa,
pp. 98–9, 105, 120, 130–41.
1543
On the distinction, see Streeck, Gekaufte Zeit. Frankfurt: Suhrkamp, 2013.
1544
The 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.
1545
On 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.
1546
John 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.
1547
Scharpf, ‘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?
458 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1548
The quote is from Plutarch, ascribed to the Greek king Pyrrhus, https://de.wikipedia.org/wiki/
Pyrrhussieg (28 October 2013).
1549
Streeck, ‘Noch so ein Sieg, und wir sind verloren. Der Nationalstaat nach der Finanzkrise’,
Leviathan 38 (2010), 159–73; Streeck, The Crisis of Democratic Capitalism.
1550
See Mayntz, Renate, ‘Die Handlungsfähigkeit des Nationalstaats in der Regulierung der
Finanzmärkte’, Leviathan 38 (2010), 175–87.
1551
On states as global economic actors, see Tobias ten Brink, Geopolitik: Geschichte und Gegenwart
kapitalistischer Staatenkonkurrenz. Münster: Westfälisches Dampfboot, 2008.
1552
Offe, Interview, p. 3; Streeck, Zum Verhältnis von sozialer Gerechtigkeit und
Marktgerechtigkeit.
1553
See Christoph Deutschmann, ‘Warum tranken die Pferde nicht?’, Frankfurter Allgemeine Zeitung
223 (25 September 2013), N4.
Legal revolutions 459

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,

1554
Walter Korpi, The Democratic Class Struggle. London: Routledge, 1983.
1555
Marx, 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).
1556
Marx, Der 18. Brumaire, p. 97, English quoted from: http://www.marxists.org/archive/marx/
works/1852/18th-brumaire/ch01.htm (19 March 2012).
1557
Claus Offe, ‘Europe Entrapped – Does the EU have the political capacity to overcome its current
crisis?’ Ms. 2013.
1558
See 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).
1559
See Beckert and Streeck 2011. ‘Die Fiskalkrise und die Einheit Europas’, Aus Politik und
Zeitgeschichte 4 (2012), 7–17.
1560
Offe, Interview, p. 3; see Scharpf, Rettet Europa vor dem Euro!
460 CRITICAL THEORY OF LEGAL REVOLUTIONS

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

1561
See 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.
1562
Streeck, Crisis of Democratic Capitalism. As a consequence, popular sovereignty has been
fragmented and marginalized, beyond and within the national state, see Prien, Fragmentierte
Volkssouveränität.
1563
The 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.
1564
Offe, 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.
Legal revolutions 461

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

1565
Crouch, The Strange Non-Death of Neoliberalism.
1566
Streeck, 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.
1567
Offe, Europe Entrapped – Does the EU have the political capacity to overcome its current crisis?,
p. 3, see p. 5.
1568
See Streek and Mertens, Politik im Defizit.
462 CRITICAL THEORY OF LEGAL REVOLUTIONS

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.

1569
See 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.
1570
See Paul Statham and Hans-Jorg Trenz, ‘Understanding the Mechanisms of EU Politicization:
Lessons from the Euro-zone crisis’, electronic paper, Copenhagen 2013.
Legal revolutions 463

(10)  Dialectic of enlightenment


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

1571
See Gunnar Hindrichs, ‘Das Erbe des Marxismus’, Deutsche Zeitschrift für Philosophie 5 (2006),
709–29, at 713f.
1572
Horkheimer and Adorno, Dialectic of Enlightenment. New York: Continuum, 1996, p. 169.
1573
Fine, ‘Cosmopolitanism and antisemitism: two faces of universality’, in Anastasia Marinopoulou
(ed.), On Cosmopolitan Modernity. New York, London: Continuum Publishers, 2014 (forthcoming).
1574
This is the right point in Rorty’s harsh criticism: Rorty, ‘The Overphilosophication of Politics’,
Constellations 1 (2000), 128–32.
464 CRITICAL THEORY OF LEGAL REVOLUTIONS

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
Legal revolutions 465

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

For a reconstruction of the following four levels, I am grateful to Cristina Lafont; see Lafont, ‘The
1575

Cunning of Law: Remarks on Hauke Brunkhorst’s Critical Theory of Legal Revolutions’, Flensburg
Workshop June 2013 (forthcoming in Law and Society).
466 CRITICAL THEORY OF LEGAL REVOLUTIONS

(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

See Holmes, Verfassungsrevolution in der Weltgesellschaft.


1576
Epilogue

I n 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.
468
Index

adaptation  1–3, 9–10, 16n. 27, communicative system  4, 13–14,


33–8, 41, 57, 60, 71, 86, 90, 96, 41–2
124n. 177, 139, 142, 240, 260, communicative variation  12, 14,
287, 294, 318, 341, 358, 382, 16, 22, 31, 248, 295, 358
446, 464–5, 467 normative communication  5–6
functional adaptation  9, 42–3, 88 constituent power  49, 122, 153,
systemic adaptation  3, 50 243, 267–9, 276n. 819, 296, 347,
Alter Ego  16–17, 19 433–4, 438–9, 447
anomalies  35, 39, 368n. 1195 constitutional evolution  43n. 142,
294–5, 300, 436, 446, 448, 453
catalytic change  33, 35, 37, 59, constitutional law  2, 4, 40, 45–6,
79, 294 86, 131n. 209, 135, 140, 147,
class struggle  3, 7, 9, 12, 16, 33, 151, 157, 207, 228, 241, 264–5,
35–7, 41–2, 50, 71, 75, 79, 89, 267, 271–2, 288, 298, 300, 304,
110–11n. 115, 167, 174–5, 250–2, 309–10, 324, 346–8, 366, 391,
308–11, 357, 361, 364, 369, 371, 411, 415, 419, 427–30, 434, 442,
376–7, 379, 390, 392, 421, 424, 444–6, 448, 454
459, 461–2, 464 nominal constitutional law  357,
class antagonism  24, 75, 81, 359 386, 400, 403, 420, 429
class conflict  12–13, 26, 51, 56, normative constitutional law  10,
75–9, 88–9, 253, 368, 408, 42, 66, 117, 132, 229, 295, 375,
435, 466 392
co-evolution  7, 40, 59, 71, 74, 81, symbolic constitutional law 
89–90, 92, 130, 133–4, 140, 210, 269, 367, 383, 389, 392,
215, 279, 309, 392, 415–16, 429, 402n. 1328
435, 466 contradiction  15–16, 18, 55–6, 76,
communication  7, 15–16, 21, 24–5, 106, 127–8, 135, 141, 176, 178,
28–9, 30–4, 56, 93, 113, 148, 185, 203, 253, 306, 310, 312,
173, 190, 199, 217, 249, 273, 325, 333, 338, 375, 402, 424–5,
323, 325–6, 329, 333–7, 340–1, 432, 455
354, 357, 360, 367, 393, 395, cosmopolitan (constitutional)
433–5, 448 mindset  3, 38, 46–7, 49–50, 57,
communicative freedom  330, 336, 71, 118, 132, 187, 226, 237, 260,
338–9, 356, 370, 414 269, 271, 274, 277, 281, 283,
communicative intention  17 287, 293–4, 304, 309–10, 316,
communicative power  50, 79, 334, 385, 387, 436, 439n. 1473,
138, 160, 223–4, 255, 289, 310, 446, 464–5, 467
451, 465 crisis  3, 10, 32, 35, 53–3, 56, 59,
communicative rationality 61, 75–8, 86, 146, 233–8, 298,
(reason)  4–5, 36, 223, 277, 385 306, 313, 347–8, 368n. 1195,
470 Index

378n. 1229, 390, 431, 438–9, growth  11–13, 16, 30, 33–5, 55–6,
444–5, 453, 458–62, 467 59, 89, 92, 103–4, 133, 140–1,
economic crisis  54, 79, 325, 177, 197, 233, 247, 270, 287–9,
370, 377, 395, 420, 436, 308, 314, 316–17, 319, 355, 359,
452, 457 361–2, 380, 384, 391–2, 400,
legitimization crisis  3, 56, 59, 426, 452, 466
75, 77, 79, 146, 233, 238, 306,
313, 378, 436 imperial (constitutional)
motivation crisis  78, 238 mindset  297–8, 385–8, 417
incremental evolution  1–3, 33,
deviance  6, 15–16, 21–2, 33, 68, 35, 41–2, 48–50, 57, 59, 198,
187, 257 287, 293, 295, 302, 305, 314,
dialectic  1–2, 6, 25, 38, 48, 55, 75, 318, 382, 422, 426, 436, 439,
86, 90, 98, 106, 112, 128–9, 445n. 1497, 449, 457
132–5, 138–9, 141–2, 163–4, isolation (of species, groups)  21,
185, 188, 209, 224, 230, 250, 24, 34, 110, 189, 195, 199, 251,
306, 308–9, 316, 328, 336, 256–7, 263, 358, 368, 393
338–9, 349n. 1127, 356–7, 395,
404, 410–12, 424, 434, 436, Kantian (constitutional) mindset  3–4,
450, 463–5, 467 10, 38, 46–50, 67, 118, 132–3,
direction (evol.)  2, 37, 41, 96, 102, 142, 187, 213, 219, 226, 229,
157, 240, 260, 295, 310 236–7, 253, 260, 262–3, 274, 277,
281, 283, 287, 289, 293–5, 304,
emancipation, emancipatory  13, 25, 310, 316, 324, 334–5, 382, 385,
28, 31, 38, 42–3, 46–7, 80, 83, 387, 410, 436–7, 439, 446–50,
113, 132–4, 142, 159, 163, 178, 452, 462, 464–5, 467
182, 204, 220, 223, 249–50,
253, 278, 287–8, 333, 335, 345, legal revolution  2, 4, 7, 9, 28, 34,
358, 363, 367, 374, 378–82, 38–9, 43, 56–7, 71, 81, 83,
388, 398, 419, 422, 424, 429, 86–8, 95, 102, 121, 128, 147,
432–4, 437, 446, 457, 460, 165, 204, 207, 223, 239, 263,
463–4 294, 305, 323, 369, 382, 401,
evolutionary change  2, 12, 16, 33–5, 464, 467
49, 56–7, 75, 88, 196, 467
evolutionary universal  4, 10–11, managerial (constitutional)
37, 43–5, 57, 61–2, 71, 81, mindset  3, 38, 47–50, 57, 92,
186, 202, 260, 263, 274, 118, 133, 142, 146, 187, 232, 237,
334–5, 391 253, 262, 283, 294, 297–8, 302,
exile  175, 357–9, 374 304, 309–10, 316, 324, 336, 382,
existing concept (notion)  3, 36, 410, 436–7, 439, 446, 449–50,
38, 50, 133, 295, 334, 446–7, 464–5
451, 464 moral resentment  15, 17–18, 368
existing contradiction  309, 324,
328, 335, 339, 353, 376, natural selection  14, 24, 33, 43
411–12, 447, 454, 456n. 1538, negation  6, 14, 16–19, 49, 56, 71,
464 80–1, 163, 244–5, 323, 328–9,
331, 335–6, 367, 442, 456n. 1538
gradual change  24, 35, 39, 49, 57, negation of negation  20n. 43, 328,
59, 196, 428, 467 337, 367
Index 471

negativity  6–7, 10–11, 13–25, 28–31, 313, 316, 319, 323, 325, 363,
55–6, 64, 80–1, 158, 161, 163, 464, 467
180, 203–4, 231, 257, 328,
330–3, 335–9, 345–6, 356–7, rapid change  1, 35, 86, 96, 110, 320,
367–8, 370, 372–3, 464–5, 467 323, 358, 467
normative constraints  1–3, 10, 33–4, revolutionary chance  1, 3, 33–5, 39,
36–9, 41, 43–4, 56–7, 60, 86–90, 49, 56–7, 59, 75, 85, 87, 89, 96,
95–6, 102, 139–40, 145, 187, 124, 310, 417, 426, 467
198, 229, 239, 260, 287, 289,
293–5, 298, 305, 318, 334, selection  13, 16, 22, 38, 74,
362–3, 378n. 1229, 382, 391, 330n. 1047, 374
398, 419, 421, 429, 431, 433, social selection  14, 31, 33, 39, 43,
436, 454, 464–7 59, 293, 295, 382, 465, 467
sense of injustice  7, 18, 22, 25–6, 32,
Paradox  1, 54–6, 75, 103, 132–5, 142, 36, 80, 133, 154, 175, 238, 277,
303, 381, 439, 450 301, 303, 368, 467
path (evol.)  2, 27, 34, 41, 57, 68, social integration  21, 35, 86, 88, 94,
86, 132, 135, 156, 198, 216, 144, 198, 229, 244, 287, 294,
287, 293, 297–8, 317, 327, 402, 323, 335, 421, 429, 434, 439–40,
429, 445 465
positivization (of law)  117, 129, 157, speciation  34, 110, 189, 195
165, 186, 283, 321 stabilization  2, 13, 22, 35, 42–4, 64,
power of revenge  277, 279, 368 74, 86, 106, 118–19, 126, 132–3,
power of the negative  6, 10, 18, 149, 162, 201, 203, 229, 249,
126n. 187, 331, 335, 367–8 289, 298, 308, 313, 317, 319,
private property  39–40, 116, 330n. 1047, 351, 365, 395, 421,
120n. 157, 183n. 422, 187, 464–6
194, 202, 218, 273, 291–3, systemic stabilization  14n. 17,
296, 298–9, 317–19, 320, 350, 22–3, 31, 33, 49n. 161, 89–90,
352n. 1140, 366, 430, 455–6 140–1, 197, 287, 293–5, 300–4,
property  23, 113, 115–16, 120, 143, 327, 429, 439n. 1471
176–7, 183–9, 194, 196–200, 209, structural selection  31, 33, 382
211, 218, 249, 253, 255, 258,
273, 276, 279, 288, 296–8, 300, take-off  7, 9–10, 12–15, 17, 21, 56,
302, 305, 308, 317, 320, 322, 323, 335
352, 364, 366, 384, 407, 414
punctuation  7, 24–5, 33–5, 37–9, 42, variation  12–16, 22, 31, 33, 38, 49, 186,
71, 86, 148, 195, 215, 292–3, 248, 295, 302, 330n. 1047, 358
472

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