Professional Documents
Culture Documents
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
HAUKE BRUNKHORST
www.bloomsbury.com
“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
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
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
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).
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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:
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.
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
(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
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
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
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
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.
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
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).
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
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
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
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
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
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
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
L A
L A
See Gaus, ‘Rationale Rekonstruktion als Methode politischer Theorie zwischen Gesellschaftskritik
14
idea of freedom (6) and one, or a few, legal documents that have a founding
character (7). The stabilization of the new formation of normative constraints
(AAdaptation) is due to the gradual evolution of political organization, which
consists in the co-evolution of cosmopolitan and national statehood (8) and
the constitutionalization of functional differentiation (9).
The final part of each section gives a brief conclusion on the dialectic of
enlightenment, which I discuss throughout all other chapters, because there
simply is no realm that is beyond the dialectic of enlightenment (10). The latter,
however, has no analogy in Parsons AGIL-schema because this schema is still
shaped by the undaunted liberal optimism and the strong belief in progress of
the American 1940s and 1950s.
I Papal Revolution
Without the fear of purgatory and the hope of the Last Judgment,
the Western legal tradition could not have come into being. Western legal
science is a secular theology.
Harold Berman15
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
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
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:
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
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
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
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
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
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
(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
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
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:
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
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
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
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
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?idAugCity.xml&imagesimages/modeng&data/texts/
english/modeng/parsed&tagpublic&partall (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
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/
abstract1015403, pp. 26, and 29 et seq; Brundage, Medieval Canon Law, p. 165 et seq; Fried, Zu
Gast im Mittelalter. Munich: Beck, 2007, p. 167; see, also, Gabriel Le Bras, ‘Canon Law’, in C. G.
Crump and E. F. Jacob (eds), The Legacy of the Middle Ages. Oxford: Clarendon Press, 1926,
pp. 321–63, at 346.
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
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
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
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
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
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
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
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
(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
(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).
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
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
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
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
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
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
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
Marx still used it in his 18th Brumaire to denounce the pre-Bonapartist mix of presidential and
256
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
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
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
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
(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,
(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
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
(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
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
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
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
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
Hale makes the same argument when it comes to the validity of legal
principles. Their validity depends on
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
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
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
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:
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
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
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:
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
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
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
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
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
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
(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
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
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
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
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
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/?optioncom_staticxt&staticfileshow.php%3Ftitle2
183&chapter201124&layouthtml&Itemid27).
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
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
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
L A
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
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
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
(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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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:
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
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
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
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
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
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
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:
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
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
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.
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?article1028&contextlibraryscien
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 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
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
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
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
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
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 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
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
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
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?documentprint944 (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
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
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
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?id2066); see Wood, The Creation of
the American Republic, p. 267; Möllers, ‘Pouvoir Constituant – Constitution – Constitutionalization’,
in Erik O. Eriksen, Jon E. Fossum and Augustin J. Menendez (eds), Developing a Constitution for
Europe. London: Routledge, 2004, p. 186.
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
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
823
Armitage, Declaration of Independence, p. 187.
824
Ibid., pp. 193–8.
825
Ibid.
826
Ibid.
278 CRITICAL THEORY OF LEGAL REVOLUTIONS
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.”
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
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
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
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
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 ‘nationstate-commonwealth’. With the concept of a law of nations,
he refers to Blackstone. See Janis, Jeremy Bentham and the Fashioning of ‘International Law’,
p. 406.
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
L A
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:
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
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
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
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
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
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/?view2914 (13 May 2012), pp. 1–14, p. 3.
925
Thornhill, A Sociology of Constitutions, p. 271.
Legal revolutions 299
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.
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
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
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
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
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
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
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
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.
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
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
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:
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:
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
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
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
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
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
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
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
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
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
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
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
(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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
(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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
(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
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
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
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
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
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
(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
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
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
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
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
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
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
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
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
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
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
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
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
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
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