The abstract categories of politics we have gone through thus far find a first concrete appearance in the institution that ever since has been central – with some exception and much flexibility – in the configurations of political order known in the history of human societies: the state. Obviously, this entity has already popped up in our reconstruction of the workings of politics, but now we will define the meaning of this elusive word, then look at how in European modernity the state emerged in the shape known all over the world; the state’s relationship to society and the nation will be next, while we will end with a look into the changes and challenges that this paramount political institution is presently experiencing.
The state is the institution exerting over a population and a territory a legitimate power that is guaranteed by its monopoly of force.
This is, with a slight variation, the definition Max Weber formulated (Weber 1922, Part 1, Chapter 1, §17) some hundred years ago as the conceptual recapitulation of what the state had turned out to be (or rather to become) in modern history. I shall not enter the taxonomy of states or quasi-states having a population, but lacking a territory, or vice versa (in the case where the potential population is still strewn over other states). As to the monopoly, it regards not only that of military and police force,1 since states do also own an exclusive authority in fundamental financial acts (minting currency, levying taxes) and in representing themselves towards other states (diplomacy). To illustrate all of this, one only needs to go back on the one hand to the rise of the European state, as it will happen below, and on the other hand to the reconstituting of China as a state (the People’s Republic of China, founded on 1 October 1949) implied for the victorious Communist Party not just the defeat of the nationalist Kuomintang army, but also the erasure of the warlords and the local powers that had contributed to the demise of the Republic of China proclaimed in 1912.
In modernity, the state is by default sovereign: without sovereignty there is no or an insufficient statehood. The word translates the Latin (medieval) expressions summa potestas/highest power or imperium/supreme command, thus indicating a level of power that is not inferior to anyone else. Especially in modernity, sovereign statehood is the cornerstone of whatever version of political order may have materialised and the mother of all institutions.
Sovereignty has two faces:
External sovereignty is the pre-condition to the domestic one, which is very much subject to the constraints of the international system and cannot be properly studied outside this link. Sovereignty depends very much on the recognition granted by other states or, since the founding of the United Nations in 1945, by the UN General Assembly. In this sense, sovereignty is an interactive legal feature that wraps the state into a web of shared rules and entanglements, thus contributing to international order by giving legal form to an emerging factual power centre. On the other hand, since sovereignty denotes independence as the ultimate shield for the free existence and wellbeing of a human group, it also means the ability and the right to wage war (see Chapter 6), whatever the wish of other states or international organisations may be.
Let us now go back to the exception and the flexibility mentioned above. Strictly speaking, in the early history of humankind and even more in pre-historic stages, attempts at establishing a rudimentary political order were made in stateless societies, such as tribes and chiefdoms. This is the exception to the universal presence of the state, which belongs however to the domain of cultural anthropology rather than that of political philosophy; while in our days the recurrent claim (in protest movements or in some corner of feminism) to be willing and able to manage common affairs without resorting to the state belongs to the tradition of radical and utopian thought. ‘The political’ and ‘the statal’ are indeed since eighty years (the rise of the welfare state) strongly intertwined more than in the time before, as the state was not yet endowed with the financial, organisational and technological tools that seem to make it omnipresent and omnipotent. Nonetheless, the two notions do overlap neither conceptually nor in fact – think for example of the political role recently played worldwide by non-governmental and other transnational organisations.
Flexibility has to be shown with regard to the use of the word ‘state’. In accurate terms it can be only referred to the modern European state as it was shaped in the seventeenth and eighteenth century, and then spilled over to other continents, first of all the Americas and much later (in the twentieth century) China, and by far not only as a side effect of colonialism: Japan, which was never a colony, adopted at the end of the nineteenth century a private law code that largely reproduced the German Bürgerliches Gesetzbuch. It was Europe, primarily France, that ‘invented’ the modern state in its self-definition and organisation, both unthinkable without the fitting legal system. It was adopted elsewhere because doing so favoured the modernisation process in which more and more extra-European countries were engaging. Nonetheless, we keep using ‘state’ to indicate the period in Chinese history (BCE 453–221) called of the seven Warring States (or Kingdoms), or speak of the Roman state, which in fact anticipated many features of its modern cousin.
Neither the history of the word nor that of the thing itself can be told here in a way respecting its complexity. Suffice it to say that it derives from the Latin expression status rei publicae/the state of public matters or – in the English discourse about politics – of the commonwealth. The career that later made ‘state’ the key word in the lexicon of institutions started in 1513 with the first line in Machiavelli’s Principe (1532): ‘All states, all powers, that have held and hold rule over men have been and are either republics or principalities’.2 This career was shining in countries with a powerful, omnipresent central power such as France and Spain with their empires, the Hapsburg Empire, Prussia and Russia with its huge Государственное,3 while the Anglophone culture is likely to have been the last in reluctantly adopting it – in the mid seventeenth century Hobbes was still speaking of ‘Commonwealth’.
What we are going to become acquainted with in the following is the rise of the modern state, which took place in Europe and subsequently spilled over to other continents and very different peoples.
Nationes/peoples were recognised elements of the political, military and legal structure of the Roman empire and became ever more relevant with the process called in French, Italian and Spanish ‘barbarian invasions’ and in German in a more neutral key ‘Völkerwanderungen/people’s migrations’– understandably, given that the migrating peoples were almost all Germanic. Along with other domestic and external factors, this led to the demise of the empire and the establishment of ‘national’, or rather ethnic, kingdoms in the western-European countries, minus the part of the Iberian peninsula which had been occupied, since AD 711, by the Umayyad Arabs (Al-Andaluz or the Emirate of Granada, as it was later called). The Roman Empire was re-founded in the year AD 800 under the Christian aegis, as the Holy Roman Empire, by the king of Franks Charlemagne, who was crowned by Pope Leo III the new ‘emperor of the Romans’. Through continuous wars of submission, Charles the Great’s empire came to comprise approximately France, Germany and Italy, plus the strips of Catalonyan/Spanish territory that were taken away from Arab rule. Its claim to being universal, as well as its source of legitimacy, relied on the alleged continuation of the Roman past: it was recognised by the pope as the polity of the (western-European) Christians and gave institutional shape to the res publica christiana, as it was later called by emperor Friedrich II (1194–1250). This claim ended substantially with the Treaties of Westphalia (1648) and was formally cancelled as late as in 1806 by Napoleon.
In medieval Europe, the other power with universal claims was the Roman Church, although it was weakened by the separation (1054) from the Eastern Orthodox Church of Constantinople and later the Reformation, which Martin Luther started in 1517. Rome was regarded as the source of the true Christian doctrine and the supreme authority in sacramental issues,4 as well as in the legitimation of temporal authorities, first and foremost with those of the emperor. Charlemagne also transferred territories in the Italian peninsula under direct political rule of the pope, thus creating the temporal power of the Church, which lasted until 1870, when Rome was taken to the pope and became the capital of the newly founded Kingdom of Italy. In spite of bitter strife between popes and emperors, disunion and wars in the empire, as well as corruption of various types and degrees in the Roman Church, on the front of legal (top-down) legitimacy, the claims of the two universal powers lasted until the dawn of modern politics in the sixteenth–seventeenth centuries. This edifice of power and recognition was reinforced, but also ossified, by the hereditary personal dependence of power holders on the next upper level of patrician bondage, up to the king and/or the emperor. This was the feudal system, whose structure is well-known also in very different countries and cultures as in ancient China, and elements of which survive still now in not yet fully modernised societies, in organised crime networks, but also in niches inside the democratic party power – at the local level, where territorial control relying on patronage over a traditional electorate matters. The discovery and exploitation of new territories in other continents along with the emergence of a new class, the commercial and later manufacturing bourgeoisie in the cities, undermined this structure. On the other hand, the growing autonomous power of the European territorial states (which became only in the nineteenth century the nation states we are familiar with) further degraded the emperor’s claim to be entitled to universal authority. Though hardly in a fully explicit way, the Treaties of Westphalia acknowledged the independence of those states and put an end to the wars of religion between Protestant and Catholic powers that had ravaged the continent for some 120 years (1524–1648).
This was the background against which the modern state arose, with differing speed and forms in different countries. This notwithstanding, we allow ourselves a certain degree of generalisation and use for the main stages of this process the following names: state of the estates, absolutist state, constitutional state, administrative state.
Before we begin describing this process, let us hold that its initial and more powerful motor was neither social (new groups, new claims) nor cultural (in the spirit of the Renaissance and later the Enlightenment), but rather interstate power relationships and war. After the introduction of fire arms, particularly artillery, wars between large territorial states required large and costly armies, and more importantly navies, for whose provision and command the feudal system was inadequate; centralisation of the armed forces required a stable and extended taxation largely at the expenses of the emerging ‘productive’ classes as long as nobility and clergy, but also free cities and local communities remained under the shield of their privileges. The management of the tax system was, on the other hand, not possible without extending, rationalising and professionalising administration and bureaucracy, in their turn an additional burden for the state budget. The much contested – for example by Thomas Jefferson – public debt became unavoidable and increased.5 Economics, particularly the science of finance, soon became an important discipline, mainly in Scotland, England and France.
Over the course of these transformations, the central power of the European states asserted itself in the military, judicial6 and fiscal realm, as well as in terms of culture and customs; thanks to the ‘soft power’ of the profligate royal courts in the Baroque period, the representation of royal authority in ceremonies, music, visual arts and literature became essential to power itself and its legitimation. The external representation of the country was also monopolised by the sovereign and entrusted to an increasingly professionalised diplomatic corps. This power first allied itself with the emerging third estate, including the new commercial, industrial and professional bourgeoisie, the peasants and the urban proletariat, of which only the upper layer was able to express representatives. The feudal regime was replaced by the ‘state of the estates’.7 A layer of ‘intermediate bodies’ filtered the effects of the sovereign’s absolute power over individuals, who were as a community represented by the estates in an assembly.8
Later, the new social class and its various parties turned themselves against absolutism, vindicating liberal and equal liberties for the individual, governing according to a constitution, division of powers among the legislative, the executive and the judiciary branches, as well as the protection of property against interventions of the state along with respect for free trade. Legal egalitarianism, liberalism, constitutionalism and capitalism9 became and still remain the pillars of the modern state in the West though they were recast by the unfolding of democracy and social thought. The erection of those pillars, supported by the Enlightenment’s effort to bring Reason to bear in political and social affairs, culminated in the turn away from the divine right of the princes towards the recognition of the people as the only sovereign, even if it was a people marginalising women, ethnic strangers, poor and a fortiori slaves. Popular sovereignty was later recast in the form we are going to see, but except in times of dictatorship or foreign rule those pillars remained as permanent features of the modern state along with its being an administrative, legal, financial and military engine10 whose central authority can be delegated to, but not infringed upon by local (states or provinces or Länder of an union or federation) or corporate (one-issue authorities) agencies. This is not to deny the centrifugal and disintegrating effects on the state’s authority that come from the long-term consequences of globalisation, the replacement of pyramidal with network-like structures and the general weakening of politics.
The recasting of popular sovereignty and the other pillars of the modern state resulted from two intertwined novelties, one theoretical and the other economic and social. The bourgeois nature of classical liberalism, in a word the de facto limitation of liberties to the male citizens whose social status gave them the cultural and financial capability to make use of them was criticised in the time between the nineteenth and twentieth century by socialist, social-Christian and left-liberal authors as well as the women’s movement. The other phenomenon was the capitalist transformation of peasants, farmers, artisans and small shopkeepers into masses of industrial workers concentrated in cities and increasingly organised in clubs, unions, parties – and armies, an essential side effect of the First World War or Great War (1914–1918), which also opened new chances for women’s participation in industrial, cultural and political life. All of this deeply changed the liberal state, bringing, through universal franchise, masses into political life, contesting the traded version of workers’ rights and economic position in capitalism, making politics no longer the occupation of a traditional elite, but rather the profession of leaders capable of managing huge party organisations. Liberalism, as conceived of so far, and democracy seemed to be at odds, a view that later seemed to be confirmed by the fact that authoritarian or even totalitarian regimes with a corporatist ideology were able to introduce in the Thirties social protection policies for workers that liberal states had failed to practise, particularly after the Great Depression began in 1929.11 A new turn came with the New Deal realised by Franklin Delano Roosevelt, president of the USA from 1933 through 1945, which made the state an active economic actor in an effort aimed at reviving the economy by creating jobs and establishing social security (retirement pensions and unemployment insurance).
Elsewhere, primarily in Europe, the Second World War and its aftermath gave a final bent to the history of the modern state: in the UK, Lord Beveridge’s Report presented to His Majesty’s Government in the middle of the war (1942), identified ‘the five giant evils’ of society (Want, Disease, Ignorance, Squalor and Idleness) and suggested social security policies that were later implemented by the new Labour government between 1945 and 1949. West Germany with its notion of a ‘social market economy’ as well as France and Italy went the same path between the Fifties and Seventies, against the resistance of conservative, business-friendly liberalism and the protest of Communist parties and unions, which aimed at scrapping capitalism altogether.
These reforms saved the liberal, constitutional and democratic state from the non-participation or open enmity of the layers of population that saw its promise of liberté, egalité, fraternité disavowed by Beveridge’s ‘giant evils’, more generally by their lacking access to the resources (a decent income and housing, health care and education) that could only make allegiance to the liberal-democratic state justified and meaningful. Let us anticipate that this story – a history of the twentieth century – highlights how politics can never be severed from other realms of human life in communities, in particular not from the socio-economic condition of the governed. This is true, as we shall see, in particular for democracy as a promising procedure, and does not disavow the claim of a relative autonomy of politics, raised at the outset of our journey in Chapter 1.
It is uncertain whether the success story of the democratic state in the West (including Japan after 1945 and with remarkable differences between the several countries and continents) will be continued throughout the course of the twenty-first century, but this will occupy us later on.
What has been briefly told here is the history of the state in Europe and later North America. This is not due primarily to the circumstance that this textbook is written by an European philosopher with no particular competence in the history of the state worldwide. It has rather its grounding in the objective circumstance that the state, in its modern understanding, has been an European invention, while many institutions connected to the state spilled over to other continents where they were either imposed by colonial rule or freely adopted because they were better fit to organise communal life in societies becoming more differentiated and less traditionalistic, especially after the rise of international trade and capitalism. The extra-European spread of the state as the main format of political life was a defining feature of modernisation.
Another reason for this European primacy was that no other civilisation or empire was able to pursue a similar universal projection because either it did not have the cultural and institutional resources to do so, as in the case of the Mongol empire in the thirteenth century, or the Europeans made it impossible by rejecting subjugation by the Arabs in the battles of the eighth century (Tours, central France, 732)12 and the Turks in the sixteenth (Lepanto or Turkish İnebahtı in the Ionian Sea, 1571) and seventeenth (Vienna 1683) century. The most arguable candidate for such a projection, China with its great culture, gave up after Admiral 郑/Zheng He’s seven expeditions (1405–33) in the Indian Ocean all the way to Aden, and definitively retreated into the isolation that made it later an easier prey for European colonialism.
It is this complex history – and not colonial imposition alone – that explains why political and legal forms of organisation born in Europe were adopted worldwide. Besides the conquest of new markets and new territories, not to be underestimated is the role played by an essential and exclusive component of European cultural modernity, curiositas/curiosity, in the push to explorate and experience other countries and populations – symbolised in medieval Europe by Ulysses’s literary figure depicted in Dante’s Inferno, Canto XXVI.13 Without this drive, modernity, with all its evils and (not only technological, but civil) blessings, would not have been born, because it would have lacked the intellectual and symbolic motor of innovation. A mix of evils (enhanced destructiveness of warfare, oppression of liberties, top-down bureaucratic organisation of the masses) and blessings (containment of violence, establishment of the rule of law, public safety, social policy) also characterises the European primacy in the invention of the state and the spreading of its various forms. In any case, this seems to be an irreversible history: the state as it is presently all over the planet cannot be reversed, or attempts to do so end up in genocide, as in Cambodia under the Khmer Rouge (1975–1979); it can only be reformed and developed according to new challenges and theories. In countries with failed states or underdeveloped statehood, which results in a lower ability to organise public life, ordinary citizens live less freely, unless they are criminals, and are more needy, unless they are very wealthy or children of the very wealthy and pay no taxes since the tax system has collapsed or was never set up in the first place.14
This section’s title could just as well be Politics and Society, but I have chosen State because this is the level on which the underlying topic finds its closer definition. By society we understand the totality of the interactions between individuals and groups either in general, as it is largely the case in the following pages, or with regard to a specific place (French society) or time (Chinese society during the Ming dynasty). Politics and the state are seen as a particular area of those relationships, which comes up more clearly in the language of system theory: politics is a sub-system of the overall social system. As I have hinted at in Chapter 1, this is all right as far as it does not translate into the mechanical picture of politics being just the mirror or side effect of what happens in society. Politics, and in particular, the state do vice versa influence society, as we will see later, and none of these poles is as such the independent variable in social and political history. We should also not forget that politics and society (less so for the state, because of its institutional reality) are conceptual constructs that it is unwise to reify as if they were hardware, while they live primarily in their interaction. To make a long story short, political actors, primarily the state, make formal decisions and build institutions with central power, while society, though also possessing features like power and institutions, does not.
State and society is an odd couple, born in recent centuries from the splitting of something that used to be one. The Greeks and the Romans possessed the notion of the state, as attested by Cicero’s definition of it as res publica/commonwealth given in the book he dedicated to it.15 In antiquity, however, the items we call state and society were not different from each other, but one; religion was a dimension of public life and the οἰκονομία/economy was conceptually confined, as in Aristotle’s model, to the law (νόμος) governing the household (οἶκος) as unit of production (in a prevalently agrarian economy). Religion as a sphere separated from politics, coexisting with it but on its own principles,16 emerged first with the spread of Christianity and the discovery of interiority, as in Augustine. We have already seen that the European Middle Ages were based on the bipolarity of worldly and spiritual society and authority, notwithstanding all their entanglements. The rise of a worldwide market economy since the sixteenth century draws the philosophers’ attention to the growing importance of the new economy of trade and production, seen in its growing independence from state power. In the history of economic thought, this is mirrored in the debate between free trade supporters and physiocrats on the one side, and mercantilists on the other. With A Natural History of Civil Society (1767), a book welcomed in all of Europe and authored by the Scottish philosopher Adam Ferguson, a new term17 entered the learned language and found a few decades later an echo in Hegel’s political and law philosophy – though the meaning of bürgerliche Gesellschaft adopted by Hegel was not identical with Ferguson’s, for whom ‘civil’ means ‘civilised’. A new peak in the relevance of ‘civil society’ was hit in the young Marx’s critique of Hegel’s political philosophy,18 written in the 1840s but not published until 1927 and influential in the years thereafter.
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In the present political and theoretical use ‘civil society’ means two things and needs some disambiguation. In connection with its classical Scottish and primarily Hegelian meaning, which I cannot elucidate any further here, it indicates the complex of the private relations between individuals and groups, be they economic, social or cultural in character. An industrialists’ club or a trade union is as much a civil society organisation as a charity or a music association, such as the Viennese Musikverein; a particular material or set of ideal interests are the driving force. Personal relations belong to civil society as little as state institutions; our relationship to the latter are regulated by public law, which checks private wishes against the public interest and acts through commands of the authorities; while those who belong to civil society, its members, are shaped by the private institution of contract, based on consensus, though the framework for contract law is set by the state. This is the meaning I am following in my further considerations on the relationship between civil society and the state.
Another more recent meaning, widely adopted in public debate nowadays, sees civil society as the sphere of those initiatives and groups that intend to uphold the public interest or better pursue the public good in social and political life outside the state. Civic initiatives, neighbourhood committees, advocacy groups, charities, associations centred on sexual orientation or ethnic issues, and NGOs are the best known components of civil society in this version. Their understanding of the social world is opposed to the impersonal logic of state administration and even to ordinary political action, in particular to party politics. Their claim to represent the people’s authentic interest cannot be taken at face value, because their representativeness is not guaranteed by public procedures and their defence of particular, if morally high-ranking, interests can end up in lobbyist or self-perpetuating activities; even less so can the somehow redeeming appeal they and their theoreticians seem to see in the formula ‘only civil society can heal the wrongs made by the state(s)’ be taken seriously, since states cannot be reformed by evoking some morally superior agent. Yet their ability to indicate situations of inefficiency, inflicted suffering and injustice is high and should be better brought to bear in democratic processes.
Now, the relationship between politics and society has been described some sixty years ago by political scientists such as David Easton (1917–2014), Gabriel Almond (1911–2002) and Karl Deutsch (1912–1992) in systemic terms: (civil) society, with its problems and changes, is the environment in which ‘demands’ are given as ‘input’ into the political system, which is expected to provide an ‘output’ of answers that will interact with the environment generating ‘outcomes’, and subsequently new challenges and demands. The notion of a political system was intended to replace the state as the core actor, dismissing the legal framework in which the state used to be confined. The systemic approach is no longer dominating the scene in political science, partly because of its inner problems, partly because general theory and holistic approaches are now hardly in demand in the discipline. Yet it remains the last overarching attempt to describe the relationship of politics and society after the two preceding philosophical episodes: Hegel saw civil society as the sphere of want and self-interest, capable of some self-regulation but unable to lay out real political governance, which was the exclusive performance of the state as higher manifestation of the Spirit (Geist). On the contrary, the young Marx (1843), whose views were still influential in the 1960–70s, saw civil society as divided until modern times by class struggle, whose temporary winner used the repressive and bureaucratic tool of the state to consolidate its power and rule out change. The proletarian revolution was expected to tear down definitively the state and make room for society’s self-rule on the basis of a full satisfaction of human needs.19
The difference between these three models is telling: Hegel and Marx saw society and the state as elements of a philosophy of history, which explains their past and predicts their future with normative accents; system theorists stay far away from history and normativity and only suggest a conceptual and content-free frame of reference for understanding process and change. All three versions of society are no longer able to shape political theory, and the very notion of society does not seem to play any significant role in recent research, except in very specific versions such as ‘knowledge society’, ‘information society’ and ‘world society’, all attempts to find names for the presumptive pivot of the universe in which we live. To elaborate on these definitions is the task of social rather than political philosophy. Yet, taking note of the bottleneck in which the notion of society has ended up should not be mistaken as an endorsement for Margaret Thatcher’s, British PM from 1979 through 1990, ontological rejection of it as a space of solidarity in the name of radical individualism.20 We should rather turn our attention to the circumstance that, at least in welfare states, state policies have penetrated society, increasingly influencing the individuals’ income, status and (retreating) sense of independence. This is likely to be one of the main reasons why state and society are less distinguishable than in the times of good old liberalism. Given the high level of their intertwinement, it is illusory to see society as the dimension of private interactions capable of contesting the state’s intrusion or to represent a higher moral instance against it; at least in democracies, corruption in the public administration is often matched by corruption in society.
Two other terms – community and the public sphere – come up in the context of the relationship politics has with what surrounds it or lies beneath it – spatial metaphors are inevitable in the description of social and political constructs, which we tend to see as works of architecture.
Community is seen as the web of ‘organic’ relationships among persons, of which the family is the paradigm, based as it is on mutual emotional bonds; the will of the community is more important than that of the single members. On the contrary, society refers to the relationships between individuals that are based on the exchange of performances, shaped by contract and aimed at individual utility. This language was established by the German sociologist Ferdinand Tönnies in his book Gemeinschaft und Gesellschaft/Community and Society (1887) and remains alive in sociology; a last echo of this counterposition between two ground types of socialisation came in the 1980–90s with the debate communitarians vs. liberals, which will be further explained in Chapter 9. Its interest for political philosophy derives from its ability to conceptualize the criticism of capitalism and modernisation, including liberalism and democracy, because of the destruction they have been operating on traditional and presumptively more humane personal bonds.21 Needless to say, in this sociological vocabulary the meaning of society is different, almost opposite to the meaning it has in the dyad state-society sketched above; the content of ‘society’ here is to be found in the Tönnesian version of ‘community’.
The other concept, the public sphere,22 denotes the dimension in which the communicative interaction between citizens, with regards to social and political affairs, takes place. It is the place in which both discourses aimed at the formation of political will and the criticism of existing policies and laws are developed in freedom and outside any interference from the state and the economic powers that be. Its classical shape first emerged in the αγωρά/agorà or gathering and marketplace of the Greek city states and the forum in Rome and other Roman cities. A full-fledged public sphere was reborn in the coffee houses, theatres and clubs of the bourgeois civil society, with the press and its freedom as the main channels. Universal suffrage in democracy and mass parties both enlarged and eroded liberal Öffentlichkeit. On the one hand, its existence and vitality remain crucial as a counter-power to state power and its administrative constraints, as well as a source of new ideas and norms in a rapidly changing world; think of the role played by public discourse in putting unprecedented issues such as the environment, climate change and the responsibility to protect on the political agenda. On the other hand, the public sphere – which includes, but is much broader a concept than public opinion – is endangered not only by the more sophisticated and tentacular presence of the state, but also by a media system that is scarcely instrumental to a free exchange of ideas among equal partners, dominated as it is by oligopolistic powers and high-professionalised players. With the exception of the high quality press, this system turns out to be a self-contained ‘fourth power’, as in its literary or cinematographic image, rather than a space for the formation and rejuvenation of the public sphere. It cannot yet be said whether online communication and its blogosphere represent a valid reshaping of the public sphere, nor if its drawbacks (the easier dissemination of hate speech, sectarianism, and weird beliefs) prevail over the enhancement of freedom and ‘voice’.23
We are used to thinking of the state as a nation state or even, as in American politics and journalism, to speak of states in terms of nations.24 This is not only confusing, because actors of international politics and law are states, not nations, while states can be multinational, as the old Soviet Union or the post-national European Union, which is not a traditional state although it is a major player in international politics. It is misleading as well, in as much as it suggests an ontological coincidence of state and nation that is stranger to what happened in history and may happen in the future. The state, especially the modern one, is the main political actor in power games, has legal clothes and more or less defined goals to uphold, but acts primarily on strategic considerations with regards to winning or losing in front of impersonal challenges or recognisable adversaries: these are the coordinates within which citizens are kept together and recognise themselves as united in statehood. The nation is a rather ‘communitarian’ artefact, its internal bonds are of ethnic and/or cultural character, that is referred to philosophy, religion, language, tradition, life-forms; its existence is value-based rather than strategic, emotional and not merely argumentative.25 The Romans spoke of natio, which comes from the same root as nascere (to be born) and does not overlap with the modern notion of nation, while they dubbed Rome itself civitas or patria (commonwealth or homeland). Later in the Middle Ages, things went into flux, and later Jeremy Bentham (1748–1832) first used the term ‘international law’ to denote what was theretofore known as the ‘law of nations’, or ius gentium, regulating the interaction among states (1970); the new word was to stay, though in 1999 John Rawls more traditionally, but with good reasons titled his work on international relations The Law of Peoples. We shall look here at the nation in the framework of the modern state’s evolution, leaving aside questions such as the possible application of this term to biblical Israel or ancient Egypt.
In the context of modernity, the nation can be conceived of in two fairly different ways: either as an organic product of ethnicity that pre-existed, and also may survive the state, or as a political construct built up by political and intellectual ‘elites’, who select and put together elements already existing in the historical evolution and start a struggle for recognition in whose course the nation first becomes what those actors pretend it always was. The first view is called primordialism or essentialism and has been largely marginalised in the studies on nation and nationalism of the last forty years, while the second one, known as modernist, should be rather dubbed evolutionary. It sees the idea of the nation as having come up in the context of the European bourgeoisie’s struggle aimed at enlarging the basis of existing territorial (France, Britain, Spain) or hoped-for (Germany, Italy, Poland, Hungary and others in Eastern Europe) states by transferring the source of sovereignty and legitimacy from the monarch’s divine right to the people: popular sovereignty. The ignition of this processes came for all of Europe and later Latin America from the French Revolution, whose goal was – in the words of Emmanuel-Joseph Sieyès (1748–1836) – ‘fonder la nation contre la noblesse/to found the nation against the nobility’. At the turn of the eighteenth and nineteenth centuries, the idea of nation was very successful because it gave concrete shape to the more abstract political and juridical notion of the people as bearer of sovereign statehood – in the next chapter we shall see how consequential the merging of the demos/people with the ethnos/ethnic group was. That idea gave the new constitutional architecture roots in a community of living people that everybody could feel they belonged to. In this version, which is the antechamber of democracy, the idea of nation must be distinguished from nationalism, as it can be seen in the works and deeds of its most famous representative, Giuseppe Mazzini (1805–1872), who was a Europeanist in addition to being a leading figure of the Italian Risorgimento. Still in this light, the nation did not come up in politics without a measure of planned nation-building: by literary debates and exemplary action, sometimes in form of ‘martyrdom’, before it was established as nation state and recognised in the world, by education (elementary school in the first place) and military conscription afterwards.
Was the successive sliding of the idea of nation into nationalism, the most unfortunate event in modern history, inscribed in the nation’s DNA, or was it the consequence of occasional factors or voluntary choices made by the ruling elites? I do incline towards the second answer, but again we cannot enter a philosophical inquiry in counterfactual history. That slipping move was energetically promoted by Europe’s élites in a time of enhanced international competition and upcoming internal unrest due to the growing workers’ movement, against which nationalism and military or colonial adventures were a welcome safety valve. Beyond the outspoken nationalistic ideologues and parties, the turn to nationalism included nearly all of the mainstream bourgeois (liberal) politicians and left the very workers’ movement not unaffected. Unaware of the new destructiveness of industrial warfare, European ‘nations’ entered like sleepwalkers26 into what later turned out to be the First World War, some of them even seeing in it ‘the war to end all wars’, which instead, left the continent and the world pregnant with the Second World War; in the course of this process, nationalism, the prime motivational force, was enriched with ideological conflict, xenophobia and state-operated racism in the Shoah.27 At the end of this process in 1945, everywhere in Europe the nation states had lost their credibility and were supplanted by two empires, of which the Soviet Union was multinational and driven by a universalist ideology, while American exceptionalism cannot be seen as just another version of nationalism.
Among developing countries, nationalism has been and still is the unlucky road companion in the national liberation era and later in the often failed stabilisation of post-colonial regimes, sometimes accompanied by religious hatred; this has led, once again, to an arms race among developing countries that has gone so far as to not see the nuclear threshold as morally and politically insurmountable. India-Pakistan is the case in point, but nationalism has recently retaken the stage in post-communist states such as Russia, Poland, Hungary, even in states within the European Union, to date the most innovative and successful endeavour to get rid of its poison. Nationalist mobilisation also remains a tool of the art of government in the Russian Federation as well as the People’s Republic of China. While globalisation has, in fact, further decreased the strength of nation states, its backlash on the subjective side of politics, the defensive appeal of nationalism, has been and will still be considerable. To strike a balance between global constraints, traded self-identification in local terms, weak universalist ideals and the temptation of resorting to the consensus-winning, if impotent appeal of nationalism remains difficult. Even more so in times in which liberal democracy, a valid vaccine against nationalist seclusion and hatred, is eroded by another problematic phenomenon: populism, which will be discussed in the next chapter.
It is a generally accepted doctrine that, while the state may or may not have goals to pursue beyond guaranteeing security and the minimal conditions for the citizens to thrive, it always has functions to fulfil, the first of which in the modern state is to make, adjudicate and enforce laws. This is the state on its performing side; in the section on identity, we have already encountered the basic standards of legality as one of the performances that allow for the legitimacy of an institution to become actual legitimation. On the side of the state’s foundations, we have seen that the original, albeit fictitious, covenant is enshrined in a constitution that defines the matter of the covenant (what state and citizens are owing each other) and the limits to state’s authority. In liberal democracies after 1945, the American model of a supreme court ruling over the conformity to the constitution of the norms passed by the legislative or executive power has spread as far as to the Russian Federation. The same holds with regards to the state’s epistemic existence: constitutional law acknowledging the fundamental rights of citizens has occupied the place taken in the old German academia by the state-centric discipline called Staatsrecht/the law of the state. Seen in historical perspective, the princeps legibus solutus est/the prince is not bound by the laws norm, issued by the Roman Senate in AD 69 under Emperor Vespasian, and revived by modern era absolutism has disappeared; even the most heinous dictators of our time try to wrap their deeds in some kind of a legal form.
The law seems, therefore, to be a defining element in modern politics, even more than it was in Cicero’s definition of the commonwealth. It gives it clothes (nearly all power comes in the form of laws), but it is also at the core of its operating and its legitimacy. The ancient dispute whether governance of the law (rex sub lege/the king is under the law) or governance by persons (lex sub rege/the law is under the king) is to be preferred seems to have been solved in favour of the first corner, in spite of all personalization of politics in the media. In most states, law graduates are still the preferred candidates for positions in the public administration, though economists, philosophers and political scientists would often be better at solving problems and fostering innovation.28 New conflicts or impulses emerging from social dynamics are often not recognised as long as they do not find expression and regulation in a legal framework: this is an aspect of the phenomenon called juridification.
In the following, I shall not ask how far statute law (of Napoleonic-Roman or Germanic-Roman subtype) and common law differ as to the relationship between the state and its law. In law systems, as in continental Europe, deriving from the Corpus iuris civilis and issued by the state, that relationship is most evidently closer, and I will now refer mostly to this case. There are qualifications to the notion of law acceptable as expression of the legislative competence of the state within the social compact: it must have a general and abstract nature, as such refer to all citizens without exclusions or different treatments. Laws that under the clothes of generality are, in fact, tailored to a single situation (thus being an administrative measure29 dressed as a law) are in principle not compatible with a constitutional system; even less so for laws, such as in racial legislation, that are conceived as exceptional measures aimed at excluding or disfavouring a single group of citizens. Totalitarian regimes excel in creating legislation of this kind, but the pure general character of the law is not completely preserved in all democracies either.
An analogue qualification must be specified with regard to the rule of law defined by the UN as
a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms.30
This is the thick or substantive definition of the term, which also includes equality before the law, a principle already known to the Greeks as ἰσονομία/isonomy. In this version, rule of law means rule of the just law, including the protection of human rights. This makes it very different from its ‘continental’ pseudo-equivalents: Rechtsstaat in German, état de droit in French, stato di diritto in Italian, estado de derecho in Castilian. These terms used to indicate the conformity of the actions performed by the state to the existing legislation, whatever its origin or moral justification: a paramount example of legal positivism. Interpretations of both the rule of law and the Rechtsstaat have obviously varied over time: they have often constituted an anti-authoritarian barrier, and so they do in our time, but they have also been employed against new social legislation allegedly infringing upon civil liberties.31
There is a hidden truth in all of this: laws must be necessarily a general and abstract way of regulating social behaviour, otherwise they would lose their universal character. The law remains open to be twisted in one or the other direction, and can never be, by its own force, an insurmountable tool for preventing politically and morally infelicitous developments. Legal systems have a logic of their own, and are not mere side effects of social processes; but to believe that they can rule or change the world by themselves, without interaction with political decisions, cultural and ethical orientations and without reckoning with the economic structure, would be a case of what was once called ‘Rechtskretinismus/legal idiocy’. In a word, the rule of law as an indicator of legitimate statehood or effective democracy cannot be seen apart from these surrounding conditions.
A last complex of questions regarding the state and the law can only be briefly mentioned here. It must be held that the law governing the life of a state, that is the constitution and ordinary law, was not itself born legally, but rather out of political acts (war of unification, national liberation war, revolution) that subverted the existing order through violence.32 Yet the origin is not the whole truth, unlike what philosophers in love with ‘myths of origin’ used to think: once established by a founding act, the legal order of the state perpetuates itself by its own force and the citizens’ support, and remains in its legality unprejudiced by its violent origin (the shoot-outs at Lexington, Massachusetts, in 1775 and the Bastille in Paris in 1789, where the American and the French Revolutions started; the battles fought by national liberation movements before a successful post-colonial state-building). The same holds with respect to another major topic in state theory: even if the path-breaking revolution or liberation war was conducted by a narrow minority, the constituent power33 in the state does not lie with it, but with the generality of citizens as gathered in the electorate or represented in a constituent assembly or parliament once they have invested themselves in that power by election or referendum. In the same line of thought, the excitement shown again in the new century by anti-democratic thinkers of the right and the left for Carl Schmitt’s (1922) statement (in the first line) ‘sovereign is he who decides on the state of exception’ sounds necrophile, because its root – Schmitt’s enthusiasm for Art. 48 of the Weimar Constitution, which in the event of an emergency conferred quasi-dictatorial powers to the president of the German Reich – vanished with the Third Reich in 1945.34 Necrophile also because in our era and among democratic polities the problem has ceased to exist: all their constitutions provide for the state of emergency by non-dictatorial provisions, which do not deprive the liberal-democratic sovereign, the people, of its inalienable centrality – to pick up a notion astutely introduced by Schmitt, the problem has been ‘neutralised’.35 Also, at least in Western countries, political change has come about since 1945 by elections or mass movements reflected in elections, as in France 1958, and no longer by coups or revolutions – except in Greece’s military coup of 1967. Positions holding that the (capitalist) state was not just born out of violence, but also lives on hidden or open violence, and must be therefore delegitimised and violently overthrown, fail to see that a democratic regime, though obviously still containing elements of socio-economic oppression and constraints, has realised the political order requiring the least amount of institutional violence seen thus far in the polity – an order that can be modified and has been often modified on a non-violent way. An intuitive worldwide comparison with other regimes of the present or the recent past (the ‘real socialism’ of Soviet brand) does not need to be detailed here.
Does the state have values to represent or to pursue?
We have seen that according to contract theory, it has one existential goal, to provide domestic and external security for its citizens; this may include making a minimum wellbeing possible, the lack of which would generate insecurity. Yet this goal is the state’s raison d’être, not a particular goal, such as the uttermost realisation of individual freedom in classical liberalism, a classless society in Marxian socialism, or a racially pure society in German National Socialism. The upholding of these substantive, not merely procedural goals has, however, retreated in recent decades, and so have the ‘comprehensive doctrines’ (Rawls 1993) advancing them; where the latter still make resounding proclamations, the people are likely to pay, at best, lip service to them with the exception of those fascinated by fanaticism or resurrecting nationalism. In the present widespread, though non-universal conditions of recession, sluggish growth and high unemployment, the people rather pursue the goal to survive, if belonging to the poor or the lower middle class, or to get speedily much richer than they already are, if they are higher situated. Rapid gains in income and status are not an uncommon goal among the youth, and a self-centred strategy of personal success is often what the fall of lofty ideologies has left behind. This process is sometimes called ‘loss of values’ and happens in liberal capitalist countries as well as in China and India. It leads us to issues of normative political philosophy, in particular solidarity as one of the tenets that underpin the people’s coexistence in the polity, and opens up the question: can polities live without a degree of shared values among citizens? What we have learned about identity suggests negative answers, but it depends on what type of values.
The great providers of (freely shared or imposed) values used to be and still are religions and churches. We are now looking at their relationship not to politics in general, which is too large a chapter, but to the state. This was built in Europe as an inclusive and (legally) egalitarian community by rescinding its ties to a church or more in general to religion, which happened in the aftermath of the embittered wars of religion of the sixteenth and seventeenth centuries and later under the mighty intellectual influence of the Enlightenment movement, a transnational Europe-wide phenomenon (less so in South-Eastern Europe, then still part of the Ottoman empire and/or dominated by the Orthodox Church). The peak of this process was reached in France with the law of 9 December 1905, concerning the separation of the churches and the state and affirming both the freedom of professing openly any religion and the individual freedom of conscience; the country remained bound to observe its ‘republican values’ only – liberté, egalité, fraternité/freedom, equality, brotherhood. In the French version, or in a less radical one, the laicité or secular and neutral character of the state is regarded both as respecting the equality of all citizens and keeping the state away from the danger of ideological strife and oppression. The neutrality of the state and freedom of religion has been respected in liberal-democratic countries all over the world, not only towards various Christian denominations and Judaism, but also Islam and Buddhism, as immigrants can testify. This has not been reciprocated in some Islamic countries, such as Saudi Arabia, while religious communities are closely watched or hindered by the state in the People’s Republic of China.
What the modern state cannot accept without giving up itself, that is its claim to include and protect all citizens, is to recognise an exclusive religious doctrine as state religion (confessional state) or to unify politics and religion by putting the state under the mastership of the clergy (theocracy). Vatican City and the Islamic Republic of Iran are the only existing theocracies, but the former, which has roots dating back to the year AD 752 and is extended over only 108 acres, is since 1870 no more than the material support to a spiritual power (the Holy See), while the latter, created in 1979, is a major regional player with a population of 80 million and a low human rights record.36 This is to say that, given the present state of religions and religious organisations around the world, the constitutional and liberal state has fairly different levels of difficulty in coexisting with them. Nowhere can the state omit to fight with military and cultural tools against fanaticism such as Islamist jihadism, in which however the alleged religious justification for killing others and oneself in the name of God covers less spiritual motivations as well: homicidal instinct, neurotic quest for domination over enslaved women and children, revanchism. Even if we acknowledge that this extreme phenomenon is scarcely representative of mainstream Islam, the latter (both in the Sunni and Shia version) makes it difficult – at least in principle, since in single countries pragmatic solutions are being practised – to accommodate basic requirements of modern statehood: no or insufficient separation of religion and politics, uncertain acceptance of pluralism including conversion from one faith to another, no clear endorsement of modernity not only in technological and economic sense, but as a civic culture as well – of which effective gender equality is a tenet. An additional reason for Western scholars to be allowed to point at these elements is that the West is well experienced in the work of freeing itself from its own pathologies of fanaticism and bigotry: from Catholic and Protestant intolerance in early modern times, with ‘heretics’ and ‘witches’ burned all over the Old Continent and New England to murderous totalitarian ideologies in the previous century. On the other hand, there are enough Islamic or Buddhist communities in Western countries whose religious faith is practised in harmony with the Constitution and the laws.
To add a last consideration, state and values is not a topic limited to religion. With the secularisation of morality (divorce in Catholic countries, abortion, same-sex marriage, euthanasia) on the one hand, and the new moral scope of intrusive technologies (in vitro fertilisation, surrogate motherhood), the state is bound to legislate on ultimate matters on which neither consensus nor chance of mediation exists. It’s worldviews against each other, a situation in which everybody could say, as Martin Luther is credited to have said before Emperor Charles V at the Diet held in Worms (1521) as he rejected the request to dismiss his theological opinions: ‘Here I stand, I can do no other.’ Now, individuals and parties act on an ethics of conviction, while states, if they are not theocracies or dictatorships, are expected to rule based on an ethics of responsibility – to use Weberian notions that will be clarified later in Chapter 10. This means that they have to find temporary arrangements that give full satisfaction to nobody, but also displease only extremists, well knowing that stable compromises (to be written into law) on deep-held beliefs are often impossible. It can be wise to procrastinate the legislative decision, provided this can favour a solution, or let for a while the courts rule in the single cases, whereas a vote by the parliament or the people (referendum), may disrupt the core political identity shared by the citizens. The deep beliefs of a people can change over time, and we have seen that abortion or same-sex marriage, though still divisive issues, are no longer perceived with the same degree of rejection as they were only a few decades ago.
This applies also to an ultimate issue that stands out as a permanent political question, at least since the European Enlightenment: does the state have the right to take the life of human beings, even if they have committed heinous crimes? Many states have de iure or de facto abolished the death penalty, first of all the Grand Duchy of Tuscany in 1776, and more recently all states belonging to the European Union, but also the Russian Federation, Cuba and South Africa (140 states in all, plus 19 states in the American Union). On abolishing capital punishment in Connecticut, the Supreme Court of the state ruled in 2015 that it ‘no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose’. This is a utilitarian justification for the abolition; others prefer a principled one, in the sense that the state never has the right to take lives (self-defence being a different chapter).
Whatever the justification, abolition is now largely seen as a marker of civility and humanity, but this is not the place for examining the death penalty from the point of view of moral and legal philosophy. For political science it is interesting that the four countries that executed more people between 2007–2013 – China, Iran, Saudi Arabia, and the USA – belong to regimes and uphold values that could not be more different: a sign that the inclination to inflict death on presumably culpable humans has deeper – anthropological and ideological – roots than the political constitution of the state.
***
It is not possible to draw here conclusions about – I cannot avoid the pun – the present state of the state, because we have not yet acquired any knowledge about three other fundamental perspectives from which alone it makes sense today to look at the state:
The following chapters, particularly Chapter 5 and 7, will give some answer to the questions that must now remain open.
1As a matter-of-fact, a curious and bloodletting hole in this essential monopoly exists in the most powerful democratic state, the USA, with its poorly regulated constitutional right for any citizen ‘to bear arms’ (the Second Amendment to the Constitution, which however originally tied this right to the training of a meanwhile vanished ‘well-regulated militia’), now has come to mean in fact, the dissemination of violence in a measure hardly compatible with the protecting mission of the state.
2Res publica has never lost its ambivalence of meaning both a commonwealth or a republic.
3Gosudarstvennoye/state is the source of the G in KGB (Komitet gosudarstvennoy bezopasnosti/Committee for State Security), the post-Stalin name of the Soviet Intelligence Service from 1954 through 1991, whose possibly eternal fame is entrusted to the early James Bond movies.
4Henry VIII broke with Rome and gave birth to the Church of England (1532–37) because (this was at least the prima facie causation) the pope rejected his request to regard his marriage to Catherine of Aragon as nil.
5To give an example, England’s public debt went up from £22mil in 1697 to £238mil in 1783, after the Seven Years War and the wars on the American continent.
6The special jurisdictions for clergy and nobility were step by step dismantled; everybody became subject to the same law and the same judges.
7Ständestaat, as the Germans, who invented this notion, say. It found a post mortem glorification in Hegel’s Grundlinien der Philosophie des Rechts/Basic Elements of the Philosophy of Law (1821).
8In England and later (after the Act of Union with Scotland of 1707) the UK, there were, and still are, two representative assemblies, one for the upper estates (the House of Lords) and one for the Commons.
9These ‘-isms’ will be more thoroughly examined elsewhere in this book.
10By this word, I am hinting at the German Staatsmaschine or the Italian Stato macchina, which aptly convey the sense of the robot-like working of the huge impersonal apparatus of state bureaucracy.
11So also in Italy’s Fascist dictatorship from 1922 on, then in Germany’s Third Reich (1933).
12Also known in Europe as battle of Poitiers and in Arabic according to Wikipedia as Battle of the Palace of the Martyrs (Arabic: معركة بلاط الشهداء, transliterated as ma’arakat Balâṭ ash-Shuhadâ).
13Dante’s Ulysses travels on the high seas to his death driven by the invocation, addressed to his shipmates: ‘Ye were not form’d to live the life of brutes, / But virtue to pursue and knowledge high’ (Inferno, XXVI). Joyce’s Ulysses’s travel through Dublin is fairly less high-spirited and more inward-looking.
14Post-colonial and subaltern studies, as they define themselves, can illuminate the reverse side of this story by revealing the costs paid throughout its course by the people of the colonies also with regards to the categories (gender, race, ethnicity, sexual orientation, beliefs, including their intersections) that help us describe their condition.
15‘A commonwealth is a constitution of the entire people. The people, however, is not every association of men, however congregated, but the association of the entire number, bound together by the compact of justice, and the communication of utility.’ (Cicero BCE 54, I, 25, 39). In Latin, the outset of this statement sounds much more plain and clear: ‘Est igitur … res publica res populi …’ (in my own translation: the public issue or commonwealth is therefore the people’s affairs).
16‘Give to Caesar what belongs to Caesar, and give to God what belongs to God’, Matthew 22:21 at http://biblehub.com/matthew/22–21.htm.
17In the Middle Ages, societas civilis was the Latin translation of Aristotle’s πολιτική κοινονία, which we now understand as political community.
18Marx 1843. Things are made more elusive by the German language that used to merge two meanings, bourgeois and civil, in the same adjective bürgerlich.
19Cf. Marx 1875.
20In an interview released on 23 September 1987, she argued ‘Who is society? There is no such thing! There are individual men and women and there are families’ (cf. https://en.wikiquote.org/wiki/Margaret_Thatcher).
21The emphatic use of ‘the community’ is more present in the USA than in Europe, where society is not as fragmented and the communitarians vs. liberals dispute hardly made any waves outside academic circles.
22For the past half century, this concept has been often cited in its German original, Öffentlichkeit, made well-known in 1962 by Jürgen Habermas’s first book (1962).
23In the vocabulary – exit, voice, loyalty – of the great German American sociologist Albert O. Hirschman (1970), when members of an economic or political organisation or community are dissatisfied with the quality of its performances, they can either confirm their loyalty or voice their criticism or exit the group.
24A scholarly instance of this use or misuse is the title of a classic work in the theory of international relations: Politics Among Nations, by Hans Morgenthau (1948).
25Value-based in the sense of Weber’s distinction between wertrational (value-rational) and zweckrational (ends-rational), which helps understand that the idea of nation can be upheld by rational discourse, as large strains of French, German and Italian literature bear witness, beyond being emotionally cherished – a view irrationalist thinkers are unable to accept.
26Cf. Clark 2014.
27I prefer to use this Hebrew word (the destruction) instead of the more current term Holocaust, a term made popular by the eponymous American TV series of the late 1970s.
28It depends, admittedly, on the quality and the openness to other disciplines of the law school that a new civil servant comes from.
29Massnahmegesetz/measure-law is the specific German name, and the trend towards this direction is common to many legislatures around the world.
30See The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General (2004), available at www.un.org/en/ga/search/view_doc.asp?symbol=S/2004/616, 4.
31This was the case in the 1930s, as the US Supreme Court with a conservative majority tried to block many of Roosevelt’s New Deal policies.
32The only attempted exception, the founding in Europe of a new polity on a legal path (Treaties of the European Union), will be addressed at the end of Chapter 6.
33Better known among scholars under its French name pouvoir constituant.
34And so did by suicide the Führer of that Reich, Adolf Hitler, whom Schmitt had ten years before lauded (‘the Führer protects the law’) after in 1934 he let the leaders of an unruly faction of the Nazi party be murdered without any legal justification.
35The notion of neutralisation is explained in Schmitt’s article Das Zeitalter der Neutralisierungen und Entpolitisierungen/The age of neutralisations and depoliticizations, published as an Appendix to Der Begriff des Politischen, Berlin: Duncker & Humblot, 1963, 79–95 – no English edition seems to exist.
36Cf. Chapter 2, note 1.
Alighieri, Dante (written between 1304–1321) La divina commedia/The Divine Comedy of Dante Alighieri, e-book available at http://oll.libertyfund.org/titles/alighieri-the-divine-comedy-vol-1-inferno-english-trans
Bentham, Jeremy (1789) An Introduction to the Principles of Morals and Legislation, Oxford: Oxford University Press, 1970.
Cicero (54 BCE) De Re Publica, available at http://oll.libertyfund.org/titles/546#toc_list.
Clark, Christopher (2014) The Sleepwalkers: How Europe Went to War in 1914, New York: HarperCollins.
The English Standard Version Bible, available at: http://biblehub.com
Habermas, Jürgen (1962) Strukturwandel der Öffentlichkeit/The Structural Transformation of the Public Sphere, Cambridge: The MIT Press, 1989.
Hirschman, Albert O. (1970) Exit, Voice, and Loyalty, Cambridge: Harvard University Press.
Machiavelli, Niccolò (1532) Il Principe/The Prince, New York: Cambridge University Press, 1988.
Marx, Karl (1843) Zur Kritik der Hegelschen Rechtsphilosophie/Critique of Hegel’s Philosophy of Right, available at www.marxists.org/archive/marx/works/download/Marx_Critique_of_Hegels_Philosophy_of_Right.pdf
Marx, Karl (1875) Kritik des Gothaer Programms/Critique of the Gotha Program, available at www.marxists.org/archive/marx/works/1875/gotha/index.htm
Morgenthau, Hans (1948) Politics among Nations: The Struggle for Power and Peace, New York: McGraw-Hill, 1985.
Rawls, John (1993) Political Liberalism, New York: Columbia University Press.
Rawls, John (1999a) A Theory of Justice, revised edition, Cambridge: Harvard University Press.
Rawls, John (1999b) The Law of Peoples, Cambridge: Harvard University Press.
Schmitt, Carl (1922) Politische Theologie/Political Theology, Chicago: University of Chicago Press, 2005.
Tönnies, Ferdinand (1887) Gemeinschaft und Gesellschaft/Community and Civil Society, New York: Cambridge University Press, 2001.
Weber, Max (1922) Economy and Society, available at https://archive.org/stream/MaxWeberEconomyAndSociety/MaxWeberEconomyAndSociety_djvu.txt
For the whole chapter, Bobbio’s article State, Power and Government (44–132) from Bobbio 1989 (cf. Preface) is an invaluable reading. Also important are for the relationship to law the chapter The Great Dichotomy: Public/Private (1–21) and for the role of society the chapter on Civil Society (22–43).
For the transformation of the state in the perspective of historical sociology see:
Poggi, Gianfranco (1991) The State, Stanford: Stanford University Press.